Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system
Battisti v City of New York, 2014 NY Slip Op 07065, Appellate Division, First Department

Anthony Battistiwas found guilty of misconduct after a disciplinary hearing and terminated from his employment with the New York City Police Department [NYPD]. He appealed NYPD’s determination and asked Supreme Court to [1] vacate the disciplinary action and [2] direct that NYPD “credit [him] with certain days withheld from the calculation of his service for pension purposes.”

Supreme Court transferred so much of Battisti’s petition that challenged the disciplinary determination to the Appellate Division and denied that part of Battisti’s petition that sought an order directing that he be credited with “certain days withheld from the calculation of his service for pension purposes.”

With respect to Battisti’s challenge to the disciplinary hearing proceeding, the Appellate Division held that “Substantial evidence supports the findings of the Assistant Deputy Commissioner for Trials that [Battisti] was guilty of the proffered charges,….”*

Addressing Battisti’s claims with respect his entitlement to member service credit in the retirement system, the court noted that in the course of the Battisti’ disciplinary action he was suspended without pay for a total of 99 days.

The initial 30-day suspension followed disciplinary charges that alleged that he had "knowingly associated with …. an individual reasonably believed to have engaged in criminal activity.” A second 69-day suspension without pay followed after the disciplinary charges were amended based on criminal charges filed against him as a result of an arrest in another jurisdiction.

Battisti argued that because Civil Service Law §75(3-a), as well as Administrative Code of City of NY §14-115, cap suspensions without pay of public employees awaiting hearing and determination of disciplinary charges at 30 days, he is entitled to be credited with 69 days of member service credit and thus is eligible for a retirement allowance based on his total member service.

NYPD’s answer on this point indicated that it had issued a check to Battisti reflecting its internal determination that he had been improperly suspended without pay for 39 days and was entitled to compensation for those days. This left just 60 days of suspension without pay. Further, said the Appellate Division, NYPD did not dispute the fact that all days for which a member of NYPD is paid are to be included in the calculation of time for purposes of all benefits, including pension.

The Appellate Division concluded that, assuming arguendo, that the NYPD properly suspended petitioner without pay for two 30-day periods based on distinct offenses resulting in 60 days of suspension without pay, based on NYPD's calculations it appears that Battisti had completed twenty years of creditable service as of the effective date of his termination.

Finding that NYPD had not set forth any legal basis for its subsequent internal determination to treat nine of the 39 days that had been credited to Battisti as suspensions without pay, notwithstanding the limit set by Civil Service Law §75(3-a), the Appellate Division ruled that “[a]bsent such explanation for excluding the nine days from the calculation of creditable service, the determination to deny [Battisti] a pension was arbitrary and capricious in that it was taken "without regard to the facts."

*The court said that Battisti’s“arguments concerning [a witness’s] credibility and motive to lie at the [disciplinary] hearing are beyond the review of this Court,” citing, Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07065.htm

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Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days

Alarcon v Board of Educ. of S. Orangetown Cent. School Dist , Appellate Division, Second Judicial Department, 2014 NY Slip Op 06969. [Alarcon II]

In Alarcon I, [Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 85 AD3d 780], the Appellate Division directed the reopening of the disciplinary hearing after finding that a key witness against Alarcon recanted the testimony he gave at the disciplinary hearing.  

The court explained that the South Orangetown Central School District had adopted the findings and recommendation of the disciplinary hearing officer who found Marco Alarcon guilty of certain charges of misconduct and incompetence, and recommended that Alarcon's be dismissed from his position. However, said that Appellate Division, the hearing officer's recommendation that Alarcon be terminated from service "was largely based upon the testimony of the eyewitness," one Ramon Reyes.

After Reyes testified, but prior to the issuance of the hearing officer's report and recommendation, Reyes had recanted his testimony and, in a sworn affidavit, stated that the testimony he had given at the disciplinary hearing was false and that he gave such false testimony because his supervisor directed him to lie. 

Under the circumstances, the Appellate Division annulled the Board’s determination on the law and remitted the matter for a hearing at which Alarcon was to be given the opportunity to recall Reyes to testify and directed that the Board receive “this newly discovered evidence” and make a new determination.

A second hearing was conducted, after which the Board of Education adopted the findings and recommendation of a hearing officer who had found the Alarcon guilty of certain charges of misconduct and incompetence and recommended that he be dismissed from his position. The Board again imposed the penalty of dismissal and terminated Alarcon’s employment with the School District.

Alarcon challenged the Board’s action, which the Appellate Division addressed in instant appeal, Alarcon II.

In Alarcon II the court sustained the Board’s action and found that contrary to Alarcon’s contention, the challenged determination was:

1. Supported by substantial evidence in the record; and

2. The penalty imposed by the School Board was not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The Appellate Division, however, sustained Alarcon’s claim that he was entitled to back pay and benefits "for any period of suspension in excess of 30 days, including the period commencing with an earlier determination terminating his employment," which was previously annulled by the Appellate Division in Alarcon I, up to the date of the determination by the Appellate Division in Alarcon II, “excluding any delay occasioned by him, and less any unemployment insurance benefits received for that period.”

The court than remitted the matter to the School Board to calculate the amount of “back pay and benefits to which [Alarcon] is entitled, if any, and to pay him that amount.”

Another decision in which “tainted testimony” was the basis for overturning a disciplinary determination is Buric v Safir, 285 A.D.2d 255, leave to appeal dismissed, 98 NY2d 688. This case also involved a claim for back salary and benefits that, under there relevant circumstances, was denied.

The decision in Alarcon I is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05055.htm

The decision in Alcarcon II is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06969.htm

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Appellate Courts differ regarding the State’s reduction of its employer contribution towards health insurance premiums for certain State retirees

Appellate Courts differ regarding the State’s reduction of its employer contribution towards health insurance premiums for certain State retirees
Bransten v State of New York, 117 AD3d 455

Retired Pub. Empls. Assn., Inc. v Cuomo, 2014 NY Slip Op 07044, Appellate Division, Third Department

In course of collective bargaining for Taylor Law agreements for the period 2011-2016, the State and several collective bargaining units representing State employees agreed to reductions in the State's employer contribution towards State employee health insurance premiums to avoid laying off State employees during the life of these several collective bargaining agreements.

As a result, the State's employer contributions towards State employee health insurance premiums were reduced by between 2% and 6% depending upon the State employee's salary grade. The President of the State Civil Service Commission adopted a regulation,* approved by the Director of the Budget, reducing the State’s employer contributions for State employees and for State employee who had retired before the effective date of these new collective bargaining agreements [pre-contract State retirees]. 

The Bransten v State of New York decision

In September 2011 the New York State Department of Civil Service notified sitting judges that the State would reduce its contributions for health insurance premiums by 6% and reduce its contributions to retired judges' health insurance premiums by 2%. 

The Bransten court explained that the reduction in the State’s employer contribution to health insurance premiums occurred in 2011 when the State, faced with a serious budget shortfall, threatened to lay off thousands of workers unless employees in State's several collective bargaining units made wage and benefit concessions that included bearing more of the cost of their health care insurance.

However, the Bransten court said that the judiciary “had no power to negotiate with the State with respect to the decrease,” and they “received no benefit from the no-layoffs promise because their terms of office were either statutorily or constitutionally mandated.” Thus, said the court, “§167.8 uniquely discriminates against judges because it imposes a financial burden on them for which they received no compensatory benefit.”

Accordingly, said the Appellate Division, the State’s motion to dismiss the Bransten action was properly denied by Supreme Court. 

The Retired Public Employees Association, Inc. [RPEA]  v Cuomo decision

The Retired Public Employees Association [RPEA] challenged the State's reduction of the percentage of its employer contribution towards health insurance premiums with respect to “pre-contract” State retirees, contending that:

 [1] Civil Service Law §167.1 sets out the ratio of employer contributions the State was required to make on behalf on these pre-contract State retirees and that provision was not amended to provide for a different ratio;

[2] The State’s effort to set out any different ratio of State's employer contributions made on behalf of  pre-contract State retirees by adopting a regulation, 4 NYCRR 73.3 [b], under color of §167.8, as amended, was a nullity; and

[3] The reason advanced by the State for reducing the State’s employer contributions towards employee health insurance premiums in the course of collective bargaining – to avoid layoffs – was irrelevant insofar as pre-contract State retirees were concerned as pre-contract State retirees are neither employees nor, as retired employees, subject to layoff from employment.

The Appellate Division, Third Department, however, ruled that Civil Service Law §167.8 “plainly and unambiguously" permits modification of the fixed contribution rates for retiree health insurance premiums set forth in Civil Service Law §167(1)(a) by regulation" with respect to employees of the State and the pre-contract State retirees.

The court explained that: “Given the Legislature's expressed intent** to authorize a modification in the state's contribution rate towards retiree health insurance premiums under the circumstances present here, we conclude that [the State’s] actions in effectuating the reduced state contribution rates was both lawful and in compliance with the statute".

It then dismissed RPEA's complaint on the ground that the Complaint "failed to state a cause of action ... except that the John and Mary Does 1-2,000, current and retired Judges and Justices of the Unified Court System of the State of New York are dismissed from this action, without prejudice."***

As to the retired judges represented by RPEA in its action, it would appear that pre-contract State retirees are similarly situated as pre-contract State retirees have no power to negotiate with the State and they received no benefit from the no-layoffs promise because retirees are not employees subject to layoff pursuant to §§80 or 80-A of the Civil Service, which provisions address “Suspension or demotion upon the abolition or reduction of positions..”

* 4 NYCRR 73.3 [b].

** The SPONSORS MEMO in support of Senate S5846, which was enacted into law as Chapter 491 of the Laws of 2011, states that the purpose of the bill was “amend the civil service law and the state finance law, in relation to compensation and other terms and conditions of employment of certain state officers and employees.” With respect amendment to Civil Service Law § 167(8), the Sponsor’s memo stated that the purpose of the amendment is “to provide authority to modify the employer and employee shares of health premium and subscription costs under the New York State Health Insurance Plan [emphasis supplied].”

*** Retired State judges and retired State legislative personnel were among the pre-contract State retirees included in RPEA's action.

The Bransten decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03214.h

The RPEA decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07044.htm

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