Eligibility for unemployment insurance

Eligibility for unemployment insurance
Geracitano v Comm. of Labor, 277 AD2d 558

Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season.

Geracitano, however, also served as an elected councilperson and received a salary together with health benefits and the was eligible to participate in the New York State and Local Employees’ Retirement system.

Her application for unemployment benefits was disapproved after the Unemployment Insurance Appeals Board ruled that she was ineligible to receive such benefits because she was not totally unemployed during the time in question.

The Appellate Division sustained the Board’s decision, holding that substantial evidence supports the Board’s ruling.... The court pointed out that in the past it had ruled that a council person was not totally unemployed where the proof showed that he or she received an annual salary for his [or her] work as a council person, performed a variety of duties in that capacity and was subject to inquiries by his [or her] constituents, citing Matter of Silverstein, 236 AD2d 757.

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged
Source: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010

An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device. Ultimately Cunningham was terminated from his position.

New York Civil Liberties Union attorneys, claiming the use of evidence obtained using a GPS device without a warrant or the knowledge of Cunningham constituted an unlawful search, have filed a lawsuit seeking Cunningham’s reinstatement to his former position with back pay and fringe benefits.

The courts have considered a number of cases involving the use of evidence obtained through the use of global positioning system equipment.

In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.

In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis.
[See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08].

However, the decision in the Weaver case, People v Weaver, 12 NY3d 433, may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.

The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.*

The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”

Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.

Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.

The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides:

The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.

The Court of Appeals ruled that:

1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.

2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.

The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.

The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “

Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”

The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.

This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.

In another disciplinary action, Joel I. Klein, then Chancellor of the New York City Department of Education, terminated John Halpin’s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and of having submitted falsified time cards claiming that he worked on those occasions.

When Halpin challenged the Chancellor’s action, the Appellate Division said that the determination was supported by substantial evidence in the record, including global positioning software records, Halpin’s time cards, and eyewitness testimony establishing that Halpin was guilty of the disciplinary charges filed against him [Halpin v Klein, 62 AD3d 403].**

Citing 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 court ruled that under the circumstances terminating Halpin did not constitute an “excessive penalty.”

Although in Halpin's case the GPS record was generated by his Department-issued cell phone, the installation of global positioning equipment in official vehicles is becoming common as well.

* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.

** The administrative disciplinary action underlying the Chancellor's decision was heard by OATH Administrative Law Judge Tynia Richard. Richards found Halpin guilty of the charges filed against him and recommended that he be terminated from his position of Supervisor of Carpenters with the New York City Department of Education. [see New York City Department of Education v Halpin, OATH Index #818/07]. Richard's found that Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The ALJ ruled that the GPS data was accurate and reliable and that its use did not violate Halpin’s privacy rights under the United States Constitution.

Age requirements and eligibility for taking a test

Age requirements and eligibility for taking a test
Beloten v Diamons, 276 AD2d 438

The Beloten case involves a relatively novel issue: age qualification for appointment to positions in the competitive class.

The case arose after New York City issued an announcement for an examination for firefighter allowing only emergency medical technicians and paramedics [EMTs] not more than 29 years old as of the beginning of the application period to take the examination.

Scott R. Beloten and a number of other EMTs took and passed the written test. However they were disqualified and not permitted to take the physical agility portion of the examination because of age: all were more than 29 years of age at the beginning of the application period.*

Beloten objected, contending that the upper age limit for firefighters applies only to candidates for that position taking an open competitive exam, and that to apply the age limit to candidates taking a promotional exam, as [the City] did, would violate Section 54 of the Civil Service Law and anti-discrimination statutes.

The Appellate Division said that two provisions of the Civil Service Law were relevant in resolving this case: Sections 52(1) and 54.

Section 54 allows civil service authorities to adopt reasonable age requirements with respect to open-competitive, entry level positions. Section 52(1) provides for the filling of vacancies by promotion of persons holding positions in lower grades that are in direct line of promotion or, under certain circumstances, from lower grades in related or collateral lines of promotion.

Reading Sections 52(8) and 54 together, the court concluded that age requirements for purposes of taking a promotional exam are prohibited when the promotion would be from a grade that is in direct line, and permitted when the promotion would be from a grade that is in a related or collateral line.

The Appellate Division rejected the theory that this was a promotion situation for the EMTs, ruling that because the position of firefighter is an entry-level position in that there is no direct lower position to be promoted from, the only way a person could become a firefighter was to sit for an open competitive examination.**

Deciding that EMT applicants for the position of firefighter were more akin to entry-level applicants taking an open exam for that position than to a firefighter taking a closed promotion examination for a higher level title, the court ruled that:

... notwithstanding that the exam petitioners took was not open, in that participation was limited to current Fire Department employees having certain emergency medical titles, we conclude that Civil Service Law Section 54 did not apply to prohibit an age requirement, and that Civil Service Law Section 52(8) did apply to require that petitioners satisfy the eligibility requirements for taking the entry-level exam for firefighter, including the requirement in Administrative Code Section 15-103 that they not be more than 29 years old.

* Presumably none of the plaintiffs was eligible for an adjustment to his or her chronological age pursuant to the provisions of Section 243.10-a of the Military Law.

** The EMTs conceded that the examination announcement indicated that their positions were in a collateral, not direct, line of promotion to the position of firefighter.

DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS

DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli today warned of a sweepstakes scam involving fraudulent checks that appear to have been issued by New York State.

“These days many people could use some extra cash; this particular scam is especially shameful because it’s occurring during the holiday season at a time when people can be particularly vulnerable,” DiNapoli said.

“People need to remember that what sounds too good to be true all too often is. No legitimate check from the State of New York would ever be used as part of a mystery shopper program. If you receive one of these fraudulent checks, please report it to the police.”

The fraud works this way: scammers send potential victims a letter telling them that they won hundreds of thousands of dollars in a sweepstakes prize from a “USA Mega” drawing that allegedly took place in August. A company calling itself Alpha Finance Services claims to have been assigned to inform winners of their prize and to pay them off accordingly.

The company’s supposed address is located in Nova Scotia, Canada.

The letter asks individuals to contact a claims agent during daytime hours between Monday and Saturday to “activate” a phony check that has been mailed to them. The "check" included in the letter is counterfeit but looks like a New York State check.

This check allegedly would cover the recipient’s tax liability that is attached to the prize winning.

To activate the phony check, the recipient is directed to send thousands of dollars of their own money to the agent. It even “cautions” recipients of the letter not to act on the notice until they have contacted this claims agent “to avoid cases of misappropriation and mishandling of prize monies.”

Anyone with questions or concerns about this scam should contact local law enforcement officials or the New York State Comptroller’s office toll free at 1-888-OCS-4555.

In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested

In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested
Appeal of Wornum seeking the removal of the Superintendent of the Westbury Union Free School District, Decisions of the Commissioner of Education, Decision #16,166

Larry D. Wornum, than a member of the School Board, asked the Commissioner of Education to remove Constance R. Clark-Snead from her position of Superintendent of the Westbury Union Free School. The Commissioner denied Wornum’s application.

Wornum alleged that that Clark-Snead had engaged in a pattern of “bad acts” including misleading the School Board on a number of occasions, authorizing School District expenditures without board approval; filing an appeal with the Commissioner of Education without School Board approval; and violating the State's Freedom of Information Law and its Open Meetings Law.

As to Wornum's "application in chief," a member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

However, in an appeal to the Commissioner, the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief is placed on the petitioner.

The Commissioner initially addressed a number of procedural issue and determined that:

[1] certain documents submitted by Wornum were not verified as required by 8 NYCRR §275.5(a);

[2] there was no “proof of service’ which precluded his considering such submissions;

[3] he lacked jurisdiction to consider FOIL matters as Public Officers Law §§89 and 107 vest exclusive jurisdiction over complaints alleging violations of FOIL and the Open Meetings Law in State Supreme Court; and

[4] that Wornum’s appeal to the Commissioner was untimely filed with respect to a number of his allegations.

As to Wornum’s surviving allegation – Clark-Snead misled him as to her efforts to secure space for district pre-kindergarten classes – the Commissioner determined that Wornum's allegations "were conclusory" and that Wornum did not provide any documentary evidence to support his charge. Thus, said the Commissioner, Wornum “failed to meet his burden of proof and his claims must be dismissed.”

The Commissioner then addressed Clark-Snead’s request for a Certificate of Good Faith* pursuant to Education Law §3811(1)(c).

Noting that “it is appropriate to issue such Certification unless it is established on the record that [Clark-Snead] had acted in bad faith,” The Commissioner said that as there had been no such finding, Clark-Sneed was entitled to a certificate of good faith.

* A Certificate of Good Faith permit certain school districts or BOCES to reimburse individuals for legal fees and expenses, and where appropriate, damages for which the individual was held liable, incurred in the course of his or her participating in, or resulting from, the individual's appearing in a judicial or quasi-judicial proceeding, including those incurred in, or resulting from, a proceeding before the Commissioner of Education, pursuant to being instructed by a resolution adopted "at a district meeting to defend any action brought against them."

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16166.htm


Other recent decisions of the Commissioner of Education:

Appeal of ARK COMMUNITY CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Troy regarding nursing services. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16169.htm

Appeal of SUSAN ROTH from action of the Board of Education of the South Country Central School District, Montauk Bus Transportation, LLC and Coastal Charter Service Corp. regarding transportation contracts. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16171.htm

Appeal of N.C., on behalf of her daughter V.C., from action of the New York City Department of Education regarding immunization. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16172.htm

Exhausting of Taylor Law contract remedies

Exhausting of Taylor Law contract remedies
Kaufmann v Rochester CSD, App. Div., Fourth Dept., 275 AD2d 890

The Rochester Board of Education attempted to have Susan K. Kaufmann’s lawsuit dismissed on the theory that Kaufmann had not exhausted her administrative remedies because she did not file a contract grievance concerning her complaint.

The Appellate Division, Fourth Department, quickly disposed of the district’s argument by pointing out that Kaufmann did not allege that the district had violated her rights under the collective bargaining agreement but rather she alleged that the district had violated her rights under Section 2585(2) of the Education Law.

Accordingly, said the court, Kaufmann was not required to file a grievance under the collective bargaining agreement concerning her complaint.

Education Law Section 2585(2) addresses situations involving the abolishment of one position and the creation of another position having similar duties and provides that the individual encumbering the abolished position shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been of faithful, competent service in the office or position he has filled.
NYPPL

Responding to Freedom of Information requests

Responding to Freedom of Information requests
McKethan v NY-NJ Port Authority, Appellate Division, First Dept., 277 AD2d 15

William McKethan obtained a court order pursuant to the Freedom of Information Law directing the New York-New Jersey Port Authority [New York Branch] to provide him with certain information. In a subsequent proceeding, State Supreme Court Judge Paula Omansky determined that the Authority had adequately respond[ed] to the court’s prior order. Not satisfied with the court’s determination, McKethan appealed.

The Appellate Division sustained Judge Omansky’s decision, holding that the Authority adequately established the nonexistence of additional records requested by [McKethan].

The reasoning of the court:

Once the Authority’s records access officer certified that respondent had provided McKethan with all responsive documents in its possession, McKethan was required to articulate a demonstrable factual basis to support his contention that the [further] requested documents existed and were within the [Authority’s] control.

Citing Gould v New York City Police Department, 89 NY2d 267, in support of its position, the Appellate Division ruled that McKethan has not met that burden.
NYPPL

Loss of a required license or certification bars the incumbent from performing the duties of the position

Loss of a required license or certification bars the incumbent from performing the duties of the position
Agriculture and Markets v Public Employees Federation, App. Div., Third Dept., 277 AD2d 564

Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?

This was the issue when Sahedou Ousman, an assistant farm products inspector assigned to inspect eggs pursuant to an agreement with the US Department of Agriculture [USDA] lost his Federal egg product inspection license.

According to the decision, Ousman’s license was revoked by the USDA because of his failure to consistently follow instructions, adhere to established procedures and repeated instances of tardiness and unauthorized absences from his place of employment during his normal tour of duty.

Agriculture and Markets [A&M] terminated Ousman’s employment on the grounds that his loss of his license resulted in his being unqualified to perform the duties of an assistant farm products inspector.

A&M, pursuant to an agreement with the Public Employees Federation, Ousman’s collective bargaining representative, subsequently reinstated him. It then placed Ousman on administrative leave and initiated disciplinary action against him under the contract disciplinary procedure set out in a Taylor Law agreement.

The charge: incompetence in that he failed to maintain his Federal egg product inspection license that was required for his continued employment as an egg inspector.

Ultimately an arbitrator ruled that the Federal egg product inspection license was not a prerequisite for the position of an assistant farm products inspector and there were employment opportunities within that title to which Ousman could have been assigned that did not require Federal licensure at that time. The arbitrator’s conclusion: Ousman should not have been terminated.

The arbitrator’s ruling is consistent with the court’s ruling in the Lekkas case [Martin ex rel Lekkas, 86 AD2d 712]. Here the issue concerned Lekkas’ lack of license to practice medicine in New York State although he had been appointed to the position of Assistant Clinical Physician with a State agency. In Lekkas the Appellate Division ruled that although an employee who does not possess a valid license required to perform the duties of the position may be summarily discharged without notice and hearing, it determined that Lekkas was performing administrative duties rather than practicing medicine. Thus, said the court, Lekkas was not required by law to hold a license to practice medicine even though he held the title Assistant Clinical Physician. Accordingly, he could not be summarily removed from the position merely because he was not a licensed physician.

The arbitrator directed A&M to restore Ousman to pay status with all rights and benefits effective July 1, 1997, back pay to be adjusted to reflect any income or unemployment compensation benefits received since that time.

The decision also directed A&M to offer Ousman the next available position within title or, in the alternative, continue him on paid administrative leave and file charges against him based upon his unsatisfactory performance of his duties as a State employee prior to April 15, 1997.

The Appellate Division rejected A&M’s attempt to annul the arbitration award on the grounds that the award was wholly irrational and violated a fundamental public policy regarding civil service appointment requirements and the State’s compelling interest in ensuring a safe food supply to the public.

Noting that the notice of discipline filed by A&M limited the arbitrator’s inquiry to whether Ousman’s loss of his Federal license rendered him unqualified to perform the duties of an assistant farm products inspector warranting his dismissal, the Appellate Division ruled that the arbitrator’s determination did not require A&M to reinstate Ousman to another food inspection position since it allowed it the alternative of continuing Ousman on administrative leave and filing the appropriate disciplinary charge reflecting his general incompetence and lack of qualifications for any position within his title of employment.

The Appellate Division’s conclusion: the arbitration award simply extends to Ousman the protection of the collective bargaining agreement that A&M agrees is applicable and cannot be said to be violative of any strong public policy or the State constitutional mandate that civil service appointments be based on merit.

It is well settled that where a statute requires an individual to have a valid license or certification or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or certification or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.

For example, the courts have little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.

Although such a person may continue to be qualified to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183. The rationale in such cases: it is unlawful to continue a tenured but unlicensed teacher on the payroll as he or she is barred from performing his or her teaching duties and to retain such a person on the payroll as a teacher would constitute an unconstitutional gift of public monies.

There is nothing, however, that would prevent the appointing authority from placing such an individual in another position for which he or she is qualified and for which a license is not required as an alternative to dismissal or removal from the payroll.

Another common situations that result in a bar to continued employment in a position: the expiration, suspension or revocation of a driver’s license when the duties of the position require the incumbent of the position to drive a motor vehicle.
NYPPL

Collective bargaining after the Taylor Law Agreement expires

Collective bargaining after the Taylor Law Agreement expires
Local 2562 v PERB, App. Div., Third Dept., 276 AD2d 184, Motion for leave to appeal denied, 96 NY2d 711

In the Local 2562 case, the Appellate Division sustained a Public Employment Relations Board [PERB] ruling that held that a nonmandatory subject of collective bargaining, if continued after the expiration of a collective bargaining agreement [CBA] under the Triboro Doctrine [Civil Service Law Section 209-a(1)(e)], is converted into a mandatory subject of collective bargaining.

The Triboro Doctrine essentially requires a public employer to continue all terms of an expired collective bargaining agreement -- whether mandatory or nonmandatory subjects -- until the parties reach a new agreement.

Uniform Firefighters Local 2562 [City of Cohoes] appealed a PERB decision holding that certain otherwise nonmandatory proposals made by the City in the course of negotiating a successor to an expired CBA are mandatory subjects of collective bargaining.

Local 2562 sued, contending that PERB’s determinations departed from its prior precedent and redefined what may constitute a mandatory subject of negotiation upon the expiration of a collective bargaining agreement between police officers and firefighters and their municipal employers.

In particular, Local 2562 objected to PERB’s rulings concerning the City’s proposal to delete or alter certain terms in the expired CBA relating to staffing composition and job assignment and the City’s proposal affecting General Municipal Law Section 207-a disability benefits.

Agreeing to the Section 207-a proposal, said the union, would require its members to give up certain statutory rights and privileges. In addition, Local 2562 complained that the City’s staffing proposals concerned officer replacement procedures and the obligation of firefighters to engage in snow removal and were previously viewed as managerial prerogatives deemed nonmandatory subjects of negotiation prior to their inclusion in the parties’ previous CBA.

According to the decision, PERB’s overruling its long-standing precedent meant that once nonmandatory subjects have been incorporated into a CBA involving police officers and firefighters, such items become mandatory subjects of negotiation for the purposes of negotiating a subsequent agreement in a Triboro Doctrine situation.

PERB also ruled that proposals concerning the terms and conditions of employment that would require an employee organization or its members to waive or modify statutory rights and privileges are also mandatorily negotiable, unless bargaining as to those matters is foreclosed by clear legislative intent or public policy.

PERB’s explanation: its new interpretation corrects an imbalance resulting from the enactment of Section 209-a(1)(e) of the Taylor Law which codified the so-called Triboro Doctrine.

The Appellate Division said that PERB provided “a detailed explanation for its decision to depart from its previous analysis on the ground that it intended to create a more equal bargaining posture between the parties in order to foster productive negotiation....”

Accordingly, said the court, recognizing the deference to which PERB’s determinations are entitled in the realm of improper labor practices, it found that its action was neither arbitrary nor irrational.

As to PERB’s determining the negotiability of proposals alleged to flow from a statutory right or benefit, in the past PERB automatically categorized such proposals as nonmandatory without analysis of whether negotiations concerning particular proposals would be consistent with the applicable statute’s legislative intent, public policy, or the furtherance of the objectives of the Taylor Law. Under its new policy, PERB would consider such demands on a case-by-case basis.

The Appellate Division said that PERB’s approach -- reviewing each such proposal case-by-case -- appears to be substantially the same as the method used to determine whether proposals of employee organizations that implicate the rights of public employers are mandatorily negotiable.

The court rejected Local 2562’s argument that by requiring that proposals relating to the waiver of statutory rights be subject to negotiation, PERB is effectuating the involuntary waiver of those rights. It said that although the Taylor Law clearly provides that the obligation to negotiate concerning terms and conditions of employment it does not compel either party to agree to a proposal or require the making of a concession.

The bottom line: the court affirmed the Supreme Court’s dismissal of Local 2562’s challenge to PERB’s determinations, indicating that they were neither arbitrary, capricious, an abuse of discretion nor affected by an error of law.
NYPPL

Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district

Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district
Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602

As a general rule, Section 3813 of the Education Law requires that in order to sue a school district the plaintiff must file a timely notice of claim if he or she plans or expects to sue the district. Such notices are usually required with respect to claims related to or involving personnel decisions.

The Mennella case, for example, concerned the termination of a probationary employee and turned on whether the court should excuse a late filing of such a claim pursuant to Section 3813(2-a) of the Education Law.

As a condition precedent to commencement of an action against a school district, Education Law §3813(1) requires that a written verified claim be delivered to the school district within three months of accrual of the claim. The Section 3813 notice must set out the nature of the claim, and the “essential facts underlying the claim.” Citing Matter of Board of Educ. v Ambach, 81 AD2d 691, the Appellate Division noted that “a petition to the Commissioner of Education can constitute the functional equivalent of a notice of claim.”

In this instance, Mennella filed a petition with the Commissioner of Education challenging the school district’s decision terminating him from employment within a week of the district’s action. The petition included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were "baseless."

Accordingly, the Appellate Division concluded that Mennella’s petition to the Commissioner of Education constituted the functional equivalent of a notice of claim for the purposes of Education Law Section 3813 insofar as his going forward with litigation regarding his allegations of racial discrimination is concerned.
NYPPL

Medical experts and conflicting medical opinions

Medical experts and conflicting medical opinions
Harper v McCall, App. Div., Third Dept., 277 AD2d 589

Pauline Harper challenged the rejection of her applications for ordinary and accidental disability retirement benefits by the New York State Employees’ Retirement System, contending that the Comptroller should have considered the expert medical opinion of her physician in making his determination.

Harper, a school bus driver, claimed that she was permanently disabled due to a neck condition. Her personal physician said that Harper was permanently incapacitated from performing the duties of a school bus driver as a result of a degenerative arthritic condition in her neck that was asymptomatic prior to a 1994 work-related accident that aggravated the condition.

The retirement system’s expert testified that, while Harper exhibited pain and discomfort when he examined her in 1997, he could find no objective evidence of neurological disease or injury that would cause her subjective symptoms, and he concluded that petitioner could perform the duties of a school bus driver.

The Appellate Division rejected Harper’s appeal, commenting that “[i]t is well settled that [the Comptroller] has the authority to resolve conflicts in medical opinion and to credit the testimony of one expert over that of another and may rely on an expert opinion based on a review of medical records and a physical examination is generally credible evidence.”
NYPPL

Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"

Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"
Source: Virtual LegalTech

A one-hour webinar entitled, "Addressing and Assessing the Risks of Moving to the Cloud," will offered by Virtual LegalTech on December 14, 2010 from 1:30 – 2:30 PM ET.

The webinar will discuss the merits and pitfalls of the cloud, examining the issues surrounding chain of custody, legal hold and review capabilities in the event of an e-discovery request and how well will privacy be maintained.

Participants in the webinar are eligible for CLE in certain jurisdictions.*

Registration is complimentary. Follow this link to register.

The full schedule for these CLE accredited sessions* at Virtual LegalTech on December 14, 2010 follows:

9:00 – 10:00 am ET – Information Governance: Managing your Information to Reduce the Costs of Discovery

9:30 – 10:30 am ET – Ethical and Privilege Issues for Pharmaceutical Whistleblowers Counsel

10:00 – 11:00 am ET – Facing the Legal Dangers of Social Media1

2:15 – 1:15 pm ET – Frontiers of E-Discovery: What you Need to Know about Predictive Coding

1:30 – 2:30 pm ET – Addressing and Assessing the Risks of Moving to the Cloud

3:00 - 4:00 pm ET – Ethical Considerations in the New Era of Whistleblower Claims Under Dodd-Frank and Other Statutes

3:45 – 4:45 pm ET – Back to the Future: The Most Important 2020 E-Discovery Cases, and a Look Ahead to 2011

If you have additional CLE questions, please contact Virtual LegalTech at 212.457.7912 or via e-mail at ljackson@alm.com .

* Complimentary CLE is approved by the responsible authorizing agencies in New York, California and Illinois. Approval of CLE credit is pending in Florida.

Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense

Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense
Wolfe v Kelly, 2010 NY Slip Op 08847, decided on December 2, 2010, Appellate Division, First Department

Eric Wolfe, a New York City Police Department detective, was served with disciplinary charges alleging that He was guilty of perjury and the confiscation of drugs and money for personal gain involving Wolfe’s “stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999.”

Terminated from his position, Wolfe contended that he was denied due process of law, and that the lack of specificity in the charges prevented him from preparing any type of defense other than offering a general denial of any wrongdoing.

The Appellate Division, noting that Wolfe’s disciplinary hearing was held some six to eight years after the alleged acts of misconduct occurred, agreed.

Specification 1 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals who were traveling in cabs and confiscated, without affecting [sic] an arrest and for personal monetary gain, a quantity of heroin from one, and a quantity of prescription drugs from the other."

Specification 2 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals and confiscated, for personal monetary gain, a quantity of United States currency."

Specification 3 alleged that on or about and between April 23, 1998, and December 17, 1998, Wolfe testified falsely while under oath during an official court proceeding, in violation of Penal Law §210.15.

The Appellate Division explained that “It is well settled that the principles of due process applicable to criminal trials apply to government administrative proceedings, citing Matter of Murray v Murphy, 24 NY2d 150” and that the requirements of due process of law applied here because Wolfe has a constitutionally protected property interest in continued public employment.

Further, said the court, due process requires that the accused employee be provided with the notice of the charges that are "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense," citing Matter of Block v Ambach, 73 NY2d 323.
While the specificity of the notice of charges required varies from case to case, but it must be specific enough to give actual notice to the party being charged.

The Appellate Division agreed with Wolfe that indicating a general time frame that spanned two entire years was not reasonably specific so as to satisfy due process requirements.*

The Appellate Division characterized the Department’s rebuttal of Wolfe’s claims to the effect that Wolfe could have offered an alibi defense by testifying about "any times during those two years when . . . he was not partners with [New York City police officers Julio] Vasquez or [Thomas] Rachko"** as “an incomprehensible — and inane — argument, and one that impermissibly shifts the burden of proof” to Wolfe.

In addition, the court commented that:

Equally incomprehensible is that, in denying petitioner's motion to dismiss for violation of due process, the ADC stated that "the unique nature of events alleged, the places where the misconduct occurred and the witnesses present, provided the defense with ample opportunity to prepare." The alleged incidents could only be assumed as "unique" if [Wolfe] was, indeed, guilty as charged. Otherwise, as the record reflects, there was nothing at all unusual or "unique" about any of the circumstances surrounding the alleged misconduct.

Annulling the Commissioner’s determination as to Specifications 1 and 2, the Appellate Division then rejected Wolfe’s arguments with respect to Specification 3 “given the low threshold in a substantial evidence analysis” and affirmed the Commissioner's determination that Wolfe was guilty of Specification 3.

As the penalty imposed on Wolfe, termination from his position, the court remanded the matter to the Department for its reconsideration based the court's annulling Specifications 1 and 2.

* The Appellate Division said that Wolfe’s alleged misconduct in specifications one and two applied to three or four discrete incidents and was therefore “not an offense of an ongoing/continuing nature.”

** In November 2003, Vasquez and Rachko were arrested for the theft of $169,000 from a narcotics merchant who was under federal surveillance. Both subsequently entered into cooperation agreements with federal authorities, the terms of which required them "to testify at any proceeding in the Eastern District of New York or elsewhere as requested by the [U.S. Attorney's] Office." They were required to testify at Wolfe’s hearing. The decision notes that “In exchange for their testimony, Vasquez and Rachko were given the possibility of lighter sentences, and the Manhattan District Attorney's office agreed not to prosecute them for any crimes they may have committed in New York County. Both former officers were facing terms of life imprisonment at the time of petitioner's administrative hearing but had not been sentenced.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08847.htm

Placement on a preferred list

Placement on a preferred list
Bratge v Stockbridge Valley CSD, Decision of the Commissioner of Education #14454

The Bratge case demonstrates the importance of complying with all statutory and contractual procedures relevant to personnel actions.

The Stockbridge Valley Central School District appointed Katrina Bratge as an Assistant Building Principal/Guidance Counselor [K-12]. Bratge’s appointment was subject to a three-year probationary period.

In March 1999 School Superintendent Charles Stratton met with Bratge. According to Bratge, the superintendent told her that the district intended to eliminate her position in favor of creating a new full-time guidance counselor position and converting a part-time business administrator position to a full-time position.

Stratton, on the other hand, said that he had told Bratge that he intended to terminate her probationary employment but that she would be allowed to resign rather than be terminated.

In August 1999 Bratge wrote to the school board indicating that she did not intend to resign her position and requested it place her name on the preferred eligibility list for appointment as a guidance or administrative position should one become available in accordance with Sections 2510(3) and 3013(3) of the Education Law.

In response, the district wrote to Bratge advising her that because she had voluntarily resigned from her position and had returned to a position with the Rome City School District ... she had no recall rights. Bratge wrote the district to clarify the events that had led to her asking to be placed on a preferred list and repeated her request. When the district failed to act, Bratge asked the Commissioner to order it to place her on a preferred list.

Although the Commissioner ruled that Bratge’s appeal had to be dismissed because it was untimely, he elected to comment on the merits of her appeal.

The Commissioner pointed out that the problem resulted because the district did not provide Bratge with a clear and unambiguous notice of its intentions. Although the district claims that Bratge agreed to resign and asked for her letter of resignation, it never actually received a written resignation from her.

Despite not having received Bratge’s written resignation, the Commissioner noted, the district did not take the procedural steps required to terminate her probationary employment.* This, according to the Commissioner, left Bratge unsure of her exact status and the district believing that the position was vacant as of the beginning of the 1999-2000 school year.

The Commissioner also took the opportunity to point out that personnel decisions must comply with all applicable legal and contractual requirements. In the event the district provides an employee with an option of resigning in lieu of termination, it must comply with all statutory and contractual notification requirements if it then wishes to terminate an employee who does not voluntarily submit his or her written resignation.

One issue not addressed by the Commissioner: assuming that Bratge had a right to have her name place on a preferred list, would her returning to a position with the Rome City School District have any impact on her status on such a list?

Here are some points to keep in mind regarding preferred lists:

1. Typically the most senior individual on the list may be passed over or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.

2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.

3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.

4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of preferred lists such as a special military list.)

5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example, Jones is laid off from Position A and subsequently accepts a position to a lower rank position for which the preferred list was certified. If Position A is reestablished and Jones is eligible for certification from the preferred list and is the most senior person on the list, Jones must be certified for appointed to the newly created position.

* The fact that the district did not take the procedural steps required to terminate Bratge’s probationary employment suggests that had Bratge filed a timely appeal the Commissioner might have found that she had attained tenure by estoppel.
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For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
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NYPPL

Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”

Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”
Massaro v Mercado, 276 AD2d 445

After being rejected for appointment as a police officer, Louis Massaro filed a complaint with the Division of Human Rights. Massaro contended that the New York Police Department had unlawfully discriminated against him because of his disability. According to the decision, Massaro was rejected for appointment as a police officer of the grounds of psychological unsuitability for the position.

After initially finding probable cause, the State Division of Human Rights [DHR] dismissed Massaro’s compliant without conducting an administrative hearing. Massaro sued in an effort to compel DHR to conduct a hearing, only to have his petition dismissed by State Supreme Court Judge Lottie Watkins.

The Appellate Division affirmed Judge Watkins’ action, holding that DHR “was not required to conduct a hearing simply because it had previously made a probable cause determination in [Massaro’s] favor.”

There was no question that Massaro was rejected after a finding of psychological unsuitability. However, said the court, this is neither a disability within the meaning of the Human Rights Law nor was it perceived as a disability by the Police Department.

As the Division of Human Rights cannot disturb a hiring decision absent a showing that the decision was influenced by unlawful discrimination, the Appellate Division agreed that it should not be required to hold a hearing when it is clear that such a showing cannot be made.
NYPPL