Discrimination complaint dismissed because law did not require an accommodation at the time the request for an accommodation was made

Discrimination complaint dismissed because law did not require an accommodation at the time the request for an accommodation was made

Rappo v NYS Division of Human Rights, 57 AD3d 217

The New York State Division of Human Rights dismissed Frances V. Rappo’s claim that she had been unlawfully discriminated against by her former employer, the New York City Human Resources Administration (HRA). Rappo alleged that HRA had failed to reasonably accommodate her disability.

The Appellate Division dismissed Rappo’s petition, explaining that at the time she made her request for a reasonable accommodation of her disability Executive Law §292(21) -- New York State’s Human Rights Law -- did not require an employer to provide "reasonable accommodations" of an applicant’s or an employee’s disability.

Further, the court said that substantial evidence supports the determination that HRA was not required to provide Rappo with a job transfer as a reasonable accommodation, since she failed to demonstrate that she could not perform the essential duties of her then present job and that she would be able to perform the essential duties of another job.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09447.htm

Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect

Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect 

Arthur v  Soares,  2012 NY Slip Op 04255, Appellate Division, 3^rd Dept.

The Albany County District Attorney, P. David Soares,  filed disciplinary charges pursuant to §75 of the Civil Service Law against one of his subordinates, D. Richard Arthur, then serving as the office’s Director of Administration.

The Hearing Officer found Arthur guilty of the charges and recommended that he be terminated from his position. Soares adopted the hearing officer’s findings and recommendation and dismissed Arthur from his position. Arthur file a petition pursuant to Article 78 seeking a court order vacating Soares' action.

The Appellate Division annulled Soares' decision, finding “the record evinces that the Hearing Officer lacked jurisdiction.” and directed that Arthur be reinstated to his former position with back pay and benefits.*

The court noted that Civil Service Law §75(2), provides that a hearing on employee disciplinary charges "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a . . . person designated by such officer or body in writing for that purpose" [emphasis supplied].

It is well settled, said the Appellate Division, that absent "a written delegation authorizing a deputy or other person to conduct the hearing," the hearing officer did not have jurisdiction to conduct the §75 disciplinary hearing,  citing Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, among other decisions.

Significantly, the Appellate Division, Third Department had earlier ruled that the requirements of Civil Service Law §75(2) could be satisfied by a written record of such designation such as the minutes of a board meeting at which a resolution was adopted appointing the hearing officer or a letter to the hearing officer advising him or her that the official designation has taken place. In contrast, the court observed that “correspondence to the hearing officer that does not reference the official designation is insufficient, as is written notice to the [accused] of the hearing officer's identity.”

The Appellate Division found that there was no evidence in the record on appeal that the appointing authority had ever designated the Hearing Officer in a writing sufficient to satisfy the statutory requirement. The court specifically noted that reference to the designation of the hearing officer in the notice of charges sent to Arthur is not sufficient in the absence of any evidence of the written designation itself.”**

In addition, the employee’s failure to object to the absence of such written designation “is of no moment, inasmuch as this jurisdictional defect cannot be waived,” said the court, citing Gardner v Coxsackie-Athens Cent. School Dist. Bd. of Educ., 92 AD3d at 1095. This clearly implies that the individual being disciplined has no duty to inform the appointing authority of this procedural defect.

As the Hearing Officer lacked jurisdiction to conduct the hearing, his determination and Soares’ adoption thereof are nullities and Arthur, said the court, “must be restored to his former position with back pay and benefits.”

The court also noted that while courts employ the substantial evidence standard of review in resolving challenges to Civil Service Law §75 determinations, the disciplinary hearing officer does not review an employer's disciplinary actions taken against a public employee "to determine whether those actions were undertaken based upon substantial evidence," as occurred in Arthur's disciplinary proceeding; rather," it remains the responsibility of the hearing officer to weigh the evidence and resolve credibility determinations."

Further, said the court, "administrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review."

* The Appellate Division also held that the hearing officer “did not properly weigh the evidence, and failed to adequately detail the specific factual findings and hearing evidence relied upon.”

** Such notice to the accused has been deemed to satisfy the statutory mandate when the appointing authority separately issues a written resolution incorporating the notice by reference (Scharf v Levittown Union Free School Dist., 294 AD2d 508, lv denied 98 NY2d 613).

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04255.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Employer’s abolishment of a position challenged

Employer’s abolishment of a position challenged
Eugenio v City of Yonkers, N.Y, 2012 NY Slip Op 04006, Appellate Division, Second Department

When the City Council of the City of Yonkers abolished the position of Clerk II Spanish Speaking, the former incumbent filed an Article 78 petition seeking a court order reinstating her to her former position with back pay. Supreme Court denied the petition and the Appellate Division affirmed the lower court’s dismissal of the petition.

The Appellate Division explained that "[A] public employer may abolish civil service positions for the purpose of economy or efficiency." In the event that action is challenged, the challenger “has the burden of proving that the employer did not act in good faith in abolishing the position."

Finding that Supreme Court properly determined that the former incumbent failed to sustain her burden of proving her position was abolished in bad faith, the Appellate Division commented that under the circumstances, the former employee’s request for further inquiry amounted to "no more than an expression of hope insufficient to warrant deferral of judgment"

As to mechanics involved in abolishing a position, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these §§80 and 80-a of the Civil Service Law (1976 Opinions of the Attorney General 7).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04006.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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

Changing the employees’ tours of duty and work schedules alleged a violation of the employer’s duty to bargain in good faith

Changing the employees’ tours of duty and work schedules alleged a violation of the employer’s duty to bargain in good faith

Matter of the Town of Fishkill, Decisions of the Public Employment Relations Board, U-27331, U-27568

The Board affirmed a decision of an ALJ dismissing a portion of an improper practice charge filed by PBA alleging that the Town of Fishkill (Town) violated §§209-a.1(d) and (e) of the Public Employees’ Fair Employment Act (Act) when the Town changed the tours of duty and work schedules of two PBA officers thereby reducing their total weekly hours of work.

The Board rejected, as meritless, the PBA’s assertion that the ALJ misconstrued the allegations of the charge with the Board citing to the specific allegations of the charge.

The Board also rejected PBA’s claim that the ALJ erred in her conclusion regarding the number of hours worked by the two PBA officers noting that the evidence presented concerning the respective length of tours and workweeks was incomplete and confusing, at best.

Finally, the Board affirmed the ALJ’s conclusion that the Town had satisfied its duty to bargaining under the Act.

Due to the fact that the relevant contractual terms could reasonably be interpreted to have more than one meaning, the Board considered parol evidence in the record in determining that the Town satisfied its duty to negotiate the at-issue subject. 

Expulsion from a membership organization

Expulsion from a membership organization
Dormer v Suffolk County Police Benevolent Assn., Inc., 2012 NY Slip Op 03979, Appellate Division, Second Department

The then Police Commissioner of Suffolk County and the then Deputy Police Commissioner of Suffolk County sued the Suffolk County Police Benevolent Association, Inc., [PBA] and the Superior Officers Association of the Police Department of the County of Suffolk, [SOA] contending that their expulsions from these organizations was "illegal and improper."

Both the Commissioner and the Deputy Commission contended that they were expelled from the PBA and the SOA in retaliation for following official directives which required them to transfer responsibility for patrolling certain roadways on Long Island from the Suffolk County Police Department to the Office of the Sheriff, claiming that their expulsion had an adverse effect on them due to the loss of a life insurance policy. They sought a court order reinstating their membership “with full benefits.”

As their petitions were dismissed by Supreme Court as untimely, which ruling was affirmed by the Appellate Division, the merits of their claims were never addressed by the courts.

However, assuming, but not deciding, that the PBA and the SOA were recognized or certified for purposes of collective bargaining with the Suffolk County Police Department, as both the Commissioner and the Deputy Commissioner were expelled from their “membership” in the PBA and the SOA, presumably neither the Commissioner nor the Deputy Commissioner positions had been designated managerial or confidential within the meaning of §214 of the Civil Service Law [the Taylor Law].

§214 provides, in pertinent part, that “ No managerial or confidential employee, as determined pursuant to subdivision seven of section two hundred one of this article, shall hold office in or be a member of any employee organization which is or seeks to become pursuant to this article the certified or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.”

§201.7(a) of the Civil Service Law provides, in pertinent part, that “The term ‘public employee’ means any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include for the purposes of any provision of this article … persons who may reasonably be designated from time to time as managerial or confidential.”

.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03979.htm

Filing exceptions to a PERB administrative law judge’s determination

Filing exceptions to a PERB administrative law judge’s determination

Matter of County of Ontario and Ontario County Sheriff [Joint employers] PERB decision U-30353

The Board rejected the Joint Employer’s contention that it had a right to file exceptions to an ALJ’s interim decision denying its motion to dismiss a charge, without the necessity of seeking leave to file exceptions from the Board pursuant to § 212.4(h) of the Rules of Procedure (Rules).

The Board reached its conclusion based upon well-established precedent requiring a party to seek permission to file exceptions from interim decisions and rulings pursuant to §212.4(h) of the Rules.

Nevertheless, the Board treated the Joint Employer’s pleading as a motion for leave to file exceptions and concluded that the Joint Employer failed to demonstrate extraordinary circumstances.

Pursuant to §205.5(d) of the Public Employees’ Fair Employment Act (Act), PERB has exclusive jurisdiction to determine whether an employer has engaged in an improper practice in violation of §209-a.1 of the Act. The fact that a notice of claim was served asserting an alternative motivational theory underlying the alleged retaliation did not deprive PERB of jurisdiction to hear the pending charge, nor did it constitute a waiver of jurisdiction.

The Board noted, however, that although the pursuit of ancillary litigation may not deprive of PERB of jurisdiction or constitute a waiver, the results of such litigation may, in certain circumstances, form the basis for a collateral estoppel defense to a charge pending at PERB. 

Practice Tip noted by PERB staff:

Practitioners are reminded that under Board precedent, motions for leave to file exceptions are very rarely granted due to the strict standard requiring a movant to demonstrate extraordinary circumstances. This high standard is applied by the Board based upon the view that it is far more efficient to await the final disposition of the merits of a charge before examining interim determinations and to avoid unnecessary delays in the processing of improper practice charges. 

NYPPL has added a link to Education News

NYPPL has added a link to Education News

The Internet web site EducationNews [ www.EducationNews.org ] is a leading news resource reporting on national and international educational, political, business, and environmental issues. Since 1997 EducationNews has provided relevant news on a daily basis.

The site is listed in the sidebar in NYPPL's listing of "Links to Other Useful Web Pages" as Education News - a global resource.

Willful failure to comply with a “discovery order” assumes an ability to comply

Willful failure to comply with a “discovery order” assumes an ability to comply
2012 NY Slip Op 03786, Appellate Division, First Department

One of the issues considered by the Appellate Division in this phase of this litigation was Supreme Court’s denial of a motion to “strike” the New York City Department of Education’s [DOE] answer based on the petitioner’s allegation that DOE had “failed to disclose” certain records she had demanded in the course of discovery.

The Appellate Division unanimously affirmed the Supreme Court’s ruling, explaining the petitioner had failed to "show conclusively that [the DOE’s] failure to disclose was willful, contumacious or due to bad faith."

The court noted that DOE was not in possession of certain records demanded that had been prepared by a former employee nor could DOE control whether the former employee “contacts them.”

In such cases the Appellate Division said the test as to a party's “willful failure to comply with a discovery order” assumes an ability to comply with such an order and the party's decision not to comply with such an order. However, a showing that it is impossible to make the particular disclosure will bar the imposition of a sanction for such non-disclosure pursuant to Section 3126 of the Civil Practice Law and Rules.

The court concluded that DOE had satisfied the test of “impossibility” insofar as these particular records were concerned.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03786.htm

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Washington v New York City Bd. of Educ., 2012 NY Slip Op 04103, Appellate Division, First Department

.
The employee claimed that she had slipped while using an internal staircase in the school building and then fell.

At the administrative hearing held to consider her claim she testified that she "tripped/slipped and fell" on a "substance" and that the staircase was "unclean, dirty and contained a substance for an unreasonable amount of time." She subsequently filed verified bill of particulars that she slipped and fell "on an unknown liquid substance," and that the subject stairwell was "dirty, slippery, [and] wet."

Although discovery was still pending, the New York City Board of Education moved for summary judgment dismissing the  employee's complaint. The Appellate Division said that the Board had established a prima facie entitlement to summary judgment by pointing to the employee’s testimony at the administrative hearing that she did not know what caused her to fall.

Sustaining the granting of the Board’s motion, the Appellate Division explained that the employee had failed to submit evidence sufficient to raise a triable issue of fact. The assertions in her bill of particulars and her affidavit that she slipped on a wet and slippery condition caused by an "unknown liquid" or "semi-liquid" substance contradict her prior hearing testimony that she did not know what caused her to fall.

Because, said the court, the employee’s affidavit and bill of particulars can only be considered to avoid the consequences of her prior testimony, they are insufficient to raise an issue of fact.

While the employee claimed that certain requested “incident reports and maintenance records,” in conjunction with her testimony that she slipped on "something," could prove that a foreign substance was on the stairs where she fell, the Appellate Division ruled that “the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny the motion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04103.htm

Transfer of exclusive bargaining unit work to another bargaining unit

Transfer of exclusive bargaining unit work to another bargaining unit

Selected Rulings posted by PERB  – Matter of the City of New Rochelle, Decision U-26722

The Board affirmed a decision of an ALJ, concluding that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred exclusive bargaining unit work to employees in another bargaining unit. In reaching its decision, the Board rejected the argument that a stipulation resolving a prior improper charge deprived the agency of jurisdiction to decide the present charge.

The Board affirmed the ALJ’s conclusion that the settlement agreement did not grant PBA unit members the right to exclusively perform at issue, but made them eligible for such work and set forth the terms and conditions applicable to perform the work. The Board also rejected a duty satisfaction defense premised upon the terms of the management rights clause in the parties’ agreement

From the Office of the State Comptroller

From the Office of the State Comptroller

DiNapoli: Fire District Mismanaged Funds

The Thiells–Roseville Fire District made more than $60,000 in questionable payments and inappropriate gifts, according to an audit released on May 24, 2012 by State Comptroller Thomas P. DiNapoli.


DiNapoli: DEC Employee Who Cheated Taxpayers Pleads Guilty

A former biologist with the state Department of Environmental Conservation Tuesday pleaded guilty to petit larceny in Albany County Court and paid $15,000 in restitution for spending several hours a week at a local bar instead of performing his work duties, State Comptroller Thomas P. DiNapoli said.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits: the Town of Bath; the Village of Bath; the Town of Lloyd; the Town of Moreau; the Town of Parish; the Town of Saugerties; the Town of Taghkanic.; the New York City Health and Hospitals Corporation; the State Education Department; and, the Department of Motor Vehicles .

Findlaw – Human Resources Newsletter

Findlaw – Human Resources Newsletter

Table of contents for the week of May 29, 2012

Please click on title to access the item.

DOES 'TOO HOT' WOMAN HAVE AN EEOC CLAIM IN AN 'AT WILL' EMPLOYMENT STATE? (Philadelphia Employment Law News) - Recently, Lauren Odes claimed that she was fired for being "too hot" from the lingerie wholesaler where she worked. The New York Magazine also reported that Odes, with the help of her attorney, Gloria Allred, filed an EEOC complaint charging gender and religious discrimination.

LOST YOUR JOB? WHO HASN'T? FINDLAW'S GUIDE HELPS YOU THROUGH (Philadelphia Employment Law News) - Well, it looks like the Sixers held on to their jobs against the Celtics. But not so lucky are Dexter Pittman and Udonis Haslem of the Miami Heat, who are suspended after a recent game.

WHAT DOES THE EEOC HAVE TO DO BEFORE IT CAN FIGHT DISCRIMINATION? (The Chicago Employment Law Blog) - Judge Ruben Castillo, of the U.S. District Court for the Northern District of Illinois, released an opinion last week that might just lead to the Supreme Court in a few years. The case stems from the Equal Employment Opportunity Commission's role as guardian of the discriminated and disabled.

FINDLAW POLL: PEOPLE PAD RESUMES, IT HURTS (The Chicago Employment Law Blog) - Here at FindLaw, we’re not just excellent explicators of existing law. We don’t just react to news stories. We also do original research.

EX-TIME WARNER EMPLOYEE SUES OVER PORN AT WORK (FindLaw's Law & Daily Life) - Time Warner Cable has been hit with another discrimination lawsuit, this time by a former employee in New York. Keith Reid worked in the company's New York City maintenance department for about 9 years before he was fired earlier this year.

JACK'S PLACE ROBBERY: A WORKERS' COMP CLAIM WORTHY OF A RAP STAR (The Houston Employment Law Blog) - While it seems like only stars in the hip hop world get paid if they survive a shooting, workers' comp insurance just might pay a regular Joe if he got shot at work.

BEST BUY CEO BRIAN DUNN GETS $6.6M SEVERANCE PACKAGE AFTER SCANDAL (FindLaw's In House) - Best Buy CEO Brian Dunn may have stepped down in early April, but we're only now learning about the intimate details of his relationship with a 29-year-old employee. And the amount of his severance package, of course.

WAITRESSES' 'NO FATTIES' LAWSUIT CAN GO TO JURY (FindLaw's Law & Daily Life) - Two former New York City waitresses will soon be meeting with a jury. A state appeals court has agreed that Kristen McRedmond and Alexandria Lipton can sue South Place Restaurant & Bar for retaliation and discrimination. They claim they were fired after complaining about the bar's "no fatties" policy.

Employee who failed to attend administrative disciplinary hearing tried in absentia

Employee who failed to attend administrative disciplinary hearing tried in absentia

OATH Index #871/12

The employee failed to appear at the disciplinary hearing and the employer proceed to  established charges alleging various acts of misconduct and, or, insubordination in absentia.*

OATH Administrative Law Judge Alessandra F. Zorgniotti noted that these acts, as well as the employee’s responses when questioned about them, demonstrated that the employee refused to acknowledge his supervisor’s authority over him and would not change his ways. 

Notwithstanding the fact that the employee had never previously been served with disciplinary charges, Judge Zorgniotti recommended termination of employment.

* 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.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0871.pdf

Alteration of an employee’s duties and responsibilities standing alone not sufficient to establish a prima facie case of discrimination within the meaning of the Human Rights Law

Alteration of an employee’s duties and responsibilities standing alone not sufficient to establish a prima facie case of discrimination within the meaning of the Human Rights Law

After a “literacy coach” was reassigned to a classroom teacher position, the employee filed a complaint alleging the reassignment constituted an unlawful adverse employment action. The Appellate Division disagreed, concluding that none of the employment actions complained of by the employee rose to the level of an adverse employment action.

The court said that the transfer from the position of literacy coach to a classroom teacher was "merely an alteration of [the educator's] responsibilities" and not an adverse employment action, pointing out that apart from a change in the nature of her duties, the individual "retained the terms and conditions of her employment, and her salary remained the same."

As to the teacher’s allegation that she was the victim of unlawful discriminated after her transfer back to the classroom teaching position because she was subjected to ”a relentless stream of reprimands,” the Appellate Division ruled that this was not sufficient to establish a prima facie case of unlawful discrimination. The court noted that “Notwithstanding the frequent reprimands, the teacher received a satisfactory end-of-year performance rating and none of the reprimands resulted in any reduction in pay or privileges."

Addressing the teacher’s complaint of unlawful discrimination based an alleged failure of the employer “to reasonably accommodate her disabling condition,” the court said that the teacher “concedes that [the employer] provided her with a ‘satisfactory’ accommodation in the form of moving her classroom from the fourth to the second floor, with ‘no escort duty.’"

Finally, the Appellate Division said that the teacher had failed to show that her "workplace was permeated with ‘discriminatory intimidation, ridicule and insult’ that [was] sufficiently severe or pervasive to alter the terms or conditions of' employment, so as to make out a claim for hostile work environment.”

Finding that the employee's allegations of unlawful discrimination was properly dismissed as none of the employer’s actions complained of constituted an adverse employment action, the Appellate Division affirmed the Supreme Court’s order granting the City’s motion for summary judgment dismissing the complaint.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03935.htm

The Retired Public Employees Association, Inc., asks State Supreme Court Justice George Ceresia, Jr. to rule that the decrease in the State’s percentage of its contribution towards the health insurance premiums paid by State retirees unlawful

The Retired Public Employees Association, Inc., asks State Supreme Court Justice George Ceresia, Jr. to rule that the decrease in the State’s percentage of its contribution towards the health insurance premiums paid by State retirees unlawful

Source: RPEA e-mail

The Retired Public Employees Association, Inc. [RPEA], referring to a front page article captioned “Did the State Legislature give away its power to control how much money state employees pay toward their health care?” by Rick Karlin that appeared in the Albany Times-Union dated Thursday, May 24, 2012, reports that on Wednesday, May 23, 2012 it asked  State Supreme Court Justice George Ceresia, Jr. to find that the State’s reduction of the percentage of its contribution towards the health insurance premiums paid by pre-October 1, 2011 retired State employee violates Civil Service Law §167.1(a).

Essentially RPEA argued:

1. This action was brought by RPEA on behalf of those individuals who retired from the State as the employer prior to the effective of date of regulations promulgated by the President of the New York State Civil Service Commission [October 1, 2011] under color of the 2011 amendment to CSL Section 167.8. 

2. The 2011 amendment to Civil Service Law Section 167.8 must be applied in a manner consistent with the doctrine of legislative equivalency, whereby the provisions of Section 167.1(a) control except as otherwise specifically authorized to reflect a term and condition of employment set out in a collective bargaining agreement. City of Plattsburgh v Local 788, 108 AD2d 1045 is an example of the application of the doctrine. In Plattsblurgh the Appellate Division held that the procedure for determining an individual’s seniority for the purposes of layoff as set out in §80.1 of the Civil Service Law can neither be diminished nor impaired by the terms of collective bargaining agreements in contrast to the Legislature’s amending §80 providing for an alternate means of determining such seniority with respect to police officers employed in certain police departments as set out in subdivisions 1-a through 1-d of §80.* 

3. Prior to its 2011 amendment, Section 167.8 authorized extending any “negotiated increases” in the State’s cost of premium or subscription charges for health insurance to employees then in active service not subject to a collective bargaining agreement - i.e., unrepresented employees in the Executive, Legislative and Judicial branches of government. Significantly said Section 167.8 specifically provided that such “negotiated increases” shall not be provided to State employees already retired nor upon the retirement of any said unrepresented employees and, unless otherwise specifically otherwise provided in the collective bargaining agreement, employees in the relevant collective bargaining unit retiring during the life of the collective bargaining agreement. The State’s contribution rates to be made on behalf of all such retirees was, and continues to be, set out in Civil Service Law Section 167.1(a). 

4. The 2011 amendment to Civil Service Law Section 167.8 provided that a collective bargaining agreement between the State and an employee organization could modify such State costs – i.e., the State’s cost could be either increased or decreased – and the President of the State Civil Service Commission, with the approval of the Director of the Budget, could extend the modified state cost of premium or subscription charges for employees or retirees not subject to such an agreement and was authorized to promulgate the necessary rules or regulations to implement this provision with respect to employees in service on or after the effective date of such regulation. 

5. It is well settled that any employee of the State as the employer who retired prior to the effective date of any such agreement is not an individual within the relevant collective bargaining unit and would not be subject to any negotiated terms and condition of employment set out therein.** Accordingly, at best the only individuals to whom the provisions of Civil Service Law Section 167.8 as amended could apply with respect to the State’s contributions for health insurance are [1] employees of the State in the relevant collective bargaining unit currently in active service; [2] unrepresented employees of the State to whom the provisions of the collective bargaining agreement modifying the State’s contributions have been extended at the discretion of the President of the Civil Service Commission with the approval of the Director of the Budget currently in active service; and [3] employees of the State described in [1] and [2] above who retired, or become retired, during the life of the relevant collective bargaining agreement. In contrast, State’s contribution for health insurance on behalf of employees of the State who retired from State service prior to the effective date of said Regulations are set out in Civil Service Law Section 167.1(a), which provision have not been amended by the State Legislature. 

6. Any effort by the State to amend the provisions of Section 167.1(a) insofar as individual who retired from the State as the employer prior to October 1, 2011, the effective date of a regulation implementing the terms and conditions of a collective bargaining agreement with respect to the State’s contributions towards health insurance premiums and subscription charges, is a nullity insofar as such retirees are concerned as a rule or regulation may not amend provisions of law set out in a statute but may merely provide for its lawful administration and application. So said the Court of Appeals in Torre v County of Nassau, 86 NY2d 421, wherein the court, noting the doctrine of legislative equivalency, held that a position created by a legislative act can be abolished only by a correlative legislative act. Applying the doctrine in this instance means that the State's rates of contributions for health insurance, having been set out in Civil Service Law Section 167.1(a) by the State Legislature, may only be changed by a legislative act by the State Legislature. Such was the case when the Legislature so acted in 1983*** and amended Civil Service Law Section 167.1(a) mandating a lower rate of contributions by the State for individual coverage on behalf of State employees retiring on or after January 1, 1983.

N.B. In Bransten v State of New York, 40 Misc 3d 512 , an action involving the impact of Section 167.8 as amended on compensation of judges, the court, in part, held: "... More importantly, while the terms of the agreement giving rise to plaintiffs' increase in contributions were negotiated between the State and the union, plaintiffs are unrepresented, and not eligible for collective bargaining, and were, like the judges affected by the Social Security tax in Hatter [U.S. v Hatter (532 US 577], left without a choice and required to contribute. That the Legislature did not single out judges for special treatment in order to influence them is thus irrelevant (see Hatter, 532 US at 577).

“Moreover, defendant negotiated its reduction in contributions in order to avoid the layoffs of thousands of State employees, none of which include judges or justices, because Judges and Justices are not subject to "layoffs." Thus, the increased cost of health insurance borne by plaintiffs bears no relation to the purpose of the State's reduction in its contributions.”

A similar argument could be advanced with respect to non-judicial retirees of the State as the employer, i., in  increasing the cost of Health Insurance to retirees of the State as the employer by decreasing the percentage of the State's contribution on behalf of such retirees bears no relation to the stated purpose of the State's reduction of its percentage of its contributions on behalf of its active employees – to avoid layoffs.

* Legislation extending similar procedures to certain members of other police agencies in the event of a layoff is pending in the Assembly [A9887-2011] and in the Senate [S7075-2011]. See http://publicpersonnellaw.blogspot.com/2012/04/legislation-proposed-to-provide-for-new.html for a NYPPL summary of these bills.

** http://publicpersonnellaw.blogspot.com/2012/04/health-insurance-benefit-enjoyed-by.html summarizes a  State Supreme Court decision in which the court held that health insurance benefits enjoyed by retired individuals are not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties [DiBattista v County of Westchester, 35 Misc3d 1205].

*** Chapter 14, Laws of 1983, retroactive to December 15, 1982 to accommodate the premiums due effective January 1, 1983.

Mr. Karlin’s article is posted on the Internet at:

Read more:  http://www.timesunion.com/local/article/State-retirees-ask-judge-to-roll-back-health-3581516.php#ixzz1vn6qcyB7