Salary determinations by political subdivisions of the State

Salary determinations by political subdivisions of the State
Kent v Town of Niskayuna, Appellate Division, 244 AD2d 829

Peter E. Kent, Commissioner of Public Works for the Town of Niskayuna in Schenectady County, anticipated receiving an increase in his compensation as a Grade 27 employee in accordance with the salary table set out in the Town's employee handbook. But the Town decided to (1) change some of his duties and responsibilities and (2) eliminate all salary grades 26 and higher from the salary table effective January 1, 1996. As a result, Kent's 1996 salary was set at the salary rate for a "Grade 25, Step 5" employee instead of the salary for "Grade 27, Step 4" as he expected.

When his grievance seeking compensation at Grade 27, Step 4 was rejected by the Town, Kent sued. He contended that the Town did not have the authority to reduce the salary grade of his position and its action was arbitrary and capricious. A Supreme Court justice agreed and ordered the Town to reinstate Kent to the Grade 27 level with back pay "due to the [Town's] failure to comply with Civil Service Law Section 75 before it adjusted [Kent's] salary." However, the Appellate Division overturned that ruling.

The Appellate Division said that the authority to fix the salary of a town employee had been delegated to the town board employing the employee [Section 27, Town Law]. Citing Stetter v Amherst, 46 AD2d 1006, the Appellate Division observed that "courts will not interfere with the actions of such legislative bodies or inquire into their underlying motives 'absent fraud, corruption or oppression.'"

The Court decided that the Town presented evidence "indicating a need to tend to budgetary concerns." This, "coupled with the changes [in Kent's responsibilities and Kent's] failure to sustain a showing that the [Town's] action was done in contravention of, or in an attempt to circumvent, the protections afforded by Civil Service Law Section 75," provided substantial evidence supporting the Town's action.

The lesson here is that a municipal public employer may reallocate a position to a different salary grade consistent with the duties and responsibilities of the position provided its action is supported by substantial evidence and is neither arbitrary nor capricious. The employee has the burden of persuading the courts to the contrary.

It should be remembered that Kent was a municipal employee. The classification and allocation of positions in the service of the State to a salary grade, and the reclassification and reallocation of such positions, is controlled by Article 8 of the Civil Service Law.

Article 8, however, does not apply to classification and allocation of positions established by a political subdivision of the State.
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Eligibility of employee for unemployment insurance benefits following resignation

Eligibility of employee for unemployment insurance benefits following resignation
De Benedetto v Brookhaven, Appellate Division, 244 AD2d 740

Is an employee who agrees to resign rather than face disciplinary charges entitled to unemployment insurance benefits? As indicated by the De Benedetto decision by the Appellate Division, it depends on the circumstances.

Town of Brookhaven sanitation inspector Frank De Benedetto was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. The matter was "settled" when the De Benedetto agreed to resign and the Town agreed to withdraw the charges and to advise any prospective employers that he had "resigned for personal reasons." Although De Benedetto's application for unemployment insurance benefits initially was denied because "he had voluntarily left his employment without good cause," the Unemployment Insurance Appeals Board reversed, remanding the issue to the local office. The Board said that the question to be resolved was whether or not De Benedetto should be disqualified "because of misconduct."

The Appellate Division affirmed the Board's determination, holding that "there is precedent that a claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." The Court cited La Rocca v New York City Department of Transportation, 59 NY2d 683, in support of its ruling.
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Union dues a factor in a divorce proceeding

Union dues a factor in a divorce proceeding
Elizabeth A. v Hector S., NYS Supreme Court, Judge Bednar, [Not selected for publication in the Official Reports]

Would you think that union dues could be a factor in a divorce proceeding? It was in the case of Elizabeth A. v Hector S.

Hector was told that he had to pay $157.00 bi-weekly as child support. He objected, contending that the hearing examiner had miscalculated his adjusted gross income by neglecting to deduct his union dues from his gross income.

Judge Bednar ruled the hearing officer's calculations were correct. While the federal Internal Revenue Code allows a taxpayer to deduct union dues as a "miscellaneous itemized deduction," the Family Court Act [FCA] does not. Although FCA allows a limited number of exclusions from income when determining child support, union dues is not one of the enumerated deductions allowed by the Act in determining a parent's child support obligations.
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What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges

What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges
Response to an inquiry from a NYPPL reader

A NYPPL reader asks: If an individual served with disciplinary charges pursuant to Section 75 of the Civil Service does not file an answer to the charges and specifications, may the appointing authority impose the proposed penalty without holding a disciplinary hearing?

Although it appears that this specific question has yet to be litigated, a close reading of Section 75 suggests such an action by an employer would not survive judicial scrutiny.

Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.

In contrast, Section 75 is silent with respect to requiring the employee submit any answer to the charges.

This suggests that the individual may remain mute without jeopardizing his or her Section 75 rights.

Indeed, should the accused individual attend the disciplinary hearing and remain mute and present no defense, the employer would still be required to "prove" the alleged misconduct or incompetency.

Clearly, Section 75 provides that the burden of proving incompetency or misconduct ... (is) upon the person alleging the same. In other words, the failure of an employee to offer a defense does not absolve the employer of the duty to prove incompetence or misconduct before imposing disciplinary sanctions.

Indeed, it is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled.

Given that the courts require employers to conduct a disciplinary hearing being conducted pursuant to Civil Service Law Section 75 even if an employee fails to appear at the proceeding, it seems unlikely that the courts would approve imposing a penalty on an individual because he or she failed to answer the disciplinary charges filed by the appointing authority.

Moreover, under Section 75 the employee need not ask for a hearing; it is to be provided as a matter of right.

In contrast, Section 3020-a of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires that the individual affirmatively act and request a disciplinary hearing.

Under Section 3020-a, not only is the accused individual required to tell to the employer whether or not he or she wishes to have a disciplinary hearing scheduled, "the unexcused failure of the employee to notify the [district's] clerk or secretary of his or her desire for a hearing ... shall be deemed a waiver of the right to a hearing ...."

Section 3020-a also provides that in the event the teacher or school administrator does not ask for a Section 3020-a hearing, by design or otherwise, the school board is to determine the case and fix the penalty in accordance with Section 3020-a.4 of the Education Law.

The Section 3020-a model is followed in most alternative disciplinary procedures negotiated pursuant to the Taylor Law. If the employee does not file a timely disciplinary grievance, the appointing authority usually is authorized to impose the penalty proposed in the notice of discipline served on the individual without further action on its part and without referring the issue to arbitration.

What would be the result should the charging party not participate in an administrative proceeding? The decision in Armata and United Federation of Teachers, 30 PERB 4713, is instructive in this regard.

Rebeca Armata elected not to attend the scheduled PERB hearing. The PERB hearing officer dismissed her complaint on the ground that she had failed to prosecute it.

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