Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position

Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position
New York State Socy. of Professional Engrs., Inc. v City of New York, 2010 NY Slip Op 08352, Decided on November 16, 2010, Appellate Division, First Department

Prior to September 3, 2008, the New York City Charter required that the Commissioner of Buildings had to be a licensed professional engineer or registered architect.

New York City Local Law 39, which took effect on September 3, 2008, amending §641 of New York’s City Charter to provided that either the Commissioner of Buildings or the First Deputy Commissioner to be a licensed professional engineer or a registered architect. §642 was also amended to authorize the Commissioner to delegate any duties to the First Deputy Commissioner.

New York State Society of Professional Engineers, Inc., challenged this amendment and asked the court to declare Local Law 39 unconstitutional on its face on the grounds that it was inconsistent with and preempted by Articles 145 and 147 of the State Education Law, which, respectively, set out the State’s licensing requirements for professional engineers and registered architects.

The Society also contended that by no longer requiring the Commissioner to be a licensed professional engineer or registered architect, the City Council has thereby permitted that official to engage in the practice of engineering without a license.

The Appellate Division rejected the Society’s claim, holding that the fact that an unlicensed Commissioner had the expressed power to delegate any duties that involve the practice of engineering or architecture to a properly licensed Deputy First Commissioner validates Local Law 39.

In addition, the court ruled that the State law does not preempt the City from establishing the qualifications for the offices of Commissioner and First Deputy Commissioner of Buildings, as the City is specifically permitted to set and enforce its own Building Code.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08352.htm

Employee dismissed for altering the value of his paycheck

Employee dismissed for altering the value of his paycheck
Local 375 v NYC Health & Hospital Corp., 257 AD2d 530

Jose Hernandez was charged with changing a “3” on his pay check into an “8,” “significantly enhancing the putative value of the check.” Hernandez explained that the change was caused by his inadvertent “doodling.”

A disciplinary arbitrator found him guilty of altering the value of the amount of the check payable to him, concluding that “Hernandez’s consistent conduct [with respect to attempting to cash the check or have it reissued in the “forged amount”] evinced an effort to benefit from an alteration concededly made by him.” Hernandez was terminated and his union, Local 375, appealed.

A State Supreme Court justice, finding some inconsistencies in the arbitrator’s findings and that criminal charges concerning the same allegations had been dismissed,* vacated the award on the grounds that the arbitrator had exceed her authority.

The Appellate Division reversed and reinstating the arbitrator’s determination. It noted that Section 7511 of the Civil Practice Law and Rules allows an arbitration award to be vacated only in situations such as “fraud, corruption or bias of the arbitrator” or a procedural violation by the arbitrator, or in the event the arbitrator exceeds his or her authority, none of which were present here.

The court said that it found no basis to set the arbitration award aside “notwithstanding the explainable absence of the check and some possible inconsistencies in the arbitrator’s findings.** It commented that the lower court’s conclusions “amount to no more than impermissible second-guessing these factual findings.”

* In Kelly v. Levin, 440 NYS2d 424, the court ruled that is reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations. In contrast, an individual may be found guilty of charges in an administrative disciplinary hearing notwithstanding the fact that he or she may have been acquitted of criminal charges involving the same allegations. The reason for this is that the standard of proof required to prove guilt in a criminal proceeding is more rigorous than that in an administrative disciplinary proceeding. In a criminal case, the standard is “proof beyond a reasonable doubt” while in an administrative disciplinary action the standard of proof is the less demanding “substantial evidence” test. In an administrative proceeding, “substantial evidence” will support a finding that the individual is guilty of the disciplinary charge or charges. In some case, however, the standard used to determine guilt applied in an administrative disciplinary action is the even less demanding “preponderance of the evidence” test [see Martin v Ambach, 67 NY2d 975].

** Criminal charges had been filed against Hernandez. The altered check, however, “was destroyed in the normal course of events” by the District Attorney after forgery charges brought against him were dismissed and thus the item could not be introduced as evidence at the disciplinary administrative hearing.
NYPPL

Changing the scheduled number of hours that employees are to work during the workweek

Changing the scheduled number of hours that employees are to work during the workweek
Mitchell v LaBarge, 257 AD2d 834

Ann M. Mitchell and other employees and former employees sued the Town of Ulster when it unilaterally changed their workweek from 30 hours to 35 hours, contending that the town’s action violated the federal Fair Labor Standards Act.

At the time the individuals were hired the normal workweek was Monday through Friday, 9:00 a.m. through 4:00 p.m. Effective January 1996 they were required to work Monday through Friday, 9:00 a.m. through 5:00 p.m. without additional compensation.

This, Mitchell contended violated the FLSA because of the town’s “refusal to bargain [the change] in good faith.” A state Supreme Court justice granted the town’s motion to dismiss the action.

The Appellate Division affirmed the lower court’s dismissal of Mitchell’s complaint. It said that the sole federal claim set out in Mitchell’s petition alleged that the Town “violated the Fair Labor Standards Act [FLSA] by their refusal to bargain in good faith.” As the Act “does not impose a duty upon the employer to negotiate in good faith,” the court concluded that Mitchell failed to state a federal cause of action and dismissal of her claim was appropriate.

The Appellate Division commented that the Fair Labor Standards Act sets out “minimum wage and maximum hour requirements” [29 USC 206, 207] while the particular section relied upon by Mitchell, 29 USC 213, provides for exceptions to those provisions.
NYPPL

School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education

School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education
Guadagnino v Lancaster CSD, CEd 14080

The Lancaster Central School District filed disciplinary charges against Anthony P. Guadagnino pursuant to Section 75 of the Civil Service Law. The charges alleged that Guadagnino, a custodian, made false, baseless and damaging statements concerning alleged inappropriate conduct by a building principal, the president of the school board and others to various district officials and staff members.

Found guilty of all charges, Guadagnino was dismissed from his position. His appeal to the Erie County Civil Service Commission pursuant to Section 76 of the Civil Service Law was denied.

Guadagnino next filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law contending that the school district violated federal and state law protecting “whistle blowers” by terminating him in retaliation for his making and pursuing his allegations of “inappropriate conduct.”

The Commissioner dismissed the appeal for lack of subject matter jurisdiction. He said that with respect to Guadagnino’s claims concerning “whistle blowing” [Civil Service Law Section 75-b], such claims may be asserted as a defense in a Section 75 hearing. However, nothing in the Education Law authorizes an appeal to the Commissioner from disciplinary action taken under Section 75. The Commissioner noted that “it is well established ... that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law Section 310.”

As to Guadagnino’s federal claims, the Commissioner pointed out that the federal law cited, 5 USC 1213, is generally applicable to federal employees and those in federally related employment.
NYPPL

Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement

Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement
Burns v NY State and Local Police and Fire Retirement Systems, 258 AD2d 692

Town of Clarkstown police officer Robert Burns was granted Section 207-c benefits after suffering a work-related injury in May 1993. In 1996, the department filed an application for disability retirement with the State and Local Police and Fire Retirement Systems [PFRS] seeking Burns “involuntary retirement from the police force.”*

When PFRS asked Burns to sign a consent form for the release of his medical records for its review, he refused. The Comptroller then issued subpoenas for the production of his medical records to a hospital and to two physicians. Burns attempted to quash the subpoenas on the grounds that the release of his medical records would “violate the physician-patient privilege” of Section 4505 of the Civil Practice Law and Rules. The Appellate Division affirmed a lower court’s ruling that Section 4504 did not protect Burns’ medical records since the Comptroller had the authority to determine applications for retirement benefits and had statutory authority to issue subpoenas.

The Appellate Division said that Burns “affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege” by applying for Section 207-c benefits.

The Court said that “to exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of [Section 363-c(c)(2) of the Retirement and Social Security Law], expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.”

* Both Section 207-a and Section 207-c of the General Municipal Law authorize the employer to file an application for disability retirement on behalf of an individual receiving benefits pursuant to these sections.
NYPPL

Employee may be disciplined for excessive absence from work

Employee may be disciplined for excessive absence from work
Gradel v Sullivan Co. Public Works, 257 AD2d 972

May an individual who has been authorized to take time off from work be disciplined for “excessive absence” based on an accumulation of “authorized” absences?

The Gradel case involved Section 75 disciplinary charges that were filed against Len Gradel, a Sullivan County sanitation worker. The charges alleged misconduct in the form of excessive absences, as well as poor job performance and insubordination, notwithstanding Gradel’s claim that he was authorized to take the time off.

“[T]he fact that [Gradel] was authorized to take the days off does not preclude a finding of guilt, especially where, as here, [Gradel] was repeatedly informed by memoranda that his pattern of absences was disruptive and burdensome to his employer and co-workers,” the Appellate Division ruled, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934.

Another issue involved the penalty imposed. Finding Gradel guilty of all of the charges filed against him, a hearing officer recommended that Gradel be suspended without pay for four days and placed on probation for one year.

The county, while agreeing with the hearing officer’s determination as to guilt, imposed the penalty of termination instead of the penalty recommended by the hearing officer. Gradel contended that the penalty imposed was excessive.

The Appellate Division rejected his arguments, holding that there was ample evidence in the record to support the hearing officer’s findings and confirm the county’s decision as to the penalty imposed. The court said that it was “unpersuaded by [Gradel’s] contention that the penalty of termination, which exceed that recommended by the Hearing Officer, was disproportionate to the offenses committed as to shock one’s sense of fairness.”
NYPPL

Website established for those interested in joining the Cuomo-Duffy administration

Website established for those interested in joining the Cuomo-Duffy administration
Source: Cuomo-Duffy Transition Committee

Interested in joining the Cuomo-Duffy administration?

There is a website where those interested in positions in the Cuomo-Duffy administration may submit their resumes for consideration electronically.

The several transition focus committees will review these resumes and subsequently submit their recommendations to Governor-elect Cuomo and Lieutenant Governor-elect Robert Duffy with respect to staffing key positions with the new administration.

Resumes for all administration positions may be filed at http://www.worksforny.com/.
NYPPL

Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”

Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”
Matter of Swindell v Antonelli, 2010 NY Slip Op 08346, Decided on November 16, 2010, Appellate Division, First Department

Tajiri Swindell, an employee of the NYC Department of Corrections, was on the promotion list for Captain. When Swindell not appointed as Captain, she initiated an Article 78 action alleging that the decision not to promote her to captain was made in bad faith.

Supreme Court temporarily restrained Department of Correction from making appointments from the new list pending a court hearing.

The Appellate Division vacated the lower court’s order and dismissed Swindell’s petition.

The court said that the Department’s decision, in the light of “the open confidential investigation,” not to promote Swindell was “rational, reasonable, and made in good faith.”

Swindell’s claims of bad faith, said the court, were conclusory and speculative and thus she was not entitled to a judicial review of her claims.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08346.htm
NYPPL

Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position

Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position
Bethel v McGrath-McKechnie, 258 AD2d 316, Reversed, 95 NY2d 7

If an employee is promoted to a position in which he or she is required to serve a probationary period, the individual is given a leave of absence from his or her former position and is to be restored to that position if he or she fails the probationary period (Section 63.1, Civil Service Law). Section 63.1 does not define the term “promotion”, however.

In the Bethel case, the Appellate Division said it is incorrect to assume that a “promotion” is restricted to a direct promotion in the chain of command. It ruled that an appointment to a position from an open competitive examination list having higher pay, more responsibility and more prestige qualified as a promotion. The Court of Appeals disagreed and reversed the Appellate Division’s determination.

Earlene Bethel was a New York City Contract Specialist Level II with the city’s Community Development Agency (CDA). In July 1994, she accepted a provisional appointment as a Staff Analyst, another position in CDA, and she was placed on leave from her Contract Specialist position. Nine months later she was permanently appointed to the title of Staff Analyst from on open competitive examination eligible list. She, accordingly, was required to serve a probationary period. At the same time, Bethel was told that “her leave from the title of Contract Specialist II was canceled.” CDA’s reason for discontinuing her leave of absence: Bethel had not been “promoted” and thus Section 63.1 did not apply in her situation.*

On January 11, 1996, while still a probationer, Bethel was summarily dismissed from her Staff Analyst position. CDA rejected her request to be restored to her former position on the grounds that she was not on leave from the position and therefore had no legal claim to it.

Although the Appellate Division decided that “under the unique circumstances presented, “cancellation of [Bethel’s] leave from her former position prior to the expiration of her probationary period was an abuse of discretion,” the Court of Appeal disagreed and reversed the Appellate Division’s ruling. The court said that although after passing the examination for Staff Analyst and being appointed to the title as a provisional employee and given a leave of absence from her permanent position as Contract Specialist II:

1. Bethel was appointed to the position of Staff Analyst from an open competitive examination.**

2. Civil Service Law § 63 and the corresponding rules "furnish job security [i.e., a leave of absence] to a permanent employee who is transferred or promoted to a position in which he or she is required to serve,” a probationary period for his or her probationary term" citing Matter of Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied, 77 NY2d 805.***

3. Bethel conceded that she was not "transferred," nor was she "promoted," to Staff Analyst and her argument that her appointment to Staff Analyst through an open examination rather than a promotional examination “is without consequence” is not persuasive.

4. The Civil Service Law and implementing rules and regulations do not mandate an agency place a permanent appointee on leave of absence from his or her former position while he or she is serving a probationary period in an effort to qualify for continuation in a position to which he or she has been neither promoted nor transferred.

Further, the Court of Appeals said that CDA's determination denying Bethel’s application for reinstatement to her former position of Contract Specialist was not an abuse of discretion and as Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.

Accordingly, said the court, Civil Service Law §75(1)(a) is inapplicable under the facts in this case. Accordingly, Bethel was not entitled to a hearing prior to her employer’s cancellation of her leave of absence from her former Contract Specialist position.

* CSL Section 63.1 applies to New York City personnel. Moreover, the city’s administrative code is consistent with Section 63.1 of the Civil Service Law. [See Rule 5.2.3 of the City’s Personnel Rules].

** In July 1994, after passing the examination, Bethel received a provisional appointment to Staff Analyst pending certification of the civil service list for the position to the Human Resources Administration.

*** An individual holding a position by permanent appointment who is place on a leave of absence upon promotion or transfer to another position may elect to return to his or her “permanent title” at any time during the probationary period.
NYPPL

Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing

Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing
Gary Grippo v John P. Martin, 257 AD2d 952

After negotiations with union representatives, the Town of Glenville adopted a drug and alcohol policy in December 1995. The policy included a provision for the random testing of employees for drug and alcohol use. The policy also specified various disciplinary actions to be taken following positive test results. In particular, the policy provided that two positive tests within a 10-year period would result in the employee’s immediate termination.

Gary Grippo, a town employee since 1986, tested positive for drug and alcohol use in August 1996. In accordance with the policy, Grippo was suspended from his employment without pay for 30 days. Grippo tested positive a second time on May 15, 1997. He was informed of the test result and the penalty of termination was imposed.

Grippo challenged his dismissal, contending that by creating an “irrebuttable presumption of [Grippo’s] guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law Section 75[1].”

The Appellate Division disagreed and sustained a lower court’s ruling dismissing Grippo’s petition.

The Appellate Division commented that “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law”.

Accordingly, an employee organization may, pursuant to the provisions of a collective bargaining agreement, waive the employee’s Section 75 and 76 rights.

The decision points out that “both by statute and case law, such a waiver in a collective bargaining agreement of public employee statutory rights in disciplinary matters is not against public policy, and members of the bargaining unit are bound thereby.”

The court found that: (1) Glenville had negotiated with Grippo’s union to enact the drug and alcohol policy, and (2) Grippo was provided with a copy of the policy and expressly agreed to its terms by signing it.
NYPPL

Negotiations during decertification action

Negotiations during decertification action
Advisory Opinion of Counsel 32 PERB 5002*

Sometimes the time becomes ripe for collective bargaining while a decertification petition is pending final determination. May the employer commence negotiations with a representative of a unit of public employees while the representation challenge concerning that unit is still pending?

PERB’s Counsel noted that in Matter of Rockland County, 10 PERB 3098, PERB held that “a public employer is not compelled to, and may not, negotiate with the incumbent employee organization while a bona fide question concerning representation is pending.”

However, Counsel noted that in earlier opinions it was indicate that such negotiations may be conducted in the face of a pending representation petition with the consent of all parties affected by the petition, citing 23 PERB 5001; 5002 and 5003.

Finally, the opinion notes that while the then recognized or certified bargaining agent for the unit may be barred from negotiating a successor agreement because of the pending representation petition, it has the “continuing right and duty to represent the at-issue unit” for the purposes of preserving the status quo and to respond to changes “through negotiations.”

* An Advisory Opinion of Counsel is not binding on PERB
NYPPL

Staying a grievance arbitration

Staying a grievance arbitration
Newfield CSD v Newfield Teachers Asso., 258 AD2d 845, motion to appeal denied, 93 NY2d 809

Newfield Central School District subcontracted with BOCES to staff various positions. In July 1997, the Newfield Central School Teachers Association filed a grievance alleging that the district had violated its collective bargaining agreement with the teachers association.

The superintendent denied the grievance, and the school board affirmed that ruling on administrative appeal. The teachers next filed a demand for arbitration. The district, however, obtained a stay from a state Supreme Court justice barring arbitration because the collective bargaining agreement was silent as to the district’s right to subcontract. The Supreme Court reasoned that absent clear contractual basis for arbitration on such an issue, the Teachers Association’s grievance was not arbitrable. The teachers appealed to the Appellate Division.

In a 4 to 1 ruling, the Appellate Division, Third Department, agreed with the lower court.

The court applied a two-part test set out in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509.

The first test was whether subject of the arbitration claim was prohibited under the Taylor Law (Civil Service Law Section 200 et seq.) For instance, issues involving strong public policy typically are not subject to arbitration. The court said the BOCES subcontracting issue was not prohibited under the Taylor Law.

Having passed the first test, the next question was whether the parties had agreed by the terms of their collective bargaining agreement to submit this type of dispute to arbitration. No, said the court.

Courts are likely to deny arbitration of a grievance unless the language of the arbitration clause in a collective bargaining agreement specifically provides for such arbitration. To determine whether an issue sought to be arbitrated falls within the ambit of an arbitration clause, a court is “to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration; anything less will lead to denial of arbitration.”

In the Liverpool case, the Court of Appeals held: The Appellate Division said it may be appropriate for a school district and a teachers association to negotiate the degree to which a school district utilizes the resources available through BOCES.

The court characterized the subject as a permissible, rather than a mandatory, subject of negotiation.

Accordingly, said the court, it makes little sense to require the district, under the guise of a broad arbitration clause, to arbitrate a provision that it is not even required to negotiate. It ruled that in the absence of a valid and specific agreement between the parties clearly showing an intent to arbitrate claims arising out of subcontracting with BOCES, the district’s application to stay arbitration was properly granted.

The lesson here is that unless the contract arbitration provision specifically states that it is applicable to certain other, or all, controversies concerning issues not covered by the negotiated agreement arising between the parties during the life of the agreement, the courts usually will limit the scope of arbitration to those claims alleging a violation of a specified contract provision.

In a dissenting opinion, Presiding Judge Ann Mikoll said that “for a public employment dispute to be arbitrable, it is not necessary that the parties have specifically addressed its subject matter and specifically agreed to arbitrate it. Rather, the focus must be solely upon the language of the parties’ arbitration clause, and whether or not it extends to the particular dispute.” Judge Mikoll said that she believed that “the instant dispute falls within the scope of the parties’ broad arbitration clause, which extends to all ‘claimed violations’ thereof,” and concluded that the matter should be resolved by arbitration.
NYPPL

Employee terminated following loss of a license required to perform the duties of the position

Employee terminated following loss of a license required to perform the duties of the position
Lytle v U.S. Postal Service, 257 AD2d 779

One of the conditions of Christopher M. Lytle’s employment by the United States Postal Service was that he posses a valid driver’s license so that he could perform his postal duties.

Lytle was arrested for driving while intoxicated and his license was suspended. As he could not lawfully drive a motor vehicle, he was terminated from his position. Finding that he was “terminated due to misconduct,” the Unemployment Insurance Appeals Board denied his application for unemployment insurance benefits.

The Appellate Division sustained the board’s ruling, holding that since Lytle “engaged in a voluntary act which violated a reasonable condition of his employment, we decline to disturb the Board’s decision that [Lytle’s] behavior constituted disqualifying misconduct.”
NYPPL

Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement

Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement
Matter of Town of Tuxedo v Town of Tuxedo Police Benevolent Assn., 2010 NY Slip Op 08122, decided on November 9, 2010, Appellate Division, Second Department

On December 4, 2004, Town of Tuxedo Police Officer John Tamburello was injured in the line of duty. He never returned to work and was awarded a disability retirement on or about December 23, 2008.

In March 2009 the Tuxedo Park PBA filed a grievance alleging that Tamburello had not been paid for all of his unused leave as mandated by the collective bargaining agreement [CBA]. According to the PBA, leave time continued to accrue during the four-year period that Tamburello was receiving benefits pursuant to General Municipal Law §207-c.

When it demanded that the question be submitted to arbitration, Tuxedo Park filed a petition pursuant to Article 75 seeking a permanent stay of arbitration.

Ultimately the Appellate Division ruled that “benefits provided to a police officer pursuant to General Municipal Law §207-c, like the benefits provided to a firefighter pursuant to General Municipal Law §207-a, are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits.”*

“Unless,” said the court, “a collective bargaining agreement expressly provides for compensation rights to disabled officers in addition to those provided by General Municipal Law § 207-c, there is no entitlement to such additional compensation,” citing Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686.

As the Appellate Division found that the controlling CBA “did not contain any language expressly providing that leave time would accrue during the period that a disabled officer receives General Municipal Law §207-c benefits, or that a disabled officer would be paid for such leave time upon retirement,”. Supreme Court should have granted the petition in Proceeding No. 2 to permanently stay arbitration.

Comment: The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.

The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.

Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c.

Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement.

Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.

Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary, i.e., a Section 207-a level of benefits.

Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.

Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:

1. Had been included in the contract by mistake and

2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.

The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.

Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.

In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.

As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.

Accordingly, Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement were entitle to Section 207-a type benefits.

* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08122.htm

===================================

For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html

===================================
NYPPL

Disciplinary suspension without pay tolled while individual incarcerated

Disciplinary suspension without pay tolled while individual incarcerated
Manning v Warsaw CSD, CEd 14071

The Warsaw Central School District served disciplinary charges against a tenured teacher, William Manning, Jr., related to his alleged operating a motor vehicle under the influence of alcohol.

Following a disciplinary hearing and an appeal, on November 22, 1994 former Commission of Education Sobol issued a decision and imposed a penalty of suspension without pay for two years. The decision was sustained by a State Supreme Court justice [Manning v Sobol, August 7, 1995, not officially reported].

Manning, however, was incarcerated in the Wyoming County jail on July 19, 1994. Because he was “unavailable” to work, the district changed his pay status from suspension with pay pending resolution of the Section 3020-a action to suspension without pay effective July 19, 1994.

Released from prison and claiming that his two-year suspension without pay commenced on November 22, 1994, Manning advised the district that he intended to return to work on November 22, 1996. The District said that the two-year suspension period commenced on March 21, 1995, when he was released from prison and therefore he could not return to work earlier than March 21, 1997. Manning appealed.

Commissioner of Education Richard P. Mills said that the two-year suspension imposed by former Commissioner Sobol commenced when Manning was released from incarceration since allowing the suspension to run concurrently with his incarceration “nullifies a portion of the suspension, since [Manning] could not work during that period in any event.”

The Commissioner rejected Manning’s claim that he was entitled to back salary from November 22, 1996, holding that to do so would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol.
NYPPL