Some procedural basics in perfecting an appeal to the Commissioner of Education
Kathleen Vendel, et al., v the Board of Education of the Marion Central School District, Decisions of the Commissioner of Education, Decision #16,134
The decision of the Commissioner of Education in Vendel sets out a number of procedural elements that must be satisfied in order to perfect an appeal to the Commissioner. Significantly, a party's failure to comply with one or more of these requirements could prove fatal to the Commissioner's considering the merits of the appeal.
Some 100 residents of the Marion Central School District appealed the School Board decision concerning the public's participation at board meetings. The Board had adopted a policy limiting non-members of the Board interested in speaking at its meetings to three minutes. Also in Vendel's submission to the Commissioner was an appeal involving "certain interactions with the community” by the Board and an application seeking “the removal of various individuals” from the Board.
The Commissioner dismissed Vendel's appeal and application without considering the merits of the allegations, explaining:
1. The individuals filing an appeal must have standing. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Merely having status as a resident and a taxpayer in a school district is not sufficient to confer standing to challenge school board policies.
Except with respect to Vendel’s allegations concerning alleged harassment, said the Commissioner, “there has been no showing that any of the petitioners are personally aggrieved by the board policy or actions complained of.” The appeal, therefore, was dismissed for lack of standing, except with respect to Vendel’s claims relating to the harassment complaint.
2. Verification of the appeal. The appeal was defective as “neither the petition nor petitioners’ reply are properly verified.”
The Commissioner noted that 8 NYCRR §275.5 of the Commissioner's Regulations require all pleadings in an appeal to the Commissioner be verified.*
3. Failure to name a necessary party. To the extent that the petition seeks removal of individual board members petitioners have failed to join them as parties.
The Commissioner pointed out that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.**
4. Jurisdiction of the Commissioner. As to the “propriety of the actions of the Trooper” in the course of events leading to the appeal, the Commissioner said that the Trooper is not an officer or employee of the School District and thus is not subject to the jurisdiction of the Commissioner of Education.
5. Statute of limitations to file an appeal. The Commissioner commented that the petitioners challenge any actions in relation to the July 13, 2009 board meeting but was not commenced until September 1, 2009.
Citing 8 NYCRR §275.16, the Commissioner said that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”
The Commissioner did make one observation concerning one of the issues presented by Vendel “for the benefit of the parties” -participation of individuals at board meetings.
Regarding taxpayers and residents of a school district participating in board meetings, the Commissioner said that a board of education should, whenever possible and appropriate, consider public input on matters under consideration. However, the Commissioner also noted that a school board has the right to control the agenda at board meetings and “there is no statutory mandate that requires a board to permit public input at its meetings.”
* The affidavit of verification was stated to have been made “on the oath of Carol Moranz” but was signed by Vendel. Moranz was not a petitioner in this appeal and the Commissioner’s regulations require the petition to be verified under oath of at least one of the petitioners (see 8 NYCRR §275.5).
** Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and the petition so as to inform the individual that he or she should respond to the petition and enter a defense.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16134.htm
.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Sep 8, 2010
Full evidentiary hearing required before discontinuing GML Section 207-a benefits
Full evidentiary hearing required before discontinuing GML Section 207-a benefits
Giorgio v Bucci, Appellate Division, 246 A.D.2d 711, Motion to appeal denied, 91 N.Y.2d 814
Thomas Giorgio, a Binghamton firefighter, began receiving disability benefits pursuant to Section 207-a effective January 13, 1996 based on his claim of a work-related injury on that date. On May 23, 1996 Binghamton told Giorgio that his benefits were being terminated, alleging that there was “newly discovered evidence that his condition predated the January 13, 1996 incident.”
Giorgio sued, but withdrew that action when the City agreed to continue his benefits and give him a “pre-termination hearing.” The City upheld the original decision to deny him Section 207-a benefits on the grounds that Giorgio’s injury was not the result of a work-related incident. Again Giorgio sued, seeking reinstatement to the payroll, restoration of his leave credits and a declaration that the administrative procedure used by the City was unconstitutional.
On the merits of Giorgio’s “due process claims,” the Appellate Division said that he had been denied “the right to a full evidentiary hearing prior to the termination of his benefits.” Why? Because, said the Court, Giorgio had not been allowed to confront and cross-examine witnesses or to offer evidence on his own behalf.
The lesson here is that when an employer holds a hearing to determine whether Section 207-a [and, presumably, Section 207-c] benefits should be discontinued, it must be a full evidentiary hearing, complying with all the requirements of administrative due process.
Giorgio v Bucci, Appellate Division, 246 A.D.2d 711, Motion to appeal denied, 91 N.Y.2d 814
Thomas Giorgio, a Binghamton firefighter, began receiving disability benefits pursuant to Section 207-a effective January 13, 1996 based on his claim of a work-related injury on that date. On May 23, 1996 Binghamton told Giorgio that his benefits were being terminated, alleging that there was “newly discovered evidence that his condition predated the January 13, 1996 incident.”
Giorgio sued, but withdrew that action when the City agreed to continue his benefits and give him a “pre-termination hearing.” The City upheld the original decision to deny him Section 207-a benefits on the grounds that Giorgio’s injury was not the result of a work-related incident. Again Giorgio sued, seeking reinstatement to the payroll, restoration of his leave credits and a declaration that the administrative procedure used by the City was unconstitutional.
On the merits of Giorgio’s “due process claims,” the Appellate Division said that he had been denied “the right to a full evidentiary hearing prior to the termination of his benefits.” Why? Because, said the Court, Giorgio had not been allowed to confront and cross-examine witnesses or to offer evidence on his own behalf.
The lesson here is that when an employer holds a hearing to determine whether Section 207-a [and, presumably, Section 207-c] benefits should be discontinued, it must be a full evidentiary hearing, complying with all the requirements of administrative due process.
Claiming drug abuse as a disability under the Americans with Disabilities Act
Claiming drug abuse as a disability under the Americans with Disabilities Act
D’Amico v Bruno, CA2, 132 F.3d 145
Vito D’Amico, a New York City firefighter, complained that the Department violated the Rehabilitation Act of 1973 (an anti-discrimination law that applies to federally-funded employers) when it dismissed him from his position with the Fire Department of the City of New York (NYFD) because of his use of illegal drugs. The U.S. Circuit Court of Appeals affirmed the federal district court’s dismissal of D’Amico charges. In so doing the Court set out a comprehensive summary of the various factors considered by the federal courts in such cases.
D’Amico joined NYFD in 1982. In April 1988, D’Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the NYFD referred D’Amico to counseling within the NYFD.
In September 1988, the NYFD received an anonymous letter accusing D’Amico of using and selling cocaine. NYFD ordered D’Amico to submit to a urine test on December 13, 1988. D’Amico tested positive for cocaine and NYFD suspended him without pay. The suspension was lifted in January 1989, pending the outcome of disciplinary action taken against him. D’Amico, meanwhile, had entered an inpatient drug treatment program on April 17, 1989, which it was reported that he had successfully completed on May 15, 1989.
OATH Administrative Law Judge Ray Fleischhacker presided over the disciplinary hearing held on June 23, 1989 and found D’Amico guilty of 4 of the 5 charges filed against him. The Commissioner accepted the ALJ’s findings and recommendations and terminated D’Amico effective September 5, 1989. The Commissioner said that “[i]n light of the grave responsibilities entrusted to a firefighter, [D’Amico’s] continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.”
Under the Rehabilitation Act, the plaintiff bears the initial burden of establishing a prima facie case. In a case where the employer relies on the plaintiff’s handicap as the reason for the adverse employment decision, the employer may rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.
The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he or she is qualified for the position despite his or her disability.
D’Amico had to establish a prima facie case by proving that: (1) he is an individual with a disability; (2) he was otherwise qualified for a position; (3) he was denied that position on the basis of his disability, and (4) NYFD receives federal funds.
Although it was conceded that D’Amico satisfied items (3) and (4), NYFD contended that D’Amico was neither an “individual with a disability,” nor “otherwise qualified” to be a firefighter.
Substance abuse is a recognized disability for purposes of the Rehabilitation Act, and an employer may violate the Act by taking an adverse employment action against an employee who has overcome past substance abuse problems but the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs.
According to the Circuit Court, the critical issue was whether D’Amico was a “current substance abuser” is the time of his discharge. The court said the actual date of discharge was not critical but serves “rather as a guidepost from which to determine whether the employer acted with justification.” The Court defined a “current substance abuser” as an individual whose substance abuse problem is severe and recent enough that the employer is justified in believing that the employee is unable to perform the essential duties of his job.
The employer must therefore evaluate (1) the level of responsibility entrusted to the employee, (2) the employer’s applicable job and performance requirements, (3) the level of competence ordinarily required to perform the task in question, and (4) the employee’s past performance record. Further, it must consider both the type of position for which the plaintiff claims to be otherwise qualified and the consequences of a potential mishap.
The Circuit Court pointed out with approval that in DiPompo v West Point Military Academy, 770 F. Supp. 887, Federal District Court Judge Michael B. Mukasey said “[W]hat may be a reasonable risk for a postal worker ... whose job generally does not pose great hazards to those who perform it or to the public they serve, is not necessarily a reasonable risk for a firefighter, whose job is defined at almost every turn by the potential for disaster to himself and others.”
Concluding that D’Amico’s history of cocaine addiction, together with the NYFD’s judgment as to the possibility of, and the risks inherent in, a relapse, the Circuit Court said that NYFD was justified in terminating D’Amico’s employment as a firefighter.
D’Amico v Bruno, CA2, 132 F.3d 145
Vito D’Amico, a New York City firefighter, complained that the Department violated the Rehabilitation Act of 1973 (an anti-discrimination law that applies to federally-funded employers) when it dismissed him from his position with the Fire Department of the City of New York (NYFD) because of his use of illegal drugs. The U.S. Circuit Court of Appeals affirmed the federal district court’s dismissal of D’Amico charges. In so doing the Court set out a comprehensive summary of the various factors considered by the federal courts in such cases.
D’Amico joined NYFD in 1982. In April 1988, D’Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the NYFD referred D’Amico to counseling within the NYFD.
In September 1988, the NYFD received an anonymous letter accusing D’Amico of using and selling cocaine. NYFD ordered D’Amico to submit to a urine test on December 13, 1988. D’Amico tested positive for cocaine and NYFD suspended him without pay. The suspension was lifted in January 1989, pending the outcome of disciplinary action taken against him. D’Amico, meanwhile, had entered an inpatient drug treatment program on April 17, 1989, which it was reported that he had successfully completed on May 15, 1989.
OATH Administrative Law Judge Ray Fleischhacker presided over the disciplinary hearing held on June 23, 1989 and found D’Amico guilty of 4 of the 5 charges filed against him. The Commissioner accepted the ALJ’s findings and recommendations and terminated D’Amico effective September 5, 1989. The Commissioner said that “[i]n light of the grave responsibilities entrusted to a firefighter, [D’Amico’s] continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.”
Under the Rehabilitation Act, the plaintiff bears the initial burden of establishing a prima facie case. In a case where the employer relies on the plaintiff’s handicap as the reason for the adverse employment decision, the employer may rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.
The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he or she is qualified for the position despite his or her disability.
D’Amico had to establish a prima facie case by proving that: (1) he is an individual with a disability; (2) he was otherwise qualified for a position; (3) he was denied that position on the basis of his disability, and (4) NYFD receives federal funds.
Although it was conceded that D’Amico satisfied items (3) and (4), NYFD contended that D’Amico was neither an “individual with a disability,” nor “otherwise qualified” to be a firefighter.
Substance abuse is a recognized disability for purposes of the Rehabilitation Act, and an employer may violate the Act by taking an adverse employment action against an employee who has overcome past substance abuse problems but the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs.
According to the Circuit Court, the critical issue was whether D’Amico was a “current substance abuser” is the time of his discharge. The court said the actual date of discharge was not critical but serves “rather as a guidepost from which to determine whether the employer acted with justification.” The Court defined a “current substance abuser” as an individual whose substance abuse problem is severe and recent enough that the employer is justified in believing that the employee is unable to perform the essential duties of his job.
The employer must therefore evaluate (1) the level of responsibility entrusted to the employee, (2) the employer’s applicable job and performance requirements, (3) the level of competence ordinarily required to perform the task in question, and (4) the employee’s past performance record. Further, it must consider both the type of position for which the plaintiff claims to be otherwise qualified and the consequences of a potential mishap.
The Circuit Court pointed out with approval that in DiPompo v West Point Military Academy, 770 F. Supp. 887, Federal District Court Judge Michael B. Mukasey said “[W]hat may be a reasonable risk for a postal worker ... whose job generally does not pose great hazards to those who perform it or to the public they serve, is not necessarily a reasonable risk for a firefighter, whose job is defined at almost every turn by the potential for disaster to himself and others.”
Concluding that D’Amico’s history of cocaine addiction, together with the NYFD’s judgment as to the possibility of, and the risks inherent in, a relapse, the Circuit Court said that NYFD was justified in terminating D’Amico’s employment as a firefighter.
Sep 7, 2010
Removing a public officer of a town from his or her position
Removing a public officer of a town from his or her position
Public Officers Law Section 36
Unhappy with their Town Supervisor, a number of residents of a town wrote to New York Governor David Paterson and asked him to remove the official from office.
According to a newspaper report,* Governor Paterson’s attorney, Peter J. Kiernan, Esq., advised the residents that “state law only provides the governor with power to remove some town officials, and town supervisors aren’t on the list.”
In any event, with respect to the removal of a town officer from his or her public office, §36 of the Public Officers Law, in pertinent part, provides as follows:
Any town… officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town … or by the district attorney of the county in which such town … is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town …. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here:
http://thedisciplinebook.blogspot.com/
=============================================
.
Public Officers Law Section 36
Unhappy with their Town Supervisor, a number of residents of a town wrote to New York Governor David Paterson and asked him to remove the official from office.
According to a newspaper report,* Governor Paterson’s attorney, Peter J. Kiernan, Esq., advised the residents that “state law only provides the governor with power to remove some town officials, and town supervisors aren’t on the list.”
In any event, with respect to the removal of a town officer from his or her public office, §36 of the Public Officers Law, in pertinent part, provides as follows:
Any town… officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town … or by the district attorney of the county in which such town … is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town …. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.
* Schenectady Gazette, Saturday, September 4, 2010
============================================If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here:
http://thedisciplinebook.blogspot.com/
=============================================
.
Employment-at-will status may be tempered by provisions in the employer’s policy manual or personnel handbook under certain conditions
Employment-at-will status may be tempered by provisions in the employer’s policy manual or personnel handbook under certain conditions
Pearce v Clinton Community College, 246 A.D.2d 775
New York State is an “employment-at-will” state. This means that unless there is some statutory or contractual right to due process, an employee may be terminated without notice and a hearing.
However, sometimes courts will deem the contents of an employer’s policy manual or personnel handbook a “contract” insofar as processing the termination of an employee is concerned. Lisa J. Pearce attempted to persuade the Appellate Division that the Clinton County Community College’s [CCC] Policy and Procedures Manual [Manual] was part of the employment contract between her and CCC following her termination by the College.
Pearce signed a letter appointing her assistant bursar at CCC for the period October 18, 1995 through August 31, 1996. According to the ruling, this position was “within the category of management confidential personnel.” Aside from some details concerning fringe benefits, Pearce’s letter of appointment did not include any statements concerning any other “terms and conditions of employment.”
About four months later CCC terminated Pearce. Pearce was awarded unemployment insurance benefits based on a finding by Workers’ Compensation that she “was discharged for incompetence and failure to meet the standards of her payroll specialist position.”
Subsequently Pearce sued CCC, contending that it had wrongfully terminated her and that it had “breached her contract” with respect to certain provisions in the Manual. Was the Manual part of Pearce’s contract of employment? The Appellate Division decided that it was not part of any contract of employment between the parties.
Further, while the Manual indicated that CCC “generally endorses progressive discipline” and provides that “management confidential personnel” may receive annual performance reviews, the Court commented that there was nothing in the Manual setting out a policy with respect to a termination for cause prior to the completion of a specified term of employment.
The Court decided that: (1) The letter of appointment was sufficiently specific to constitute a contract between the parties; (2) CCC’s Policy and Procedures Manual was not “engrafted upon this contract;” and (3) “it is only where a plaintiff can show the existence of an express written agreement limiting the employer’s right to summarily terminate an employee that the principles governing employment at will are inapplicable”. Accordingly, the Court sustained the Supreme Court’s order denying her motion for partial summary judgment.
Pearce v Clinton Community College, 246 A.D.2d 775
New York State is an “employment-at-will” state. This means that unless there is some statutory or contractual right to due process, an employee may be terminated without notice and a hearing.
However, sometimes courts will deem the contents of an employer’s policy manual or personnel handbook a “contract” insofar as processing the termination of an employee is concerned. Lisa J. Pearce attempted to persuade the Appellate Division that the Clinton County Community College’s [CCC] Policy and Procedures Manual [Manual] was part of the employment contract between her and CCC following her termination by the College.
Pearce signed a letter appointing her assistant bursar at CCC for the period October 18, 1995 through August 31, 1996. According to the ruling, this position was “within the category of management confidential personnel.” Aside from some details concerning fringe benefits, Pearce’s letter of appointment did not include any statements concerning any other “terms and conditions of employment.”
About four months later CCC terminated Pearce. Pearce was awarded unemployment insurance benefits based on a finding by Workers’ Compensation that she “was discharged for incompetence and failure to meet the standards of her payroll specialist position.”
Subsequently Pearce sued CCC, contending that it had wrongfully terminated her and that it had “breached her contract” with respect to certain provisions in the Manual. Was the Manual part of Pearce’s contract of employment? The Appellate Division decided that it was not part of any contract of employment between the parties.
Further, while the Manual indicated that CCC “generally endorses progressive discipline” and provides that “management confidential personnel” may receive annual performance reviews, the Court commented that there was nothing in the Manual setting out a policy with respect to a termination for cause prior to the completion of a specified term of employment.
The Court decided that: (1) The letter of appointment was sufficiently specific to constitute a contract between the parties; (2) CCC’s Policy and Procedures Manual was not “engrafted upon this contract;” and (3) “it is only where a plaintiff can show the existence of an express written agreement limiting the employer’s right to summarily terminate an employee that the principles governing employment at will are inapplicable”. Accordingly, the Court sustained the Supreme Court’s order denying her motion for partial summary judgment.
Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law
Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law
Mueller v Thompson, CA7, 133 F.3d 1063
In Seminole Tribe v Florida, 517 US 44, the U.S. Supreme Court held that Congress did not have the power to void a state’s Eleventh Amendment immunity from suit in the federal courts by enacting legislation pursuant to the Commerce Clause.
In its ruling, the 7th Circuit pointed out that the Supreme Court said states were immune from FLSA under the Tenth Amendment [National League of Cities v Usery, 427 US 909] only to overrule that decision in Garcia v San Antonio Metropolitan Transit Authority [469 US 528]. However, in Garcia the Supreme Court said the FLSA applied to the states with respect to their performing “non-traditional” governmental functions, here a public transportation system.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, has it lost its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA? This was the question presented to the U.S. Circuit Court of Appeals, 7th Circuit, by the Mueller case.
The Court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.”
In 1971 Wisconsin copied the federal FLSA and made it part of its state law. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions.
On this legislative history, said the Court, there is “little reason” to concluded that Wisconsin waived its immunity by adopting a state FLSA applicable to public employees as Congress had not yet authorized suing states in federal court for alleged violations of the FLSA.
New York State, in contrast, adopted overtime provisions for state workers in an effort to comply with the overtime mandates of the FLSA after Congress made the FLSA applicable to the states. Accordingly, it could be argued that New York State, as an employer, “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court.
Mueller v Thompson, CA7, 133 F.3d 1063
In Seminole Tribe v Florida, 517 US 44, the U.S. Supreme Court held that Congress did not have the power to void a state’s Eleventh Amendment immunity from suit in the federal courts by enacting legislation pursuant to the Commerce Clause.
In its ruling, the 7th Circuit pointed out that the Supreme Court said states were immune from FLSA under the Tenth Amendment [National League of Cities v Usery, 427 US 909] only to overrule that decision in Garcia v San Antonio Metropolitan Transit Authority [469 US 528]. However, in Garcia the Supreme Court said the FLSA applied to the states with respect to their performing “non-traditional” governmental functions, here a public transportation system.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, has it lost its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA? This was the question presented to the U.S. Circuit Court of Appeals, 7th Circuit, by the Mueller case.
The Court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.”
In 1971 Wisconsin copied the federal FLSA and made it part of its state law. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions.
On this legislative history, said the Court, there is “little reason” to concluded that Wisconsin waived its immunity by adopting a state FLSA applicable to public employees as Congress had not yet authorized suing states in federal court for alleged violations of the FLSA.
New York State, in contrast, adopted overtime provisions for state workers in an effort to comply with the overtime mandates of the FLSA after Congress made the FLSA applicable to the states. Accordingly, it could be argued that New York State, as an employer, “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court.
Sep 6, 2010
==============================
We would appreciate about 1 minute of your time to evaluation NYPPL's content and focus-
Please click below to participate in this one minute survey: http://www.zoomerang.com/Survey/WEB22B53MNFEWA
====================================
.
We would appreciate about 1 minute of your time to evaluation NYPPL's content and focus-
Please click below to participate in this one minute survey: http://www.zoomerang.com/Survey/WEB22B53MNFEWA
====================================
.
Sep 3, 2010
NYS Common Retirement Fund employer contribution rates to increase in 2012
NYS Common Retirement Fund employer contribution rates to increase in 2012
Source: Office of the State Comptroller
On September 2, 2010 State Comptroller Thomas P. DiNapoli announced increases over the previous year in the 2011-12 employer contribution rates for the New York State Common Retirement Fund. At the same time DiNapoli announced that he accepted the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates.*
The average contribution rate for the Employee Retirement System will increase from 11.9 percent of salaries to 16.3 percent. The average contribution for the Police and Fire Retirement System is increasing from 18.2 percent 21.6 percent.
Comptroller DiNapoli commented that “Unfortunately, it takes the economy a lot longer to climb out of a hole than it takes to fall in it. The markets are still recovering from the 2008-09 financial meltdown, and that recovery continues to be volatile. We handled the meltdown better than most pension funds, but we’re still feeling the impact, and, as I have consistently cautioned, the employer contribution rates I’m announcing today will reflect the impact of the financial crisis.”
The Retirement System actuary by law reviews many actuarial assumptions for the Retirement System, including: the mortality rate for members and retirees, the expected investment rate of return on pension fund investments, the rate of inflation and anticipated salary scales. The actuary prepares a report with recommendations, which is presented to an independent actuarial advisory committee.
The Retirement System’s new assumption for its investment rate of return is more fiscally conservative than the national average for public pension funds and more conservative than the average for the top 100 private U.S. pension funds, according to Milliman’s 10th annual Pension Funding Study.
The Comptroller noted that a new law was enacted earlier in 2010 that will allow a political subdivision of the State to elect to participate in a program that would allow it to budget a portion of their increased pension fund payments over ten years.**
This “employer contribution payment plan” will help those localities electing to participate to mitigate the impact the increase in costs could have on local taxpayers. Those localities opting into the plan must also build reserve accounts during periods of decreasing pension contribution rates, which reserve accounts would be used to protect taxpayers from future rate spikes.
DiNapoli characterized the program as being similar to a household utility budget plan that enables homeowners to pay one level payment throughout the year rather than payments that spike at different times of the year.
* Click on "contribution rates" for the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates: contribution rates
** See Retirement and Social Security Law §19-a, Employer contributions for the two thousand ten - two thousand eleven fiscal year and subsequent fiscal years.
.
Source: Office of the State Comptroller
On September 2, 2010 State Comptroller Thomas P. DiNapoli announced increases over the previous year in the 2011-12 employer contribution rates for the New York State Common Retirement Fund. At the same time DiNapoli announced that he accepted the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates.*
The average contribution rate for the Employee Retirement System will increase from 11.9 percent of salaries to 16.3 percent. The average contribution for the Police and Fire Retirement System is increasing from 18.2 percent 21.6 percent.
Comptroller DiNapoli commented that “Unfortunately, it takes the economy a lot longer to climb out of a hole than it takes to fall in it. The markets are still recovering from the 2008-09 financial meltdown, and that recovery continues to be volatile. We handled the meltdown better than most pension funds, but we’re still feeling the impact, and, as I have consistently cautioned, the employer contribution rates I’m announcing today will reflect the impact of the financial crisis.”
The Retirement System actuary by law reviews many actuarial assumptions for the Retirement System, including: the mortality rate for members and retirees, the expected investment rate of return on pension fund investments, the rate of inflation and anticipated salary scales. The actuary prepares a report with recommendations, which is presented to an independent actuarial advisory committee.
The Retirement System’s new assumption for its investment rate of return is more fiscally conservative than the national average for public pension funds and more conservative than the average for the top 100 private U.S. pension funds, according to Milliman’s 10th annual Pension Funding Study.
The Comptroller noted that a new law was enacted earlier in 2010 that will allow a political subdivision of the State to elect to participate in a program that would allow it to budget a portion of their increased pension fund payments over ten years.**
This “employer contribution payment plan” will help those localities electing to participate to mitigate the impact the increase in costs could have on local taxpayers. Those localities opting into the plan must also build reserve accounts during periods of decreasing pension contribution rates, which reserve accounts would be used to protect taxpayers from future rate spikes.
DiNapoli characterized the program as being similar to a household utility budget plan that enables homeowners to pay one level payment throughout the year rather than payments that spike at different times of the year.
* Click on "contribution rates" for the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates: contribution rates
** See Retirement and Social Security Law §19-a, Employer contributions for the two thousand ten - two thousand eleven fiscal year and subsequent fiscal years.
.
A difference between judicial and administrative hearings
A difference between judicial and administrative hearings
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Here is another case from Patty Salkin (Albany) on her Law of the Land blog, "FL Appeals Court holds that Neighboring Landowners in a Quasi Judicial Hearing Are Not Entitled to Cross-Examine Witnesses".
Petitioners, Carillon Community Residential Association, Inc., and its President, sought second-tier certiorari review of a circuit court order upholding the approval by the County Board of County Commissioners [BCC] of an amendment to the Carillon Planned Unit Development which allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to be built on two parcels of land adjacent to Petitioners’ subdivision.
The Court concluded that the circuit court afforded Petitioners procedural due process and did not depart from the essential requirements of law when the Board denied their request to cross-examine witnesses at the quasi-judicial hearing in which the amendment was approved.
The Court said that Florida law does not require that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses.
The Court states, that “land use hearings are not in the same form as traditional adversarial hearings during which opposing parties are clearly delineated and those entitled to cross-examine witnesses can be clearly identified.
Rather, land use hearings are public hearings during which any member of the public has a right to participate. At the hearing in question, in addition to the witnesses for the developers and the petitioners, twenty-five community members spoke at the hearing. It would be impractical to grant each interested party the right to cross-examine the witnesses at such a hearing, especially in light of the fact that the BCC provides a procedure by which the witnesses can be questioned.”
An administrative hearing is not a trial - not strictly speaking an adversarial procedure but rather an inquisitorial procedure. Due process does not require that the agency follow the rules of evidence or the procedures mandated by due process in litigation or criminal proceedings. Absent specific statutory requirements, we get notice and an opportunity to be heard.
Edward M. “Ted” McClure
.
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Here is another case from Patty Salkin (Albany) on her Law of the Land blog, "FL Appeals Court holds that Neighboring Landowners in a Quasi Judicial Hearing Are Not Entitled to Cross-Examine Witnesses".
Petitioners, Carillon Community Residential Association, Inc., and its President, sought second-tier certiorari review of a circuit court order upholding the approval by the County Board of County Commissioners [BCC] of an amendment to the Carillon Planned Unit Development which allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to be built on two parcels of land adjacent to Petitioners’ subdivision.
The Court concluded that the circuit court afforded Petitioners procedural due process and did not depart from the essential requirements of law when the Board denied their request to cross-examine witnesses at the quasi-judicial hearing in which the amendment was approved.
The Court said that Florida law does not require that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses.
The Court states, that “land use hearings are not in the same form as traditional adversarial hearings during which opposing parties are clearly delineated and those entitled to cross-examine witnesses can be clearly identified.
Rather, land use hearings are public hearings during which any member of the public has a right to participate. At the hearing in question, in addition to the witnesses for the developers and the petitioners, twenty-five community members spoke at the hearing. It would be impractical to grant each interested party the right to cross-examine the witnesses at such a hearing, especially in light of the fact that the BCC provides a procedure by which the witnesses can be questioned.”
An administrative hearing is not a trial - not strictly speaking an adversarial procedure but rather an inquisitorial procedure. Due process does not require that the agency follow the rules of evidence or the procedures mandated by due process in litigation or criminal proceedings. Absent specific statutory requirements, we get notice and an opportunity to be heard.
Edward M. “Ted” McClure
.
Fear of AIDS
Fear of AIDS
Barbara S. v Nassau County, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]
Emergency service personnel who believe that they have been exposed to HIV in the course of their employment may claim to have developed a fear of Acquired Immune Deficiency Syndrome [AIDS]. The Barbara S. case summaries how New York courts treat such claims.
An emergency room nurse at the Massapequa General Hospital, Barbara S. was stuck with a needle while caring for a patient. She and her husband sued, contending that the needle, which had been allegedly used to start an IV in a patient being transported to the hospital, had been negligently and improperly left on the stretcher by the Nassau County employees.
Barbara contended that she was fearful that she would contract Acquired Immune Deficiency Syndrome (AIDS) as a result of the puncture despite the fact that she has tested negative for AIDS in three tests administered over a 12-month period. The County asked Justice Joseph dismiss her claim on the grounds that she had not shown that she had been actually exposed to blood or fluid seropositive for HIV, citing Brown v New York City Health and Hospital Corporation, 225 AD2d 36.
Justice Joseph said that New York courts have repeatedly dealt with the elements required to establish a cause of action for negligence based on the fear of contracting AIDS. In order to maintain a cause of action for damages due to the fear of contracting AIDS, an individual who has not tested positive for AIDS must offer proof of “actual exposure.” Requiring proof of actual exposure insures that there is a genuine basis for the individual’s fear of developing the disease and that the fear is not based on public misconceptions about AIDS.
The Court said that although Barbara did posit a scientifically accepted method of transmission of the virus, i.e. the needle puncture, she failed to establish with either documentary evidence or testimony that the needle had ever been in contact with any blood or fluid of the patient or that the patient had AIDS.
Justice Joseph characterized Barbara’s claims as “an unsubstantiated allegation that the needle was used for the patient’s treatment” which was not supported by the record. The Court granted the County’s motion for summary judgment, dismissing her AIDS-related claims. However, Barbara’s action concerning her claim of a physical injury resulting from the needle puncturing her hand survived, since the County conceded that she had suffered such an injury.
Barbara S. v Nassau County, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]
Emergency service personnel who believe that they have been exposed to HIV in the course of their employment may claim to have developed a fear of Acquired Immune Deficiency Syndrome [AIDS]. The Barbara S. case summaries how New York courts treat such claims.
An emergency room nurse at the Massapequa General Hospital, Barbara S. was stuck with a needle while caring for a patient. She and her husband sued, contending that the needle, which had been allegedly used to start an IV in a patient being transported to the hospital, had been negligently and improperly left on the stretcher by the Nassau County employees.
Barbara contended that she was fearful that she would contract Acquired Immune Deficiency Syndrome (AIDS) as a result of the puncture despite the fact that she has tested negative for AIDS in three tests administered over a 12-month period. The County asked Justice Joseph dismiss her claim on the grounds that she had not shown that she had been actually exposed to blood or fluid seropositive for HIV, citing Brown v New York City Health and Hospital Corporation, 225 AD2d 36.
Justice Joseph said that New York courts have repeatedly dealt with the elements required to establish a cause of action for negligence based on the fear of contracting AIDS. In order to maintain a cause of action for damages due to the fear of contracting AIDS, an individual who has not tested positive for AIDS must offer proof of “actual exposure.” Requiring proof of actual exposure insures that there is a genuine basis for the individual’s fear of developing the disease and that the fear is not based on public misconceptions about AIDS.
The Court said that although Barbara did posit a scientifically accepted method of transmission of the virus, i.e. the needle puncture, she failed to establish with either documentary evidence or testimony that the needle had ever been in contact with any blood or fluid of the patient or that the patient had AIDS.
Justice Joseph characterized Barbara’s claims as “an unsubstantiated allegation that the needle was used for the patient’s treatment” which was not supported by the record. The Court granted the County’s motion for summary judgment, dismissing her AIDS-related claims. However, Barbara’s action concerning her claim of a physical injury resulting from the needle puncturing her hand survived, since the County conceded that she had suffered such an injury.
Payment of hazardous duty pay while receiving GML Section 207-c benefits
Payment of hazardous duty pay while receiving GML Section 207-c benefits
Town of Carmel v PERB, Appellate Division, 246 A.D.2d 791
Prior to January 1995, Town of Carmel police officers assigned to “light duty” pursuant to Section 207-c of the General Municipal Law performed desk duty. Such light duty personnel wore “Class D uniforms,” did not carry a weapon and were assisted by a full-status officer, fully armed, dressed in a “Class A” uniform, at all times.
The Town changed this policy in January 1995, requiring officers on light duty status to wear a Class A uniform, including weapon and to perform desk duty unassisted by a “full-status” officer.
The Town of Carmel PBA, contending that this change adversely affected the safety of officers, both those on light duty status as well as those in full-status, demanded that the Town negotiate “safety stipends” for both the light duty and full-status officers. When the Town refused, the PBA filed an improper practice charge with PERB.
The PBA sought $100 a day for light duty officers serving without assistance; $15 an hour for full-status officers responsible for a prisoner while a light duty officer was the only other officer present and $10 an hour for a full-service officer assigned to desk duty when only a light duty officer was present.
A PERB administrative law judge [ALJ] dismissed the charge, finding that the additional compensation demanded for light duty officers “did not comport with the legislative scheme of General Municipal Law Section 207-c,” and thus constituted a prohibited subject of negotiations. PERB disagreed and reversed the ALJ’s ruling.
PERB decided that the salary demands advocated by the PBA were mandatory subjects for collective bargaining “not unlike hazardous duty pay.” The Town appealed, contending that it could not be compelled to negotiate wages to be paid an officer assigned to light duty above the amount to which he or she would have been entitled were he or she able to perform “regular duties.”
The issue to be resolved: did the demand for a safety stipend constitute a term and condition of employment, thus making it mandatorily negotiable, or did it constitute salary or wages in excess of that which are provided for under the clear and plain language of the Section 207-c.
The Appellate Division agreed with a lower court’s affirmation of PERB’s decision, concluding that the PBA’s demand involved a term and condition of employment since it directly relates to safety issues arising as a result of the change in policy. Further, said the Appellate Division, nothing in Section 207-c makes the PBA’s demand a prohibited subject of negotiations.
According to the decision, while the legislature intended to insure that Section 207-c police officers assigned light duty would receive an uninterrupted salary, “it did not simultaneously intend to prevent those same officers from bargaining for what they may perceive to be job-related risks.”
N.B. An Internal Revenue Service private letter opinion [#0104.02.00] advised that if an individual is assigned light duty, any compensation paid pursuant to Sections 207-a or 207-c is fully taxable.
Town of Carmel v PERB, Appellate Division, 246 A.D.2d 791
Prior to January 1995, Town of Carmel police officers assigned to “light duty” pursuant to Section 207-c of the General Municipal Law performed desk duty. Such light duty personnel wore “Class D uniforms,” did not carry a weapon and were assisted by a full-status officer, fully armed, dressed in a “Class A” uniform, at all times.
The Town changed this policy in January 1995, requiring officers on light duty status to wear a Class A uniform, including weapon and to perform desk duty unassisted by a “full-status” officer.
The Town of Carmel PBA, contending that this change adversely affected the safety of officers, both those on light duty status as well as those in full-status, demanded that the Town negotiate “safety stipends” for both the light duty and full-status officers. When the Town refused, the PBA filed an improper practice charge with PERB.
The PBA sought $100 a day for light duty officers serving without assistance; $15 an hour for full-status officers responsible for a prisoner while a light duty officer was the only other officer present and $10 an hour for a full-service officer assigned to desk duty when only a light duty officer was present.
A PERB administrative law judge [ALJ] dismissed the charge, finding that the additional compensation demanded for light duty officers “did not comport with the legislative scheme of General Municipal Law Section 207-c,” and thus constituted a prohibited subject of negotiations. PERB disagreed and reversed the ALJ’s ruling.
PERB decided that the salary demands advocated by the PBA were mandatory subjects for collective bargaining “not unlike hazardous duty pay.” The Town appealed, contending that it could not be compelled to negotiate wages to be paid an officer assigned to light duty above the amount to which he or she would have been entitled were he or she able to perform “regular duties.”
The issue to be resolved: did the demand for a safety stipend constitute a term and condition of employment, thus making it mandatorily negotiable, or did it constitute salary or wages in excess of that which are provided for under the clear and plain language of the Section 207-c.
The Appellate Division agreed with a lower court’s affirmation of PERB’s decision, concluding that the PBA’s demand involved a term and condition of employment since it directly relates to safety issues arising as a result of the change in policy. Further, said the Appellate Division, nothing in Section 207-c makes the PBA’s demand a prohibited subject of negotiations.
According to the decision, while the legislature intended to insure that Section 207-c police officers assigned light duty would receive an uninterrupted salary, “it did not simultaneously intend to prevent those same officers from bargaining for what they may perceive to be job-related risks.”
N.B. An Internal Revenue Service private letter opinion [#0104.02.00] advised that if an individual is assigned light duty, any compensation paid pursuant to Sections 207-a or 207-c is fully taxable.
Sep 2, 2010
Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion
Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion
Matter of Kaefer v New York State Off. of Parks Recreation & Historical Preserv., 2010 NY Slip Op 51503(U), Decided on July 16, 2010, Supreme Court, Nassau County, Judge Ute Wolff Lally, [Not selected for publication in the Official Reports]
Robert Kaefer had been employed as a “seasonal temporary” lifeguard for 18 years* by Jones Beach State Park [Parks].
Returning from an absence following surgery performed by a Dr. Halpern, Kaefer was told that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, Kaefer handed in a false doctor's note allegedly written by a Dr. Persaud, which he had obtained with the help of another lifeguard, James Green.** Subsequently Kaefer obtained an appropriate doctor’s note from Dr. Halpern.
Dr. Persaud's note, however, had raised some suspicion and Kaefer was told to provide evidence verifying its accuracy. Kaefer, in response, submitted “another bogus note from Dr. Persaud.”
Parks allowed Kaefer to continue serving as a lifeguard for the rest of the swim season.***
Thereafter Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 disciplinary hearing concerning the first bogus note -- the first formal step in the process taking disciplinary action against a lifeguard. The hearing, however, was adjourned to but prior to the rescheduled date Kaefer received a letter advising him that the step 1 hearing "has been postponed and will be rescheduled at a future date to be determined".
No notification of a rescheduled or cancelled Step 1 hearing was ever sent to Kaefer.
Ultimately Kaefer was refused reemployment as a lifeguard and he filed an Article 78 petition seeking a court order setting aside Parks decision banning from serving as a lifeguard, contending that the decision was arbitrary and capricious because:
1. Parks failed to adhere to its own policies and procedures; and
2. Parks imposed a different penalty than it has applied its prior determinations on essentially the same alleged acts of misconduct by barring him from employment as a life guard.
Judge Lally rejected Parks’ argument that Kaefer’s petition should be dismissed because he had “failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled," holding that the duty of providing for the rescheduling and notifying Kaefer of such a hearing was Parks'.
In contrast, Judge Lally ruled that Kaefer had the burden of proving that his punishment — a lifetime bar from employment as a lifeguard -- was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious.
In this regard, said the court, Kaefer failed to meet his burden as, except for James Green, Kaefer was unable to point to any lifeguard who was found guilty of submitting a bogus doctor's note. Further, Judge Lally said that he would not substitute his judgment for that of Parks, finding that there was no abuse of discretion as a matter of law in Parks’ treatment of Kaefer compared to its treatment of other lifeguards convicted of crimes.
As to Parks’ argument that it had merely exercised its discretion to terminate a “seasonal temporary” lifeguard pursuant to its authority to do so "for any reason without prior notice," Judge Lally ruled that it could not now rely on such discretion to excuse its failure to follow through with the disciplinary procedure it earlier initiated. In the words of the court, “Having invoked its authority [to discipline Parks] was obliged to comply with it. [Parks] scheduled, rescheduled and then canceling the rescheduled hearing with a promise to provide a new date."
In effect, "once initiated, [Parks] was required to complete the disciplinary process in accordance with the provisions set out in the collective bargaining agreement and by failing to do so it violated its own policies and procedures, which deprived Kaefer of any opportunity to explain his action and/or to plead his case."
In determining the appropriate redress to be given Kaefer to cure Parks’ “abuse of discretion in violating its policies and procedures,” Judge Lally said that he must consider the particular circumstances of Kaefer’s employment.
The court explained that although hired for numerous seasons, Kaefer consistently had been an employee for a fixed term for each season and he had no right to be rehired. However, in barring Kaefer from “taking the new hire test without having afforded him a Step 1 hearing,” Parks had, essentially, made a disciplinary decision without giving Kaefer the benefit of such a hearing.
Accordingly, Judge Lally directed Parks “to provide to [Kaefer] the hearings he is entitled to” and to permit him to take “the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.”
Significantly, the court, noting that Parks had “wrongfully prohibited” Kaefer from taking the new hire tests, commented that “there is no certitude that [Kaefer] would have passed same or that an opening existed.” Accordingly, Judge Lally declined to award Kaefer “lost wages.”
In contrast, however, as the prevailing party, the court said that Kaefer was entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR §8601).
* "Seasonal Appointment Letters" sent to Kaefer stated that "You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice...."
** James Green, Kaefer's co-conspirator in obtaining the bogus doctor's notes, had agreed as part of a plea bargain to a lifetime ban of employment as a lifeguard at Parks.
*** Subsequently Kaefer was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, submitting a false instrument for filing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51503.htm
=============================================
We would appreciate about 1 minute of your time for your evaluation of NYPPL's content and focus-
Please click below to participate in this one minute survey: http://www.zoomerang.com/Survey/WEB22B53MNFEWA
===================================
Matter of Kaefer v New York State Off. of Parks Recreation & Historical Preserv., 2010 NY Slip Op 51503(U), Decided on July 16, 2010, Supreme Court, Nassau County, Judge Ute Wolff Lally, [Not selected for publication in the Official Reports]
Robert Kaefer had been employed as a “seasonal temporary” lifeguard for 18 years* by Jones Beach State Park [Parks].
Returning from an absence following surgery performed by a Dr. Halpern, Kaefer was told that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, Kaefer handed in a false doctor's note allegedly written by a Dr. Persaud, which he had obtained with the help of another lifeguard, James Green.** Subsequently Kaefer obtained an appropriate doctor’s note from Dr. Halpern.
Dr. Persaud's note, however, had raised some suspicion and Kaefer was told to provide evidence verifying its accuracy. Kaefer, in response, submitted “another bogus note from Dr. Persaud.”
Parks allowed Kaefer to continue serving as a lifeguard for the rest of the swim season.***
Thereafter Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 disciplinary hearing concerning the first bogus note -- the first formal step in the process taking disciplinary action against a lifeguard. The hearing, however, was adjourned to but prior to the rescheduled date Kaefer received a letter advising him that the step 1 hearing "has been postponed and will be rescheduled at a future date to be determined".
No notification of a rescheduled or cancelled Step 1 hearing was ever sent to Kaefer.
Ultimately Kaefer was refused reemployment as a lifeguard and he filed an Article 78 petition seeking a court order setting aside Parks decision banning from serving as a lifeguard, contending that the decision was arbitrary and capricious because:
1. Parks failed to adhere to its own policies and procedures; and
2. Parks imposed a different penalty than it has applied its prior determinations on essentially the same alleged acts of misconduct by barring him from employment as a life guard.
Judge Lally rejected Parks’ argument that Kaefer’s petition should be dismissed because he had “failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled," holding that the duty of providing for the rescheduling and notifying Kaefer of such a hearing was Parks'.
In contrast, Judge Lally ruled that Kaefer had the burden of proving that his punishment — a lifetime bar from employment as a lifeguard -- was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious.
In this regard, said the court, Kaefer failed to meet his burden as, except for James Green, Kaefer was unable to point to any lifeguard who was found guilty of submitting a bogus doctor's note. Further, Judge Lally said that he would not substitute his judgment for that of Parks, finding that there was no abuse of discretion as a matter of law in Parks’ treatment of Kaefer compared to its treatment of other lifeguards convicted of crimes.
As to Parks’ argument that it had merely exercised its discretion to terminate a “seasonal temporary” lifeguard pursuant to its authority to do so "for any reason without prior notice," Judge Lally ruled that it could not now rely on such discretion to excuse its failure to follow through with the disciplinary procedure it earlier initiated. In the words of the court, “Having invoked its authority [to discipline Parks] was obliged to comply with it. [Parks] scheduled, rescheduled and then canceling the rescheduled hearing with a promise to provide a new date."
In effect, "once initiated, [Parks] was required to complete the disciplinary process in accordance with the provisions set out in the collective bargaining agreement and by failing to do so it violated its own policies and procedures, which deprived Kaefer of any opportunity to explain his action and/or to plead his case."
In determining the appropriate redress to be given Kaefer to cure Parks’ “abuse of discretion in violating its policies and procedures,” Judge Lally said that he must consider the particular circumstances of Kaefer’s employment.
The court explained that although hired for numerous seasons, Kaefer consistently had been an employee for a fixed term for each season and he had no right to be rehired. However, in barring Kaefer from “taking the new hire test without having afforded him a Step 1 hearing,” Parks had, essentially, made a disciplinary decision without giving Kaefer the benefit of such a hearing.
Accordingly, Judge Lally directed Parks “to provide to [Kaefer] the hearings he is entitled to” and to permit him to take “the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.”
Significantly, the court, noting that Parks had “wrongfully prohibited” Kaefer from taking the new hire tests, commented that “there is no certitude that [Kaefer] would have passed same or that an opening existed.” Accordingly, Judge Lally declined to award Kaefer “lost wages.”
In contrast, however, as the prevailing party, the court said that Kaefer was entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR §8601).
* "Seasonal Appointment Letters" sent to Kaefer stated that "You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice...."
** James Green, Kaefer's co-conspirator in obtaining the bogus doctor's notes, had agreed as part of a plea bargain to a lifetime ban of employment as a lifeguard at Parks.
*** Subsequently Kaefer was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, submitting a false instrument for filing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51503.htm
=============================================
We would appreciate about 1 minute of your time for your evaluation of NYPPL's content and focus-
Please click below to participate in this one minute survey: http://www.zoomerang.com/Survey/WEB22B53MNFEWA
===================================
Employee terminated after refusing to accept reassignment to another location
Employee terminated after refusing to accept reassignment to another location
Dippell v Hammons, 246 A.D.2d 450
Dagmar Dippell, an attorney employed by the New York City Human Resources Administration, refused to report to her new assignment in Queens. This resulted in Dippell’s demotion following a disciplinary hearing.
When she continued to refuse to report to the new location, a second hearing was conducted and she was terminated. Dippell appealed, contending that the determinations by the two Administrative Law Judges [ALJs] were not supported by substantial evidence.
Commenting on the hearings that preceded Dippell’s dismissal, the Appellate Division cited the “obey now, grieve later” principle. The Court said that the first ALJ had ample grounds to conclude that Dippell had no basis for disregarding that principle. Although Dippell’s physician had recommended a “non-stressful job” for her, that, standing alone, “was inadequate to establish that the reassignment would be unduly debilitating to her health.”
The ALJ found that Dippell’s testimony lacked credibility and that she came across as “stubborn and misguided.” According to the decision, the ALJ credited the testimony of a department witness that Dippell was reassigned because of her failure to return from a Florida vacation on time and her “longstanding poor relationship with her immediate supervisor.”
The second proceeding was held before a different ALJ. The Appellate Division noted that Dippell failed to appear at that hearing. The Appellate Division said that the second ALJ “properly concluded” that dismissal was the only appropriate penalty, because Dippell had previously been demoted for similar misconduct.
Dippell v Hammons, 246 A.D.2d 450
Dagmar Dippell, an attorney employed by the New York City Human Resources Administration, refused to report to her new assignment in Queens. This resulted in Dippell’s demotion following a disciplinary hearing.
When she continued to refuse to report to the new location, a second hearing was conducted and she was terminated. Dippell appealed, contending that the determinations by the two Administrative Law Judges [ALJs] were not supported by substantial evidence.
Commenting on the hearings that preceded Dippell’s dismissal, the Appellate Division cited the “obey now, grieve later” principle. The Court said that the first ALJ had ample grounds to conclude that Dippell had no basis for disregarding that principle. Although Dippell’s physician had recommended a “non-stressful job” for her, that, standing alone, “was inadequate to establish that the reassignment would be unduly debilitating to her health.”
The ALJ found that Dippell’s testimony lacked credibility and that she came across as “stubborn and misguided.” According to the decision, the ALJ credited the testimony of a department witness that Dippell was reassigned because of her failure to return from a Florida vacation on time and her “longstanding poor relationship with her immediate supervisor.”
The second proceeding was held before a different ALJ. The Appellate Division noted that Dippell failed to appear at that hearing. The Appellate Division said that the second ALJ “properly concluded” that dismissal was the only appropriate penalty, because Dippell had previously been demoted for similar misconduct.
Participating in an arbitration may bar extrication from the process
Participating in an arbitration may bar extrication from the process
Suffolk County v Faculty Asso. of SCCC, App. Div., 247 A.D.2d 472
Suppose a party appears at a grievance arbitration but later decides that it didn’t have to. May it ask to have the arbitration award vacated?
This was the significant issue in the Suffolk County case. The Appellate Division indicated that once a party has appeared in an arbitration and a decision had been rendered, it may be too late for the party to extricate itself the process.
Suffolk County participated in a grievance arbitration proceeding involving the Faculty Association of Suffolk County Community College. The county challenged the arbitration and won a court order vacating the award made by the arbitrator after persuading a New York State Supreme Court justice that “there was no agreement to arbitrate the grievance in question” between the parties.
The Faculty Association appealed and the Appellate Division reversed the lower court’s ruling, reinstating the award. The Court said, “the absence of an agreement to arbitrate is not a basis upon which a party who participated in the arbitration may seek to have the resulting award vacated.”
The Court also rejected the County’s alternative argument, in which it contended that the arbitration award violated public policy, on a technical ground. Why? Because, said the Court, the County did not raise the “public policy” argument in its motion to vacate the arbitration award at the Supreme Court level. Accordingly, the County’s “public policy” theory was not properly before it on appeal.
Suffolk County v Faculty Asso. of SCCC, App. Div., 247 A.D.2d 472
Suppose a party appears at a grievance arbitration but later decides that it didn’t have to. May it ask to have the arbitration award vacated?
This was the significant issue in the Suffolk County case. The Appellate Division indicated that once a party has appeared in an arbitration and a decision had been rendered, it may be too late for the party to extricate itself the process.
Suffolk County participated in a grievance arbitration proceeding involving the Faculty Association of Suffolk County Community College. The county challenged the arbitration and won a court order vacating the award made by the arbitrator after persuading a New York State Supreme Court justice that “there was no agreement to arbitrate the grievance in question” between the parties.
The Faculty Association appealed and the Appellate Division reversed the lower court’s ruling, reinstating the award. The Court said, “the absence of an agreement to arbitrate is not a basis upon which a party who participated in the arbitration may seek to have the resulting award vacated.”
The Court also rejected the County’s alternative argument, in which it contended that the arbitration award violated public policy, on a technical ground. Why? Because, said the Court, the County did not raise the “public policy” argument in its motion to vacate the arbitration award at the Supreme Court level. Accordingly, the County’s “public policy” theory was not properly before it on appeal.
Sep 1, 2010
Selected bills recently signed into law
Selected bills recently signed into law
Source: New York State Legislature
Chapter 423 of the Laws of 2010: Provides that employers who provide funeral leave for family members of deceased shall not deny such leave for same-sex committed partners of the deceased.
Chapter 426 of the Laws of 2010: Requires New York City school districts to notify parents of bedbug infestations.
Chapter 430 of the Laws of 2010: Relates to health insurance coverage for surviving spouses or domestic partners of members of the New York City Department of Correction.
Chapter 480 of the Laws of 2010: Relates to the residence of peace officers employed as fire protection inspectors, urban park rangers and traffic enforcement agents level IV by a city with a population over one million [i.e., the City of New York].
.
Source: New York State Legislature
Chapter 423 of the Laws of 2010: Provides that employers who provide funeral leave for family members of deceased shall not deny such leave for same-sex committed partners of the deceased.
Chapter 426 of the Laws of 2010: Requires New York City school districts to notify parents of bedbug infestations.
Chapter 430 of the Laws of 2010: Relates to health insurance coverage for surviving spouses or domestic partners of members of the New York City Department of Correction.
Chapter 480 of the Laws of 2010: Relates to the residence of peace officers employed as fire protection inspectors, urban park rangers and traffic enforcement agents level IV by a city with a population over one million [i.e., the City of New York].
.
State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored
State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored
Source: Office of the State Comptroller, Audit 2009-S-42
The State Comptroller’s auditors found that the Office of Mental Health (OMH) had 819 state-funded contracts for personal and miscellaneous services during a three-year audit period totaling $61.7 million.
The focus of the audit: Was OMH adequately justifying the need to initially contract out for such services and then periodically reassessing whether such contracts could be deferred, eliminated or reduced. The report indicates that “this was not adequately done.”
A sample of 50 of the 819 Service Contracts was selected for study. The auditors reviewed available documentation to determine whether the need for the services and the decision to contract for services was justified with supporting documentation.
According to the Comptroller’s report, OMH was able to demonstrate that it had formally evaluated and justified the need for only 15 of these 50 contracts totaling $13.5 million. The Department did not produce documentation showing that it formally evaluated the justification for the remaining 35 contracts, which totaled $48.2 million.
Although OMH officials agreed that all of the decisions pertaining to contracting for Services were not documented, they indicated that "this is not a feasible task, as decisions are made at many levels in many forms." OMH said that it believe it had effectively communicated the intent of the relevant budget bulletins to all OMH divisions and facilities. The auditors, in contrast, said they “did not find sufficient evidence that OMH had contracted out only when there was a clearly documented need for the services.”
The contracts involved providing for mental health services, information technology, maintenance, and security services.
The full text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093010/09s42.pdf
.
Source: Office of the State Comptroller, Audit 2009-S-42
The State Comptroller’s auditors found that the Office of Mental Health (OMH) had 819 state-funded contracts for personal and miscellaneous services during a three-year audit period totaling $61.7 million.
The focus of the audit: Was OMH adequately justifying the need to initially contract out for such services and then periodically reassessing whether such contracts could be deferred, eliminated or reduced. The report indicates that “this was not adequately done.”
A sample of 50 of the 819 Service Contracts was selected for study. The auditors reviewed available documentation to determine whether the need for the services and the decision to contract for services was justified with supporting documentation.
According to the Comptroller’s report, OMH was able to demonstrate that it had formally evaluated and justified the need for only 15 of these 50 contracts totaling $13.5 million. The Department did not produce documentation showing that it formally evaluated the justification for the remaining 35 contracts, which totaled $48.2 million.
Although OMH officials agreed that all of the decisions pertaining to contracting for Services were not documented, they indicated that "this is not a feasible task, as decisions are made at many levels in many forms." OMH said that it believe it had effectively communicated the intent of the relevant budget bulletins to all OMH divisions and facilities. The auditors, in contrast, said they “did not find sufficient evidence that OMH had contracted out only when there was a clearly documented need for the services.”
The contracts involved providing for mental health services, information technology, maintenance, and security services.
The full text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093010/09s42.pdf
.
Politically motivated removals from public employment
Politically motivated removals from public employment
Coogan v Smyers, et al, CA2, 134 F.3d 479
In a series of rulings concerning the removal of public employees for political reasons, the U.S. Circuit Court of Appeals, Second Circuit [New York] set out a number of tests and guidelines it uses to determine if a particular termination is Constitutionally permissible. The Coogan case involved the termination of a City Clerk by a City Council.
James A. Coogan, who had served as Tonawanda’s City Clerk for five consecutive two-year terms, sued members of the City of Tonawanda after the new Republican council majority decided not to reappoint him for another two-year term.
According to Coogan, the Council’s action was motivated by his political activities on behalf of the Democratic Party. Claiming that his civil rights were violated, Coogan filed his action pursuant to 42 USC 1983 and argued that the Council’s action violated his First and Fourteenth Amendments rights.
The Circuit Court of Appeals reversed a federal District Court judge’s dismissal of Coogan’s petition and remanded the matter to the lower court for its further consideration. The Circuit Court pointed out that:
1. As a general rule, a public employee is protected from adverse employment decisions based upon the employee’s exercise of his or her First Amendment rights.
2. Political patronage or party affiliation is impermissible reasons for dismissing government employees absent a showing that “party affiliation is an appropriate requirement for the effective performance of the public office involved.”
3. While there is no property interest or entitlement to be reappointed to a government position, failure to reappoint solely because of party affiliation is impermissible.
Ironically, the Tonawanda City Clerk’s position historically has been one filled through political patronage. While the Court conceded that Coogan himself may have enjoyed a patronage appointment, this fact is irrelevant: a history of patronage does not render the practice Constitutional.
Coogan claimed that the only legal way to take away his job was to have reasons relating to his job performance. The Circuit Court said this was simply incorrect. The only Constitutional limit placed on a city council’s appointment power is that it may not make employment decisions based upon an employee’s protected conduct.
In cases of this type, courts frequently use a “burden-shifting” test. This requires that the individual first establish, by a preponderance of the evidence, that:
(1) his or her political activities constituted a substantial or motivating factor in the employment decision; and
(2) his or her conduct on behalf of a particular political party was constitutionally protected. If the individual is able to do this, the burden of going forward shifts to the employer, which must prove by a preponderance of the evidence that it would have made the same employment decision notwithstanding the individual’s protected conduct.
A critical element in this case was the parties’ stipulation that the City Clerk’s position is a non-policymaking and non-confidential government position. Therefore, political party affiliation could not be required for effective service as City Clerk. On this point the Court referred to the U.S. Supreme Court’s decision in Branti v Finkel, 445 U.S. at page 518.
Also, the Court emphasized the significance of the fact that the City Clerk’s position was not tenured -- it carried a two-year term. Coogan was merely a “prospective employee” and he had no property right or entitlement to the position or reappointment to it.
Accordingly, the Council was not required to “show cause” for failing to reappoint him. The Constitutional prohibition on patronage dismissal “does not give a permanent appointment to the City Clerk.” The legislative body is always free to dismiss or fail to rehire the Clerk for legitimate, apolitical reasons.
However, if a nontenured employee like Coogan shows there was unlawful political motivation in the failure to reappoint, the burden shifts to the legislative body to show a lawful reason for its decision. The Circuit Court said that if a public employer has two reasons for an employment decision, one lawful (e.g. incompetence) and one unlawful (e.g. removing a person because of some Constitutionally protected speech he or she made), the employment decision may be upheld on the basis of the lawful reason. The Court called this the “dual-motive” test.
The Circuit Court agreed with the District Court that Coogan’s political activity and affiliation were “a substantial or motivating factor” in the Council’s decision not to reappoint him.
But the Circuit Court disagreed with the District Court’s conclusion that the Council “presented sufficient evidence to demonstrate that they would not have reappointed Mr. Coogan regardless of his active participation in the Democratic Party.”
The Circuit Court decided that “the present record is inadequate” to enable it determine if the Coogan would have been denied reappointment regardless of his political affiliation or activity. Therefore, it remanded the case for further findings of fact by the trial court. The District Court was directed to analyze the reasons underlying the reasons given by the individual Council members for their votes concerning Coogan’s reappointment.
In another decision handed down by the U.S. Circuit Court of Appeals, Second Circuit, Danahy v. Buscaglia, 134 F.3d 1185, the Court said that a public employer was entitled to a qualified immunity from law suit for patronage dismissals if the employer was reasonable in making its decision with respect to whether or not the employees terminated qualified as “the kind of policymaking and confidential employees who may be lawfully dismissed because of their political views.”
The case involved the dismissal of seven former employees of the Attorney General’s Medicaid Fraud Unit who claimed that their terminations were politically motivated in violation of their First Amendment Rights.
The full text of the decision may be found at:
http://nypublicpersonnellawarchives.blogspot.com/ [Registration required]
Coogan v Smyers, et al, CA2, 134 F.3d 479
In a series of rulings concerning the removal of public employees for political reasons, the U.S. Circuit Court of Appeals, Second Circuit [New York] set out a number of tests and guidelines it uses to determine if a particular termination is Constitutionally permissible. The Coogan case involved the termination of a City Clerk by a City Council.
James A. Coogan, who had served as Tonawanda’s City Clerk for five consecutive two-year terms, sued members of the City of Tonawanda after the new Republican council majority decided not to reappoint him for another two-year term.
According to Coogan, the Council’s action was motivated by his political activities on behalf of the Democratic Party. Claiming that his civil rights were violated, Coogan filed his action pursuant to 42 USC 1983 and argued that the Council’s action violated his First and Fourteenth Amendments rights.
The Circuit Court of Appeals reversed a federal District Court judge’s dismissal of Coogan’s petition and remanded the matter to the lower court for its further consideration. The Circuit Court pointed out that:
1. As a general rule, a public employee is protected from adverse employment decisions based upon the employee’s exercise of his or her First Amendment rights.
2. Political patronage or party affiliation is impermissible reasons for dismissing government employees absent a showing that “party affiliation is an appropriate requirement for the effective performance of the public office involved.”
3. While there is no property interest or entitlement to be reappointed to a government position, failure to reappoint solely because of party affiliation is impermissible.
Ironically, the Tonawanda City Clerk’s position historically has been one filled through political patronage. While the Court conceded that Coogan himself may have enjoyed a patronage appointment, this fact is irrelevant: a history of patronage does not render the practice Constitutional.
Coogan claimed that the only legal way to take away his job was to have reasons relating to his job performance. The Circuit Court said this was simply incorrect. The only Constitutional limit placed on a city council’s appointment power is that it may not make employment decisions based upon an employee’s protected conduct.
In cases of this type, courts frequently use a “burden-shifting” test. This requires that the individual first establish, by a preponderance of the evidence, that:
(1) his or her political activities constituted a substantial or motivating factor in the employment decision; and
(2) his or her conduct on behalf of a particular political party was constitutionally protected. If the individual is able to do this, the burden of going forward shifts to the employer, which must prove by a preponderance of the evidence that it would have made the same employment decision notwithstanding the individual’s protected conduct.
A critical element in this case was the parties’ stipulation that the City Clerk’s position is a non-policymaking and non-confidential government position. Therefore, political party affiliation could not be required for effective service as City Clerk. On this point the Court referred to the U.S. Supreme Court’s decision in Branti v Finkel, 445 U.S. at page 518.
Also, the Court emphasized the significance of the fact that the City Clerk’s position was not tenured -- it carried a two-year term. Coogan was merely a “prospective employee” and he had no property right or entitlement to the position or reappointment to it.
Accordingly, the Council was not required to “show cause” for failing to reappoint him. The Constitutional prohibition on patronage dismissal “does not give a permanent appointment to the City Clerk.” The legislative body is always free to dismiss or fail to rehire the Clerk for legitimate, apolitical reasons.
However, if a nontenured employee like Coogan shows there was unlawful political motivation in the failure to reappoint, the burden shifts to the legislative body to show a lawful reason for its decision. The Circuit Court said that if a public employer has two reasons for an employment decision, one lawful (e.g. incompetence) and one unlawful (e.g. removing a person because of some Constitutionally protected speech he or she made), the employment decision may be upheld on the basis of the lawful reason. The Court called this the “dual-motive” test.
The Circuit Court agreed with the District Court that Coogan’s political activity and affiliation were “a substantial or motivating factor” in the Council’s decision not to reappoint him.
But the Circuit Court disagreed with the District Court’s conclusion that the Council “presented sufficient evidence to demonstrate that they would not have reappointed Mr. Coogan regardless of his active participation in the Democratic Party.”
The Circuit Court decided that “the present record is inadequate” to enable it determine if the Coogan would have been denied reappointment regardless of his political affiliation or activity. Therefore, it remanded the case for further findings of fact by the trial court. The District Court was directed to analyze the reasons underlying the reasons given by the individual Council members for their votes concerning Coogan’s reappointment.
In another decision handed down by the U.S. Circuit Court of Appeals, Second Circuit, Danahy v. Buscaglia, 134 F.3d 1185, the Court said that a public employer was entitled to a qualified immunity from law suit for patronage dismissals if the employer was reasonable in making its decision with respect to whether or not the employees terminated qualified as “the kind of policymaking and confidential employees who may be lawfully dismissed because of their political views.”
The case involved the dismissal of seven former employees of the Attorney General’s Medicaid Fraud Unit who claimed that their terminations were politically motivated in violation of their First Amendment Rights.
The full text of the decision may be found at:
http://nypublicpersonnellawarchives.blogspot.com/ [Registration required]
Sick building syndrome
Sick building syndrome
Knapp v Vestal CSD, App Div, 247 A.D.2d 667,
From time to time there are reports of individuals becoming ill because of the quality of a building’s environment. This can result in the filling of a workers’ compensation claim.
Donna K. Knapp, a music teacher employed by the Vestal Central School District, filed such a complaint. She claimed that her health began to deteriorate after working in the Vestal Central School District’s African Road School for about a year.
Knapp said that her symptoms included “aches and pains, headaches and memory and hearing loss.” Initially diagnosed as suffering from “sick building syndrome,” she was later diagnosed as having “multiple chemical sensitivity.”
Contending that the African Road School was a “sick building,” Knapp applied for workers’ compensation benefits. Ultimately the Workers’ Compensation Appeals Board disallowed Knapp’s claim, ruling that the record did not demonstrate any “unusual workplace hazard” to support her application for accidental injury due to a hazardous exposure. The Board said that there was “no evidence presented to support a recognizable link between [Knapp’s] multiple chemical sensitivity and her occupation as a teacher.”
The Appellate Division affirmed the Board’s determination. The Court observed that to prevail Knapp had to establish an unusual environmental condition or something extraordinary which caused an accidental injury even if she could not pin-point the exact date on which the event occurred.
Concluding that Knapp failed to show that she sustained an accidental injury, the Court dismissed her appeal. In so doing, the Appellate Division commented that Knapp’s theory that the African Road School was “a sick building” was undercut by the fact that she admitted that she experienced similar symptoms at other locations.
In contrast, the Appellate Division ruled that the Workers’ Compensation Board’s decision that New York City school teacher Morris Palevsky suffered a “posttraumatic stress disorder” as a result of his being injured in the course of a fight between students at a school for emotionally disturbed children was supported by evidence in the record and dismissed the City’s appeal from urging a reversal of the Board’s ruling [Palevsky v New York City Board of Education, 246 AD2d 836, lv to appeal dismissed, 92 NY2d 876, lv denied, 93 NY2d 818) ].
Knapp v Vestal CSD, App Div, 247 A.D.2d 667,
From time to time there are reports of individuals becoming ill because of the quality of a building’s environment. This can result in the filling of a workers’ compensation claim.
Donna K. Knapp, a music teacher employed by the Vestal Central School District, filed such a complaint. She claimed that her health began to deteriorate after working in the Vestal Central School District’s African Road School for about a year.
Knapp said that her symptoms included “aches and pains, headaches and memory and hearing loss.” Initially diagnosed as suffering from “sick building syndrome,” she was later diagnosed as having “multiple chemical sensitivity.”
Contending that the African Road School was a “sick building,” Knapp applied for workers’ compensation benefits. Ultimately the Workers’ Compensation Appeals Board disallowed Knapp’s claim, ruling that the record did not demonstrate any “unusual workplace hazard” to support her application for accidental injury due to a hazardous exposure. The Board said that there was “no evidence presented to support a recognizable link between [Knapp’s] multiple chemical sensitivity and her occupation as a teacher.”
The Appellate Division affirmed the Board’s determination. The Court observed that to prevail Knapp had to establish an unusual environmental condition or something extraordinary which caused an accidental injury even if she could not pin-point the exact date on which the event occurred.
Concluding that Knapp failed to show that she sustained an accidental injury, the Court dismissed her appeal. In so doing, the Appellate Division commented that Knapp’s theory that the African Road School was “a sick building” was undercut by the fact that she admitted that she experienced similar symptoms at other locations.
In contrast, the Appellate Division ruled that the Workers’ Compensation Board’s decision that New York City school teacher Morris Palevsky suffered a “posttraumatic stress disorder” as a result of his being injured in the course of a fight between students at a school for emotionally disturbed children was supported by evidence in the record and dismissed the City’s appeal from urging a reversal of the Board’s ruling [Palevsky v New York City Board of Education, 246 AD2d 836, lv to appeal dismissed, 92 NY2d 876, lv denied, 93 NY2d 818) ].
Aug 31, 2010
Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law
Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law
Source: The Office of the State Comptroller
The former director of the State Department of Corrections’ (DOCS) prison food production operation and his staff routinely traded favors and gifts with favored businesses that were rewarded with millions of dollars in state purchases according to a report released by State Comptroller Thomas P. DiNapoli and State Inspector General Joseph Fisch dated August 31, 2010.
DiNapoli’s and Fisch’s audit and investigation centered on Howard Dean, the former director of the Food Production Center, and his staff. The Comptroller's Office said that DiNapoli and Fisch have forwarded the findings of their report to the Oneida County District Attorney’s Office and the State Commission on Public Integrity.
Comptroller DiNapoli said “Corruption should never be tolerated on any level. But the abuses we discovered here, at a state criminal justice agency, committed at a time when New York’s taxpayers are finding it harder and harder to make ends meet, are beyond the pale. And all of this mushroomed in a culture of acceptance at DOCS. We’re referring our findings to law enforcement and public integrity officials.”
State's Inspector General Fisch commented that “Once again, we witness another distressing spectacle by this public official who did not hesitate to violate the law and his oath of office in order to reap personal reward and benefits. For 13 years, Dean enjoyed free parties and picnics while not only steering $2.5 million in business to favored vendors, but to vendors who are prohibited from doing business in New York State.”
Among the findings:
1. In violation of the State's Public Officers Law, "for at least 13 years, Dean and other DOCS staff were provided free meals by at least two vendors – Global Food Industries (GFI) and Good Source – that had $2.5 million annually in purchases with the Food Production Center. "
"2. Dean directed Sysco Food Services to use these two vendors as suppliers, thereby guaranteeing them $1.7 million annually in business with DOCS.
"3. Sysco’s purchase of products from the South Carolina-based GFI at Dean’s direction helped Dean and GFI skirt around New York State Finance Law which prohibits state agencies from doing business directly with companies that reside in states, like South Carolina, that discriminate against NYS businesses.
"4. Likewise, Dean directed NYS Industries for the Disabled, a preferred source of state purchases, to purchase products from GFI, again allowing GFI to make money off of state purchases contrary to the law. GFI made $796,000 annually through this arrangement.
"5. Dean and his staff solicited free food and donations from vendors for an annual Christmas party and a three-day-long annual picnic. Any left-over moneys were deposited in an employee benefit fund and used for food production center employee benefits throughout the year, including morning bagels.
"In addition, the Comptroller and the Inspector General stated that 'Vendors often bid on donated items with proceeds going to the employee benefit fund. All Correctional Services employees, including those at the highest levels of the organization, were invited to the picnic at no cost. Management should have questioned how such an event could be hosted by a state agency at no cost to employees or their families.'"
"DiNapoli’s auditors found no documentation demonstrating that millions of dollars in purchases were based on open competition. In fact, one favored vendor was tipped off about the potential missing ingredient essential in the production of cheese sauce the Food Production Center wished to utilize. Because none of the other vendors had this inside information, the favored vendor received the state’s business.
"Internal controls that might have prevented Dean from engaging in this conduct were virtually non-existent at DOCS. One supervisor, Russell DiBello, former Correctional Services Chief Fiscal Officer, stated that he saw no need to monitor Dean – despite that Dean managed a $55 million budget – because he received no inmate complaints about food.
"DiNapoli and Fisch have recommended that DOCS officials institute safeguards to ensure these abuses don’t occur in the future, and assist the Oneida County District Attorney and the State Commission on Public Integrity as needed. State law requires the DOCS commissioner to report to the Governor, Comptroller and leaders of state legislative committees what corrective action the department has taken, and if action is not taken, why."
The complete text of the report is posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093010/09s6.pdf
.
Source: The Office of the State Comptroller
The former director of the State Department of Corrections’ (DOCS) prison food production operation and his staff routinely traded favors and gifts with favored businesses that were rewarded with millions of dollars in state purchases according to a report released by State Comptroller Thomas P. DiNapoli and State Inspector General Joseph Fisch dated August 31, 2010.
DiNapoli’s and Fisch’s audit and investigation centered on Howard Dean, the former director of the Food Production Center, and his staff. The Comptroller's Office said that DiNapoli and Fisch have forwarded the findings of their report to the Oneida County District Attorney’s Office and the State Commission on Public Integrity.
Comptroller DiNapoli said “Corruption should never be tolerated on any level. But the abuses we discovered here, at a state criminal justice agency, committed at a time when New York’s taxpayers are finding it harder and harder to make ends meet, are beyond the pale. And all of this mushroomed in a culture of acceptance at DOCS. We’re referring our findings to law enforcement and public integrity officials.”
State's Inspector General Fisch commented that “Once again, we witness another distressing spectacle by this public official who did not hesitate to violate the law and his oath of office in order to reap personal reward and benefits. For 13 years, Dean enjoyed free parties and picnics while not only steering $2.5 million in business to favored vendors, but to vendors who are prohibited from doing business in New York State.”
Among the findings:
1. In violation of the State's Public Officers Law, "for at least 13 years, Dean and other DOCS staff were provided free meals by at least two vendors – Global Food Industries (GFI) and Good Source – that had $2.5 million annually in purchases with the Food Production Center. "
"2. Dean directed Sysco Food Services to use these two vendors as suppliers, thereby guaranteeing them $1.7 million annually in business with DOCS.
"3. Sysco’s purchase of products from the South Carolina-based GFI at Dean’s direction helped Dean and GFI skirt around New York State Finance Law which prohibits state agencies from doing business directly with companies that reside in states, like South Carolina, that discriminate against NYS businesses.
"4. Likewise, Dean directed NYS Industries for the Disabled, a preferred source of state purchases, to purchase products from GFI, again allowing GFI to make money off of state purchases contrary to the law. GFI made $796,000 annually through this arrangement.
"5. Dean and his staff solicited free food and donations from vendors for an annual Christmas party and a three-day-long annual picnic. Any left-over moneys were deposited in an employee benefit fund and used for food production center employee benefits throughout the year, including morning bagels.
"In addition, the Comptroller and the Inspector General stated that 'Vendors often bid on donated items with proceeds going to the employee benefit fund. All Correctional Services employees, including those at the highest levels of the organization, were invited to the picnic at no cost. Management should have questioned how such an event could be hosted by a state agency at no cost to employees or their families.'"
"DiNapoli’s auditors found no documentation demonstrating that millions of dollars in purchases were based on open competition. In fact, one favored vendor was tipped off about the potential missing ingredient essential in the production of cheese sauce the Food Production Center wished to utilize. Because none of the other vendors had this inside information, the favored vendor received the state’s business.
"Internal controls that might have prevented Dean from engaging in this conduct were virtually non-existent at DOCS. One supervisor, Russell DiBello, former Correctional Services Chief Fiscal Officer, stated that he saw no need to monitor Dean – despite that Dean managed a $55 million budget – because he received no inmate complaints about food.
"DiNapoli and Fisch have recommended that DOCS officials institute safeguards to ensure these abuses don’t occur in the future, and assist the Oneida County District Attorney and the State Commission on Public Integrity as needed. State law requires the DOCS commissioner to report to the Governor, Comptroller and leaders of state legislative committees what corrective action the department has taken, and if action is not taken, why."
The complete text of the report is posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093010/09s6.pdf
.
Commissioner rules excessed teacher’s failure to request or indicate any assumption of the teacher’s retention on the preferred list a fatal omission
Commissioner rules excessed teacher’s failure to request or indicate any assumption of the teacher’s retention on the preferred list a fatal omission
Appeal of Staci Beauchamp and the City School District of the City of Glen Cove and Melanie Tuthill Odone, Decisions of the Commissioner of Education, Decision #16,123
Staci Beauchamp appealed the decision of the Board of Education of the City School District of the City of Glen Cove to appoint Melanie Tuthill Odone as a reading teacher. Beauchamp, a tenured reading teaching, accepted a .4 part time reading teacher position when she was advised that her full time position was being abolished effective September 1, 2006.
Although Beauchamp initially had accepted the .4 part time appointment on June 13, 2006, she submitted her resignation from the position on June 23, 2006. The Commissioner’s decision indicates that the Board subsequently “accepted” the resignation.*
In early 2009, Beauchamp learned of a reading teacher vacancy in the district. In response to her inquiry concerning the availability of the position, she was told by the Assistant to the Superintendent for Personnel that as she had resigned from her [part time] position, “she did not qualify for reappointment.”
Tuthill Odone was subsequently hired to fill the reading teacher position and ultimately the issue was appealed to the Commissioner.
Beauchamp argued that she had been “fraudulently and/or falsely induced to resign by the board’s Executive Director of Human Resources” who had told her that “a resignation was a condition precedent to working in another school district and remaining on the preferred eligibility list in Glen Cove.”
The district, on the other had, contended that Beauchamp relinquished all rights to a teaching position in the district when she submitted her unconditional resignation and “that at no time did any agent or employee of the board make any false statement to [Beauchamp] in order to induce her to resign her teaching position.”
The Commissioner rejected Beauchamp’s appeal commenting that “it is clear that a teacher who severs his or her service with a district, through retirement or resignation, no longer has recall rights pursuant to Education Law §§2510 and 3013” [citations omitted].
Further, said the Commissioner, “[A]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted by school authorities,” citing Schmitt v. Hicksville UFSD No. 17, 200 AD2d 661.
The Commissioner said that Beauchamp did not prove that her resignation was involuntary and although the Executive Director’s alleged false statement may have provided motive for her resignation, “it cannot be said that her will was overcome and that she was not capable of exercising free choice.” Thus, the Commissioner ruled, Beauchamp’s allegations of duress and coercion must be dismissed.
The Commissioner also rejected Beauchamp’s claim that her resignation was a nullity because it was entered into under a mutual mistake of fact, i.e. that “she had to resign to work elsewhere and be placed on the school district’s preferred eligibility list.”
Significantly, the Commissioner said the Beauchamp failed to demonstrate that there was a mutual mistake of fact and that the school district justifiably assumed that she, “by submitting a letter of resignation, wished to sever her ties with the district” as her letter of resignation did not indicate that “she wished to remain on the preferred eligibility list, or indicate any expectation that she would so remain.”
* Except where required by law, acceptance of a resignation is not required for it to take effect; all that is required is that the resignation be delivered to the appointing authority before it is withdrawn or rescinded by the officer or employee. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district "and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied]. See, also, §2110.3 of the Education Law.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16123.htm
Appeal of Staci Beauchamp and the City School District of the City of Glen Cove and Melanie Tuthill Odone, Decisions of the Commissioner of Education, Decision #16,123
Staci Beauchamp appealed the decision of the Board of Education of the City School District of the City of Glen Cove to appoint Melanie Tuthill Odone as a reading teacher. Beauchamp, a tenured reading teaching, accepted a .4 part time reading teacher position when she was advised that her full time position was being abolished effective September 1, 2006.
Although Beauchamp initially had accepted the .4 part time appointment on June 13, 2006, she submitted her resignation from the position on June 23, 2006. The Commissioner’s decision indicates that the Board subsequently “accepted” the resignation.*
In early 2009, Beauchamp learned of a reading teacher vacancy in the district. In response to her inquiry concerning the availability of the position, she was told by the Assistant to the Superintendent for Personnel that as she had resigned from her [part time] position, “she did not qualify for reappointment.”
Tuthill Odone was subsequently hired to fill the reading teacher position and ultimately the issue was appealed to the Commissioner.
Beauchamp argued that she had been “fraudulently and/or falsely induced to resign by the board’s Executive Director of Human Resources” who had told her that “a resignation was a condition precedent to working in another school district and remaining on the preferred eligibility list in Glen Cove.”
The district, on the other had, contended that Beauchamp relinquished all rights to a teaching position in the district when she submitted her unconditional resignation and “that at no time did any agent or employee of the board make any false statement to [Beauchamp] in order to induce her to resign her teaching position.”
The Commissioner rejected Beauchamp’s appeal commenting that “it is clear that a teacher who severs his or her service with a district, through retirement or resignation, no longer has recall rights pursuant to Education Law §§2510 and 3013” [citations omitted].
Further, said the Commissioner, “[A]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted by school authorities,” citing Schmitt v. Hicksville UFSD No. 17, 200 AD2d 661.
The Commissioner said that Beauchamp did not prove that her resignation was involuntary and although the Executive Director’s alleged false statement may have provided motive for her resignation, “it cannot be said that her will was overcome and that she was not capable of exercising free choice.” Thus, the Commissioner ruled, Beauchamp’s allegations of duress and coercion must be dismissed.
The Commissioner also rejected Beauchamp’s claim that her resignation was a nullity because it was entered into under a mutual mistake of fact, i.e. that “she had to resign to work elsewhere and be placed on the school district’s preferred eligibility list.”
Significantly, the Commissioner said the Beauchamp failed to demonstrate that there was a mutual mistake of fact and that the school district justifiably assumed that she, “by submitting a letter of resignation, wished to sever her ties with the district” as her letter of resignation did not indicate that “she wished to remain on the preferred eligibility list, or indicate any expectation that she would so remain.”
* Except where required by law, acceptance of a resignation is not required for it to take effect; all that is required is that the resignation be delivered to the appointing authority before it is withdrawn or rescinded by the officer or employee. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district "and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied]. See, also, §2110.3 of the Education Law.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16123.htm
COBRA web page updated
COBRA web page updated
DOL press release
The Department of Labor's Employee Benefits Security Administration has updated its COBRA web page to add a fact sheet and FAQs on maintaining health coverage after the COBRA premium reduction ends. The updates are posted at:
http://www.dol.gov/ebsa/newsroom/fsExpiringSubsidy.html
and at
http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html#section5,
respectively.
DOL press release
The Department of Labor's Employee Benefits Security Administration has updated its COBRA web page to add a fact sheet and FAQs on maintaining health coverage after the COBRA premium reduction ends. The updates are posted at:
http://www.dol.gov/ebsa/newsroom/fsExpiringSubsidy.html
and at
http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html#section5,
respectively.
Jurisdiction to consider unilateral changes in terms and conditions of employment
Jurisdiction to consider unilateral changes in terms and conditions of employment
Roma v Susquehanna Valley CSD, 92 N.Y.2d 489 [246 AD2d 714 reversed]
The primary issue on this appeal is whether a complaint of a public employer’s unilateral change in a term and condition of employment that is expressly covered by its collective bargaining agreement (CBA) with an employee organization lies within the exclusive jurisdiction of the State Public Employment Relations Board (PERB), or may be resolved through the grievance procedures of the CBA.
The Civil Service Law § 205 (5) (d) jurisprudence of PERB, which in the view of the Court of Appeals correctly reflects the legislative intent of the enactment, points the parties to a resolution of their dispute in this case through the nonbinding grievance procedures of the CBA (subject to judicial review), rather than through an improper employer practice charge before PERB for failing to negotiate in good faith.
Consequently, the high court said that the Appellate Division erred in dismissing the petition on the ground that PERB had exclusive subject matter jurisdiction over this controversy. Agreeing with Supreme Court that the CBA unambiguously precluded the school district’s unilateral action here, the Court of Appeals said that the judgment of Supreme Court should be reinstated.
The text of the ruling is filed on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/[Registration required]
Roma v Susquehanna Valley CSD, 92 N.Y.2d 489 [246 AD2d 714 reversed]
The primary issue on this appeal is whether a complaint of a public employer’s unilateral change in a term and condition of employment that is expressly covered by its collective bargaining agreement (CBA) with an employee organization lies within the exclusive jurisdiction of the State Public Employment Relations Board (PERB), or may be resolved through the grievance procedures of the CBA.
The Civil Service Law § 205 (5) (d) jurisprudence of PERB, which in the view of the Court of Appeals correctly reflects the legislative intent of the enactment, points the parties to a resolution of their dispute in this case through the nonbinding grievance procedures of the CBA (subject to judicial review), rather than through an improper employer practice charge before PERB for failing to negotiate in good faith.
Consequently, the high court said that the Appellate Division erred in dismissing the petition on the ground that PERB had exclusive subject matter jurisdiction over this controversy. Agreeing with Supreme Court that the CBA unambiguously precluded the school district’s unilateral action here, the Court of Appeals said that the judgment of Supreme Court should be reinstated.
The text of the ruling is filed on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/[Registration required]
Vesting health insurance rights
Vesting health insurance rights
Handy v Schoharie County, Appellate Division 244 A.D.2d 842
In the Handy case, the Appellate Division said a legislative body may adopt of a resolution that alters a retiree’s health insurance benefits and that such a change can be legally applied to people who retired prior to the vote to change benefits.
In December 1995, the Schoharie County Board of Supervisors adopted three motions changing its policy with respect to its providing County retirees health insurance benefits.
Under the new policy, any elected County official who completed 10 or more years of service would be entitled to “health insurance” at the County’s expense upon retirement. Prior to this change Schoharie paid the health insurance premiums for the retiree and his or her spouse if the retired employee had completed five years of County service and was receiving a state retirement allowance.
David E. Handy retired from the Board of Supervisors on December 31, 1995, having served as a member since 1978. The Board, however, at its January 19, 1996 meeting rescinded several December 1995 motions relating to health insurance for retirees.
The Board next reinstated its former policy with respect to providing health insurance to its retired employees. Because he was not receiving a state retirement allowance, the County said it would not pay for Handy’s health insurance in retirement.
Handy sued, contending that under the Board’s December 1995 actions he was “entitled to health insurance paid at [Schoharie County’s] expense as [he had] met the requirement of a vested right.”
The Appellate Division disagreed, holding that the County was under no contractual obligation to provide [Handy] with health insurance and, accordingly, it did not act arbitrarily or capriciously in terminating that benefit.
The Handy decision should be contrasted with two other retiree benefits cases: Della Rocco v City of Schenectady and Andriano v City of Schenectady.
The Schenectady cases differed in that they concerned executive action as opposed to legislative action and Taylor Law agreements were involved and held to control.
On August 28, 1997, State Supreme Court Justice Robert E. Lynch ruled that Schenectady must provide fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the municipality is bound by the Taylor Law agreement in effect when employees retired.
The fact that the Taylor Law agreements had expired did not alter the municipality’s obligations to retirees under them.
The key element was the existence or absence of a contractual obligation to provide retirees a benefit.
The Appellate Division pointed out that an act of a legislative body will be treated as a contract only when the language and the circumstances manifest a legislative intent to create a private right of a contractual nature.
As an illustration, the Court commented that in Cook v City of Binghamton, 48 NY2d 323, the Court of Appeals said that “certain types of legislative acts, including those fixing salaries and compensation ... are not presumed to create a contract.”
Quoting from the U.S. Supreme Court’s ruling in Dodge v Board of Education, 302 US 74 at page 79, the Court of Appeals said that “the presumption is that such a law is not intended to create a private contractual right or vested right but merely declares a policy to be pursued until the [legislative body] shall ordain otherwise.”
The Appellate Division said that it found nothing in the December 1995 actions by the Board that it “intended to fetter its power in the future” with respect to health insurance. “Rather than evincing an intent to create a private contractual or vested right, the motions are more reasonably read as declarations of [the Board’s] policy.”
Notwithstanding the fact that Handy would have enjoyed health insurance benefits at the expense of the County had the December motions not been repealed, the Appellate Division decided that the Board’s December 1995 actions did not create a contractual property right enforceable against Schoharie County.
As to any claim that the Board’s action gave Handy a vested retirement benefit, in Lippman v Sewanhaka Central High School District, 66 NY2d 313, the Court of Appeals decided that health insurance for retirees is not a retirement benefit protected against being diminished or impaired by the State’s Constitution.
Handy v Schoharie County, Appellate Division 244 A.D.2d 842
In the Handy case, the Appellate Division said a legislative body may adopt of a resolution that alters a retiree’s health insurance benefits and that such a change can be legally applied to people who retired prior to the vote to change benefits.
In December 1995, the Schoharie County Board of Supervisors adopted three motions changing its policy with respect to its providing County retirees health insurance benefits.
Under the new policy, any elected County official who completed 10 or more years of service would be entitled to “health insurance” at the County’s expense upon retirement. Prior to this change Schoharie paid the health insurance premiums for the retiree and his or her spouse if the retired employee had completed five years of County service and was receiving a state retirement allowance.
David E. Handy retired from the Board of Supervisors on December 31, 1995, having served as a member since 1978. The Board, however, at its January 19, 1996 meeting rescinded several December 1995 motions relating to health insurance for retirees.
The Board next reinstated its former policy with respect to providing health insurance to its retired employees. Because he was not receiving a state retirement allowance, the County said it would not pay for Handy’s health insurance in retirement.
Handy sued, contending that under the Board’s December 1995 actions he was “entitled to health insurance paid at [Schoharie County’s] expense as [he had] met the requirement of a vested right.”
The Appellate Division disagreed, holding that the County was under no contractual obligation to provide [Handy] with health insurance and, accordingly, it did not act arbitrarily or capriciously in terminating that benefit.
The Handy decision should be contrasted with two other retiree benefits cases: Della Rocco v City of Schenectady and Andriano v City of Schenectady.
The Schenectady cases differed in that they concerned executive action as opposed to legislative action and Taylor Law agreements were involved and held to control.
On August 28, 1997, State Supreme Court Justice Robert E. Lynch ruled that Schenectady must provide fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the municipality is bound by the Taylor Law agreement in effect when employees retired.
The fact that the Taylor Law agreements had expired did not alter the municipality’s obligations to retirees under them.
The key element was the existence or absence of a contractual obligation to provide retirees a benefit.
The Appellate Division pointed out that an act of a legislative body will be treated as a contract only when the language and the circumstances manifest a legislative intent to create a private right of a contractual nature.
As an illustration, the Court commented that in Cook v City of Binghamton, 48 NY2d 323, the Court of Appeals said that “certain types of legislative acts, including those fixing salaries and compensation ... are not presumed to create a contract.”
Quoting from the U.S. Supreme Court’s ruling in Dodge v Board of Education, 302 US 74 at page 79, the Court of Appeals said that “the presumption is that such a law is not intended to create a private contractual right or vested right but merely declares a policy to be pursued until the [legislative body] shall ordain otherwise.”
The Appellate Division said that it found nothing in the December 1995 actions by the Board that it “intended to fetter its power in the future” with respect to health insurance. “Rather than evincing an intent to create a private contractual or vested right, the motions are more reasonably read as declarations of [the Board’s] policy.”
Notwithstanding the fact that Handy would have enjoyed health insurance benefits at the expense of the County had the December motions not been repealed, the Appellate Division decided that the Board’s December 1995 actions did not create a contractual property right enforceable against Schoharie County.
As to any claim that the Board’s action gave Handy a vested retirement benefit, in Lippman v Sewanhaka Central High School District, 66 NY2d 313, the Court of Appeals decided that health insurance for retirees is not a retirement benefit protected against being diminished or impaired by the State’s Constitution.
Aug 30, 2010
Demoted whistle blower entitled to reinstatement to the higher-level former position or equivalent and lost salary plus “predetermination interest”
Demoted whistle blower entitled to reinstatement to the higher-level former position or equivalent and lost salary plus “predetermination interest”
Tipaldo v Lynn as Commissioner of the NYC Department of Transportation, 2010 NY Slip Op 06467, decided on August 24, 2010, Appellate Division, First Department
In August 1996, John Tipaldo, a long-time manager with the New York City Department of Transportation (DOT), was promoted to the position of Acting Assistant Commissioner for Planning. Tipaldo was earning an annual salary of $55,000 at the time and was advised that he would be given a $25,000 salary increase if his appointment became permanent.
Less than a year later Tipaldo was demoted from the Acting Assistant Commissioner position. As a result of the demotion, Tipaldo appointment to Assistant Commissioner position did not become permanent and he never received the $25,000 increase in salary.
Tipaldo challenged his demotion citing Civil Service Law §75-b, contending the demotion was in retaliation for his having reported to the Department of Investigation that a superior violated bidding rules (see 48 AD3d 361).*
The instant appeal was from an order following a nonjury trial on the issue of damages following the Appellate Division’s earlier ruling. This appeal challenged Supreme Court's awarding Tipaldo $175,000 in back pay, but without interest and the court’s directive that Tipaldo reinstated to the same, or to an equivalent position to the one that he had held before the retaliatory personnel action that gave rise to his initial lawsuit.
The Appellate Division affirmed the lower court’s ruling with respect to Tipaldo’s reinstatement but said that the award of back salary had to be redetermined because:
1. Tipaldo was entitled to an interest award as provided by Civil Service Law section 75-b; and
2. The record supports Tipaldo's request that he be reinstated "to the same position held before the retaliatory personnel action, or to an equivalent position" as provided by Labor Law §740[5][b]).
The Department, objecting to Tipaldo's reinstatement, argued that he was not entitled to such reinstatement as he had declined promotions 2000, 2001 and 2002. The Appellate Division rejected the Department's theory, commenting that the undisputed testimony of his current supervisor was that at the time of those offers of promotion Tipaldo feared that any promotion would be met with retaliatory action by agency personnel.**
As to the amount of back salary awarded by Supreme Court, the Appellate Division noted that Tipaldo had called an economics expert to establish the amount of back pay to which he was entitled. The expert testified that Tipaldo had lost $388,243 in earnings as a direct result of the retaliatory actions taken by defendants. Tipaldo’s expert also testified that, applying the statutory interest rate of 9% to the lost earnings, Tipaldo was owed a total of $662,721.
In contrast, said the Appellate Division, Supreme Court “without any explanation for how it arrived at the figure, awarded Tipaldo $175,000 in back pay” and denied Tipaldo’s request for pre-determination interest.
Significantly, the Appellate Division noted that the Department “chose not to call their own expert to offer an alternative theory of the earnings which plaintiff would have lost had he not been the victim of retaliation, or to explain why plaintiff's expert's analysis was flawed in any respect.” Thus, said the court, “the only expert opinion before us is [Tipaldo's] and we see no reason to disturb it.”
Further, the Appellate Division held that that predetermination interest is generally available to whistle blowers suing pursuant to Civil Service Law §75-b.
* See Tipaldo v. Lynn, 48 AD3d 361 for the Appellate Division’s ruling in this earlier case.
** The Appellate Division indicated that the fact that Tipaldo declined such promotions did not militate against honoring his request for reinstatement to the higher-level position at this time.
The instant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06467.htm
The earlier decision, 48 AD3d 361, is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01801.htm
.
Tipaldo v Lynn as Commissioner of the NYC Department of Transportation, 2010 NY Slip Op 06467, decided on August 24, 2010, Appellate Division, First Department
In August 1996, John Tipaldo, a long-time manager with the New York City Department of Transportation (DOT), was promoted to the position of Acting Assistant Commissioner for Planning. Tipaldo was earning an annual salary of $55,000 at the time and was advised that he would be given a $25,000 salary increase if his appointment became permanent.
Less than a year later Tipaldo was demoted from the Acting Assistant Commissioner position. As a result of the demotion, Tipaldo appointment to Assistant Commissioner position did not become permanent and he never received the $25,000 increase in salary.
Tipaldo challenged his demotion citing Civil Service Law §75-b, contending the demotion was in retaliation for his having reported to the Department of Investigation that a superior violated bidding rules (see 48 AD3d 361).*
The instant appeal was from an order following a nonjury trial on the issue of damages following the Appellate Division’s earlier ruling. This appeal challenged Supreme Court's awarding Tipaldo $175,000 in back pay, but without interest and the court’s directive that Tipaldo reinstated to the same, or to an equivalent position to the one that he had held before the retaliatory personnel action that gave rise to his initial lawsuit.
The Appellate Division affirmed the lower court’s ruling with respect to Tipaldo’s reinstatement but said that the award of back salary had to be redetermined because:
1. Tipaldo was entitled to an interest award as provided by Civil Service Law section 75-b; and
2. The record supports Tipaldo's request that he be reinstated "to the same position held before the retaliatory personnel action, or to an equivalent position" as provided by Labor Law §740[5][b]).
The Department, objecting to Tipaldo's reinstatement, argued that he was not entitled to such reinstatement as he had declined promotions 2000, 2001 and 2002. The Appellate Division rejected the Department's theory, commenting that the undisputed testimony of his current supervisor was that at the time of those offers of promotion Tipaldo feared that any promotion would be met with retaliatory action by agency personnel.**
As to the amount of back salary awarded by Supreme Court, the Appellate Division noted that Tipaldo had called an economics expert to establish the amount of back pay to which he was entitled. The expert testified that Tipaldo had lost $388,243 in earnings as a direct result of the retaliatory actions taken by defendants. Tipaldo’s expert also testified that, applying the statutory interest rate of 9% to the lost earnings, Tipaldo was owed a total of $662,721.
In contrast, said the Appellate Division, Supreme Court “without any explanation for how it arrived at the figure, awarded Tipaldo $175,000 in back pay” and denied Tipaldo’s request for pre-determination interest.
Significantly, the Appellate Division noted that the Department “chose not to call their own expert to offer an alternative theory of the earnings which plaintiff would have lost had he not been the victim of retaliation, or to explain why plaintiff's expert's analysis was flawed in any respect.” Thus, said the court, “the only expert opinion before us is [Tipaldo's] and we see no reason to disturb it.”
Further, the Appellate Division held that that predetermination interest is generally available to whistle blowers suing pursuant to Civil Service Law §75-b.
* See Tipaldo v. Lynn, 48 AD3d 361 for the Appellate Division’s ruling in this earlier case.
** The Appellate Division indicated that the fact that Tipaldo declined such promotions did not militate against honoring his request for reinstatement to the higher-level position at this time.
The instant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06467.htm
The earlier decision, 48 AD3d 361, is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_01801.htm
.
Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence
Individual determined to be suffering from a mental disability placed on involuntary Civil Service Law Section 72 leave of absence
NYC Administration for Children’s Services v S.B., OATH Index #2425/10
The Administration for Children's Services sought to place a child welfare specialist on involuntary leave pursuant to Civil Service Law Section 72 because of alleged mental disability.
Although S.B. had a satisfactory work history with the Administration, OATH Administrative Law Judge Ingrid Addison found that the evidence, including testimony of S.B.'s colleagues that they felt concerned for their safety, examples of bizarre and rambling emails respondent had sent, and the expert reports of two psychiatrists demonstrated that S.B. was mentally unfit for duty.
Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2425.pdf
NYC Administration for Children’s Services v S.B., OATH Index #2425/10
The Administration for Children's Services sought to place a child welfare specialist on involuntary leave pursuant to Civil Service Law Section 72 because of alleged mental disability.
Although S.B. had a satisfactory work history with the Administration, OATH Administrative Law Judge Ingrid Addison found that the evidence, including testimony of S.B.'s colleagues that they felt concerned for their safety, examples of bizarre and rambling emails respondent had sent, and the expert reports of two psychiatrists demonstrated that S.B. was mentally unfit for duty.
Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2425.pdf
Agility tests for firefighters must be validated as job related
Agility tests for firefighters must be validated as job related
Pietras v Farmingdale Fire District, USDC EDNY, 94-CV-0673
U.S. District Court Judge Denis R. Hurley ruled that an agility test for a volunteer firefighter unlawfully discriminated against Victoria Pietras because of her gender.
Pietras, a probationary volunteer firefighter with the Farmingdale Volunteer Fire Department, was required to drag to drag a 280 pound fire hose 150 feet in four minutes. Her best time was four minutes, forty-seven seconds. Rejected for full firefighter status, she sued contending that this portion of the agility test had a disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.
Although Judge Hurley ruled that the Department “established that the contents of the test are job-related” he decided that “the same may not be said of the requirement that it be completed within four minutes.”
How was the four-minute hose drag requirement determined? The Department said that it gave the test to 44 members of the Department, including probationary and junior members. It found that the average time to complete the task was “about three and one half minutes.” It then added an additional half-minute for “leeway,” arriving at the four-minute requirement.
This process, said the Court, was insufficient to establish that “the four-minute time limit is anything other than arbitrary.”
Critical to Judge Hurley’s analysis was his finding that “the purpose of the test was to distinguish competent firefighter candidates from those without the necessary physical abilities to do the job.”
Judge Hurley concluded that to set a standard there had to be some type of job analysis but there was nothing in the record to indicate that such a study had been made, either before administering the test or “after the fact.” This, said the Court, indicated that the standard set by the Department had not been “validated.”
Judge Hurley directed the Department to reinstate Pietras, noting that it could administer another agility test to her as a pre-requisite to her becoming a full member but that any such test had to comply with the relevant federal and state civil rights laws.
.
Pietras v Farmingdale Fire District, USDC EDNY, 94-CV-0673
U.S. District Court Judge Denis R. Hurley ruled that an agility test for a volunteer firefighter unlawfully discriminated against Victoria Pietras because of her gender.
Pietras, a probationary volunteer firefighter with the Farmingdale Volunteer Fire Department, was required to drag to drag a 280 pound fire hose 150 feet in four minutes. Her best time was four minutes, forty-seven seconds. Rejected for full firefighter status, she sued contending that this portion of the agility test had a disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.
Although Judge Hurley ruled that the Department “established that the contents of the test are job-related” he decided that “the same may not be said of the requirement that it be completed within four minutes.”
How was the four-minute hose drag requirement determined? The Department said that it gave the test to 44 members of the Department, including probationary and junior members. It found that the average time to complete the task was “about three and one half minutes.” It then added an additional half-minute for “leeway,” arriving at the four-minute requirement.
This process, said the Court, was insufficient to establish that “the four-minute time limit is anything other than arbitrary.”
Critical to Judge Hurley’s analysis was his finding that “the purpose of the test was to distinguish competent firefighter candidates from those without the necessary physical abilities to do the job.”
Judge Hurley concluded that to set a standard there had to be some type of job analysis but there was nothing in the record to indicate that such a study had been made, either before administering the test or “after the fact.” This, said the Court, indicated that the standard set by the Department had not been “validated.”
Judge Hurley directed the Department to reinstate Pietras, noting that it could administer another agility test to her as a pre-requisite to her becoming a full member but that any such test had to comply with the relevant federal and state civil rights laws.
.
When appealing individual’s employment status all parties that may be affected must be named and served
When appealing individual’s employment status all parties that may be affected must be named and served
Five Residents v Liberty CSD, Decisions of the Commissioner of Education, Decision #13861
If a party wishes to have the Commissioner of Education review an issue, it is critical that all parties who might be affected by the Commissioner’s decision be named in the petition. This point was made clear in an appeal filed by five residents of the Liberty Central School District.
A five-year employment contract between Superintendent and the District was to terminate June 30. Prior to June 30, the parties signed a new contract providing for the Superintendents employment for an additional two years.
The resident-appellants challenged the extension of the contract, claiming it violated the “minimum/maximum” term provisions set out in Section 1711(3) of the Education Law.*
The Commissioner dismissed the petition without considering its merits. He commented that the residents had failed to name a necessary party -- the District’s Board of Education. The Commissioner said that “since the board’s agreement with the superintendent would be adversely affected by a decision in favor of the [residents], the board is a necessary party to this appeal.”**
* Section 1711(3) provides, in pertinent part: “a board of education may enter into a contract with such superintendent for a period of not less than three and not more than five years,”
** In addition, the Commissioner said that he would have had dismiss the appeal event if the board had been named in the petition as the issue had become moot as a result of the Superintendent’s having resigned and thus the contract that the residents sought to have annulled was no longer in effect.
.
Five Residents v Liberty CSD, Decisions of the Commissioner of Education, Decision #13861
If a party wishes to have the Commissioner of Education review an issue, it is critical that all parties who might be affected by the Commissioner’s decision be named in the petition. This point was made clear in an appeal filed by five residents of the Liberty Central School District.
A five-year employment contract between Superintendent and the District was to terminate June 30. Prior to June 30, the parties signed a new contract providing for the Superintendents employment for an additional two years.
The resident-appellants challenged the extension of the contract, claiming it violated the “minimum/maximum” term provisions set out in Section 1711(3) of the Education Law.*
The Commissioner dismissed the petition without considering its merits. He commented that the residents had failed to name a necessary party -- the District’s Board of Education. The Commissioner said that “since the board’s agreement with the superintendent would be adversely affected by a decision in favor of the [residents], the board is a necessary party to this appeal.”**
* Section 1711(3) provides, in pertinent part: “a board of education may enter into a contract with such superintendent for a period of not less than three and not more than five years,”
** In addition, the Commissioner said that he would have had dismiss the appeal event if the board had been named in the petition as the issue had become moot as a result of the Superintendent’s having resigned and thus the contract that the residents sought to have annulled was no longer in effect.
.
Aug 27, 2010
New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine
New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine
NYC Fire Department v Rivera, OATH Index #3416/09
OATH Administrative Law Judge Julio Rodriguez recommended termination of Carlos Rivera, a New York City Fire Department EMT.
Rivera tested positive for cocaine in a random workplace drug test -- registering more than 250 times the official cut-off.
The Department had previously sent him for voluntary rehabilitation three times and afterwards reinstated him to his position.
In his defense Rivera asserted that his drug addiction was a disability requiring accommodation.
ALJ Rodriguez disagreed, finding that Rivera did not establish that he was disabled within the relevant definition of disability set out in the federal Americans with Disabilities Act or the New York State Human Rights Law.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/09_Cases/09-3416.pdf
NYC Fire Department v Rivera, OATH Index #3416/09
OATH Administrative Law Judge Julio Rodriguez recommended termination of Carlos Rivera, a New York City Fire Department EMT.
Rivera tested positive for cocaine in a random workplace drug test -- registering more than 250 times the official cut-off.
The Department had previously sent him for voluntary rehabilitation three times and afterwards reinstated him to his position.
In his defense Rivera asserted that his drug addiction was a disability requiring accommodation.
ALJ Rodriguez disagreed, finding that Rivera did not establish that he was disabled within the relevant definition of disability set out in the federal Americans with Disabilities Act or the New York State Human Rights Law.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/09_Cases/09-3416.pdf
Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System
Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System
Soronen v Comptroller, 244 A.D.2d 842
William Soronen, Jr., was a temporary aide to a New York State Senator during the 1974 and 1975 legislative sessions. He worked on a part-time basis. In July 1975 Soronen accepted a position with a private law firm. In 1978 he was appointed as a confidential law clerk to a State Supreme Court justice and joined the New York State Employees’ Retirement System [ERS].
Soronen subsequently applied for retroactive membership in ERS based on his service with the State legislature in 1974 and 1975 pursuant to Section 803 of the Retirement and Social Security Law.
ERS rejected his application on the grounds that he had a “break in service.” Soronen appealed, contending that he had not reapplied for employment with the State legislature, although his employer would have approved such part-time employment, because he wanted to care for his son. He attributed his three-plus year break in public service to childcare, claiming that Section 803(b)(2) allowed certain breaks in service “attributed to the birth of a child... or care for such child.”
The Appellate Division affirmed ERS’ determination, noting that Soronen’s break in public service was due to the end of the 1975 legislative session and his termination from his temporary employment, not childcare. The Court also commented that Soronen had not demonstrated that “a public employment position was definitely available to him during both the 1976 and 1977 legislative sessions and that he turned [them] down because of child care requirements.”
Soronen v Comptroller, 244 A.D.2d 842
William Soronen, Jr., was a temporary aide to a New York State Senator during the 1974 and 1975 legislative sessions. He worked on a part-time basis. In July 1975 Soronen accepted a position with a private law firm. In 1978 he was appointed as a confidential law clerk to a State Supreme Court justice and joined the New York State Employees’ Retirement System [ERS].
Soronen subsequently applied for retroactive membership in ERS based on his service with the State legislature in 1974 and 1975 pursuant to Section 803 of the Retirement and Social Security Law.
ERS rejected his application on the grounds that he had a “break in service.” Soronen appealed, contending that he had not reapplied for employment with the State legislature, although his employer would have approved such part-time employment, because he wanted to care for his son. He attributed his three-plus year break in public service to childcare, claiming that Section 803(b)(2) allowed certain breaks in service “attributed to the birth of a child... or care for such child.”
The Appellate Division affirmed ERS’ determination, noting that Soronen’s break in public service was due to the end of the 1975 legislative session and his termination from his temporary employment, not childcare. The Court also commented that Soronen had not demonstrated that “a public employment position was definitely available to him during both the 1976 and 1977 legislative sessions and that he turned [them] down because of child care requirements.”
Disciplinary action could affect eligibility for Unemployment Insurance
Disciplinary action could affect eligibility for Unemployment Insurance
Cuevas v Sweeney, 246 A.D.2d 718
Sometimes an employee who has been dismissed from his or her position as a result of disciplinary action will file for unemployment insurance benefits. Typically the Unemployment Insurance Board will hold that the individual is disqualified from receiving such benefits because his or her employment was terminated for misconduct. Can the board rely on the disciplinary determination as the basis for denying the claim? Yes, it may, as the Cuevas decision by the Appellate Division illustrates.
Naptale Cuevas, a Mental Hygiene Therapy Aide employed by a State agency, was found guilty of abusing and threatening his supervisor with physical harm. An arbitrator issued the decision after a disciplinary grievance hearing conducted in accordance with the provisions of a Taylor Law agreement.
The arbitrator ruled that dismissal was appropriate based on Cuevas’ being found guilty of the charges and the fact that Cuevas “previously had carried out a physical assault upon a security guard.” The Court said that the Board properly gave collateral estoppel* effect to the arbitrator’s determination when it ruled that Cuevas had lost his job under disqualifying misconduct.
* The doctrine of collateral estoppel is used in situations where the conclusiveness of a judgment in a prior action involving the same parties is applied in a subsequent action involving a different claim, here a claim for unemployment insurance benefits.
Cuevas v Sweeney, 246 A.D.2d 718
Sometimes an employee who has been dismissed from his or her position as a result of disciplinary action will file for unemployment insurance benefits. Typically the Unemployment Insurance Board will hold that the individual is disqualified from receiving such benefits because his or her employment was terminated for misconduct. Can the board rely on the disciplinary determination as the basis for denying the claim? Yes, it may, as the Cuevas decision by the Appellate Division illustrates.
Naptale Cuevas, a Mental Hygiene Therapy Aide employed by a State agency, was found guilty of abusing and threatening his supervisor with physical harm. An arbitrator issued the decision after a disciplinary grievance hearing conducted in accordance with the provisions of a Taylor Law agreement.
The arbitrator ruled that dismissal was appropriate based on Cuevas’ being found guilty of the charges and the fact that Cuevas “previously had carried out a physical assault upon a security guard.” The Court said that the Board properly gave collateral estoppel* effect to the arbitrator’s determination when it ruled that Cuevas had lost his job under disqualifying misconduct.
* The doctrine of collateral estoppel is used in situations where the conclusiveness of a judgment in a prior action involving the same parties is applied in a subsequent action involving a different claim, here a claim for unemployment insurance benefits.
Aug 26, 2010
Disqualifying an applicant for employment based on psychological evaluations
Disqualifying an applicant for employment based on psychological evaluations
Coffey v Kampe, NYS Supreme Court, [Not selected for publication in the Official Reports]
The Coffey case concerns the disqualification of an individual who wanted to become a police officer because he did not pass the psychological evaluation portion of the Police Officer examination. Section 50 of the Civil Service Law allows a municipal civil service commission to disqualify an applicant if, after passing the required examination, he or she is found not to meet any of the announced requirements.
Coffey took the written test for Nassau County police officer. He scored highly on the written test and was ranked 70th among 70,000 candidates. He also passed a background investigation. But he was disqualified based on the results the third part of Nassau County’s screening process: a three-tiered psychological test battery.
Coffey’s objected, but his appeal was dismissed by the Commission. He sued, contending that his disqualification was arbitrary or capricious. The Commission replied that it had acted in accordance with all relevant rules, policies, and standards, which it had adopted in order to properly administer the provisions of Section 50 of the Civil Service Law.
According to the decision, the Commission found that Coffey failed the psychological screening process because he did not “score within an acceptable range on the objective psychological screening test, and failed in the personal psychological test and interviews.”
The Commission’s psychological screening process had been reviewed and approved by the Appellate Division [Keryc v Nassau County Civil Service Commission, et al, 143 AD2d 669].
New York State Supreme Court Justice O’Connell said, “Courts have also upheld determinations of disqualification, where, as here, the Commissioner of Civil Service found that an applicant was unqualified to serve in a law enforcement position for poor results on standardized Minnesota Multiphasic Personality Inventory (MMPI) exam, among other reasons,” citing the Appellate Division’s decision in Conlon v Commissioner of County of Suffolk, 640 NYS2d 145.
Under the Commission’s rules, the applicant has the burden of establishing his or her qualifications for appointment as a police officer. In dismissing Coffey’s petition, Justice O’Connell said that “where, as here, [the individual] was not actually an employee, but an applicant for appointment, he [or she] must demonstrate that the Commission was arbitrary and capricious, or acted in manner without a rational basis in not making the appointment. The Court ruled that Coffey had not proved this to be the case.
In addition, Justice O’Connell found that Coffey had failed to disclose certain information to the county including five military disciplinary proceedings, two of which resulted in disciplinary actions.
The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/
Coffey v Kampe, NYS Supreme Court, [Not selected for publication in the Official Reports]
The Coffey case concerns the disqualification of an individual who wanted to become a police officer because he did not pass the psychological evaluation portion of the Police Officer examination. Section 50 of the Civil Service Law allows a municipal civil service commission to disqualify an applicant if, after passing the required examination, he or she is found not to meet any of the announced requirements.
Coffey took the written test for Nassau County police officer. He scored highly on the written test and was ranked 70th among 70,000 candidates. He also passed a background investigation. But he was disqualified based on the results the third part of Nassau County’s screening process: a three-tiered psychological test battery.
Coffey’s objected, but his appeal was dismissed by the Commission. He sued, contending that his disqualification was arbitrary or capricious. The Commission replied that it had acted in accordance with all relevant rules, policies, and standards, which it had adopted in order to properly administer the provisions of Section 50 of the Civil Service Law.
According to the decision, the Commission found that Coffey failed the psychological screening process because he did not “score within an acceptable range on the objective psychological screening test, and failed in the personal psychological test and interviews.”
The Commission’s psychological screening process had been reviewed and approved by the Appellate Division [Keryc v Nassau County Civil Service Commission, et al, 143 AD2d 669].
New York State Supreme Court Justice O’Connell said, “Courts have also upheld determinations of disqualification, where, as here, the Commissioner of Civil Service found that an applicant was unqualified to serve in a law enforcement position for poor results on standardized Minnesota Multiphasic Personality Inventory (MMPI) exam, among other reasons,” citing the Appellate Division’s decision in Conlon v Commissioner of County of Suffolk, 640 NYS2d 145.
Under the Commission’s rules, the applicant has the burden of establishing his or her qualifications for appointment as a police officer. In dismissing Coffey’s petition, Justice O’Connell said that “where, as here, [the individual] was not actually an employee, but an applicant for appointment, he [or she] must demonstrate that the Commission was arbitrary and capricious, or acted in manner without a rational basis in not making the appointment. The Court ruled that Coffey had not proved this to be the case.
In addition, Justice O’Connell found that Coffey had failed to disclose certain information to the county including five military disciplinary proceedings, two of which resulted in disciplinary actions.
The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/
Discontinuing certain disability benefits
Discontinuing certain disability benefits
Town of Cortland v PERB, NYS Supreme Court, [Not selected for publications in the Official Reports]
The Town of Cortland unilaterally adopted policies and procedures that terminated certain benefits that were being paid to police officers disabled in the line of duty if they had received such benefits for more than one year. These benefits were not expressly provided for by Section 207-c of the General Municipal Law. In support of its action, the town cited Section 71 of the Civil Service Law [Worker’s Compensation Leave], which authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.
The town also adopted procedures requiring (1) “timely notice” of any job-related injuries, (2) a time limit for appealing proposed light duty assignments and (3) a requirement that police officers claiming Section 207-c benefits charge any lost time to accumulated leave credits pending a determination of their eligibility for such benefits.
A state Supreme Court justice upheld a PERB ruling that the town’s unilateral adoption of such policies and procedures constituted a violation of Section 209-a(1)(d) of the Taylor Law. The court affirmed PERB’s order directing that these policies and procedures be rescinded. If such changes are to be implemented, they must be collectively negotiated.
The court stated that the submission of such policies and procedures to the bargaining process would not have any adverse effect upon Cortland’s ability to exercise any of the rights, which it is accorded under General Municipal Law Section 207-c.
Because the issue was settled under the Taylor Law, the court did not address the town’s innovative argument that Section 71 of the Civil Service Law can serve as statutory authority for discontinuing certain benefits for officers who had been absent because of a work connected injury for one year or longer.
Civil Service Law Section 71 [Workers’ Compensation Leave] applies to employees who have been “separated from service” because of a work-related injury or disease as defined in the Workers’ Compensation Law. If the injury did not “permanently incapacitate” the individual, Section 71 mandates that the public employer give the disabled employee a leave of absence for at least one year. Section 71 also authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.
The key issue here is what legislature meant by the term “separated from service.” While “separated” is not defined in the statute, reading Section 71 in its entirety suggests that it refers to a situation where the individual is physically unable to report to work rather having been “removed” from his or her position.
Application to Sections 207-a and 207-c: An employee who is receiving benefits under GML 207-a or 207-c may be physically unable to report to work. And some individuals who receive benefits under 207-a or 207-c also receive worker’s compensation benefits. Does this mean at least some employees on 207 leaves are “separated from service” within the meaning of Section 71? And do the provisions of Section 71 therefore apply to theses public employees receiving benefits under 207-a or 207-c?
Courts have not yet ruled on whether Section 71 is applicable in Section 207-a or 207-c situations. However, if the issue is litigated in the future, it is quite possible that courts will conclude that Section 71 simply does not apply in Section 207-a and Section 207-c situations.
The reason is that neither Section 207-a nor Section 207-c authorize the separation of an employee injured in the line of duty. Sections 207-a and 207-c appear to view disabled individuals as remaining employees who are subject to recall upon the termination of the disability or, under appropriate circumstances, assigned to perform light duty. In fact, Sections 207-a and 207-c provide for the continuation of compensation until his or her retirement, attaining the mandatory age of retirement or such other time as the individual is no longer qualified for such benefits. Arguably, the event of separation or termination in the sense referred to in Section 71 does not appear to occur in 207-a or 207-c situations.
On the other hand, the courts might well view the provisions of Section 71 to be triggered in a situation in which Section 207-a or Section 207-c salary payments are discontinued by the employer and the individual fails to return to duty, claiming that his or her disability prevents his or her doing so.
Under these facts, the individual, in effect, concedes that his or her absence is due to a workers’ compensation injury He or she has been separated from service -- i.e., cannot report for duty -- and thus the employer can deem that he or she is entitled to Section 71 leave by operation of law. Such a situation is clearly distinguishable from the employee’s status under Section 207-a or Section 207-c where he or she is physically continued on the payroll and thus has not been “separated.”
Another distinguishing element: Section 71 applies only in situations where the individual is determined not to be permanently incapacitated as a result of an occupational injury or disease. In contrast, Section 207-a and 207-c benefits are provided regardless of whether the individual’s work related injury is determined to have resulted in a temporary disability or a permanent incapacity.
Other cases: Other cases dealing with discontinuing certain benefits to individuals being paid pursuant to Section 207-a or Section 207-c include Chalachan v City of Binghamton, 55 NY2d 989, [contractual right to payment for accrued vacation credits while individual was receiving Section 207-a benefits] and PBA, Village of Walden, 30 PERB 3053, [discontinuation of a past practice that provided “contractual benefits” for vacations and other leaves to persons receiving Section 207-c benefits].
In Chalachan the Court of Appeals said that disabled firefighters were entitled to compensation and medical payments as a matter of law but “any additional benefits must be expressly provided for in the agreement....”
In Walden PERB observed that the Taylor Law agreement was silent as to such payments and found that they had been extended to disabled officers “only pursuant to a practice developed over time.” PERB ruled that Walden had not violated Section 209-a.1(d) when it unilaterally discontinuing its past practice.
PERB noted the PBA’s complaint was a “noncontract grievance,” and under the terms of the contract the “final disposition of past practice grievances” was left to the Village Manager. Accordingly, PERB concluded, “... the language in the ... [negotiated] grievance procedure vests the village with the right to continue or discontinue past practices in its discretion.”
Town of Cortland v PERB, NYS Supreme Court, [Not selected for publications in the Official Reports]
The Town of Cortland unilaterally adopted policies and procedures that terminated certain benefits that were being paid to police officers disabled in the line of duty if they had received such benefits for more than one year. These benefits were not expressly provided for by Section 207-c of the General Municipal Law. In support of its action, the town cited Section 71 of the Civil Service Law [Worker’s Compensation Leave], which authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.
The town also adopted procedures requiring (1) “timely notice” of any job-related injuries, (2) a time limit for appealing proposed light duty assignments and (3) a requirement that police officers claiming Section 207-c benefits charge any lost time to accumulated leave credits pending a determination of their eligibility for such benefits.
A state Supreme Court justice upheld a PERB ruling that the town’s unilateral adoption of such policies and procedures constituted a violation of Section 209-a(1)(d) of the Taylor Law. The court affirmed PERB’s order directing that these policies and procedures be rescinded. If such changes are to be implemented, they must be collectively negotiated.
The court stated that the submission of such policies and procedures to the bargaining process would not have any adverse effect upon Cortland’s ability to exercise any of the rights, which it is accorded under General Municipal Law Section 207-c.
Because the issue was settled under the Taylor Law, the court did not address the town’s innovative argument that Section 71 of the Civil Service Law can serve as statutory authority for discontinuing certain benefits for officers who had been absent because of a work connected injury for one year or longer.
Civil Service Law Section 71 [Workers’ Compensation Leave] applies to employees who have been “separated from service” because of a work-related injury or disease as defined in the Workers’ Compensation Law. If the injury did not “permanently incapacitate” the individual, Section 71 mandates that the public employer give the disabled employee a leave of absence for at least one year. Section 71 also authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.
The key issue here is what legislature meant by the term “separated from service.” While “separated” is not defined in the statute, reading Section 71 in its entirety suggests that it refers to a situation where the individual is physically unable to report to work rather having been “removed” from his or her position.
Application to Sections 207-a and 207-c: An employee who is receiving benefits under GML 207-a or 207-c may be physically unable to report to work. And some individuals who receive benefits under 207-a or 207-c also receive worker’s compensation benefits. Does this mean at least some employees on 207 leaves are “separated from service” within the meaning of Section 71? And do the provisions of Section 71 therefore apply to theses public employees receiving benefits under 207-a or 207-c?
Courts have not yet ruled on whether Section 71 is applicable in Section 207-a or 207-c situations. However, if the issue is litigated in the future, it is quite possible that courts will conclude that Section 71 simply does not apply in Section 207-a and Section 207-c situations.
The reason is that neither Section 207-a nor Section 207-c authorize the separation of an employee injured in the line of duty. Sections 207-a and 207-c appear to view disabled individuals as remaining employees who are subject to recall upon the termination of the disability or, under appropriate circumstances, assigned to perform light duty. In fact, Sections 207-a and 207-c provide for the continuation of compensation until his or her retirement, attaining the mandatory age of retirement or such other time as the individual is no longer qualified for such benefits. Arguably, the event of separation or termination in the sense referred to in Section 71 does not appear to occur in 207-a or 207-c situations.
On the other hand, the courts might well view the provisions of Section 71 to be triggered in a situation in which Section 207-a or Section 207-c salary payments are discontinued by the employer and the individual fails to return to duty, claiming that his or her disability prevents his or her doing so.
Under these facts, the individual, in effect, concedes that his or her absence is due to a workers’ compensation injury He or she has been separated from service -- i.e., cannot report for duty -- and thus the employer can deem that he or she is entitled to Section 71 leave by operation of law. Such a situation is clearly distinguishable from the employee’s status under Section 207-a or Section 207-c where he or she is physically continued on the payroll and thus has not been “separated.”
Another distinguishing element: Section 71 applies only in situations where the individual is determined not to be permanently incapacitated as a result of an occupational injury or disease. In contrast, Section 207-a and 207-c benefits are provided regardless of whether the individual’s work related injury is determined to have resulted in a temporary disability or a permanent incapacity.
Other cases: Other cases dealing with discontinuing certain benefits to individuals being paid pursuant to Section 207-a or Section 207-c include Chalachan v City of Binghamton, 55 NY2d 989, [contractual right to payment for accrued vacation credits while individual was receiving Section 207-a benefits] and PBA, Village of Walden, 30 PERB 3053, [discontinuation of a past practice that provided “contractual benefits” for vacations and other leaves to persons receiving Section 207-c benefits].
In Chalachan the Court of Appeals said that disabled firefighters were entitled to compensation and medical payments as a matter of law but “any additional benefits must be expressly provided for in the agreement....”
In Walden PERB observed that the Taylor Law agreement was silent as to such payments and found that they had been extended to disabled officers “only pursuant to a practice developed over time.” PERB ruled that Walden had not violated Section 209-a.1(d) when it unilaterally discontinuing its past practice.
PERB noted the PBA’s complaint was a “noncontract grievance,” and under the terms of the contract the “final disposition of past practice grievances” was left to the Village Manager. Accordingly, PERB concluded, “... the language in the ... [negotiated] grievance procedure vests the village with the right to continue or discontinue past practices in its discretion.”
Aug 25, 2010
ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record
ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record
NYC Fire Department v Gill, OATH Index #1871/10
Although the New York City Fire Department sought the termination of Harold Gill’s employment as a firefighter after he tested positive for cocaine in a random drug test, OATH Administrative Law Judge Faye Lewis recommended that the termination be stayed to permit Gill to retire in light of his unblemished 29-year record of service with the Department.
ALJ Fay also recommended that the Gill pay a substantial fine.
The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1871.pdf
NYC Fire Department v Gill, OATH Index #1871/10
Although the New York City Fire Department sought the termination of Harold Gill’s employment as a firefighter after he tested positive for cocaine in a random drug test, OATH Administrative Law Judge Faye Lewis recommended that the termination be stayed to permit Gill to retire in light of his unblemished 29-year record of service with the Department.
ALJ Fay also recommended that the Gill pay a substantial fine.
The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1871.pdf
Subscribe to:
Posts (Atom)
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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law.
Email: publications@nycap.rr.com