Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan Source: NYS Register, November 24, 2010
The New York State Department of Civil Service has proposed amending 4 NYCRR 73.2 with respect to the disqualification of individuals from participating in the New York State Health Insurance Plan (‘‘NYSHIP’’) and receiving NYSHIP benefits
Text of proposed rule: That subdivision (e) of Section 73.2 of Part 73 of the Regulations of the Department of Civil Service (President’s Regulations) is amended to read as follows:
(e) Disqualification. The president may disqualify from participation in the health insurance plan and from receiving benefits thereunder any employee or retired employee or dependent of an employee or retired employee who has secured or attempted to secure participation in the health insurance plan or benefits under the plan for himself or another by fraud, deception or a false statement of a material fact, or who has accepted benefits for himself or another knowing he was not entitled thereto. No person shall be disqualified or denied benefits pursuant to this subdivision unless he is first given a written statement of the reasons therefor and afforded an opportunity to make an explanation and submit facts in opposition to such action. Such employee, retired employee or dependent of an employee or retired employee may be restored to eligibility for coverage under the plan only on approval of the president and subject to such conditions as may be imposed by the president, including repayment of sums expended for benefits obtained by fraud, deception or false statement of a material fact, or accepted by the employee with knowledge that he was not entitled thereto.
Public comment will be received until: 45 days after publication of the notice. Data, views or arguments concerning the proposed amendment may be submitted to Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us
The text of the proposed amendment and related information is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Nov 24, 2010
Separate layoff units for NYS Department of Environmental Conservation law enforcement personnel proposed
Separate layoff units for NYS Department of Environmental Conservation law enforcement personnel proposed
Source: NYS Register, November 24, 2010
The amendment, if adopted would “designate the Agency Law Enforcement Services negotiating unit as a separate layoff unit with Dept. of Environmental Conservation.”
The text of the proposed rule and any required statements and analyses may be
obtained from: Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us
Data, views or arguments concerning the proposed amendment may be submitted to: Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us Public comment will be received until: 45 days after publication of this notice.
The full text of the proposal submitted to the Department of State is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
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Source: NYS Register, November 24, 2010
The amendment, if adopted would “designate the Agency Law Enforcement Services negotiating unit as a separate layoff unit with Dept. of Environmental Conservation.”
The text of the proposed rule and any required statements and analyses may be
obtained from: Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us
Data, views or arguments concerning the proposed amendment may be submitted to: Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us Public comment will be received until: 45 days after publication of this notice.
The full text of the proposal submitted to the Department of State is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
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Video evidence exonerates security officers charged with using excessive force
Video evidence exonerates security officers charged with using excessive force
Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v Charles and Ross, OATH Index Nos. 2802/10 & 2803/10
The NYC Health and Hospital Corporation filed disciplinary charges alleging that two Lincoln Medical Center hospital special officers, Morris Charles and Christopher Ross, used excessive force against a hospital visitor when they escorted him outside.
OATH Administrative Law Judge Kara J. Miller determined that the officers and the visitor began to struggle inside the vestibule between the inner and outer doorways of the facility and then on the sidewalk in front of the building.
However, Judge Miller ruled that the video evidence presented by the Corporation failed to support the charges filed against the two officers and, further, that Charles and Ross “credibly established that the visitor initiated the physical altercation by cursing loudly and trying to hit them with a cane.”
Finding that the two security officers had reasonably attempted to de-escalate the situation and when that failed, the force used was not excessive under the circumstances, Judge Miller recommended that the disciplinary charges be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2802.pdf
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Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v Charles and Ross, OATH Index Nos. 2802/10 & 2803/10
The NYC Health and Hospital Corporation filed disciplinary charges alleging that two Lincoln Medical Center hospital special officers, Morris Charles and Christopher Ross, used excessive force against a hospital visitor when they escorted him outside.
OATH Administrative Law Judge Kara J. Miller determined that the officers and the visitor began to struggle inside the vestibule between the inner and outer doorways of the facility and then on the sidewalk in front of the building.
However, Judge Miller ruled that the video evidence presented by the Corporation failed to support the charges filed against the two officers and, further, that Charles and Ross “credibly established that the visitor initiated the physical altercation by cursing loudly and trying to hit them with a cane.”
Finding that the two security officers had reasonably attempted to de-escalate the situation and when that failed, the force used was not excessive under the circumstances, Judge Miller recommended that the disciplinary charges be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2802.pdf
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Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee
Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee
Matter of Gibbons v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 08571, Decided on November 16, 2010, Appellate Division, Second Department
Grace Gibbons, a court reporter in the District Court, Nassau County, for 22 years, was served with disciplinary charges.
In the course of the disciplinary hearing the Office of Court Administration presented evidence that Gibbons had been “insubordinate to her supervisors and to a District Court Judge, that she failed to produce transcripts in a timely manner, and that she was excessively absent without providing sufficient notice.”
The disciplinary hearing officer, Colleen M. Fondulis, found Gibbons guilty of a number of the charges filed against her and recommended that she be dismissed from her position. The Deputy Chief Administrative Judge for Courts Outside of New York City, Jan H. Plumadore, concurred, finding Gibbons guilty of the misconduct and incompetence alleged in many of the 20 specifications. Judge Plumadore adopted the hearing officer's recommendation as to the penalty to be imposed and terminated Gibbons from her position.
Gibbons filed a petition pursuant to CPLR Article 78 appealing Judge Plumadore’s determination.
The Appellate Division said that test of the lawfullness of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.* In this instance, said the court, it found that that the administrative determination was supported by substantial evidence.
Further, the court said that "[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists," citing Matter of Berenhaus v Ward, 70 NY2d 436.
In considering the penalty imposed on Gibbons, termination, the Appellate Division noted that a penalty imposed following an administrative disciplinary hearing based on a finding that the individual is guilty of one or more of the charges must be sustained unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” the so-called “Pell Standard.”**
Considering Gibbons’ “repeated acts of insubordination, absences, and untimely completion of transcripts,” the Appellate Davison said that the penalty imposed, termination, did not shock its sense of fairness.
* Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"
** Matter of 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_08571.htm
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Matter of Gibbons v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 08571, Decided on November 16, 2010, Appellate Division, Second Department
Grace Gibbons, a court reporter in the District Court, Nassau County, for 22 years, was served with disciplinary charges.
In the course of the disciplinary hearing the Office of Court Administration presented evidence that Gibbons had been “insubordinate to her supervisors and to a District Court Judge, that she failed to produce transcripts in a timely manner, and that she was excessively absent without providing sufficient notice.”
The disciplinary hearing officer, Colleen M. Fondulis, found Gibbons guilty of a number of the charges filed against her and recommended that she be dismissed from her position. The Deputy Chief Administrative Judge for Courts Outside of New York City, Jan H. Plumadore, concurred, finding Gibbons guilty of the misconduct and incompetence alleged in many of the 20 specifications. Judge Plumadore adopted the hearing officer's recommendation as to the penalty to be imposed and terminated Gibbons from her position.
Gibbons filed a petition pursuant to CPLR Article 78 appealing Judge Plumadore’s determination.
The Appellate Division said that test of the lawfullness of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.* In this instance, said the court, it found that that the administrative determination was supported by substantial evidence.
Further, the court said that "[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists," citing Matter of Berenhaus v Ward, 70 NY2d 436.
In considering the penalty imposed on Gibbons, termination, the Appellate Division noted that a penalty imposed following an administrative disciplinary hearing based on a finding that the individual is guilty of one or more of the charges must be sustained unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” the so-called “Pell Standard.”**
Considering Gibbons’ “repeated acts of insubordination, absences, and untimely completion of transcripts,” the Appellate Davison said that the penalty imposed, termination, did not shock its sense of fairness.
* Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"
** Matter of 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_08571.htm
NYPPL
Errors in processing a disciplinary action results in annulment of determination
Errors in processing a disciplinary action results in annulment of determination
Collins v Parishville-Hopkinton CSD, 256 AD2d 700
The Collins case demonstrates that even what one might assume is an “open and shut” disciplinary case can go awry.
It was undisputed that Ann Collins, a full-time bus driver employed by the Parishville-Hopkinton Central School District, brought a 12-pack of beer with her to the district’s bus garage and that she drank some of the beer while waiting to be taken to a bus drivers training workshop.
The district filed disciplinary charges against her pursuant to Section 75 of the Civil Service Law, alleging Collins that she:
1. brought and consumed beer on school district property;
2. attended a bus driver safety workshop after having consumed beer;
3. was under the influence of alcohol at the training session;
4. drove out of the district’s parking lot at a high rate of speed, spinning the vehicles tires and “fishtailing;” and
5. appeared distracted and inattentive at the training session.
Although Collins was found guilty “of the charges laid against her” and terminated, the Appellate Division annulled the determination because it found that “the determination of the hearing officer and of the Board of Education were replete with error.”
The hearing officer erred by finding the employee guilty of some offenses with which she had not been charged. This is not permissible under Section 75 unless the charges are amended by the appointing authority, here the school board. Such an error is a denial of due process; the employee must have notice of what offenses he or she is charged with and have an opportunity to prepare a defense.
In Collins’ case, the Appellate Division pointed out that the determination made in a disciplinary proceeding “must be based on the charges [and] no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” The court ruled that the hearing officer erred when he found Collins guilty of two uncharged specifications of misconduct and based his penalty recommendation on those findings.
The school board erred by failing to explain its decision to find the employee guilty of all the original charges, despite the fact that the hearing officer found the employee innocent of some of the original charges.
An appointing authority may ignore a hearing officer’s finding of innocence on a specific charge and nevertheless find the employee guilty of that charge but in such a circumstance it behooves the appointing authority to cite evidence in the record to support its determination. If the employee chooses to appeal the determination, the courts typically will view an “unsupported” determination as arbitrary and capricious.*
As to the action taken by the school board, the Appellate Division explained that “although the Board of Education was not bound by the hearing officer’s determination to dismiss four of the charges [i.e., charges 2-5] levied against [Collins] and was entitled to find [her] guilty of those charges if the evidence provided adequate factual support therefore, it was incumbent upon the Board of Education to render a decision with specific factual findings supporting its conclusions in that regard.”
In other words, while the board could find Collins guilty of charges 2-5 as reflected by its resolution, it was required to set out the evidence it relied upon to support its findings of guilt if it hoped to have its determination withstand judicial scrutiny.
The court said that under the circumstances, the board’s decision had to be annulled and the matter remanded to it so that it may make findings of fact in support of whatever decision it may deem proper “based on the evidence previously presented” to it. Clearly, the Appellate Division’s directive precludes the district from holding a new hearing on the “formal” charges it initially filed against Collins.
* According to the decision, the hearing officer found that Collins brought and consumed beer on school property; offered beer to other drivers; and left beer in the open back of her pick-up truck parked in the district’s parking lot. Concluding that this constituted poor judgment, he recommended that Collins be dismissed. The School Board passed, without further elaboration, a resolution finding Collins “guilty of the charges laid against her and each of them.” It then adopted the hearing officer’s recommendation that Collins be dismissed. It appears that the hearing officer found Collins guilty of charge 1, together with 2 other offenses not charged. The school board apparently found Collins guilty of the charges filed against her, including charge 1, but did not adopt the findings of the hearing regarding Collins offering beer to other drivers and leaving beer exposed in the back of her truck.
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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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NYPPL
Collins v Parishville-Hopkinton CSD, 256 AD2d 700
The Collins case demonstrates that even what one might assume is an “open and shut” disciplinary case can go awry.
It was undisputed that Ann Collins, a full-time bus driver employed by the Parishville-Hopkinton Central School District, brought a 12-pack of beer with her to the district’s bus garage and that she drank some of the beer while waiting to be taken to a bus drivers training workshop.
The district filed disciplinary charges against her pursuant to Section 75 of the Civil Service Law, alleging Collins that she:
1. brought and consumed beer on school district property;
2. attended a bus driver safety workshop after having consumed beer;
3. was under the influence of alcohol at the training session;
4. drove out of the district’s parking lot at a high rate of speed, spinning the vehicles tires and “fishtailing;” and
5. appeared distracted and inattentive at the training session.
Although Collins was found guilty “of the charges laid against her” and terminated, the Appellate Division annulled the determination because it found that “the determination of the hearing officer and of the Board of Education were replete with error.”
The hearing officer erred by finding the employee guilty of some offenses with which she had not been charged. This is not permissible under Section 75 unless the charges are amended by the appointing authority, here the school board. Such an error is a denial of due process; the employee must have notice of what offenses he or she is charged with and have an opportunity to prepare a defense.
In Collins’ case, the Appellate Division pointed out that the determination made in a disciplinary proceeding “must be based on the charges [and] no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” The court ruled that the hearing officer erred when he found Collins guilty of two uncharged specifications of misconduct and based his penalty recommendation on those findings.
The school board erred by failing to explain its decision to find the employee guilty of all the original charges, despite the fact that the hearing officer found the employee innocent of some of the original charges.
An appointing authority may ignore a hearing officer’s finding of innocence on a specific charge and nevertheless find the employee guilty of that charge but in such a circumstance it behooves the appointing authority to cite evidence in the record to support its determination. If the employee chooses to appeal the determination, the courts typically will view an “unsupported” determination as arbitrary and capricious.*
As to the action taken by the school board, the Appellate Division explained that “although the Board of Education was not bound by the hearing officer’s determination to dismiss four of the charges [i.e., charges 2-5] levied against [Collins] and was entitled to find [her] guilty of those charges if the evidence provided adequate factual support therefore, it was incumbent upon the Board of Education to render a decision with specific factual findings supporting its conclusions in that regard.”
In other words, while the board could find Collins guilty of charges 2-5 as reflected by its resolution, it was required to set out the evidence it relied upon to support its findings of guilt if it hoped to have its determination withstand judicial scrutiny.
The court said that under the circumstances, the board’s decision had to be annulled and the matter remanded to it so that it may make findings of fact in support of whatever decision it may deem proper “based on the evidence previously presented” to it. Clearly, the Appellate Division’s directive precludes the district from holding a new hearing on the “formal” charges it initially filed against Collins.
* According to the decision, the hearing officer found that Collins brought and consumed beer on school property; offered beer to other drivers; and left beer in the open back of her pick-up truck parked in the district’s parking lot. Concluding that this constituted poor judgment, he recommended that Collins be dismissed. The School Board passed, without further elaboration, a resolution finding Collins “guilty of the charges laid against her and each of them.” It then adopted the hearing officer’s recommendation that Collins be dismissed. It appears that the hearing officer found Collins guilty of charge 1, together with 2 other offenses not charged. The school board apparently found Collins guilty of the charges filed against her, including charge 1, but did not adopt the findings of the hearing regarding Collins offering beer to other drivers and leaving beer exposed in the back of her truck.
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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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NYPPL
Jurisdiction of the Commissioner of Education to consider Taylor Law and Open Meetings Law issues
Jurisdiction of the Commissioner of Education to consider Taylor Law and Open Meetings Law issues
Matter of Goldin and the Wappingers Falls CSD, Decisions of the Commissioner of Education, 14043
This decision by the Commissioner of Education points out he does not have jurisdiction to resolve a dispute merely because the issue involves a school district. In this Education Law Section 310 appeal filed with the Commissioner, the issues raised concerned the terms of a collective bargaining agreement and the State’s Open Meetings Law.
After noting that Goldin’s appeal had to be dismissed for a number of procedural reasons including her failure to include all necessary parties -- the Board of Education and the Congress -- the Commissioner dismissed the appeal on the grounds that he did not have the authority to resolve these issues.
Since 1988 collective bargaining agreements between the Wappingers Central School District and the Wappingers Congress of Teachers provided that the Congress’ president, in order to conduct union business, “will teach three periods per day if he/she is a secondary teacher and will act as a substitute three days per week if he/she is an elementary teacher.”
A 1995 “side letter” signed by school superintendent John G. Marmillo and Congress president Ronald L. Warman relieved Warman of all of his teaching duties in order to allow him to conduct Congress business. The Congress was to reimburse the district in accordance with an agreed upon formula based on “60 percent of the substitute pay rate.”
Contending that the “side letter is an illegal document,” Dione Goldin filed an appeal with the Commissioner pursuant to Section 310 of the Education Law naming school superintendent John G. Marmillo and Congress president Ronald L. Warman as the respondents. She asked the Commissioner of Education to annul the side letter and order the Congress to reimburse the district the “salary for the period covered under the letter” paid to its president.
This decision demonstrates that including all the “necessary parties” is critical in prosecuting a Section 310 appeal before the Commissioner. As an example, in an appeal in which parents sought to have a school bus driver dismissed because of alleged “abusive conduct” towards students after the district declined to do so, the Commissioner said that “the parents’ failure to name the driver as a respondent required that he dismiss their appeal” [Appeal of Lippman (Holland Central School District), Decision 14041]. The decision points out that “a party whose rights would be adversely affected by a determination of an appeal in favor of the petitioner is a necessary party and must be joined as such.”
The Commissioner pointed out that “to the extent that [Goldin] seeks an order directing the Wappingers Congress of Teachers to reimburse the school district, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law Section 310.”
Goldin also complained that the Board of Education violated the Open Meetings Law. The Commissioner said that alleged violations of the Open Meetings Law must be pursued in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, rather than a Section 310 appeal.
NYPPL
Matter of Goldin and the Wappingers Falls CSD, Decisions of the Commissioner of Education, 14043
This decision by the Commissioner of Education points out he does not have jurisdiction to resolve a dispute merely because the issue involves a school district. In this Education Law Section 310 appeal filed with the Commissioner, the issues raised concerned the terms of a collective bargaining agreement and the State’s Open Meetings Law.
After noting that Goldin’s appeal had to be dismissed for a number of procedural reasons including her failure to include all necessary parties -- the Board of Education and the Congress -- the Commissioner dismissed the appeal on the grounds that he did not have the authority to resolve these issues.
Since 1988 collective bargaining agreements between the Wappingers Central School District and the Wappingers Congress of Teachers provided that the Congress’ president, in order to conduct union business, “will teach three periods per day if he/she is a secondary teacher and will act as a substitute three days per week if he/she is an elementary teacher.”
A 1995 “side letter” signed by school superintendent John G. Marmillo and Congress president Ronald L. Warman relieved Warman of all of his teaching duties in order to allow him to conduct Congress business. The Congress was to reimburse the district in accordance with an agreed upon formula based on “60 percent of the substitute pay rate.”
Contending that the “side letter is an illegal document,” Dione Goldin filed an appeal with the Commissioner pursuant to Section 310 of the Education Law naming school superintendent John G. Marmillo and Congress president Ronald L. Warman as the respondents. She asked the Commissioner of Education to annul the side letter and order the Congress to reimburse the district the “salary for the period covered under the letter” paid to its president.
This decision demonstrates that including all the “necessary parties” is critical in prosecuting a Section 310 appeal before the Commissioner. As an example, in an appeal in which parents sought to have a school bus driver dismissed because of alleged “abusive conduct” towards students after the district declined to do so, the Commissioner said that “the parents’ failure to name the driver as a respondent required that he dismiss their appeal” [Appeal of Lippman (Holland Central School District), Decision 14041]. The decision points out that “a party whose rights would be adversely affected by a determination of an appeal in favor of the petitioner is a necessary party and must be joined as such.”
The Commissioner pointed out that “to the extent that [Goldin] seeks an order directing the Wappingers Congress of Teachers to reimburse the school district, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law Section 310.”
Goldin also complained that the Board of Education violated the Open Meetings Law. The Commissioner said that alleged violations of the Open Meetings Law must be pursued in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, rather than a Section 310 appeal.
NYPPL
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or her income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or her income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Nov 23, 2010
Facing the Legal Dangers of Social Media – a Complimentary Webinar
Facing the Legal Dangers of Social Media – a Complimentary Webinar
Source: The Virtual LegalTech Team
The Virtual LegalTech Team has announced that a one-hour webinar entitled, "Facing the Legal Dangers of Social Media," will take place in the Virtual Auditorium at Virtual LegalTech on December 14, 2010 from 10:00 – 11:00 AM EST." The webinar session is eligible for CLE credit in certain states.*
According to the Team, "This Webinar will take a close look at the most challenging social media issues arising in the legal industry today, including:
1. The good and the bad of employees and social media;
2. Monitoring online content and combating the negatives; and
3. Preserving privilege and avoiding inadvertent contact with adversaries online."
The Team also notes that those participating in the December 14 session will be able to "chat with vendors, see product demonstrations, collect information, network with colleagues and get the latest news from the ever-evolving legal industry."
Register at http://www.virtuallegaltechshow.com/.
Registration is complimentary and use Priority Code SOCIAL1 when registering.
For additional information please go to http://alm-promotions-us.msgfocus.com/c/1fH13YdyA5u8FZO5Tc or telephone 212-457-7905
* According to the Team, Complimentary CLE will only be offered for credits in NY, CA and IL by attending the Virtual LegalTech show on December 14, 2010. CLE credit is pending in FL. Not all sessions are CLE eligible. Other terms and conditions apply. All potential participants will be contacted with further details prior to the show.
NYPPL
Source: The Virtual LegalTech Team
The Virtual LegalTech Team has announced that a one-hour webinar entitled, "Facing the Legal Dangers of Social Media," will take place in the Virtual Auditorium at Virtual LegalTech on December 14, 2010 from 10:00 – 11:00 AM EST." The webinar session is eligible for CLE credit in certain states.*
According to the Team, "This Webinar will take a close look at the most challenging social media issues arising in the legal industry today, including:
1. The good and the bad of employees and social media;
2. Monitoring online content and combating the negatives; and
3. Preserving privilege and avoiding inadvertent contact with adversaries online."
The Team also notes that those participating in the December 14 session will be able to "chat with vendors, see product demonstrations, collect information, network with colleagues and get the latest news from the ever-evolving legal industry."
Register at http://www.virtuallegaltechshow.com/.
Registration is complimentary and use Priority Code SOCIAL1 when registering.
For additional information please go to http://alm-promotions-us.msgfocus.com/c/1fH13YdyA5u8FZO5Tc or telephone 212-457-7905
* According to the Team, Complimentary CLE will only be offered for credits in NY, CA and IL by attending the Virtual LegalTech show on December 14, 2010. CLE credit is pending in FL. Not all sessions are CLE eligible. Other terms and conditions apply. All potential participants will be contacted with further details prior to the show.
NYPPL
Employee fined for using employer’s equipment for personal business
Employee fined for using employer’s equipment for personal business
Conflicts of Interest Board v Raymond McNeil, OATH Index #09-307
OATH Administrative Law Judge Faye Lewis found that former New York City procurement analyst Raymond McNeil had used his City computer and his City e-mail account for a non-City purpose – engaging in his personal business -- during normal working hours.
Judge Lewis found that McNeil had violated the New York City Conflict of Interest Board’s Rules by using his City computer to send e-mails concerning his notary public services. Further, the decision notes that “[p]roviding one’s City government e-mail address and phone number as contact information for outside employment is in conflict with the proper discharge of [the employee’s] official duties.”
Although Judge Lewis recommended that a $600 fine be imposed on McNeil, the Conflicts of Interest Board decided to impose a $2,000 fine as the penalty for violated its Rules.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1790.pdf
NYPPL
Conflicts of Interest Board v Raymond McNeil, OATH Index #09-307
OATH Administrative Law Judge Faye Lewis found that former New York City procurement analyst Raymond McNeil had used his City computer and his City e-mail account for a non-City purpose – engaging in his personal business -- during normal working hours.
Judge Lewis found that McNeil had violated the New York City Conflict of Interest Board’s Rules by using his City computer to send e-mails concerning his notary public services. Further, the decision notes that “[p]roviding one’s City government e-mail address and phone number as contact information for outside employment is in conflict with the proper discharge of [the employee’s] official duties.”
Although Judge Lewis recommended that a $600 fine be imposed on McNeil, the Conflicts of Interest Board decided to impose a $2,000 fine as the penalty for violated its Rules.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1790.pdf
NYPPL
Notice requirements for filing an complaint with PERB alleging an improper practice
Notice requirements for filing an complaint with PERB alleging an improper practice
Union Endicott CSD v PERB, 250 AD2d 82, motion to appeal denied, 93 NY2d 805
In the Union Endicott decision the Appellate Division, Third Department, affirmed its position that a union’s failure to file a timely notice of claim with a school district as mandated by Section 3813(1) of the Education Law prevents it from prosecuting improper practice charges filed against the district with PERB.
The case arose in 1992 in connection with the New York State Electric and Gas Company’s rebate program designed to encourage the replacement of the components of thousands of the Union-Endicott Central School District’s fluorescent fixtures with “high efficiency energy-saving models.”
The district decided to participate in the program and, after receiving competitive bids, awarded the work to an independent electrical contractor. In 1993, the Union-Endicott Maintenance Workers Association filed an improper employer practice charge with PERB contending that the district had awarded work previously performed exclusively by Association members to an independent contractor in violation of Section 209-a(1)(d) of the Civil Service Law [the Taylor Law].
PERB agreed and directed the district to cease subcontracting out the work and to make the Association members “whole for any wages or benefits lost as a result of the contracting out of the [unit] work.”
The district asked the courts to annul PERB’s decision on the ground that the Association had not complied with the “notice of claim” requirement set out in Section 3813 of the Education Law. This omission, the district argued, required PERB to dismiss the improper practice charged filed by the Association.
The Appellate Division agreed, pointing out that it has “unequivocally held that the filing of a timely notice of claim pursuant to Education Law Section 3813(1) is a condition precedent to a collective bargaining unit’s filing of an improper practice charge against a school district.”
Accordingly, the Court decided that PERB should have granted the district’s motion to dismiss the Association’s improper employer practice charge based on the Association’s failure to file a timely notice of claim with the district.*
Courts have noted that there are some exceptions to this requirement, however. For example, in CSEA v Lakeland Central School District, the Appellate Division rejected the School District’s claim that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in Section 3813(1).
The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement” by the School District.
Similarly, in a case involving an employee’s applying for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law, State Supreme Court Justice Anthony Kane rejected a school district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district [Elmsford UFSD v Alfred G. Meyer, Supreme Court, Albany County, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807].
While exceptions to the “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
* PERB has dismissed improper practice charges filed by a union on the grounds that it failed to filed a notice of claim with the district as required by 3813(1) of the Education Law in other cases such as Watertown Education Association and Watertown City Schools, 28 PERB 3033.
NYPPL
Union Endicott CSD v PERB, 250 AD2d 82, motion to appeal denied, 93 NY2d 805
In the Union Endicott decision the Appellate Division, Third Department, affirmed its position that a union’s failure to file a timely notice of claim with a school district as mandated by Section 3813(1) of the Education Law prevents it from prosecuting improper practice charges filed against the district with PERB.
The case arose in 1992 in connection with the New York State Electric and Gas Company’s rebate program designed to encourage the replacement of the components of thousands of the Union-Endicott Central School District’s fluorescent fixtures with “high efficiency energy-saving models.”
The district decided to participate in the program and, after receiving competitive bids, awarded the work to an independent electrical contractor. In 1993, the Union-Endicott Maintenance Workers Association filed an improper employer practice charge with PERB contending that the district had awarded work previously performed exclusively by Association members to an independent contractor in violation of Section 209-a(1)(d) of the Civil Service Law [the Taylor Law].
PERB agreed and directed the district to cease subcontracting out the work and to make the Association members “whole for any wages or benefits lost as a result of the contracting out of the [unit] work.”
The district asked the courts to annul PERB’s decision on the ground that the Association had not complied with the “notice of claim” requirement set out in Section 3813 of the Education Law. This omission, the district argued, required PERB to dismiss the improper practice charged filed by the Association.
The Appellate Division agreed, pointing out that it has “unequivocally held that the filing of a timely notice of claim pursuant to Education Law Section 3813(1) is a condition precedent to a collective bargaining unit’s filing of an improper practice charge against a school district.”
Accordingly, the Court decided that PERB should have granted the district’s motion to dismiss the Association’s improper employer practice charge based on the Association’s failure to file a timely notice of claim with the district.*
Courts have noted that there are some exceptions to this requirement, however. For example, in CSEA v Lakeland Central School District, the Appellate Division rejected the School District’s claim that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in Section 3813(1).
The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement” by the School District.
Similarly, in a case involving an employee’s applying for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law, State Supreme Court Justice Anthony Kane rejected a school district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district [Elmsford UFSD v Alfred G. Meyer, Supreme Court, Albany County, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807].
While exceptions to the “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
* PERB has dismissed improper practice charges filed by a union on the grounds that it failed to filed a notice of claim with the district as required by 3813(1) of the Education Law in other cases such as Watertown Education Association and Watertown City Schools, 28 PERB 3033.
NYPPL
Probation and layoff rights of an educator being employed by a school district following a take-back BOCES program
Probation and layoff rights of an educator being employed by a school district following a take-back BOCES program
Decisions of the Commissioner of Education 13964
As a result of a “take-back” of programs by component school districts of Rensselaer-Columbia-Greene BOCES, Ellen Chernoff was excessed.
Chernoff subsequently accepted a full-time position with the Wynantskill Central School District in Rensselaer County. Later Chernoff resigned from Wynantskill after she was offered full-time employment by the BOCES, also called Questar III. However, she objected to the statement in her letter of appointment indicating that she would be required to serve a two-year probationary period.
Questar III countered by stating that Chernoff had “freely and knowingly” became a full-time Wynantskill employee and thus extinguished her preferred list rights with it. Commissioner of Education Richard P. Mills agreed and dismissed Chernoff’s appeal.
Another issue in the appeal involved a BOCES form in which excessed employees, including Chernoff, stated they had been advised that by taking a job with a component school district of the BOCES, they had forfeited their place on a preferred list to be re-hired by BOCES. The form included a statement of resignation:
"I have been advised of my rights under Section 3014-b [of the Education Law] and have accepted a full-time position [with the Wynantskill Central School District] in the Tenure area of General Special Education. As a result, I hereby resign as an employee of Questar III effective June 30, 1997. "
The Commissioner found no significance in Chernoff’s execution of this form to the issues under appeal. However, he commented that BOCES lacked authority to require such a document be signed when a teacher is excessed pursuant to Section 3014-b. He recommended that Questar III discontinue the practice.
_______________________________
For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
_______________________________
NYPPL
Decisions of the Commissioner of Education 13964
As a result of a “take-back” of programs by component school districts of Rensselaer-Columbia-Greene BOCES, Ellen Chernoff was excessed.
Chernoff subsequently accepted a full-time position with the Wynantskill Central School District in Rensselaer County. Later Chernoff resigned from Wynantskill after she was offered full-time employment by the BOCES, also called Questar III. However, she objected to the statement in her letter of appointment indicating that she would be required to serve a two-year probationary period.
Questar III countered by stating that Chernoff had “freely and knowingly” became a full-time Wynantskill employee and thus extinguished her preferred list rights with it. Commissioner of Education Richard P. Mills agreed and dismissed Chernoff’s appeal.
Another issue in the appeal involved a BOCES form in which excessed employees, including Chernoff, stated they had been advised that by taking a job with a component school district of the BOCES, they had forfeited their place on a preferred list to be re-hired by BOCES. The form included a statement of resignation:
"I have been advised of my rights under Section 3014-b [of the Education Law] and have accepted a full-time position [with the Wynantskill Central School District] in the Tenure area of General Special Education. As a result, I hereby resign as an employee of Questar III effective June 30, 1997. "
The Commissioner found no significance in Chernoff’s execution of this form to the issues under appeal. However, he commented that BOCES lacked authority to require such a document be signed when a teacher is excessed pursuant to Section 3014-b. He recommended that Questar III discontinue the practice.
_______________________________
For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
_______________________________
NYPPL
Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]
In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.
Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.
The county declined to do so, claiming that Gasser “never made the required written request for a defense.”
A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.
The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”
According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”
The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.
The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]
In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.
Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.
The county declined to do so, claiming that Gasser “never made the required written request for a defense.”
A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.
The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”
According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”
The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.
The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL
The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
Roma v Ruffo, Court of Appeals, 92 NY2d 489
The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.
The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.
Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.
When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.
The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.
But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.
The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.
If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.
In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:
1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.
2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.
Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”
As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL
Roma v Ruffo, Court of Appeals, 92 NY2d 489
The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.
The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.
Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.
When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.
The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.
But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.
The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.
If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.
In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:
1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.
2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.
Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”
As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL
Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]
The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.
Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.
If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.
In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.
Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”
The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.
Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”
Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.
The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.
Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]
The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.
Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.
If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.
In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.
Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”
The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.
Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”
Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.
The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.
Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.
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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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