Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement
Matter of Glick v Commissioner of Labor, 2010 NY Slip Op 07103, decided on October 7, 2010, Appellate Division, Third Department
Joseph Glick was terminated from his position with the Office of Children and Family Services on October 27, 2005. He applied for and received unemployment insurance benefits in the amount of $10,165.50, covering the period from November 2005 through May 2006.
Subsequently Glick sued Children and Family Services alleging wrongful discharge. Ultimately the matter was settled and Glick received $92,317.15 in back pay covering the period between his termination in October 2005 and May 1, 2008.
The Department of Labor then notified Glick that, in light of the settlement, he was no longer entitled to the unemployment insurance benefits he received because he was not totally unemployed "at that time." When Labor Department charged Glick with a recoverable overpayment of unemployment benefits in the amount of $10,165.50, he sued.
The Appellate Division affirmed Labor’s determination, holding that a lump-sum payment of back pay constitutes wages for the purpose of determining benefits and, therefore, the Board's determination that Glick was not totally unemployed and the overpayment was recoverable is supported by substantial evidence.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07103.htm
NYPPL
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
Oct 14, 2010
Collateral estoppel
Collateral estoppel
Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542
The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.
The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.
Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”
The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.
Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.
According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.
The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.
The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
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Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542
The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.
The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.
Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”
The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.
Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.
According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.
The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.
The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
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Union takes disciplinary action against union member
Union takes disciplinary action against union member
Perez v Local 39, IUOE, USDC EDNY
Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.
The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.
The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.
Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.
A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”
The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.
Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].
The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
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Perez v Local 39, IUOE, USDC EDNY
Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.
The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.
The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.
Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.
A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”
The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.
Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].
The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
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Appeal of an administrative disciplinary action must be presented to the proper forum
Appeal of an administrative disciplinary action must be presented to the proper forum
Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411
School districts can pursue disciplinary charges against school employees in three different ways: (1) under Section 75 of the Civil Service Law (for employees in the classified service); (2) under Section 3020-a of Education Law (for teachers and others in the unclassified service); or, in some cases, (3) under an arbitration provision set out in of collective bargaining agreement. Appeal procedures, depend on the nature of the disciplinary action involved.
Typically disciplinary action taken pursuant to Section 75 may be appealed to either the courts as provided by Article 78 of the Civil Practice Law and Rules [CPLR] or the responsible civil service commission.
Disciplinary action taken pursuant to a “disciplinary arbitration procedure” (such as the one provided by Section 3020-a or by an arbitration provision of a collective bargaining agreement) is subject to review pursuant to Article 75 of the CPLR.*
The Westhampton Beach UFSD case involved the appeal of a disciplinary determination by hearing officer who heard charges filed under Education Law Section 3020-a. Westhampton Beach challenged the hearing officer’s Section 3020-a determination by bringing an Article 78 action rather than pursuant to CPLR Article 75. In other words, the district tried to appeal a Section 3020-a disciplinary procedure under the appeals procedure ordinarily available in appealing Section 75 disciplinary decisions.
The case involved a teacher named Ziparo who was found guilty by a Section 3020-a hearing officer of inflicting corporal punishment on several students by striking them with a belt. [On one occasion, the teacher allegedly “pushed a student and issued vulgarities.”]
In light of the teacher’s “otherwise 23 year unblemished teaching record” with the district, the hearing officer recommended that the teacher “be suspended without pay for one year, from February 1, 1999 until January 31, 2000, subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.”
In an effort to have the teacher terminated from his employment, the district filed a petition pursuant to Article 78. It contended that the hearing officer’s recommendation was irrational and violative of public policy. It argued that the hearing officer’s decision was subject to review under Article 78 because the award was arbitrary, capricious and an abuse of discretion.
The Court dismissed the appeal, saying that any judicial review of a Section 3020-a determination is controlled by CPLR Article 75 rather than CPLR Article 78. It cited Section 3020-a(5) of the Education Law, which provides that “...the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to Section 7511 of the Civil Practice Law and Rules.”
Accordingly, the standard of review to be applied was the standard set out in Section 7511 of the CPLR and not the standard used in resolving an Article 78 action.
CPLR 7511(b)(1) allows a court to vacate or modify an award if it finds [a] Corruption, fraud or misconduct in procuring the award; or [b] Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or [c] An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or [d] Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a “strong public policy.”
Supreme Court Judge Floyd said that applying the criteria set out in Section 7511, there was nothing in the record before the court that justified the modification or vacating of the hearing officer’s recommendation to impose a one-year suspension without pay rather than termination as the penalty. The Appellate Division agreed.
The decision noted that Section 3020-a permits a hearing officer to impose a variety of penalties including a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. Further, in lieu of imposing any of these penalties, “the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment.”
Confirming the arbitration award, the court said that the hearing officer was well within his authority to direct Ziparo’s suspension for one year and that his return to his teaching duties was to be conditioned upon his being certified as fit for duty by a psychiatrist.
Given the charges and Ziparo’s otherwise unblemished record, the court decided that a one year suspension without pay was “a significant financial penalty, reflecting the seriousness of the charges preferred and proven by the district and cannot be construed as irrational.”
The decision also states that the hearing officer was within his authority to condition Ziparo’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. The court indicated that “such [a] condition is remedial in nature, does not violate Section 913 of the Education Law and insures that the District’s, the hearing officer’s, and the teacher’s concerns regarding his fitness to continue [in] his profession are judged by an impartial objective evaluation.” [Section 913 provides for the medical examination of teachers and other school district or BOCES employees “by a physician of his choice” or a physician selected by the district.]
* Before Section 3020-a was modified by the state Legislature in 1994, individuals would appeal a 3020-a disciplinary decisions to the Commissioner of Education. For this reason, one occasionally finds references to disciplinary appeal decisions by the Commissioner.
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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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Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411
School districts can pursue disciplinary charges against school employees in three different ways: (1) under Section 75 of the Civil Service Law (for employees in the classified service); (2) under Section 3020-a of Education Law (for teachers and others in the unclassified service); or, in some cases, (3) under an arbitration provision set out in of collective bargaining agreement. Appeal procedures, depend on the nature of the disciplinary action involved.
Typically disciplinary action taken pursuant to Section 75 may be appealed to either the courts as provided by Article 78 of the Civil Practice Law and Rules [CPLR] or the responsible civil service commission.
Disciplinary action taken pursuant to a “disciplinary arbitration procedure” (such as the one provided by Section 3020-a or by an arbitration provision of a collective bargaining agreement) is subject to review pursuant to Article 75 of the CPLR.*
The Westhampton Beach UFSD case involved the appeal of a disciplinary determination by hearing officer who heard charges filed under Education Law Section 3020-a. Westhampton Beach challenged the hearing officer’s Section 3020-a determination by bringing an Article 78 action rather than pursuant to CPLR Article 75. In other words, the district tried to appeal a Section 3020-a disciplinary procedure under the appeals procedure ordinarily available in appealing Section 75 disciplinary decisions.
The case involved a teacher named Ziparo who was found guilty by a Section 3020-a hearing officer of inflicting corporal punishment on several students by striking them with a belt. [On one occasion, the teacher allegedly “pushed a student and issued vulgarities.”]
In light of the teacher’s “otherwise 23 year unblemished teaching record” with the district, the hearing officer recommended that the teacher “be suspended without pay for one year, from February 1, 1999 until January 31, 2000, subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.”
In an effort to have the teacher terminated from his employment, the district filed a petition pursuant to Article 78. It contended that the hearing officer’s recommendation was irrational and violative of public policy. It argued that the hearing officer’s decision was subject to review under Article 78 because the award was arbitrary, capricious and an abuse of discretion.
The Court dismissed the appeal, saying that any judicial review of a Section 3020-a determination is controlled by CPLR Article 75 rather than CPLR Article 78. It cited Section 3020-a(5) of the Education Law, which provides that “...the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to Section 7511 of the Civil Practice Law and Rules.”
Accordingly, the standard of review to be applied was the standard set out in Section 7511 of the CPLR and not the standard used in resolving an Article 78 action.
CPLR 7511(b)(1) allows a court to vacate or modify an award if it finds [a] Corruption, fraud or misconduct in procuring the award; or [b] Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or [c] An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or [d] Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a “strong public policy.”
Supreme Court Judge Floyd said that applying the criteria set out in Section 7511, there was nothing in the record before the court that justified the modification or vacating of the hearing officer’s recommendation to impose a one-year suspension without pay rather than termination as the penalty. The Appellate Division agreed.
The decision noted that Section 3020-a permits a hearing officer to impose a variety of penalties including a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. Further, in lieu of imposing any of these penalties, “the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment.”
Confirming the arbitration award, the court said that the hearing officer was well within his authority to direct Ziparo’s suspension for one year and that his return to his teaching duties was to be conditioned upon his being certified as fit for duty by a psychiatrist.
Given the charges and Ziparo’s otherwise unblemished record, the court decided that a one year suspension without pay was “a significant financial penalty, reflecting the seriousness of the charges preferred and proven by the district and cannot be construed as irrational.”
The decision also states that the hearing officer was within his authority to condition Ziparo’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. The court indicated that “such [a] condition is remedial in nature, does not violate Section 913 of the Education Law and insures that the District’s, the hearing officer’s, and the teacher’s concerns regarding his fitness to continue [in] his profession are judged by an impartial objective evaluation.” [Section 913 provides for the medical examination of teachers and other school district or BOCES employees “by a physician of his choice” or a physician selected by the district.]
* Before Section 3020-a was modified by the state Legislature in 1994, individuals would appeal a 3020-a disciplinary decisions to the Commissioner of Education. For this reason, one occasionally finds references to disciplinary appeal decisions by the Commissioner.
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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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Retirement benefits and divorce
Retirement benefits and divorce
Rogovin v Rogovin, NYS Supreme Court (Justice Flug), [Not selected for publication in the Official Reports]
One of the elements in a divorce settlement is the right of a former spouse to a share of the retirement benefits paid to his or her former spouse. As Judge Flug noted, the leading case in New York regarding pension rights in a divorce situation is Olivo v. Olivo, 82 NY2d 202.
In Olivo the Court of Appeals held that “a pension right jointly owned as marital property is subject to modification by future actions of the employee” and that the former spouse of an employee who earned a promotion after the divorce, which was not in ‘the “pipeline” at the time of the divorce “... is not entitled to keep the ‘excess’ earned beyond what would have accrued at the time of expected retirement.” Here Judge Flug concluded that the parties to a divorce may, by a specific agreement, provide for a different result.
When the Rogovins divorced, the wife agreed, “as part and parcel of the settlement of this action...” to assign husband “a sum equal to ten percent of the monthly [retirement] benefits from her employment ....” Following the divorce, the wife sought and attained a promotion, which resulted in her receiving higher compensation, which will eventually provide her with a higher retirement allowance.
The former Mrs. Rogovin attempted to have the terms of the divorce settlement revised. She contended that since her pension benefits will be substantially enhanced as the result of her promotion and her former husband, “having not contributed to such enhanced benefits,” does not deserve any pension benefit attributable to her promotion. She asked to court to direct that her former spouse’s “participation in the pension” be limited to an amount equal to ten per cent of what she would have received had she remained a teacher.
Judge Flug said no, holding that “the parties entered into a written stipulation.” Such agreement, said Judge Flug, has the force and effect of a contract. The Court refused “to interpret and redraft the parties’ agreement” as this would be a clear derogation of the sanctity of contracts.
The court said that “it is clearly and unequivocally established that the stipulation called for the [husband] to receive ten per cent of the pension whenever his former wife retired and whatever the amount.
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Rogovin v Rogovin, NYS Supreme Court (Justice Flug), [Not selected for publication in the Official Reports]
One of the elements in a divorce settlement is the right of a former spouse to a share of the retirement benefits paid to his or her former spouse. As Judge Flug noted, the leading case in New York regarding pension rights in a divorce situation is Olivo v. Olivo, 82 NY2d 202.
In Olivo the Court of Appeals held that “a pension right jointly owned as marital property is subject to modification by future actions of the employee” and that the former spouse of an employee who earned a promotion after the divorce, which was not in ‘the “pipeline” at the time of the divorce “... is not entitled to keep the ‘excess’ earned beyond what would have accrued at the time of expected retirement.” Here Judge Flug concluded that the parties to a divorce may, by a specific agreement, provide for a different result.
When the Rogovins divorced, the wife agreed, “as part and parcel of the settlement of this action...” to assign husband “a sum equal to ten percent of the monthly [retirement] benefits from her employment ....” Following the divorce, the wife sought and attained a promotion, which resulted in her receiving higher compensation, which will eventually provide her with a higher retirement allowance.
The former Mrs. Rogovin attempted to have the terms of the divorce settlement revised. She contended that since her pension benefits will be substantially enhanced as the result of her promotion and her former husband, “having not contributed to such enhanced benefits,” does not deserve any pension benefit attributable to her promotion. She asked to court to direct that her former spouse’s “participation in the pension” be limited to an amount equal to ten per cent of what she would have received had she remained a teacher.
Judge Flug said no, holding that “the parties entered into a written stipulation.” Such agreement, said Judge Flug, has the force and effect of a contract. The Court refused “to interpret and redraft the parties’ agreement” as this would be a clear derogation of the sanctity of contracts.
The court said that “it is clearly and unequivocally established that the stipulation called for the [husband] to receive ten per cent of the pension whenever his former wife retired and whatever the amount.
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Eligibility to serve as a school board member
Eligibility to serve as a school board member
Jackson and City of Long Beach CSD, Decisions of the Commissioner of Education, #14,131
Norman B. Alpren, a member of the Long Beach City School District since 1989, was appointed Commissioner of the Long Beach Auxiliary Police [CAP] in 1994. This was a volunteer position.
Mark Jackson and Scott Abramson challenged Alpren’s continuing to serve as a member of the school board while simultaneously serving as CAP. They asked the Commissioner of Education to declare Alpren ineligible for the board, citing Section 2502(7) of the Education Law, which forbids holders of city offices , with some exceptions, from being members of school boards. According to their petition, the position of CAP is a “city office.” Although police officers are exempt and can serve on school boards, the petitioners claimed that the CAP role “does not fall within the statutory exception of ‘policeman’ because it does not ‘endow police officer status.’”
The Commissioner ruled that Alpren could simultaneously serve in both positions, noting that the CAP position was established by the bylaws of the Long Beach Police Department rather than by statute or ordinance and thus Alpren did not hold “public office” within the meaning of Section 2502(7).
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Jackson and City of Long Beach CSD, Decisions of the Commissioner of Education, #14,131
Norman B. Alpren, a member of the Long Beach City School District since 1989, was appointed Commissioner of the Long Beach Auxiliary Police [CAP] in 1994. This was a volunteer position.
Mark Jackson and Scott Abramson challenged Alpren’s continuing to serve as a member of the school board while simultaneously serving as CAP. They asked the Commissioner of Education to declare Alpren ineligible for the board, citing Section 2502(7) of the Education Law, which forbids holders of city offices , with some exceptions, from being members of school boards. According to their petition, the position of CAP is a “city office.” Although police officers are exempt and can serve on school boards, the petitioners claimed that the CAP role “does not fall within the statutory exception of ‘policeman’ because it does not ‘endow police officer status.’”
The Commissioner ruled that Alpren could simultaneously serve in both positions, noting that the CAP position was established by the bylaws of the Long Beach Police Department rather than by statute or ordinance and thus Alpren did not hold “public office” within the meaning of Section 2502(7).
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Testing for illegal drugs
Testing for illegal drugs
Davis v Safir, App. Div., 262 AD2d 107
New York City police officer Freida Davis tested positive for cocaine after being given EMIT and GC/MS tests. This ultimately resulted in the Police Commissioner dismissing her from the force.
Davis sued, contending that GC/MS tests were unreliable and could give “false positive” results. The Appellate Division dismissed her appeal, holding that the positive test results “constitute substantial evidence of petitioner’s possession and use of cocaine.” The court rejected Davis’ argument that the GC/MS testing procedures were unreliable and likely to produce a false positive.
The decision points out that “even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which [Davis] does not challenge, would alone constitute substantial evidence of the use of cocaine, citing Lahey v Kelly, 71 NY2d 135.
As to the penalty imposed, the court said that “the penalty of dismissal does not shock our sense of fairness” and sustained the Commissioner’s determination.
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Davis v Safir, App. Div., 262 AD2d 107
New York City police officer Freida Davis tested positive for cocaine after being given EMIT and GC/MS tests. This ultimately resulted in the Police Commissioner dismissing her from the force.
Davis sued, contending that GC/MS tests were unreliable and could give “false positive” results. The Appellate Division dismissed her appeal, holding that the positive test results “constitute substantial evidence of petitioner’s possession and use of cocaine.” The court rejected Davis’ argument that the GC/MS testing procedures were unreliable and likely to produce a false positive.
The decision points out that “even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which [Davis] does not challenge, would alone constitute substantial evidence of the use of cocaine, citing Lahey v Kelly, 71 NY2d 135.
As to the penalty imposed, the court said that “the penalty of dismissal does not shock our sense of fairness” and sustained the Commissioner’s determination.
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Oct 13, 2010
An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances
An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances
Nancy Pearse v Board of Education of the Burnt Hills-Ballston Lake Central School District, Decisions of the Commissioner of Education, Decision #16,159
The Commissioner of Education sustained, in part, an appeal filed by Nancy Pearse challenging the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and its Superintendent, James Schultz, to excess her as a foreign language teacher.
Pearse served in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher. On January 22, 2008, the board granted Pearse tenure in the administrative tenure area of dean of students, effective March 19, 2008.
In June 2008 the district abolished Pearse’s .4 teaching assignment as a foreign language teacher and she was laid off as a result.
Pearse appealed to the Commissioner contending that the board had violated her tenure and seniority rights as a foreign language teacher. She argued that she had received tenure by estoppel* in the foreign language tenure area and that she was not the least senior foreign language teacher in the district at the time it abolished her postion.
As redress, Pearse asked the Commissioner to direct the district to reinstate her to her foreign language teaching position, with back pay and benefits.
The district, on the other hand, argued that as Pearse’s teaching position was part-time, she was not eligible to receive tenure in the foreign language tenure area. In addition, the district contended that the decision to layoff Pearse’s was lawful because she was not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district.
The Commissioner said that Pearse’s appeal “presents a novel issue -- whether an educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.
The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties. The test with respect to teachers attaining "tenure" is that the educator spend at least 40% of his or her duties in the relvent teacher tenure area.**
The Commissioner rejected the school district’s theory that Pearse could not have accrued tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations, noting that 8 NYCRR §30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:
Professional educator means an individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the Commissioner to the State Civil Service Commission pursuant to the provisions of section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.
Although, said the Commissioner, “§30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, [it] does not require an individual to be employed solely in a full-time teaching position.”
The Commissioner also rejected the district’s claim that “an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously,” noting that Part 30 of the Commissioner’s regulations clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area, citing 8 NYCRR §30-1.9[d].
Accordingly, the Commissioner ruled that an educator “should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.”
Also, noted the Commissioner “Public policy favors the protection of the tenure rights of both teachers and administrators.”
However, the Commissioner said that it was “unclear from the record” if Pearse was the most senior teacher in the foreign language tenure area on the date on she was excessed. He deemed it appropriate “to remand this matter” to school district for it to calculate Pearse’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.
* Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term" (see Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 185, 186].
** Part 30 of the Commissioner’s regulations [8 NYCRR 30] provide that teachers are deemed to serve in any tenure area in which they spend at least 40% of their time. Further, the test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16159.htm
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NYPPL
Nancy Pearse v Board of Education of the Burnt Hills-Ballston Lake Central School District, Decisions of the Commissioner of Education, Decision #16,159
The Commissioner of Education sustained, in part, an appeal filed by Nancy Pearse challenging the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and its Superintendent, James Schultz, to excess her as a foreign language teacher.
Pearse served in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher. On January 22, 2008, the board granted Pearse tenure in the administrative tenure area of dean of students, effective March 19, 2008.
In June 2008 the district abolished Pearse’s .4 teaching assignment as a foreign language teacher and she was laid off as a result.
Pearse appealed to the Commissioner contending that the board had violated her tenure and seniority rights as a foreign language teacher. She argued that she had received tenure by estoppel* in the foreign language tenure area and that she was not the least senior foreign language teacher in the district at the time it abolished her postion.
As redress, Pearse asked the Commissioner to direct the district to reinstate her to her foreign language teaching position, with back pay and benefits.
The district, on the other hand, argued that as Pearse’s teaching position was part-time, she was not eligible to receive tenure in the foreign language tenure area. In addition, the district contended that the decision to layoff Pearse’s was lawful because she was not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district.
The Commissioner said that Pearse’s appeal “presents a novel issue -- whether an educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.
The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties. The test with respect to teachers attaining "tenure" is that the educator spend at least 40% of his or her duties in the relvent teacher tenure area.**
The Commissioner rejected the school district’s theory that Pearse could not have accrued tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations, noting that 8 NYCRR §30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:
Professional educator means an individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the Commissioner to the State Civil Service Commission pursuant to the provisions of section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.
Although, said the Commissioner, “§30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, [it] does not require an individual to be employed solely in a full-time teaching position.”
The Commissioner also rejected the district’s claim that “an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously,” noting that Part 30 of the Commissioner’s regulations clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area, citing 8 NYCRR §30-1.9[d].
Accordingly, the Commissioner ruled that an educator “should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.”
Also, noted the Commissioner “Public policy favors the protection of the tenure rights of both teachers and administrators.”
However, the Commissioner said that it was “unclear from the record” if Pearse was the most senior teacher in the foreign language tenure area on the date on she was excessed. He deemed it appropriate “to remand this matter” to school district for it to calculate Pearse’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.
* Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term" (see Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 185, 186].
** Part 30 of the Commissioner’s regulations [8 NYCRR 30] provide that teachers are deemed to serve in any tenure area in which they spend at least 40% of their time. Further, the test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16159.htm
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NYPPL
Educator terminated after being found guilty of berating and belittling less senior staff members
Educator terminated after being found guilty of berating and belittling less senior staff members
Matter of Denhoff v Mamaroneck Union Free School Dist., 2010 NY Slip Op 51742(U), decided on September 30, 2010, Supreme Court, Westchester County, Judge John P. Colangelo
Elizabeth Denhoff filed a petition pursuant to CPLR 7511* in an effort to vacate the findings and recommendations made by Hearing Officer Jay M. Siegel, Esq. The hearing officer found Denhoff guilty of 14 of 20 disciplinary charges filed against her by the District and recommended termination of her employment as a guidance teacher.
The District had alleged that Denhoff had “systematically berated and belittled less senior guidance counselors, criticized their work and threatened to negatively impact their careers” over the course of three academic years. The Hearing Officer had found that “Denhoff engaged in predominantly verbal conduct directed against fellow members of the Guidance Department that denigrated their respective intelligence and competence as teachers and obstructed their desire to work;” which he described as falling into one of four general categories:
1. Verbal criticism tending toward outright disparagement of the abilities of three fellow teachers, usually outside their presence.
2. Verbal and non-verbal criticism by eye rolling or other gestures - - that was either directed to such teachers or took place in such teachers' presence.
3. Attempts to impose "rules" upon or otherwise direct or influence the behavior of such teachers with respect to work hours, participation in extra curricular activities, and reporting matters to the school administration.
4. "Obstructing" the conduct of these teachers, generally with an eye toward inhibiting them from performing their work as guidance counselors, including certain activities that were above and beyond contractually required duties.
One portion of Judge Colangelo’s decision focused on the nature of Denhoff’s conduct, i.e.,”did her conduct amount to violations of the Education Law's proscriptions - - particularly in view of the fact that Denhoff's offensive behavior was that of a teacher without supervisory responsibilities, and was directed toward fellow teachers rather than towards a supervisor, student or parent.”
Because the hearing officer “failed to cite any specific provision of the Education Law violated by Denhoff or base his reason for the sanction imposed on a violation of any specific rule by which a tenured teacher must abide,” the court said this task “had been relegated to the arguments of the parties, and now to the judgment of the Court.”
As the school district conceded, Denhoff was not insubordinate since her actions were not directed at a supervisor, and since no physical violence or violation of the criminal law was shown. Rather, the district’s argument focuses on the general prohibition against "conduct unbecoming a teacher."
In this regard, the court noted that in Matter of Uniondale, 26 Educ. Dept. 498 501 (1987) the Commissioner of Education indicated that certain verbal conduct of a teacher however distasteful, is only deemed "unbecoming" if such conduct has a negative impact on the educational process. In Uniondale the Commissioner commented "Although the panel found that respondent expressed himself to his superiors in an antagonistic and discourteous manner, it held that such conduct does not constitute conduct unbecoming a teacher as long as [his] actions do not affect [his] ability to teach and are not disruptive."'
Denhoff argued that as her verbal assaults were not directed against a student or supervisor, but rather against her teaching colleagues, each act did not have such a significant impact on the educational process as to justify a finding that she had violated the Education Law by engaging in unbecoming conduct - - or, at the least, to merit the ultimate sanction of dismissal.
The court, however, said that Denhoff’s “atomistic approach, focusing on each instance of [her] misconduct in isolation, is at once misleading and misplaced. It is misleading because this approach ignores the cumulative detrimental effect of such behavior on the educational process. It is misplaced because the Hearing Officer and, ultimately, the Court are permitted to consider the totality of [Denhoff's] conduct and how it affected the educational setting and a teacher's ability to carry out his or her pedagogical responsibilities.”
Judge Colangelo, considering “the totality of the circumstances,” said they amply support the Hearing Officer's conclusion that Denhoff, in league with her fellow senior guidance counselor Haruko Hirose,** created a toxic and disruptive environment within the Hommocks' Guidance Department.
As to an appropriate penalty, Judge Colangelo agreed with the hearing officer and said that the school district “ has just cause to terminate [Denhoff’s] employment.” “Indeed,” said the court,” to not confirm the Hearing Officer's decision under the circumstances that obtain herein - - where the penalty of dismissal is not shocking to the conscience or to a "sense of fairness"*** - - would impermissibly substitute the Court's judgment for that of the Hearing Officer who saw, heard and evaluated the testimony of all of the witnesses, including Denhoff.”
* See §3020 - a (5) of the Education Law
** The District also brought charges against Haruko Hirose, another member of the Guidance Department, who resigned her position before any hearing was commenced.
*** The Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51742.htm
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NYPPL
Matter of Denhoff v Mamaroneck Union Free School Dist., 2010 NY Slip Op 51742(U), decided on September 30, 2010, Supreme Court, Westchester County, Judge John P. Colangelo
Elizabeth Denhoff filed a petition pursuant to CPLR 7511* in an effort to vacate the findings and recommendations made by Hearing Officer Jay M. Siegel, Esq. The hearing officer found Denhoff guilty of 14 of 20 disciplinary charges filed against her by the District and recommended termination of her employment as a guidance teacher.
The District had alleged that Denhoff had “systematically berated and belittled less senior guidance counselors, criticized their work and threatened to negatively impact their careers” over the course of three academic years. The Hearing Officer had found that “Denhoff engaged in predominantly verbal conduct directed against fellow members of the Guidance Department that denigrated their respective intelligence and competence as teachers and obstructed their desire to work;” which he described as falling into one of four general categories:
1. Verbal criticism tending toward outright disparagement of the abilities of three fellow teachers, usually outside their presence.
2. Verbal and non-verbal criticism by eye rolling or other gestures - - that was either directed to such teachers or took place in such teachers' presence.
3. Attempts to impose "rules" upon or otherwise direct or influence the behavior of such teachers with respect to work hours, participation in extra curricular activities, and reporting matters to the school administration.
4. "Obstructing" the conduct of these teachers, generally with an eye toward inhibiting them from performing their work as guidance counselors, including certain activities that were above and beyond contractually required duties.
One portion of Judge Colangelo’s decision focused on the nature of Denhoff’s conduct, i.e.,”did her conduct amount to violations of the Education Law's proscriptions - - particularly in view of the fact that Denhoff's offensive behavior was that of a teacher without supervisory responsibilities, and was directed toward fellow teachers rather than towards a supervisor, student or parent.”
Because the hearing officer “failed to cite any specific provision of the Education Law violated by Denhoff or base his reason for the sanction imposed on a violation of any specific rule by which a tenured teacher must abide,” the court said this task “had been relegated to the arguments of the parties, and now to the judgment of the Court.”
As the school district conceded, Denhoff was not insubordinate since her actions were not directed at a supervisor, and since no physical violence or violation of the criminal law was shown. Rather, the district’s argument focuses on the general prohibition against "conduct unbecoming a teacher."
In this regard, the court noted that in Matter of Uniondale, 26 Educ. Dept. 498 501 (1987) the Commissioner of Education indicated that certain verbal conduct of a teacher however distasteful, is only deemed "unbecoming" if such conduct has a negative impact on the educational process. In Uniondale the Commissioner commented "Although the panel found that respondent expressed himself to his superiors in an antagonistic and discourteous manner, it held that such conduct does not constitute conduct unbecoming a teacher as long as [his] actions do not affect [his] ability to teach and are not disruptive."'
Denhoff argued that as her verbal assaults were not directed against a student or supervisor, but rather against her teaching colleagues, each act did not have such a significant impact on the educational process as to justify a finding that she had violated the Education Law by engaging in unbecoming conduct - - or, at the least, to merit the ultimate sanction of dismissal.
The court, however, said that Denhoff’s “atomistic approach, focusing on each instance of [her] misconduct in isolation, is at once misleading and misplaced. It is misleading because this approach ignores the cumulative detrimental effect of such behavior on the educational process. It is misplaced because the Hearing Officer and, ultimately, the Court are permitted to consider the totality of [Denhoff's] conduct and how it affected the educational setting and a teacher's ability to carry out his or her pedagogical responsibilities.”
Judge Colangelo, considering “the totality of the circumstances,” said they amply support the Hearing Officer's conclusion that Denhoff, in league with her fellow senior guidance counselor Haruko Hirose,** created a toxic and disruptive environment within the Hommocks' Guidance Department.
As to an appropriate penalty, Judge Colangelo agreed with the hearing officer and said that the school district “ has just cause to terminate [Denhoff’s] employment.” “Indeed,” said the court,” to not confirm the Hearing Officer's decision under the circumstances that obtain herein - - where the penalty of dismissal is not shocking to the conscience or to a "sense of fairness"*** - - would impermissibly substitute the Court's judgment for that of the Hearing Officer who saw, heard and evaluated the testimony of all of the witnesses, including Denhoff.”
* See §3020 - a (5) of the Education Law
** The District also brought charges against Haruko Hirose, another member of the Guidance Department, who resigned her position before any hearing was commenced.
*** The Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51742.htm
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===========================================
NYPPL
Employer’s internal regulations are not a “well-developed body of law and regulation” for the purposes of §205-a of the General Municipal Law
Employer’s internal regulations are not a “well-developed body of law and regulation” for the purposes of §205-a of the General Municipal Law
Vosilla v City of New York, 2010 NY Slip Op 07162, decided on October 5, 2010, Appellate Division, Second Department
§205-a of the General Municipal Law, in pertinent part, provides for an additional right of action to firefighters “in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus.”
Joseph Vosilla, a New York City firefighter, filed a lawsuit seeking to recover damages for personal injuries he alleged he sustained as a result of the City’s violation of certain provisions of the New York City Fire Department All Unit Circulars, Incident Command System manual provisions, and internal rules concerning, classification and inspection of buildings, “and that such violations directly or indirectly caused the injuries he sustained in the line of duty.”
The Appellate Division, however, rejected Vosilla’s theory that the City was liable for damages in this instance, ruling that “These internal regulations … cannot serve as a predicate for liability under General Municipal Law §205-a, since they are not part of a "well-developed body of law and regulation" imposing clear legal duties or mandating the performance or nonperformance of specific acts.”
Accordingly, said the court, the City established its prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to GML §205-a insofar as asserted against it and, in opposition, Vosilla failed to raise a triable issue of fact and thus Supreme Court properly granted that branch of the City's motion summary judgment dismissing the cause of action pursuant to GML §205-a insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07162.htm
NYPPL
Vosilla v City of New York, 2010 NY Slip Op 07162, decided on October 5, 2010, Appellate Division, Second Department
§205-a of the General Municipal Law, in pertinent part, provides for an additional right of action to firefighters “in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus.”
Joseph Vosilla, a New York City firefighter, filed a lawsuit seeking to recover damages for personal injuries he alleged he sustained as a result of the City’s violation of certain provisions of the New York City Fire Department All Unit Circulars, Incident Command System manual provisions, and internal rules concerning, classification and inspection of buildings, “and that such violations directly or indirectly caused the injuries he sustained in the line of duty.”
The Appellate Division, however, rejected Vosilla’s theory that the City was liable for damages in this instance, ruling that “These internal regulations … cannot serve as a predicate for liability under General Municipal Law §205-a, since they are not part of a "well-developed body of law and regulation" imposing clear legal duties or mandating the performance or nonperformance of specific acts.”
Accordingly, said the court, the City established its prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to GML §205-a insofar as asserted against it and, in opposition, Vosilla failed to raise a triable issue of fact and thus Supreme Court properly granted that branch of the City's motion summary judgment dismissing the cause of action pursuant to GML §205-a insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07162.htm
NYPPL
Public Sector union did not breach its duty of fair representation
Public Sector union did not breach its duty of fair representation
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Delsante v. CSEA, ____Misc. 3d____(Richmond Co. June 15, 2010), illustrates how the duty of fair representation in the public sector is similar, though not identical to the private sector. The two differences are the statute of limitations in the public sector (in New York) is 4 months as opposed to 6 months in the private sector. Additionally, the standard is a bit more favorable to unions in the public sector. As the court explained:
“With respect to claims based upon the alleged breach of a duty of fair representation, the plaintiff must establish that the defendants acted "deliberately invidious, arbitrary and founded in bad faith" (Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]; Gordon v. City of New York, 167 AD2d 509, 509-510 [2d Dept., 1990]; Garvin v. NYS Pub. Emply Relations Bd., 168 AD2d 446, 446 [2d Dept., 1990]). Here, the defendants have established that they pursued the avenues available to assist the plaintiff in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement § 33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment". Defendants established that Mrs. Zarvos, the Labor Relations Specialist with CSEA, met with the plaintiff; spoke with Mr. Lescinski in an effort to negotiate reinstating the plaintiff and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited. As is well established, "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation" (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 446-447 [2d Dept., 1990]; Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]).
"In opposition, the plaintiff failed to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The plaintiff has failed to present any evidence that the defendants acted in any way deliberately, arbitrary or in bad faith in not pursuing the grievance further and in fact, the plaintiff's failed to present any evidence or dispute the fact that the plaintiff was on probationary status (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 447 [2d Dept., 1990][dismissing the petition as no evidence of bad faith, arbitrariness or discriminatory conduct was presented]).”
Mitchell H. Rubinstein
NYPPL
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Delsante v. CSEA, ____Misc. 3d____(Richmond Co. June 15, 2010), illustrates how the duty of fair representation in the public sector is similar, though not identical to the private sector. The two differences are the statute of limitations in the public sector (in New York) is 4 months as opposed to 6 months in the private sector. Additionally, the standard is a bit more favorable to unions in the public sector. As the court explained:
“With respect to claims based upon the alleged breach of a duty of fair representation, the plaintiff must establish that the defendants acted "deliberately invidious, arbitrary and founded in bad faith" (Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]; Gordon v. City of New York, 167 AD2d 509, 509-510 [2d Dept., 1990]; Garvin v. NYS Pub. Emply Relations Bd., 168 AD2d 446, 446 [2d Dept., 1990]). Here, the defendants have established that they pursued the avenues available to assist the plaintiff in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement § 33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment". Defendants established that Mrs. Zarvos, the Labor Relations Specialist with CSEA, met with the plaintiff; spoke with Mr. Lescinski in an effort to negotiate reinstating the plaintiff and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited. As is well established, "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation" (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 446-447 [2d Dept., 1990]; Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]).
"In opposition, the plaintiff failed to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The plaintiff has failed to present any evidence that the defendants acted in any way deliberately, arbitrary or in bad faith in not pursuing the grievance further and in fact, the plaintiff's failed to present any evidence or dispute the fact that the plaintiff was on probationary status (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 447 [2d Dept., 1990][dismissing the petition as no evidence of bad faith, arbitrariness or discriminatory conduct was presented]).”
Mitchell H. Rubinstein
NYPPL
Applying for disability retirement
Applying for disability retirement
Bowns v McCall, 263 AD2d 668
Vecchi v NY State and Local Employees’ Retirement System, 263 AD2d 669
In order to qualify for accidental disability retirement benefits, a member of the New York State Employees’ Retirement System [ERS] must prove:
1. That he or she was injured while at work; and
2. The injury was the result of an accident within the meaning of the Retirement and Social Security Law [RSSL], i.e., that the injury resulted from an “unexpected and sudden mischance” and not from a risk “inherent in the regular duties of the applicant.”
The first test is relatively simple to demonstrate; the second test -- that the injury resulted from an accident within the meaning of RSSL -- is substantially more difficult to prove.
To meet the second test the employee has the burden of presenting substantial evidence that his or her injury resulted from a “sudden or unexpected event” in contrast to being merely the result of physical exertion undertaken in the performance of his or her routine or regular employment duties.
In both the Bowns and Vecchi cases the Appellate Division sustained the Comptroller’s determination that for the purposes of qualifying for a RSSL disability retirement allowance, the disability suffered by these employees as a result of an on-the-job incident did not result from an accident within the meaning of the RSSL.
The Bowns case
Norman Bowns, a maintenance assistant employed by the State Office of Mental Retardation and Developmental Disabilities, filed an application for accidental disability retirement benefits claiming a disabling back injury he sustained while he and a co-worker were moving a heavy six-drawer file cabinet away from a wall. Bowns said that the cabinet became stuck and, when pushed, began to tip towards him and he had “catch the cabinet and support its weight in order to keep it from falling on him.”
This, Bowns argued, constituted an accident because “moving a file cabinet was unusual and unrelated to his normal work.” The court sustained the Comptroller’s finding that Bowns’ injury did not result from an accident because Bowns’ supervisor had specifically assigned him to perform this task and Bowns’ job duties included occasional assignments to perform manual labor jobs outside of his regular department.
The Vecchi decision
The Appellate Division also sustained the Comptroller’s rejection of Joanne Vecchi’s application for accidental disability retirement benefits. Vecchi, a school bus driver/cleaner, testified that she slipped on wet pavement following a rainstorm and although she attempted to balance herself, her foot caught on some gravel and she fell.
The court said that there was substantial evidence that Vecchi’s “injury occurred in the ordinary course of her duties and resulted from her own misstep, not from an unexpected event.” In other words, the mishap was not an accident for the purposes of qualifying for accidental disability retirement benefits.
.
Bowns v McCall, 263 AD2d 668
Vecchi v NY State and Local Employees’ Retirement System, 263 AD2d 669
In order to qualify for accidental disability retirement benefits, a member of the New York State Employees’ Retirement System [ERS] must prove:
1. That he or she was injured while at work; and
2. The injury was the result of an accident within the meaning of the Retirement and Social Security Law [RSSL], i.e., that the injury resulted from an “unexpected and sudden mischance” and not from a risk “inherent in the regular duties of the applicant.”
The first test is relatively simple to demonstrate; the second test -- that the injury resulted from an accident within the meaning of RSSL -- is substantially more difficult to prove.
To meet the second test the employee has the burden of presenting substantial evidence that his or her injury resulted from a “sudden or unexpected event” in contrast to being merely the result of physical exertion undertaken in the performance of his or her routine or regular employment duties.
In both the Bowns and Vecchi cases the Appellate Division sustained the Comptroller’s determination that for the purposes of qualifying for a RSSL disability retirement allowance, the disability suffered by these employees as a result of an on-the-job incident did not result from an accident within the meaning of the RSSL.
The Bowns case
Norman Bowns, a maintenance assistant employed by the State Office of Mental Retardation and Developmental Disabilities, filed an application for accidental disability retirement benefits claiming a disabling back injury he sustained while he and a co-worker were moving a heavy six-drawer file cabinet away from a wall. Bowns said that the cabinet became stuck and, when pushed, began to tip towards him and he had “catch the cabinet and support its weight in order to keep it from falling on him.”
This, Bowns argued, constituted an accident because “moving a file cabinet was unusual and unrelated to his normal work.” The court sustained the Comptroller’s finding that Bowns’ injury did not result from an accident because Bowns’ supervisor had specifically assigned him to perform this task and Bowns’ job duties included occasional assignments to perform manual labor jobs outside of his regular department.
The Vecchi decision
The Appellate Division also sustained the Comptroller’s rejection of Joanne Vecchi’s application for accidental disability retirement benefits. Vecchi, a school bus driver/cleaner, testified that she slipped on wet pavement following a rainstorm and although she attempted to balance herself, her foot caught on some gravel and she fell.
The court said that there was substantial evidence that Vecchi’s “injury occurred in the ordinary course of her duties and resulted from her own misstep, not from an unexpected event.” In other words, the mishap was not an accident for the purposes of qualifying for accidental disability retirement benefits.
.
Impartiality of discipline panel members
Impartiality of discipline panel members
Informal Opinions of the Attorney General, 99-21
The impartiality of a disciplinary tribunal is a critical element in any disciplinary action. Further, even the appearance of any impropriety must be avoided. Would it be appropriate for an individual to serve on a disciplinary panel if there was a possibility that his or her son might be called as a witness in the proceeding?
David A. Menken, the Village Attorney, Village/Town of Mount Kisco, asked the Attorney General for his views with respect to such participation after the chief of police advised the board of trustees that disciplinary charges might be filed against one or more Mount Kisco police officers and the son of a trustee, who was a member of the police force, might be called as a witness.
The Attorney General commenced his analysis by noting that Section 5711-q(1) of the Unconsolidated Laws provides that such disciplinary charges must be heard by “at least a majority” of the Board of Trustees and that “even the appearance of impropriety should be avoided in order to maintain public confidence in government.”
The Attorney General concluded that the trustee should recuse herself because “the trustee may not be able to make an impartial judgment solely in the public interest if her son is called as a witness.” While state law does not bar members of the same family from serving in the same governmental unit, public officers have a responsibility to exercise their duties “solely in the public interest.”
The Attorney General said that the difficulty here was that “there was no objective way to verify” that the trustee was able to weigh the credibility of her son fairly and reached an impartial judgment. Under the circumstances, the Attorney General concluded, “there is at least an appearance of impropriety” and thus the trustee should recuse herself and “should not participate in or be present at the hearing, any deliberations, including deliberations conducted during an executive session of the board of trustees, or the determination of the disciplinary proceeding brought by the Mount Kisco Police Department.”
The designation of panel members by the district and the employee should not be viewed as the selection of a partisan representative. Rather they are impartial, quasi-judicial officials.
This point was made in Syquia v Harpursville Central School District, 568 NY2d 263, an "old law" Section 3020-a case. In Syquia, the court observed that a school board and a teacher have a statutory right to select a panel member to serve on the three-member board.
However, the court rejected the argument advanced by the attorney for the Harpursville School District suggesting that "a Section 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing...." The court clearly stated that the panel members selected by the Board of Education and by the teacher are not advocates for the party respectively selecting them, with only the chair of the hearing panel intended to be impartial.
The court said that it was taking its opportunity in this case to dispel any such "misapprehension in educational circles, if such in fact exists." It is likely that the same rationale would be applied to the selection of panel members by employers and employees under the new law.
In contrast to the Syquia decision, the Appellate Division decided in Meehan v Nassau Community College, 243 A.D.2d 12,[motion for leave to appeal denied, 92 N.Y.2d 814] that "a party-designated arbitrator may in fact be 'partial'" and that by itself this is not grounds for vacating an arbitration award.*
The case involved Nassau County Community College's attempt to overturn two arbitration awards under Article 75. One member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator actually testified concerning these facts during the arbitration. The Appellate Division had no problem with a panel member testifying at the hearing, holding that "dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting 'corruption, fraud, or misconduct' (CPLR 7511[b][1][i])."
* Related cases involving the same parties and issues: Mehan v Nassau Community College, 251 A.D.2d 415; Mehan v Nassau Community College, 251 A.D.2d 416; and Mehan v Nassau Community College, 251 A.D.2d 417.
.
Informal Opinions of the Attorney General, 99-21
The impartiality of a disciplinary tribunal is a critical element in any disciplinary action. Further, even the appearance of any impropriety must be avoided. Would it be appropriate for an individual to serve on a disciplinary panel if there was a possibility that his or her son might be called as a witness in the proceeding?
David A. Menken, the Village Attorney, Village/Town of Mount Kisco, asked the Attorney General for his views with respect to such participation after the chief of police advised the board of trustees that disciplinary charges might be filed against one or more Mount Kisco police officers and the son of a trustee, who was a member of the police force, might be called as a witness.
The Attorney General commenced his analysis by noting that Section 5711-q(1) of the Unconsolidated Laws provides that such disciplinary charges must be heard by “at least a majority” of the Board of Trustees and that “even the appearance of impropriety should be avoided in order to maintain public confidence in government.”
The Attorney General concluded that the trustee should recuse herself because “the trustee may not be able to make an impartial judgment solely in the public interest if her son is called as a witness.” While state law does not bar members of the same family from serving in the same governmental unit, public officers have a responsibility to exercise their duties “solely in the public interest.”
The Attorney General said that the difficulty here was that “there was no objective way to verify” that the trustee was able to weigh the credibility of her son fairly and reached an impartial judgment. Under the circumstances, the Attorney General concluded, “there is at least an appearance of impropriety” and thus the trustee should recuse herself and “should not participate in or be present at the hearing, any deliberations, including deliberations conducted during an executive session of the board of trustees, or the determination of the disciplinary proceeding brought by the Mount Kisco Police Department.”
The designation of panel members by the district and the employee should not be viewed as the selection of a partisan representative. Rather they are impartial, quasi-judicial officials.
This point was made in Syquia v Harpursville Central School District, 568 NY2d 263, an "old law" Section 3020-a case. In Syquia, the court observed that a school board and a teacher have a statutory right to select a panel member to serve on the three-member board.
However, the court rejected the argument advanced by the attorney for the Harpursville School District suggesting that "a Section 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing...." The court clearly stated that the panel members selected by the Board of Education and by the teacher are not advocates for the party respectively selecting them, with only the chair of the hearing panel intended to be impartial.
The court said that it was taking its opportunity in this case to dispel any such "misapprehension in educational circles, if such in fact exists." It is likely that the same rationale would be applied to the selection of panel members by employers and employees under the new law.
In contrast to the Syquia decision, the Appellate Division decided in Meehan v Nassau Community College, 243 A.D.2d 12,[motion for leave to appeal denied, 92 N.Y.2d 814] that "a party-designated arbitrator may in fact be 'partial'" and that by itself this is not grounds for vacating an arbitration award.*
The case involved Nassau County Community College's attempt to overturn two arbitration awards under Article 75. One member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator actually testified concerning these facts during the arbitration. The Appellate Division had no problem with a panel member testifying at the hearing, holding that "dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting 'corruption, fraud, or misconduct' (CPLR 7511[b][1][i])."
* Related cases involving the same parties and issues: Mehan v Nassau Community College, 251 A.D.2d 415; Mehan v Nassau Community College, 251 A.D.2d 416; and Mehan v Nassau Community College, 251 A.D.2d 417.
.
Probationary employee discharged for misrepresenting location of residence at time of employment
Probationary employee discharged for misrepresenting location of residence at time of employment
Munich v Dept. of Public Safety, 262 AD2d 959
A State Supreme Court judge annulled the Lackawanna Department of Public Safety’s dismissal of probationary firefighter Steven J. Munich prior to his completing his probationary period.
The Appellate Division reversed the lower court’s ruling, pointing out that “[i]t is axiomatic that a probationary employee may be discharged without a hearing and without a statement of the reasons for doing so provided the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law.”
Here, said the court, Munich’s “false representations ... concerning his residence at the time of his employment with the City” provided a sufficient basis for his termination.
.
Munich v Dept. of Public Safety, 262 AD2d 959
A State Supreme Court judge annulled the Lackawanna Department of Public Safety’s dismissal of probationary firefighter Steven J. Munich prior to his completing his probationary period.
The Appellate Division reversed the lower court’s ruling, pointing out that “[i]t is axiomatic that a probationary employee may be discharged without a hearing and without a statement of the reasons for doing so provided the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law.”
Here, said the court, Munich’s “false representations ... concerning his residence at the time of his employment with the City” provided a sufficient basis for his termination.
.
Oct 12, 2010
Substantial evidence supports finding employee was guilty of disciplinary charges filed against him
Substantial evidence supports finding emplyee was guilty of disciplinary charges filed against him
Matter of Drury v Village of N. Syracuse, 2010 NY Slip Op 06944, Decided on October 1, 2010, Appellate Division, Fourth Department
Phillip Druyry commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as Village of North Syracuse Code Enforcement Officer and Fire Marshall following a disciplinary hearing held pursuant to Civil Service Law §75.
The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.’”
The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,' " citing Matter of Kelly v Safir, 96 NY2d 32.
* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06944.htm
NYPPL
Matter of Drury v Village of N. Syracuse, 2010 NY Slip Op 06944, Decided on October 1, 2010, Appellate Division, Fourth Department
Phillip Druyry commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as Village of North Syracuse Code Enforcement Officer and Fire Marshall following a disciplinary hearing held pursuant to Civil Service Law §75.
The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.’”
The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,' " citing Matter of Kelly v Safir, 96 NY2d 32.
* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06944.htm
NYPPL
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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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