Silence in a collective bargaining agreement negotiated pursuant to Civil Service Law Article 14, the Taylor Law, does not infer a right or benefit

New York State's Court of Appeals [NYCA] accepted certification of questions submitted to it by the United States Court of Appeals, Second Circuit [USCA] concerning the vesting of lifetime rights to retirement benefits by public employees of the State as the employer. 

Answering the first part of USCA's first certified question, NYCA responded that "New York's contract law does not recognize ... inferences" of vested lifetime rights to retiree benefits from silence and that "[a]bsent such inferences, none of the Collective Bargaining Agreement [CBA] provisions identified establish a vested right to lifetime fixed premium contributions, either singly or in combination." NYCA then declined "to determine whether the CBA's text is ambiguous." *

Considering the guidance provided by NYCA, USCA said that it concluded that the federal district court "did not err in granting summary judgment to the State respondents on both claims," explaining that "The New York Court of Appeals held as a matter of state law that the CBA provisions at issue cannot unambiguously establish a vested lifetime right to fixed premium contributions, so the breach of contract claim cannot succeed without the consideration of extrinsic evidence."

USCA further held that the CBA provisions at issue were not ambiguous regarding the establishment of such a vested right, and therefore "consideration of extrinsic evidence is not permissible".

On July 27, 2022, USCA handed down following decisions addressing this matter.

Click on the numbers highlighted in color to access the text of the decision.

18-3221

New York State Court Officers Association v. Hite

07-27-2022

SUM

 

18-3151

New York State Correctional Officers & Police Benevolent Association, Inc. v. The State of New York

07-27-2022

SUM

 

18-3220

Kreh v. Cuomo

07-27-2022

SUM

 

18-3142

The New York State Law Enforcement Officers Union v. The State of New York

07-27-2022

SUM

 

18-3066

The New York State Police Investigators Association v. The State of New York

07-27-2022

SUM

 

18-3183

Police Benevolent Association v. The State of New York

07-27-2022

SUM

 

18-3140

Spence v. State of New York

07-27-2022

SUM

 

18-3122 (L)

Brown v. State of New York

07-27-2022

SUM

 

18-3172

Roberts v. The State of New York

07-27-2022

SUM

 

18-3049

The Police Benevolent Association of the New York State Troopers, Inc. v. The State of New York

07-27-2022

SUM

* See 36 N.Y.3d 935; 38 N.Y.3d 1. 

Challenging the removal, and the subsequent denial of an application for reinstatement, of a member of a school board

In this ruling Commissioner of Education Betty A. Rosa consolidated two separate appeals brought by a former member of a school board [Petitioner] in which similar issues of law and fact were involved. 

The first appeal concerned Petitioner's efforts seeking a stay her removal from the board pursuant to Education Law §1709(18) while the second appeal concerned Petitioner's seeking reinstatement to the board following her removal from the school board after being found guilty of two charges filed against her.*

With respect to Petitioner's efforts to "stay her removal from the board," Petitioner sought to have "the removal hearing heard by the Commissioner rather than the board" or, in the alternative, that the Commissioner's issuing an order directing the recusal of the school board president. Petitioner's requests were both denied and following an administrative hearing, the Petitioner was removed from her position on the board.

Regarding Petitioner's challenging her removal from the board and her seeking reinstatement in the instant consolidated proceeding, after addressing two procedural matters, the Commissioner considered  the merits of Petitioner's appeal. In so doing, the Commissioner noted that "in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief."

With respect to the charges of “official misconduct” served on Petitioner, the Commissioner determined  that the two allegations of such misconduct met the standard for official misconduct set out in Education Law §1709(18). Such misconduct, said the Commissioner, constituted "wrongdoing committed in [Petitioner's] capacity as a school officer," which the Commissioner characterized as "quintessential" official misconduct.

The Commissioner found that the record supported the school board’s determination that Petitioner engaged in official misconduct, noting that board members “have a fiduciary obligation to act constructively to achieve the best possible governance of the school district” and Petitioner's actions in this instance "violated this duty."

Further, noted the Commissioner, official misconduct within the meaning of Education Law §1709(18) "is not dependent upon a violation of statute or district policy," citing 61 Ed Dept Rep, Decision No. 18,116 and other Decisions of the Commissioner of Education.

*  The penalties imposed: The board [a] admonished Petitioner for the misconduct alleged in Charge One, improperly disclosing confidential information, and [b] determined that the misconduct alleged in Charge Two, official misconduct, warranted her removal.

Click HERE to access the text of the Commissioner's decision.

 

Statements made by a public employee in his "official capacity" in the course of an investigation by public agencies are not protected by the First Amendment

An employee of New York City's Department for Citywide Administrative Services [Plaintiff] alleged that he was terminated from his position because he provided "unfavorable statements to investigators" during interviews concerning the City’s involvement in certain transactions made during his tenure. These transactions had been the subject of multiple inquiries and investigations by various New York City and federal agencies. 

Federal district court granted the City’s motion for summary judgment, concluding that Plaintiff's statements made in the course of the investigative interviews were made in his capacity of his being an employee of the City rather than as a private citizen. The court said that [1] such statements "were not protected by the First Amendment" and [2] the Plaintiff "failed to show that a causal connection existed between his cooperation with investigators and his later discharge." 

Noting that to prevail on a First Amendment retaliation claim the plaintiff must establish that his protected speech was a but-for cause of some adverse employment action, the Circuit Court of Appeals affirmed the lower court's ruling, explaining that it found that "no reasonable juror could find that [Plaintiff's] testimony was the but for cause of his termination". 

The decision is posted on the Internet at https://www.ca2.uscourts.gov/decisions/isysquery/6b8ab6af-1174-4152-a64a-a1138649334e/3/doc/21-925_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/6b8ab6af-1174-4152-a64a-a1138649334e/3/hilite/