Inability to obtain a timely waiver to reemploy a person receiving a retirement allowance from a public retirement system of this State does not result in a breach of contract

Inability to obtain a timely waiver to reemploy a person receiving a retirement allowance from a public retirement system of this State does not result in a breach of contract
LaSalle v Board of Educ. of Bridgehampton Union Free School Dist., 2011 NY Slip Op 02632, Appellate Division, Second Department

Edward J. LaSalle, a retired schoolteacher, applied for a teaching position with the Bridgehampton Union Free School District. In order for LaSalle to be so reemployed without having his retirement allowance adjusted, the district applied for a “§211 waiver” pursuant to §211.2(a) of the Retirement and Social Security Law.*

In essence, if the school district’s application for a §211 waiver for LaSalle was not approved, LaSalle’s earnings could not exceed the statutory annual earnings limitation of $27,500, which was the sum then applicable to him.** [The maximum currently permitted without loss of retirement benefits set out in RSSL §212 absent a waiver is $30,000. However, there is no earning limitations in or after the calendar year in which the retired individual attains age 65.]

LaSalle signed a salary notification for the school year containing a notation that the salary was "pending NYS waiver for Retiree." In addition, a resolution of the board of education appointing LaSalle as a teacher recited that the hiring was "effective" September 5, 2006. The resolution did not contain termination date for the period of employment but it did state that confirmation of his appointment was "pending NYS Education Department waiver for employment of retiree." The school superintendent also wrote to LaSalle to the same effect.

The school district’s waiver application, which it had submitted in June 2006, was denied.

The district then resubmitted a second waiver application and LaSalle commenced teaching on September 5, 2006.

However, by November 2006 LaSalle was close to the maximum compensation he could earn without have his retirement allowance adjusted and the State Department of Education had not acted on its resubmitted waiver application.

In view of the situation, the district offered LaSalle a number of options, including “placement of his retirement benefits on hold, resignation prior to the date when his salary would reach the statutory earnings limitation, or termination of employment.”

LaSalle elected to resign, which resignation took effect prior to the district’s receiving the Education Department’s approval of the §211 application it had filed on behalf of LaSalle.

LaSalle then sued the district “to recover damages for breach of contract and wrongful termination of employment.”

The Appellate Division affirmed Supreme Court’s determination that the district had established its prima facie entitlement to judgment as a matter of law when it dismissed LaSalle’ petition.

Failure to obtain the required waiver in a timely fashion may result in a financial liability to the retiree.

For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had been paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.

N.B. RSSL §217.1 requires "school salary transparency and disclosure" and mandates that school districts and all BOCES to report " all monies earned by a retired person in their employ that is in excess of the limitations set out in §212 to the appropriate retirement system and to the appropriate political subdivision. RSSL §217.2 requires the school district or the BOCES employing a retired person "who is eligible to collect or is already collecting a retirement allowance" to report, among other things, all earnings of such an individual to the appropirate retirement system and to the State Comptroller.


*The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.

** RSSL §211.2(a), in pertinent part, provides that ”No retired person may be employed in a position in public service pursuant to subdivision one hereof except upon approval of  …  (2) the commissioner of education if such person is to be employed in the unclassified service of a school district other than the city of New York, a board of cooperative educational services or a county vocational education and extension board.... The

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02632.htm

Considering “mitigating factors” in setting a disciplinary penalty

Considering “mitigating factors” in setting a disciplinary penalty
Matter of Senior v Board of Education of Byram Hills Cent. School Dist., 37 AD3d 610,

The Board of Education of the Byram Hills Central School District adopted the findings of a disciplinary hearing officer that concluded that Fenton Senior was guilty of the charges of misconduct filed against him. The charge alleged that Senior was involved in an altercation with a co-worker. The penalty imposed by the Board: termination of Senior’s employment with the School District.

The Appellate Division, after affirming the finding that Senior was guilty of the charges filed against him, annulled the penalty imposed: termination. The court said that “the penalty of termination imposed was so disproportionate to the petitioner's conduct as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education, 34 NY2d 222.

The court then remanded the case to the School Board “for the imposition of an appropriate penalty less severe than the termination of [Senior’s] employment.”

The reason given by the Appellate Division for remanding the case for the purpose of imposing a lesser penalty: The Board “failed to give adequate consideration to certain mitigating factors.”

The “mitigating factors” listed by the court: Strong’s four-year employment record was unblemished, and he performed good deeds in the community.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/physical-altercation-with-coworker.html
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Fitness for promotion

Fitness for promotion
Alston v City of New York, 270 AD2d 3

Sometimes an employee sues the appointing authority in an effort to secure a promotion. Alston, a New York City caseworker, complaining that he had been denied a promotion because of his earlier conviction for Federal mail fraud. Alston asked a Supreme Court justice to direct his agency, New York City’s Administration for Children’s Services, to promote him to a supervisory position. Alston’s theory: Children’s Services’ failure to promote him constituted a violation of Section 296.15 of the Executive Law (New York’s Civil Rights Law).*
 
The Appellate Division sustained the lower court’s dismissal of Alston’s petition on the grounds that the caseworker’s allegations concerning the reasons why he was denied the promotion -- conviction of a crime -- were speculative.

In contrast, the court noted that record “set out evidence of [Alston’s] mediocre performance as a caseworker and of [Alston’s] prior attempt to deceive ACS by seeking a medical leave when he had actually taken a job with another City agency.”

Further, the court said that it concluded that Alston’s mail fraud conviction, which involved his submission of false car service vouchers in connection with his employment as a caseworker, raises legitimate issues about his fitness for the supervisory position.

* Another element relevant to this case: Section 752 of New York’s Correction Law. Section 752, in general, prohibits an employer from considering an applicants’ conviction of a crime in making its employment decision.

Court of Appeals hold that wage freeze by Buffalo Fiscal Stability Authority applies to wages lost during the freeze and to longevity and promotional steps

Court of Appeals hold that wage freeze by Buffalo Fiscal Stability Authority applies to wages lost during the freeze and to longevity and promotional steps
Matter of Meegan v Brown, 2011 NY Slip Op 02436, Court of Appeals

The State Legislature created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.

Among other powers, the BFSA was authorized to impose a wage freeze upon finding that such a freeze was essential to the adoption or maintenance of a City budget or financial plan – which it did in April 2004, determining "that a wage freeze, with respect to the City and all Covered Organizations, is essential to the maintenance of the Revised Financial Plan and to the adoption and maintenance of future budgets and financial plans that are in compliance with the Act."

The freeze, effective April 2004, prevented any increase in wages, including increased payments for salary adjustments according to "plan and step-ups or increments".

The freeze was lifted in July 2007, whereupon the BFSA and the City indicated that City employees would immediately be entitled to a one-step increase in salary and wages. The Unions objected, however, contending that the employees were entitled to advance the four salary steps that they would have received had the freeze not been imposed.

The Union sued and Supreme Court held that Public Authorities Law Section §3858 (2)(c)(iii) applies only to wages lost during the freeze and not to longevity and promotional steps provided in the various contracts between the City and its unions and therefore the teachers were "entitled to their previously negotiated wage increase benefits going forward immediately."

Although the Appellate Division affirmed the Supreme Court ruling for essentially the same reasons, (see 63 AD3d 1673 [4th Dept 2009]), the Court of Appeals reversed, holding: “Public Authorities Law § 3850-a sets forth the Legislature's intent. In that provision, the Legislature declared that the "maintenance of a balanced budget by the city of Buffalo is a matter of overriding state concern." This remedial legislation was enacted to provide the city of Buffalo with "long-term fiscal stability," ensuring confidence of investors in the City's bonds and notes and to protect the economy of the region (id.). The Act further provides that "[t]he provisions of this title shall be liberally construed to assist the effectuation of the public purposes furthered hereby" (id. § 3873). Thus, the entire purpose of the statute was to place the city of Buffalo on sound financial ground over the long term. In order to accomplish such purpose, BFSA was empowered to freeze wages and salary increments until the City's growth and stability were renewed. The intent of the statute supports the City's position.”

The Court of Appeal’s decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02436.htm
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