Eligibility for GML 207 benefits

Eligibility for GML 207 benefits

Dearman v City of White Plains, 237 A.D.2d 603

Although William H. Dearman, a White Plains firefighter, was approved for accidental disability retirement benefits by the Police and Fire Retirement System, White Plains denied Dearman's application for General Municipal Law §207-a benefits. Dearman sued, seeking a court order compelling the City to pay him §207-a supplemental benefits.

The Appellate Division ruled that Dearman's petition was untimely, having been filed more than four months after the City had made its "final determination." Of greater significance, however was the Appellate Division's observation that the lower court was incorrect in viewing Dearman's action to be in the nature of mandamus to compel the City to perform a statutory duty.

According to the decision, the City is allowed to make its own determination as to whether Dearman was entitled to §207-a benefits and the Retirement Systems determination granting Dearman §363 disability benefits did not preclude the City from finding him ineligible for §207-a benefits. The Appellate Division noted the Court of Appeals' decision in Cook v City of Utica, 84 NY2d 833 concerning this point.

Duty of fair representation

Duty of fair representation

Ponticello v County of Suffolk, 225 A.D.2d 751

Joseph Ponticello filed a grievance. When the grievance was denied by Suffolk County, Ponticello asked his union, the Association of Deputy Sheriffs and Correction Officers, to demand arbitration. The union refused to demand arbitration and Ponticello sued the County, seeking a judgment confirming his right to arbitration under the collective bargaining agreement.

In reversing a State Supreme Court judge's ruling in Ponticello's favor, the Appellate Division addressed an number of issues concerning a union's duty of fair representation and the right of a member of the bargaining unit to pursue "self-help" should the union decline to proceed with the arbitration of a grievance.

The Appellate Division ruled that in order for Ponticello to prevail, he had to prove that the union's action constituted discrimination, arbitrariness or invidious or hostile treatment. The decision makes the following points regarding an employee's right to demand arbitration if the union elects not to do so:

1. If an employer and an union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract.

2. A union is not required to pursue arbitration in every grievance filed by a member of the negotiating unit and its failure to demand arbitration is not, standing alone, a breach of its duty of fair representation.

3. An employee may demand arbitration or sue the employer directly only if the collective bargaining agreement allows an employee to bring such an action or if the union breaches it duty of fair representation.

The Appellate Division found that the collective bargaining agreement gave the Association full control of which grievances may be submitted to arbitration. As Ponticello failed to establish that the Association had breached its duty of fair representation, he had no standing to sue the County.

Editor's Note: In Alston v Transport Workers Union of Greater New York, the Appellate Division pointed out that an amendment to the Civil Practice Law and Rules [Chapter 467, Laws of 1990], reduced the statute of limitations for bring an action against a union for breach of its duty of fair representation from six years to four months [§217(2)(a), CPLR]. The four months period commences to run from the date on which the employee knew or should have known that the breach had occurred or the date the employee suffers actual harm, whichever is later.

Drug tests for elected office

Drug tests for elected office

Chandler v Miller, Governor of Georgia, US Supreme Court, 520 U.S. 305

A Georgia statute requires candidates for designated state offices to certify that they have taken a urinalysis drug test within 30 days prior to qualifying for nomination or election and that the test result was negative. Libertarian Party candidates sued, arguing that the law violated their Fourth Amendment protection against unreasonable search.

The U.S. Supreme Court, in an opinion by Justice Ginsburg, decided that the Georgia law was unconstitutional because it failed to overcome the general principle that a search is justifiable only in the event of individualized suspicion. The Court said that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.

While there are a number of "particularized exceptions" to this main rule based on "special needs, beyond the normal need for law enforcement," the Supreme Court said that  "when such "special needs" - concerns other than crime detection - are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties," referring to its ruling in Von Raab, 489 U S at 665-666.

Georgia, the Court decided, failed to show a special need sufficient to override an individual's privacy interest or sufficiently vital to its interests to justify suppressing the Fourth Amendment's normal requirement of individualized suspicion for requiring an individual submit to testing for illegal drugs.

Holding that Georgia's requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches, the high court reversed the Eleventh Circuit's ruling upholding the statute. The ruling is consistent with decisions by New York State courts that, except where a negotiated agreement or statute authorizes or requires random drug testing, a public employer must have reasonable cause or justified suspicion to require an employee to take an involuntary drug test.