Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance
Shapiro v Commissioner of Labor, 52 AD3d 1139

The Unemployment Insurance Appeal Board held that the Village Administrator of the Village of Muttontown was ineligible to receive unemployment insurance benefits after determining that the Village Administrator was a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e).

The Village Administrator appealed but the Appellate Division sustained the Board’s ruling, holding that the Administrator position was untenured and that the powers and duties of the position of Village Administrator were set out in Village of Muttontown Local Law No. 1 (2005) that set out provisions establishing advisory and policymaking aspects of the job.

Accordingly, said the court, the Board properly determined that Labor Law §565(2)(e) precluded Shapiro from obtaining unemployment insurance benefits.

Comment: Other “excluded” officers and employees of a governmental entity: an elected official; a member of a legislative body or of the judiciary; a member of the state national guard or air national guard, except a person who renders such services as a regular state employee; a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency; and a person in a policymaking or advisory position, the duties of which ordinarily do not require more than eight hours per week to perform. In addition, §565(2)(g) excludes an individual who is an inmate of a custodial or penal institution.

Labor Law §511 sets out additional exclusions, including students and students' spouses at educational institutions [see §511 subdivisions 15 and 17] and independent contractors.

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/non-tenured-public-administrator.html

Updated version of Policy Bulletin 12-01 addressing a “Transfer of Function” issued by the New York State Department of Civil Service

Updated version of Policy Bulletin 12-01 addressing a “Transfer of Function” issued by the New York State Department of Civil Service

Replaces Policy Bulletin #91-01, issued on March 20, 1991; reissued on April 14, 2000

The New York State Department of Civil Service has published a revised Policy Bulletin, Policy Bulletin 12-01, addressing personnel issues involved in the event of a transfer of function from one State Department to another State Department as provided by Civil Service Law §70(2).

The bulletin provides guidelines, policies and procedures for the transfer of employees pursuant to Civil Service Law §70(2) upon a transfer of function between departments or agencies of the State. Section §70(2) provides for the transfer of necessary employees who are substantially engaged in the performance of the function to be transferred.

The bulletin cautions that there may be unique aspects to any transfer of function and suggests that any potential transfer of function should be discussed with the appropriate agency Civil Service Department Staffing Services Representative as soon as a transfer of function is thought to be a possible action.

With respect to a “Transfer of Function Pursuant to Civil Service Law Section 70(2),” Policy Bulletin 12-01 notes that Civil Service Law section 70(2) provides, in pertinent part, as follows: 

“Transfer of personnel upon transfer of functions. Upon the transfer of a function (a) from one department or agency of the state to another department or agency of the state,... provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred. As soon as practicable after the adoption of a law, rule, order or other action directing such a transfer of function, but not less than twenty days prior to the effective date of such transfer, the head of the department or agency from which such function is to be transferred shall certify to the head of the department or agency to which such function is to be transferred a list of the names and titles of those employees substantially engaged in the performance of the function to be transferred, and shall cause copies of such certified list to be publicly and conspicuously posted in the offices of the department or agency from which such function is to be transferred, along with copies of this subdivision. Any employee of the department or agency from which such function is to be transferred may, prior to the effective date of such transfer, protest his or her inclusion in or exclusion from such list by giving notice of such protest in writing addressed to the heads of the respective departments or agencies from which and to which transfer is to be made, which notice shall state the reasons for the protest. The head of the department or agency to which such function is to be transferred shall review the protest and after consultation with the head of the department or agency from which such function is to be transferred notify the protestor within ten days from the receipt of such protest of the determination with respect to such protest. Such determination shall be a final administrative determination. Failure to make such protest shall be deemed to constitute consent to inclusion in or exclusion from, as the case may be, the certified list of employees engaged in the function to be transferred. Officers and employees so transferred shall be transferred without further examination or qualification, and shall retain their respective civil service classifications and status. For the purpose of determining the officers and employees holding permanent appointments in competitive class positions to be transferred, such officers and employees shall be selected within each grade of each class of positions in the order of their original appointment, with due regard to the right of preference in retention of disabled and non-disabled veterans. Any employee who fails to respond to or accept a written offer of transfer from the department or agency to which such function is to be transferred within ten days after receipt of such offer shall be deemed to have waived entitlement to such transfer. All officers and employees so transferred shall, thereafter, be subject to the rules of the civil service commission having jurisdiction over the agency to which transfer is made. Officers and employees holding permanent appointments in competitive class positions who are not so transferred shall have their names entered upon an appropriate preferred list for reinstatement to the same or similar positions in the service of the governmental jurisdiction from which transfer is made and in the office or agency to which such function is transferred…."

Policy Bulletin 12-01 is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2012-01.htm

A PDF version of this policy statement is available on the Internet at:

 http://www.cs.ny.gov/ssd/pdf/pb12-01.pdf

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of August 13 - 19, 2012 [Click on the caption to access the full report]

DiNapoli: Investment in New York–Based Buddy Media Yields Fifteen–Fold Return

The sale of the social media marketing company Buddy Media to Salesforce.com generated an estimated $41.2 million net return from an initial investment of $2.7 million, nearly 15 times the original investment, for the New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced Thursday. The sale, announced on Monday, was for approximately $750 million.

DiNapoli: Missing Funds Concealed by Town Clerk

The clerk in the Town of Greig used funds intended for an environmental improvement project to conceal a shortage in a tax collection bank account, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The case has been referred to State Police officials for investigation.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced Monday the following audits: the New York City Department of Education, Herbert H. Lehman High School; the Division of the Lottery; the State Education Department; and, the New York City Department of Education, James Madison High School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits: the Champion Volunteer Fire Company, Inc.; the Village of Chester; and, the City of Lackawanna. the Village of Canton; the Town of Champlain; the City of Rochester; and, the Spencerport Volunteer Fireman’s Association, Inc.

Termination for violating workplace rules defeats a claim for unemployment insurance benefits

Termination for violating workplace rules defeats a claim for unemployment insurance benefits
Smith v Commissioner of Labor, 296 A.D.2d 803

Violating the employer's policy or work rules concerning sexual harassment may not only result in the termination of the employee. It may also disqualify the individual for unemployment insurance benefits.

The Appellate Division, Third Department, said that it is clear that an employee who is terminated because he or she "knowing" violated his or her employer's established policy or workplace rules may have been dismissed for "disqualifying misconduct" for the purposes of his or her eligibility for unemployment insurance benefits is concerned. In the Smith case, the Appellate Division, citing the Campbell decision, 271 AD2d 787, demonstrated this principle in a case involving an employee's termination for violating the employer's policy prohibiting sexual harassment.

An employee was dismissed from his position for violating his employer's policy prohibiting its employees from "sending inappropriate communications by e-mail." When his application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board, The applicant sued.

According to the evidence introduced in the course of an unemployment insurance administrative hearing, the individual had sent "questionable e-mail" to his co-employees to notify them of a meeting with the e-mail's subject line reading "NUDE PICTURES - NUDE PICTURES". The applicant's explanation for this: he had used the phrase as a means of gaining the attention of his readers.

About a year later the employee was terminated following his sending an e-mail to his co-employees the employer determined had again violated its policy of transmitting "inappropriate communications by e-mail."

The Appellate Division sustained the Unemployment Insurance Appeals Board's decision that the employee had lost his employment under disqualifying circumstances -- i.e., he lost his employment due to his misconduct in violating the employer's workplace rules..

The court said that there was substantial evidence in the record to sustain the Board's determination and any issue concerning the credibility of the testimony of witness was for the Board to resolve.