Disabled firefighters on §207-a leave not entitled to same leave benefits as are available to active firefighters

Disabled firefighters on §207-a leave not entitled to same leave benefits as are available to active firefighters

Chalachan v. City of Binghamton, 81 A.D.2d 973, affd. 55 N.Y.2d 989

The Appellate Division considered a claim by firefighters receiving disability benefits under Section 207-a of the General Municipal Law that in addition to those benefits, they were entitled to vacation benefits under their collective bargaining agreement.

The court dismissed the claim holding that “if every benefit provided active firefighters in the collective bargaining agreement was intended to include disabled firefighters covered by Section 207-a...the contract should contain language to so provide...(the) contention that they are members of their union...entitled to each and every fringe benefit for which active firefighters work daily is without merit. They do not work to earn vacation pay. They are already paid 52 weeks each year and their construction of the agreement to give them pay for 56 weeks (per year) is rejected”.

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law

Source: Justia December 10, 2011

Younies v. Merit Sys. Prot. Bd.

Court: U.S. Federal Circuit Court of Appeals

Docket: 11-3031

December 5, 2011

Judge: Prost

Areas of Law: Government & Administrative Law, Labor & Employment Law

Plaintiff applied for a position with the Department of Labor and responded "no" to whether he had been convicted or put on probation during the preceding 10 years. After he was hired, he signed the form, certifying the answers as true. It came out that plaintiff had been on probation for disturbing the peace He insisted that he had been arrested and placed on "informal probation," but not convicted. His attorney explained that plaintiff had pled guilty; the order stated that the plea was vacated and that "a plea of not guilty be entered, and that the accusatory filing is dismissed. ... does NOT relieve the defendant of the obligation to disclose the conviction" in application for public office. The Department terminated plaintiff during his probationary period. An ALJ dismissed his appeal, finding that the firing was based on conduct during the probationary period. The Merit System Protection Board and Federal Circuit denied appeals. To invoke 5 C.F.R. 315.806(c) for MSPB jurisdiction, plaintiff would have to identify facts in the record amounting to a non-frivolous assertion that the Department actually relied on a pre-employment condition in terminating his employment. Plaintiff failed to do so; the termination letter expressly referenced his signature on the application after he was hired.

http://j.st/NpY

Bakalekos v. Furlow

Court: Arkansas Supreme Court

Docket: 11-526

December 1, 2011

Judge: Goodson

Areas of Law: Business Law, Constitutional Law, Government & Administrative Law

Appellants were retired police officers who did not receive the benefit of all the monthly benefit increases for retired members of a municipal police pension and relief fund. The increases were authorized by the fund's Board of Trustees. Appellants mounted a multi-pronged challenge to the increase in benefits. The circuit court granted summary judgment for the Board. The Supreme Court affirmed, holding that the circuit court did not abuse its discretion in (1) ruling that the additional payments were authorized by Ark. Code Ann. 24-11-102(a); (2) finding that the statute did not constitute an unconstitutional delegation of legislative authority; (3) finding that the Board did not breach its fiduciary duties by increasing benefits to current retirees and not to future retirees, an action that was expressly authorized by statute; and (4) in ruling that the statute, as applied, did not violate the equal protection clause of the state Constitution as there was a rational basis for the Board's disparate treatment of current and future retirees.

http://j.st/NSu

Westmoreland v. Sutherland

Court: U.S. 6th Circuit Court of Appeals

Docket: 10-3766

December 6, 2011

Judge: Guy

Areas of Law: Civil Rights, Communications Law, Constitutional Law, Labor & Employment Law

The city disbanded its dive team because of budget cuts, after which two children drowned. Plaintiff, a fire department employee and member of the disbanded dive team, spoke at a city council meeting, indicating that the budget cuts caused the deaths and would cause more deaths. Plaintiff was ordered to serve unpaid suspension, equivalent to three 24 hour shifts, on grounds of insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer. After a grievance hearing the mayor affirmed the suspension, finding that plaintiff’s statements had been false. The district court granted summary judgment for the city. The Sixth Circuit remanded for determination of whether the statements were false; whether any false statements were knowingly or recklessly made; whether a reasonable official would have believed any false statements were knowingly or recklessly made; and, if necessary, whether plaintiff’s interest in speaking as a citizen on a matter of public concern outweighed the city’s interest in promoting the efficiency of the public services it performs through its employees.

http://j.st/NG9

Glenn v. Brumby

Court: U.S. 11th Circuit Court of Appeals

Docket: 10-15015, 10-14833

December 6, 2011

Judge: Barkett

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff filed a complaint seeking declaratory and injunctive relief pursuant to 42 U.S.C. 1983 for alleged violations of her rights under the Equal Protection Clause of the Fourteenth Amendment, claiming that defendant fired her from her job as an editor because of sex discrimination. Plaintiff also claimed that her constitutional rights were violated because defendant terminated her employment due to her medical condition, known as Gender Identity Disorder. The district court granted summary judgment to plaintiff on her sex discrimination claim and granted summary judgment to defendant on plaintiff's medical discrimination claim. Both parties timely appealed. The court held that a government agent violated the Equal Protection Clause's prohibition of sex-based discrimination when he or she fired a transgender or transsexual employee because of his or her gender non-conformity. The court also held that defendant had advanced no reason that could qualify as a governmental purpose, much less an "important" governmental purpose, and even less than that, a "sufficiently important government purpose" that was achieved by firing plaintiff because of her gender non-conformity. Therefore, the court affirmed the judgment of the district court granting summary judgment in favor of plaintiff on her sex-discrimination claim. In light of this decision, which provided plaintiff with all the relief she sought, there was no need to address plaintiff's cross-appeal.

http://j.st/NN3

New York State's Attorney General and the State's Comptroller report indictments in alleged "member item theft scheme"

New York State's Attorney General and the State's Comptroller report indictments in alleged "member item theft scheme"
Source: Offices of the State Comptroller and the Attorney General


N.B. The charges and allegations set out below are merely accusations and all the individuals named in the following press release are presumed innocent unless and until proven guilty in a court of law.

On December 7, 2011 Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli announced the indictments of four individuals accused of participating in a scheme to pocket taxpayer dollars intended for public services in New York City. In what was described as "A groundbreaking public integrity initiative" between the Offices of the Attorney General and State Comptroller exposed a nonprofit allegedly set up by New York State Senator Shirley L. Huntley that funneled member item funds to those associated with it, including the senator’s aide and an individual who shares a residence with the senator.

According to Attorney General Schneiderman’s indictment, the president and treasurer of the Parent Workshop, Inc., submitted fraudulent documents to New York State to obtain public money from a legislative member item. Instead of providing the promised programs, the two defendants allegedly pocketed approximately $29,950. Two additional defendants were charged with falsifying documents to cover up the theft once the investigation commenced.

Since 1999, the New York State Legislature has distributed more than $900 million through legislative member items to more than 20,000 nonprofit entities.

“This personal profit-making scheme defrauded taxpayers, all the while depriving communities of much-needed funds. Now it's time to hold those behind it accountable,” Attorney General Schneiderman said. “The charges announced today send a strong message that those who abuse their positions to rip off taxpayers will be prosecuted. My office’s partnership with the Comptroller is designed to combat such corruption, and we will continue to work tirelessly to protect every penny of taxpayer money during these challenging economic times.”

“Taking money intended for families in need is unconscionable” State Comptroller DiNapoli said.  “Abuse and fraud will not be tolerated. By combining forces, my office and the Attorney General have exposed and are prosecuting this egregious theft of state funds which were intended for the public good.”

The charges accuse Patricia D. Savage, the nonprofit’s president and Senator Huntley’s aide, as well as Lynn H. Smith, the nonprofit’s treasurer and an individual who shares a residence with the senator, of engaging in a fraudulent scheme to steal member item funds. The defendants falsely asserted that Parent Workshop, Inc. would use the member item funds secured by Senator Huntley to hold workshops for and conduct outreach to parents on the workings of the New York City public school system.

Instead, the indictment alleges that Ms. Savage and Ms. Smith never intended to hold any such events.  Furthermore, the indictment alleges that they falsely asserted in multiple submissions to the New York State Department of State that, from April 2008 through March 2009, the Parent Workshop had held workshops and conducted outreach, when no such workshops were ever held and no such outreach was ever conducted.  Based on these submissions, the Department of State provided $29,950 to the Parent Workshop – the sum the two defendants are charged with stealing.

According to the indictment, Ms. Savage and Ms. Smith submitted a fraudulent contract and five fake vouchers to illegally obtain that money.  Each is charged with 11 total counts of Grand Larceny in the Third Degree and Offering a False Instrument for Filing in the First Degree.

The indictment also alleges that after the Attorney General’s Office issued a subpoena to the Parent Workshop, defendant David R. Gantt falsified records in an effort to claim that he was paid in cash for conducting workshops as a consultant. In fact, he never conducted any workshops.  Mr. Gantt is charged with four counts of Falsifying Business Records in the First Degree. 

Defendant Roger N. Scotland, the President of the Southern Queens Park Association, a separate nonprofit corporation located in Queens, also created a false record in an attempt to hide the theft from investigators.  Mr. Scotland is charged with Falsifying Business Records in the First Degree, Tampering with Physical Evidence, and conspiracy to engage in those crimes.

The joint investigation began after contact with the New York State Department of State. 

Prosecuting the case are Senior Counsel Emily Bradford and Assistant Attorney General Jerrold Steigman, under the supervision of Public Integrity Deputy Bureau Chief Stacy Aronowitz, Chief William E. Schaeffer, and Executive Deputy Attorney General for Criminal Justice Nancy Hoppock.  The joint investigation was conducted the Comptroller’s Bureau of State Expenditures and Legal Services Division’s Investigations Unit.

The Attorney General and the State Comptroller encourage anyone with additional information on this matter or any other alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Informal Opinions of the Attorney General; 2011-9

Concluding that the Independent Livery Drivers Fund was not a public entity, the Attorney General said that benefits available to officers and employees set out in Public Officers Law §18,* providing for the representation and indemnification of public officers and employees, could not be claimed by members of the Fund’s Board of Directors.

§18, explained the Attorney General, provides that a public entity may adopt a local law, by-law, resolution, rule or regulation to indemnify and save harmless its employees from liability in the event there is a judgment against them resulting of an act or omission as a result of the individual acting within the scope of his or her public employment or duties.

However, a public entity, for the purposes of §18, means a county, city, town, village or any other political subdivision or civil division of the state, a school district, a BOCES or other entity operating a public school, a college, community college or university, a public improvement or special district, a public authority, commission, agency or a public benefit corporation. It also includes “any other separate corporate instrumentality or unit of government.” The Fund, said the Attorney General, was not such a public entity.

* §17 of the Public Officers Law provides similar protections for officers and employees of the State as the employer.

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

Ronkese v. Highland Central School District, 82 A.D.2d 1011

A school bus driver was disciplined pursuant to Section 75 of the Civil Service Law for unsafe driving.

Found guilty of seven incidents of unsafe driving, the employee was dismissed.

On appeal the Appellate Division held repetition of unsafe acts endangering the safety of school children cannot be diminished because no accident or injury occurred.

The decision noted that Ronkese had received a number of reprimands for such conduct previously and the punishment was not shocking to one’s sense of fairness.

The driver’s claim that the Section 75 determination was based on a large measure of hearsay evidence was rejected as compliance with the technical rules of evidence was not mandated by Section 75. The court then determined that the record contained sufficient evidence to support the appointing authority’s determination.

Dismissal of an employee for “disloyalty” upheld

Dismissal of an employee for “disloyalty” upheld

Thomas v. New York Temporary State Commission on Regulation of Lobbying, 83 A.D.2d 723

An employer is sometimes confronted with a situation in which an employee’s duty of loyalty to the employer is called into question or there appears to be a conflict of interest with respect to the employee’s performance.

In Thomas the employee sued when the Commission discharged him for disloyalty and conflict of interest.

At the time of his discharge, Thomas was an associate counsel to the Commission. The Commission claimed that while an employee, Thomas was also actively assisting one of the lobbying organizations that the Commission was established to regulate.

Noting that the employee was not covered by Civil Service Law Section 75, The Appellate Division rejected Thomas’ argument that his termination reflected adversely on his reputation and position as an attorney as well as his claim that his dismissal had violated his First Amendment rights.

Administrative hearings must be fundamentally fair

Administrative hearings must be fundamentally fair

Higgins v. Solomon, 82 A.D.2d 998

Although the employer said that she was unable to attend a hearing concerning her claim for unemployment insurance benefits because of her physical condition and presented a physician’s statement to that effect, the hearing officer refused to accept her affidavit as “primary evidence.”

When asked for advice by her attorney, the hearing officer replied “I can’t help you, I don’t make house calls.”

In this instance the Appellate Division ruled that the hearing officer’s action was a denial of fundamental fairness and reversed the decision, indicating that alternative means of securing admissible evidence must be investigated.

Agency heads are sometimes faced with a similar situation when an employee fails or refuses to attend a disciplinary action.

Courts have held that the employer may proceed with the disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.

Indeed, there is even case law stating that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the arbitration because it believed that Hall was not entitled to the arbitration. The court upheld the arbitrator’s award in favor of the employee.

Legislation pending before the Senate and the Assembly

Legislation pending before the Senate and the Assembly

Interested in reading the text of the budget bill submitted by the Governor for consideration by the Assembly and the Senate in their respective extraordinary sessions [Assembly 2 and Senate 2]?

The bill, among other things, amends the New York State Tax Law in relation to personal income tax rates, is posted on the Internet at:

http://assembly.state.ny.us/leg/?default_fld=&bn=A40002&term=&Summary=Y&Text=Y

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State
Source: Retired Public Employees Association press release

On December 7, 2011, the Retired Public Employees Association [RPEA] announced that it is commencing legal action against Governor Andrew M. Cuomo and the State of New York challenging the State’s attempt to make its retirees pay a larger portion of their health insurance premiums. According to RPEA, State officials are “administratively extending” the provisions of certain collective bargaining agreements between employee organizations representing employees of the State as the employer to retired employees of the State.*

RPEA Executive Director Alan Dorn said that the State is trying to balance its budget on the backs of its retirees who, unlike active employees of the State in a collective bargaining unit, have no ability to negotiate for “give backs or other benefits.” Dorn observed that the State has increased the retiree’s cost of such coverage by two percent and that “a 2% contribution for individual coverage is really a 20% increase.” 


Mr. Dorn's letter to Civil Service Commission President Patricia Hite concerning the increase of the retiree's contribution for his or her health insurance  is posted on the Internet at:

http://rpea.org/documents/commentsobjectEmergRule-10-20-11-2.pdf

The text of RPEA's complaint is posted on the Internet at:

http://www.scribd.com/doc/75054148/Retirees
 

* Civil Service Law §167.1(a) currently sets the percentage of contributions for State retirees who retired on or after January 1, 1983 and provides that such retirees are to pay: 10% of the premium for individual coverage and, where so enrolled, 25% of the premium for dependent coverage.

Four months to appeal an adverse disciplinary determination is the limit

Four months to appeal an adverse disciplinary determination is the limit

Bevins v. Brugher, 83 A.D.2d 66

When the employees were found guilty of misconduct, the penalty of dismissal “effective immediately” was imposed.

The employees were notified by letter dated December 31. On May 2 of the following year the employees sought to overturn their terminations. The Court dismissed their petitions as untimely, as it was brought more than four months after the effective date of the dismissal.

The Appellate Division rejected the argument that an appointing authority could “purposefully withhold notification of the determination, allowing the limitation to run” as ignoring reality in cases of dismissal.

Human Rights may assume jurisdiction after another administrative body acts

Human Rights may assume jurisdiction after another administrative body acts

Jainchill v. NYS Human Rights Appeals Board, 83 A.D.2d 665

After having her appeal that the examiners had improperly rated her oral test because of her sex denied by the Civil Service Commission, Jainchill filed the same complaint with the State Division of Human Rights.

After initially rejecting the complaint because she had previously commenced an administrative action relating to the same grievance, the Division decided that it had jurisdiction after all.

The Appellate Division agreed, stating that the Division cannot consider matters pending before another administrative body but could take jurisdiction once the other administrative agency proceeding was completed.

N.B. The court also noted that if Jainchill had commenced a proceeding seeking judicial review of the Civil Service Commission’s determination, there would have been a permanent barrier to her filing the same complaint with the Division of Human Rights thereafter.

Passing the test is not enough

Passing the test is not enough

Kirchgessner v. Hurlbut, 81 A.D.2d 958

Although number 3 on the eligible list for Senior Caseworker, Kirchgessner was disqualified because she did not have the specified training and experience required for the position.

When her appeal to the County Personnel Officer was denied, she sued to have her name restored to the eligible list.

Kirchgessner claimed experience as a Social Welfare Examiner satisfied the “social work” requirement for Senior Caseworker (See 18 NYCRR 680.14 for the qualifications).

The Appellate Division ruled that while the descriptions of Senior Caseworker and Senior Social Welfare Examiner (See 18 NYCRR 680.14) by broad interpretation could be viewed as “generally similar,” the Personnel Director was not arbitrary in his determination that Kirchgessner’s work experience did not fulfill statutory criteria and dismissed the appeal.

The court also noted that Hurlbut had consulted with the State Civil Service Commission to confirm his interpretation.

Challenging a disciplinary termination

Challenging a disciplinary termination
Matter of Matter of Roberts v Board of Collective Bargaining of the Off. of Collective Collective Bargaining, 2011 NY Slip Op 08807, Appellate Division, First Department

District Council 37, AFSCME, AFL-CIO, challenged the penalty of dismissal imposed on one of its unit member. The employee was terminated from his position following a hearing before the New York City’s Office of Administrative Trials and Hearings. The administrative law judge had found the individual guilty of certain charges and had recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

Although the employee appealed the appointing officer decision to the New York City Civil Service Commission, the Commission dismissed the appeal.

Noting that "The express provisions of Civil Service Law §§75 and 76 limit the appealability of a final agency determination to an article 78 proceeding or an appeal to the Civil Service Commission," the Appellate Division said that the employee failed to file a timely Article 78 “challenging that determination.”

The Appellate Division also sustained a ruling by the City’s Office of Collective Bargaining's Board of Collective Bargaining in which it declined to order the rescission and expungement of employee’s termination.

Although the challenge related only to the alleged improper charge of misuse of confidential information, the Appellate Division said that the employee’s termination was based on a number of sustained charges that were not found to be the product of improper anti-union practices.

The court held that the reinstatement of an employee in the context of an improper practice petition before OCB’s Board of Collective Bargaining “is only warranted where anti-union animus” was the “substantially motivating cause of [of the employee’s dismissal] and not merely one of the reasons therefor.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08807.htm

Individual has no right to have another position created should the program in which he or she served is discontinued

Individual has no right to have another position created should the program in which he or she served is discontinued

Niroomand v. St. Lawrence County Board of Legislators, 82 A.D.2d 939

When the County Laboratory System was discontinued, hospitals using the service were expected to obtain laboratory service elsewhere or provide their own.

The former Director of the County Laboratory was not hired by any of the hospitals. She then attempted to compel the County to grant her permanent Civil Service status, retroactively, and then appoint her to an appropriate position pursuant to Section 70 of the Civil Service Law, or place her on a preferred list (Section 80, CSL).

The Appellate Division decided that there was no transfer of functions that would serve to entitle the former employee to a Section 70 transfer, noting that the closing of the Laboratory was to save money and avoid a duplication of services.

Holding the question of granting permanent civil service status academic, the court observed that even if Niroomand held such status, she was neither entitled to employment by any of the hospitals nor to placement on a preferred list because “it is unlikely that a County Laboratory will be re-established and there is no one whom [Niroomand] can displace”.

Significantly, the court indicated that the hospitals involved do not have to create a position for her.

N.B. Placement on a preferred list flows from a right created by Section 80 of the Civil Service Law, not whether placement pursuant to Section 81 of such law is expected or materializes.

Supervisor terminated for staging plot to “fool” employees

Supervisor terminated for staging plot to “fool” employees

Keith v NYS Thruway Authority, ;517 N.Y.S.2d 334

What might start as a “practical joke” may result in disciplinary action being taken against a supervisor or an employee if the consequences of such a “joke” adversely affect employees or the agency. A recent ruling by the Appellate Division, illustrates just such a situation.

Bertram Keith, an employee of the NYS Thruway Authority, was overseeing the installation of a new heating system in a toll plaza when some employees were apparently exposed to asbestos. The employees were granted sick leave and Keith reprimanded for “failing to take proper safety precautions.”

Believing that the employees had fabricated their illness, Keith, with the aid of his subordinates, created the appearance that asbestos removal at another location had commenced without appropriate precautions having been taken. In fact, the removal work had not yet been started. His scheme succeeded, producing worker panic and union threats of pulling all toll workers off the job.

As a result, charges of misconduct were filed against Keith alleging he had led employees to believe that their health was in danger and his actions placed the Thruway in a position where its tollbooths would be unmanned. A hearing officer found Keith guilty of the charges and recommended his termination.

When the Authority adopted the findings and recommendation of the hearing officer, Keith appealed, arguing that he should not have been terminated as “nobody was in actual peril.”

The Appellate Division affirmed Keith’s dismissal

The Appellate Division found that there was substantial evidence that Keith orchestrated a plot to simulate asbestos removal and that the deception resulted in worker panic and nearly caused the employees to abandon their workstations.

“Such conduct by a public employee in a position of supervision cannot be countenanced or lightly disregarded” said the Court. The fact that no employee had been exposed to asbestos was of no concern to the court as “the alarming situation created was precisely the result sought by (Keith)” and it was for that action that disciplinary charges were filed.

The Court than refused to modify the penalty stating that “in light of the egregious nature of (Keith’s) actions and resulting hysteria which flowed naturally and foreseeable therefrom, we cannot say that the penalty imposed by the agency was inconsistent with the notions of fairness.”