School nurse negotiating unit established

School nurse negotiating unit established
Ichabod Crane Registered Nurses Asso. and Ichabod Crane Central School Dist., 33 PERB 3042

The Public Employment Relations Board approved the certified a unit consisting of the four registered nurses employed by the Ichabod Crane Central School District previously included in a non-instructional negotiating unit represented by CSEA. PERB concluded that the nurses were “not properly placed in units of nonprofessional or noninstructional employees.”

PERB based its ruling on the fact that, among other things, nurses are required to have a college education, meet certification and licensing requirements, participate in continuing professional education, interact with students, teachers and administrators on a daily basis and share a clear “occupational identity and professional interests.”

This is a significant change from PERB's former position regarding the “fragmentation” of a negotiating unit.

PERB said that in the future it will consider “fragmentation” petitions on a case-by-case basis.

Special eligible lists

Special eligible lists
Colavito v NYC Civil Service Comm., 277 A.D.2d 94

The general rule is that appointments may not be made from an eligible list once it has expired. However, there are a number of exceptions to this general proposition. In the Colavito case, the court considered a candidate's attempt to be placed on a special eligible list.

Joseph Colavito failed the examination for blacksmith. The list expired on May 8, 1995. Colavito, however, did not commence his Article 78 action challenging his test score on the practical part of the examination until November 1998. This, said the court, meant that his Article 78 petition was untimely.

Citing Deas v Levitt, 73 NY2d 525, the Appellate Division, First Department, affirmed Supreme Court Judge Louise Gruner Gans' dismissal of his petition. The Appellate Division said that where a candidate seeks to be placed on a special eligible list, he [or she] must commence the proceeding before the list expires and “must challenging the validity of the list itself”.

Special eligible lists may be established if certain conditions are satisfied. The basic rules governing such cases are as follows:

1. If a candidate's disqualification has been reversed or his or her rank order on an eligible list has been adjusted as a result of administrative or judicial action, his or her name is placed on the eligible list for a period equal to the period of disqualification or the period he or she has been improperly ranked, up to a maximum period of one year or until the expiration of the eligible list, whichever is longer [Civil Service Law Section 56.3].

2. If an eligible list expires before the expiration of the candidate's “period of restoration,” the candidate's name is placed on a special eligible list for the remanding period of his or her restoration, not to exceed a maximum of one year [Civil Service Law Section 56.3].

3. If a candidate's disqualification is reversed or his or her rank is adjusted after the eligible list has expired, his or her name is placed on a special eligible list for a length of time equal to the restored period of time not to exceed a maximum of one year [Civil Service Law Section 56.3].

4. If a court determines that an eligible list is invalid, it may order the creation of a special eligible list having a life of at least one year but not more than four years from the date on which the corrected list is published [Civil Service Law Section 56.4].

In any event, the First Department held that critical to obtaining any relief pursuant to Section 56.3 or Section 56.4 is the candidate's commencing his or her challenge to the examination before the eligible list expires.

Defined Benefit Retirement Plans contrasted with Defined Contribution Retirement Plans for New York State public employees

Defined Benefit Retirement Plans contrasted with Defined Contribution Retirement Plans for New York State public employees

Source:”Passing The Pension Bomb by EJ McMahon and Josh Barro, published by the Empire Center for New York State Policy [SR8-11]

In their “white paper”Passing The Pension Bomb* EJ McMahon and Josh Barro report on New York's “Exploding Pension Cost,” focusing on New York State’s defined benefit public retirement systems, the authors indicate that “While a growing number of states have been making changes to their pension systems—including 11 in 2010 alone — pure DC [defined contribution] plans so far have been mandated in only two states, Michigan and Alaska. In the wake of the November 2010 election, at least six newly elected governors in other states were 'looking favorably at some form of 401(k)-style retirement plan for public employees, adding to the momentum building nationally for a shift away from traditional guaranteed pensions,' the Pew Center’s Stateline web site recently reported.”

Noting that:

“• Tier 1 benefits are available to all employees hired before June 30, 1973;

“• Tier 2 covers all employees hired on or after June 30, 1973 and before July 27,1976;

“• Tier 3 covers employees hired on or after July 27, 1976, and before Sept. 1, 1983;

“• Tier 4 includes all employees hired on or after Sept. 1, 1983, and before Jan. 1, 2010; and

“• Tier 5 covers employees hired on or after Jan. 1, 2010”

McMahon and Barro suggest that [New York] State officials should not settle for creating a “Tier 6” that incrementally adjusts some existing pension parameters while preserving a fatally flawed system that exposes taxpayers to potentially open-ended liabilities, implying that serious consideration should be given to creating a defined contribution retirement plan.

The report addresses only New York’s public retirement systems and thus does not consider the defined contribution retirement programs now in place and available to certain employees of the State University of New York, certain employees of the State Department of Education and certain employees in the State's community colleges, among others. Significantly, these “Optional Retirement Programs** are not public retirement systems.***

Using these defined contribution plans as models, consideration could be given to the establishment of similar plans in lieu of the tradition NYSERS, NYSTRS and other public retirement systems of the State’s Defined Benefit Plan models now in place and periodically "revised" via the creation of new "Tiers" for new employees of New York State and its political subdivisions.

A viable DCP plan for employees of the State and its political subdivisions could provide that:

1. All new employees becoming members of the New York State Employees’ Retirement System and similar public retirement systems of this State would participate in a DCP;

2. Employer and employee contributions for the DCP would be negotiated through collective bargaining;

3. Employees in the DCP would “vest” immediately;

4. Current members of a public retirement system would be permitted to elect to become members of the appropriate DCP; and

5. The existing public retirement systems would administer their respective DC plans by essentially expand the existing “employee contribution” operations of the systems, with, perhaps, a variable annuity option.

* Posted on the Internet at http://www.rpea.org/news/documents/PensionExplosion.12.20102.pdf

** These several Optional Retirement Programs include, for example, the plan established in 1965 pursuant to the Education Law available to certain employees of SUNY, the Statutory Contract Colleges at Cornell and Alfred Universities, and community colleges [see Education Law §390 et. seq.]

*** Education Law §396.