New York Public Personnel Law

May 23, 2023

Selected bills introduced in the New York State Senate addressing certain public personnel situations on or before May 19, 2023

S23 by Daniel G. Stec 45th Senate District : Concerning the villages of Malone, Saranac Lake and Tupper Lake, in the county of Franklin, employing retired former members of the division of state police as part-time village police officers

S4087 by Pamela Helming 54th Senate District : Authorizes Michael Telesca to take the competitive civil service examination and be placed on the eligible civil service list for employment as a full-time police officer for the county of Livingston

S4811B by Andrew Gounardes 26th Senate District : Relates to increasing certain special accidental death benefits

S5015 by Andrew Gounardes 26th Senate District : Addresses the appointment and promotion of certain personnel of the sanitation department of the city of New York

S5361 by John W. Mannion 50th Senate District : Grants retroactive membership with Tier IV status in the New York state teachers' retirement system to Peter Guarino

S5494 by Robert Jackson 31st Senate District : Provides for crediting of probationary service

S5605 by Lea Webb 52nd Senate District : Authorizes the city of Binghamton to offer an optional twenty-five year retirement plan to firefighter Scott Pavlick

S6054 by Robert Jackson 31st Senate District : Relates to retirement benefits for certain employees

S6188 by Steven D. Rhoads 5th Senate District :Would provided for retroactive Tier V membership in the NY State and Local Employees' Retirement System to Daniel Miller

S6343 by Andrew Gounardes 26th Senate District : Relates to the limitation of overtime compensation in final average salary calculations

S6477 by Robert Jackson 31st Senate District : Provides home addresses of certain employees to employee organizations

S6482A by John W. Mannion 50th Senate District : Allows an individual with disabilities or a disabled veteran to hold full-time or part-time positions for purposes of eligibility for recruitment for state employment

S6861 by Robert Jackson 31st Senate District : Would provides for the automatic enrollment of employees of the City of New York eligible to join the New York City Board of Education Retirement System other than individuals provisional appointed

S6862 by Robert Jackson 31st Senate District : Provides for a line of duty presumption for disabilities of fire alarm dispatchers in certain cities

S6976 by Robert Jackson 31st Senate District : Would grant eligibility of certain participants in the New York City Employees Retirement System to opt into the twenty-five year retirement program for EMT members

May 22, 2023

Imposing a reasonable disciplinary penalty under the circumstances

Petitioner was served with a notice of discipline setting out six charges of misconduct alleging violations of the agency's rules, regulations and code of conduct. Petitioner denied the charges and demanded a hearing pursuant to Civil Service Law §75. The Employer withdrew one of the six charges after the §75 disciplinary hearing. The Hearing Officer subsequently found Petitioner guilty of the five remaining charges and recommended that the Petitioner be terminated from his position. The Appointing Authority reviewed the record and Hearing Officer's recommendation, found Petitioner guilty of the five remaining charges of misconduct and terminated his employment. Petitioner appealed the Appointing Authority's decision.

The Appellate Division, opining that the five charges were supported by substantial evidence, explained:

1. New York State's Civil Service Law §75(1) provides an employee in the classified service of a public employer covered by the statute "shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges"; and

2. "The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence."

Turning to Petitioner's challenging the penalty imposed, of termination of his employment, as "excessive", the Appellate Division said in determining whether an imposed disciplinary penalty is excessive, "this Court must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one's sense of fairness",* citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317.

The court, recognizing that Petitioner had been employed by the Appointing Authority "for nearly 25 years with no prior disciplinary issues and that he submitted 15 letters by individuals acclaiming their belief in his good character," said "sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.'"

Noting that the record "establishes numerous incidents of sexual harassment" by Petitioner, the Appellate Division said: it "cannot conclude that the penalty of termination was so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness".

* A Reasonable Disciplinary Penalty Under the Circumstances. The text of this NYPPL e-book focuses on court decisions addressing disciplinary penalties imposed on employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For more information click HERE.

Click HERE to access the full text of the Appellate Division's ruling summarized above.

May 21, 2023

Administrative appeal hearing decisions issued by New York State Commissioner of Education Dr. Betty A. Rosa

Decision of the Commissioner No. 18,263

Concerning an appeal of a school district election and an application seeking the removal of certain members of the school board and the school district's clerk.

Click HERE to access the Commissioner's decision posted on the Internet.

Decision of the Commissioner No. 18,264

Addressing an appeal of an action taken by the board of trustees of a public library with respect to an election.

Click HERE to access the Commissioner's decision posted on the Internet.

Decision of the Commissioner No. 18,266

With respect to an appeal challenging the actions of the board of education in a school district election.

Click HERE to access the Commissioner's decision posted on the Internet.

Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.