Employee seeks a hearing after being denied a promotion
Wagner v NYC Transit Authority, 266 AD2d 304
The New York City Transit Authority [NYCTA] decided that Robert Wagner should not be promoted to the position of dispatcher because of his poor attendance record with the Authority. Wagner appealed and persuaded a State Supreme Court justice to direct the Authority to give him a hearing concerning the question of his promotion and make a new decision after the hearing was completed.
The Appellate Division reversed, noting that in contrast to NYCTA’s documentary evidence demonstrating that Wagner was not promoted because of his chronic absenteeism, Wagner did not present any evidence to “rebut or controvert” NYCTA’s proof.
The court said that Section 61 of the Civil Service Law gives the appointing authority “discretionary appointive power,” and a candidate for appointment or promotion does not acquire any protected property interest merely by reason of his placement on an eligible list. Accordingly, the decision of an appointing authority not to promote a particular individual “will not be disturbed as long as the determination is supported by a rational basis.” Finding that Wagner “merely alleged in conclusory fashion that the [authority’s] determination was arbitrary and improper,” the Appellate Division ruled that there was no basis for a “promotion hearing” and the Wagner’s petition should have been dismissed by the lower court.
However, Wagner also claimed that he was entitled to a hearing because NYCTA did not give him any written notice of his non-selection for the promotion required by Section 61.3 of the Civil Service Law.
Section 61.3 provides that when a candidate is selected, each candidate considered, but not selected, is to be advised of his or her “non-selection.”*
The Appellate Division said that the purpose of Section 61.3 is to provide individuals on an eligible list with information regarding their status in the civil service system so that they may make intelligent career choices. The opinion notes that neither Section 61.3 itself nor the failure of an appointing authority to comply with its provisions give an unsuccessful candidate a basis for challenging the selection decision made by the appointing authority. In contrast, a disappointed candidate may challenge his or her non-selection on the grounds that such non-selection is based on unlawful considerations by the appointing authority.
* Although Section 61.3, in pertinent part, states: “Persons on an eligible list … considered and not selected for appointment or promotion pursuant to this section shall, whenever another candidate is appointed or promoted, be given or sent written notice by the appointing authority of such non-selection …”, it does not require the appointing authority to provide the candidate with the reason or reasons why he or she was not selected for the appointment.
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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 27, 2010
Arbitrating a contract grievance
Arbitrating a contract grievance
Greenburgh 11 UFSD v Local 1532, 266 AD2d 213
The collective bargaining agreement between Local 1532 and Greenburgh 11 provided that after a teacher was late nine times for less than 20 minutes per lateness, the district would have a meeting with the employee and a union representative. A second meeting was to be held after the tenth such lateness.
Without holding any “lateness meetings” with the teachers or the Local, the district preferred Section 3020-a disciplinary charges against 15 teachers, alleging they were late on several occasions. The Local filed a contract grievance and demanded arbitration.
When Supreme Court refused to stay the contract grievance arbitration, the district appealed. The Appellate Division affirmed the lower court’s ruling, stating that “[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator.”
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Greenburgh 11 UFSD v Local 1532, 266 AD2d 213
The collective bargaining agreement between Local 1532 and Greenburgh 11 provided that after a teacher was late nine times for less than 20 minutes per lateness, the district would have a meeting with the employee and a union representative. A second meeting was to be held after the tenth such lateness.
Without holding any “lateness meetings” with the teachers or the Local, the district preferred Section 3020-a disciplinary charges against 15 teachers, alleging they were late on several occasions. The Local filed a contract grievance and demanded arbitration.
When Supreme Court refused to stay the contract grievance arbitration, the district appealed. The Appellate Division affirmed the lower court’s ruling, stating that “[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator.”
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Information contained in personnel record alleged to be defamatory
Information contained in personnel record alleged to be defamatory
Monroe v Schenectady County, 266 AD2d 792
Sometimes an employee will contend that information contained in his or her personnel files is derogatory. May the individual sue the agency if the information is made available to other governmental officials? Part of the Monroe case concerned the dissemination of information contained in a personnel file Monroe alleged was derogatory.
David Monroe, a Schenectady County corrections lieutenant, sued the sheriff and the county following his termination from his position of lieutenant. After a Federal court dismissed his complaint alleging a deprivation of due process under the 14th Amendment of the US Constitution, Monroe filed a lawsuit in State court.
According to the decision, Monroe was served with a written notice of discipline on July 15, 1994. He was charged with sexually harassing a Schenectady police officer and endangering “the security of the county jail by playing ping-pong and smoking.” The proposed penalty: dismissal.
Monroe, Monroe’s union representatives and department personnel met to discuss settlement of the disciplinary action. The proposed terms of the settlement: Monroe would accept a demotion to correction officer and the department would reinstatement him as a correction officer without retroactive pay or the restoration of any lost benefits. Monroe rejected the offer.
As described by the court, after he rejected the settlement, Monroe was told that if he should press for and win the disciplinary arbitration, charges alleging consorting with a prostitute, having sex with her and his being present when she purchased cocaine would be filed against him and this information would be revealed to the press. At this point Monroe decided to withdraw his disciplinary grievance and accepted the settlement offer, which he signed on January 6, 1995.
One of the issues in this rather complex litigation involved Monroe’s “ninth cause of action” which set out allegations of defamation. Monroe contended that the sheriff had defamed him when he stated that he intended “to pursue further disciplinary action against [Monroe] based on [Monroe’s] alleged connection with a prostitute” if Monroe refused to the settle the then pending disciplinary action.
According to Monroe, “the defamatory words were published by the sheriff to County officials and disseminated throughout the Sheriff’s Department by the placing of a note about the event in [Monroe’s] file.”
The Appellate Division dismissed this branch of Monroe’s action, ruling that “[i]t is obvious that the Sheriff was acting wholly within the scope of his duties (as alleged in [Monroe’s] complaint) in publishing the charges in a disciplinary action and thus was protected by an absolute privilege providing him immunity from a suit for defamation.
The court cited Mahoney v Temporary Commission of Investigation of New York, 165 AD2d 233, in support of its holding.
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Monroe v Schenectady County, 266 AD2d 792
Sometimes an employee will contend that information contained in his or her personnel files is derogatory. May the individual sue the agency if the information is made available to other governmental officials? Part of the Monroe case concerned the dissemination of information contained in a personnel file Monroe alleged was derogatory.
David Monroe, a Schenectady County corrections lieutenant, sued the sheriff and the county following his termination from his position of lieutenant. After a Federal court dismissed his complaint alleging a deprivation of due process under the 14th Amendment of the US Constitution, Monroe filed a lawsuit in State court.
According to the decision, Monroe was served with a written notice of discipline on July 15, 1994. He was charged with sexually harassing a Schenectady police officer and endangering “the security of the county jail by playing ping-pong and smoking.” The proposed penalty: dismissal.
Monroe, Monroe’s union representatives and department personnel met to discuss settlement of the disciplinary action. The proposed terms of the settlement: Monroe would accept a demotion to correction officer and the department would reinstatement him as a correction officer without retroactive pay or the restoration of any lost benefits. Monroe rejected the offer.
As described by the court, after he rejected the settlement, Monroe was told that if he should press for and win the disciplinary arbitration, charges alleging consorting with a prostitute, having sex with her and his being present when she purchased cocaine would be filed against him and this information would be revealed to the press. At this point Monroe decided to withdraw his disciplinary grievance and accepted the settlement offer, which he signed on January 6, 1995.
One of the issues in this rather complex litigation involved Monroe’s “ninth cause of action” which set out allegations of defamation. Monroe contended that the sheriff had defamed him when he stated that he intended “to pursue further disciplinary action against [Monroe] based on [Monroe’s] alleged connection with a prostitute” if Monroe refused to the settle the then pending disciplinary action.
According to Monroe, “the defamatory words were published by the sheriff to County officials and disseminated throughout the Sheriff’s Department by the placing of a note about the event in [Monroe’s] file.”
The Appellate Division dismissed this branch of Monroe’s action, ruling that “[i]t is obvious that the Sheriff was acting wholly within the scope of his duties (as alleged in [Monroe’s] complaint) in publishing the charges in a disciplinary action and thus was protected by an absolute privilege providing him immunity from a suit for defamation.
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Sep 24, 2010
Layoffs and Downsizing the State's workforce
Layoffs and Downsizing the State's workforce
Source: News media reports
On Thursday, September 23, 2010, Governor Paterson announced that in order to help solve the State's current financial crisis it will be necessary to layoff some 2,000 State employees.
Indicating that the proposed downsizing of the State's work force will begin in mid-November, the Governor said that a memorandum is being sent to the heads of State Departments and Agencies, signed jointly by Robert Megna, the State’s Budget Director and Mark Leinung, the Acting Director of State Operations, notifying them of the necessary reductions.*
The memorandum indicated that specific targets for staff reductions on an agency-by-agency basis would be distributed.
The actual number of incumbents to be laid off in a particular department or agency, however, could be reduced by its not filling vacancies resulting from retirements, resignations and other forms of “attrition” in its work force.
* The September 23, 2010 memorandum signed by Megna and Leinung, in pertinent part, states:
The ongoing economic and fiscal problems facing the State will require further cost saving actions. Despite our best efforts the State is falling short of its financial plan targets. The alternatives available to ensure we remain on a stable fiscal course are limited. Accordingly, we will need to take additional actions by the end of 2010 that will result in a reduction in the workforce by 2000 employees. You will be given the discretion to use layoffs as a part of this reduction in workforce....
Your budget examination unit will contact you with revised targets, and with further details on the process for submitting your proposed reductions.
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For information about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Source: News media reports
On Thursday, September 23, 2010, Governor Paterson announced that in order to help solve the State's current financial crisis it will be necessary to layoff some 2,000 State employees.
Indicating that the proposed downsizing of the State's work force will begin in mid-November, the Governor said that a memorandum is being sent to the heads of State Departments and Agencies, signed jointly by Robert Megna, the State’s Budget Director and Mark Leinung, the Acting Director of State Operations, notifying them of the necessary reductions.*
The memorandum indicated that specific targets for staff reductions on an agency-by-agency basis would be distributed.
The actual number of incumbents to be laid off in a particular department or agency, however, could be reduced by its not filling vacancies resulting from retirements, resignations and other forms of “attrition” in its work force.
* The September 23, 2010 memorandum signed by Megna and Leinung, in pertinent part, states:
The ongoing economic and fiscal problems facing the State will require further cost saving actions. Despite our best efforts the State is falling short of its financial plan targets. The alternatives available to ensure we remain on a stable fiscal course are limited. Accordingly, we will need to take additional actions by the end of 2010 that will result in a reduction in the workforce by 2000 employees. You will be given the discretion to use layoffs as a part of this reduction in workforce....
Your budget examination unit will contact you with revised targets, and with further details on the process for submitting your proposed reductions.
============================================
For information about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Employee terminated after testing positive for drug
Employee terminated after testing positive for drug
McGovern v Safir, App. Div. First Dept., 266 AD2d 94
New York City police officer John McGovern appealed his termination from the force after testing positive for marijuana.
McGovern had been selected for a random drug test. He did not dispute the fact that he had tested positive for marijuana but explained that his “ingestion of marijuana was unknowing and involuntary.” The deputy police commissioner rejected this excuse as incredible, resulting in McGovern’s dismissal.
The Appellate Division said that the positive drug test constitute substantial evidence supporting the determination that McGovern possessed and ingested marijuana. Further, the court said that under the circumstances, “[t]he penalty of dismissal does not shock our sense of fairness.”
In another disciplinary action involving a New York City police officer, the Appellate Division upheld the officer’s termination after he was found guilty of orally and physically assaulting, without provocation, a detective he thought was involved in undercover Internal Affairs investigations [McGaughey v Safir, App. Div., First Dept., 266 AD2d 100, motion for leave to appeal denied, 94 NY2d 760.
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McGovern v Safir, App. Div. First Dept., 266 AD2d 94
New York City police officer John McGovern appealed his termination from the force after testing positive for marijuana.
McGovern had been selected for a random drug test. He did not dispute the fact that he had tested positive for marijuana but explained that his “ingestion of marijuana was unknowing and involuntary.” The deputy police commissioner rejected this excuse as incredible, resulting in McGovern’s dismissal.
The Appellate Division said that the positive drug test constitute substantial evidence supporting the determination that McGovern possessed and ingested marijuana. Further, the court said that under the circumstances, “[t]he penalty of dismissal does not shock our sense of fairness.”
In another disciplinary action involving a New York City police officer, the Appellate Division upheld the officer’s termination after he was found guilty of orally and physically assaulting, without provocation, a detective he thought was involved in undercover Internal Affairs investigations [McGaughey v Safir, App. Div., First Dept., 266 AD2d 100, motion for leave to appeal denied, 94 NY2d 760.
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The employee organization's duty of fair representation
The employee organization's duty of fair representation
Walsh v Rochester Teachers’ Asso. and the Rochester City School District, App. Div., 4th Dept., 266 AD2d 817
The lesson of the Walsh case is that if a unit member sues a union for its alleged violation of its duty of fair representation, s/he must name the specific individuals involved in, or whose actions constituted, the violation.
Timothy J. Walsh, a tenured social studies teacher said that he was induced to resign from his position effective June 26, 1997 because the Rochester City School District’s personnel director, Rebbeca Torres-Lynch told him that he would be transferred to an elementary school teaching position. Walsh also held tenure for the elementary teacher position.
The district, however, treated Walsh’s letter of resignation as a resignation from District employment and he was not given an elementary school teaching position in the following school year.
Walsh sued the district, the personnel director for “intentional misrepresentation” and the Rochester Teachers’ Association for violating its duty of “fair representation.” Considering Walsh’s allegations concerning the association, the Appellate Division said that Supreme Court was incorrect when it denied the association’s motion to dismiss Walsh’s complaint against it.
Walsh charged that while the association had provided him with “some assistance” in his efforts to “rescind” his resignation, it had violated its duty to represent him under the collective bargaining agreement. Walsh also alleged that all the defendants’ actions were “intentional and caused [him] to suffer emotional distress.”
However, he named only the association’s president, Adam Urbanski, as a defendant in his “official capacity” as president. In contrast, Walsh named the district’s personnel director as a defendant in both her official capacity and “individually”.
The Appellate Division said that Walsh’s “failure to allege that individual members of the [association] authorized or ratified the complained of conduct renders the amended complaint fatally defective as against the [association].”
In an earlier case involving the Rochester Teachers’ Association, Grahame v Rochester Teachers’ Associations, 262 AD2d 963, [motion for leave to appeal denied, 94 NY2d 796], the Appellate Division, Fourth Department, rejected the association’s motion to dismiss the complaint because Grahame did not allege that the individual members of association ratified the acts of their representative. The Grahame case, however, alleged the association was negligent in providing retirement information to a member, not that it breached its duty of fair representation to that member.
The Appellate Division also said that Supreme Court should have dismissed his petition as untimely. The court observed that “although Walsh may have had a reasonable belief that the association would represent him for some period of time after his last interaction with an association agent in late July 1997,” there was nothing in his complaint to support this belief through January 12, 1998, the last day on which he could file a timely cause of action for breach of the association’s duty of fair representation.
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Walsh v Rochester Teachers’ Asso. and the Rochester City School District, App. Div., 4th Dept., 266 AD2d 817
The lesson of the Walsh case is that if a unit member sues a union for its alleged violation of its duty of fair representation, s/he must name the specific individuals involved in, or whose actions constituted, the violation.
Timothy J. Walsh, a tenured social studies teacher said that he was induced to resign from his position effective June 26, 1997 because the Rochester City School District’s personnel director, Rebbeca Torres-Lynch told him that he would be transferred to an elementary school teaching position. Walsh also held tenure for the elementary teacher position.
The district, however, treated Walsh’s letter of resignation as a resignation from District employment and he was not given an elementary school teaching position in the following school year.
Walsh sued the district, the personnel director for “intentional misrepresentation” and the Rochester Teachers’ Association for violating its duty of “fair representation.” Considering Walsh’s allegations concerning the association, the Appellate Division said that Supreme Court was incorrect when it denied the association’s motion to dismiss Walsh’s complaint against it.
Walsh charged that while the association had provided him with “some assistance” in his efforts to “rescind” his resignation, it had violated its duty to represent him under the collective bargaining agreement. Walsh also alleged that all the defendants’ actions were “intentional and caused [him] to suffer emotional distress.”
However, he named only the association’s president, Adam Urbanski, as a defendant in his “official capacity” as president. In contrast, Walsh named the district’s personnel director as a defendant in both her official capacity and “individually”.
The Appellate Division said that Walsh’s “failure to allege that individual members of the [association] authorized or ratified the complained of conduct renders the amended complaint fatally defective as against the [association].”
In an earlier case involving the Rochester Teachers’ Association, Grahame v Rochester Teachers’ Associations, 262 AD2d 963, [motion for leave to appeal denied, 94 NY2d 796], the Appellate Division, Fourth Department, rejected the association’s motion to dismiss the complaint because Grahame did not allege that the individual members of association ratified the acts of their representative. The Grahame case, however, alleged the association was negligent in providing retirement information to a member, not that it breached its duty of fair representation to that member.
The Appellate Division also said that Supreme Court should have dismissed his petition as untimely. The court observed that “although Walsh may have had a reasonable belief that the association would represent him for some period of time after his last interaction with an association agent in late July 1997,” there was nothing in his complaint to support this belief through January 12, 1998, the last day on which he could file a timely cause of action for breach of the association’s duty of fair representation.
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Cheating on examination for disqualifying misconduct for the purposes of claiming unemployment insurance benefits
Cheating on examination for disqualifying misconduct for the purposes of claiming unemployment insurance benefits
Kinch v Sweeney, Appellate Division, 244 AD2d 748
The Kinch case involved the dismissal of an individual found to have cheated on an examination.
Alden R. Kinch, a flight attendant, was discharged on the grounds that he had attempted to cheat on his annual Federal Aviation Authority examination.
The State's Unemployment Insurance Appeal Board ruled that Kinch had been discharged for a disqualifying reason and rejected his application for unemployment insurance benefits. The Appellate Division sustained the board's determination.
The court said that the Board's ruling, holding that Kinch's "apparent dishonesty in cheating ... was sufficient to constitute disqualifying misconduct" and was also potentially detrimental to his employer's interests in that it nullified the examination's accuracy in assessing whether he possessed the knowledge necessary to perform his job.
Probably the courts would adopt the same rationale in cases involving cheating on tests for unlawful drugs.
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Kinch v Sweeney, Appellate Division, 244 AD2d 748
The Kinch case involved the dismissal of an individual found to have cheated on an examination.
Alden R. Kinch, a flight attendant, was discharged on the grounds that he had attempted to cheat on his annual Federal Aviation Authority examination.
The State's Unemployment Insurance Appeal Board ruled that Kinch had been discharged for a disqualifying reason and rejected his application for unemployment insurance benefits. The Appellate Division sustained the board's determination.
The court said that the Board's ruling, holding that Kinch's "apparent dishonesty in cheating ... was sufficient to constitute disqualifying misconduct" and was also potentially detrimental to his employer's interests in that it nullified the examination's accuracy in assessing whether he possessed the knowledge necessary to perform his job.
Probably the courts would adopt the same rationale in cases involving cheating on tests for unlawful drugs.
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Labor organization sues local for non-payment of its membership dues
Labor organization sues local for non-payment of its membership dues
American Federation of School Administrators v Council of Administrators and Supervisors, 266 AD2d 417
The American Federation of School Administrators, AFL-CIO, sued its local affiliate in Nassau and Suffolk counties, the Council of Administrators and Supervisors, claiming it had not paid all of its dues.
Noting that federal law Federal District Courts jurisdiction over suits between labor organizations, a State Supreme Court justice dismissed the Federation’s complaint on the ground that the matter must be adjudicated in a Federal court. The Appellate Division, Second Department, disagreed and reversed the lower court’s ruling.
The Appellate Division said that the federal law did not deprive State courts of their existing jurisdiction. Further, said the Appellate Division “State remedies are not preempted where the activity is of ‘merely peripheral concern’ to the Labor Management Relations Act.”
Deciding that the dispute over the nonpayment of dues is nothing more than an internal union matter, the Appellate Division remanded the case to Supreme Court to determine if the Council’s motion for summary judgment should be granted.
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American Federation of School Administrators v Council of Administrators and Supervisors, 266 AD2d 417
The American Federation of School Administrators, AFL-CIO, sued its local affiliate in Nassau and Suffolk counties, the Council of Administrators and Supervisors, claiming it had not paid all of its dues.
Noting that federal law Federal District Courts jurisdiction over suits between labor organizations, a State Supreme Court justice dismissed the Federation’s complaint on the ground that the matter must be adjudicated in a Federal court. The Appellate Division, Second Department, disagreed and reversed the lower court’s ruling.
The Appellate Division said that the federal law did not deprive State courts of their existing jurisdiction. Further, said the Appellate Division “State remedies are not preempted where the activity is of ‘merely peripheral concern’ to the Labor Management Relations Act.”
Deciding that the dispute over the nonpayment of dues is nothing more than an internal union matter, the Appellate Division remanded the case to Supreme Court to determine if the Council’s motion for summary judgment should be granted.
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Modifying a disciplinary penalty
Modifying a disciplinary penalty
CSEA Albany County Local 801 v Albany Housing Authority, 266 AD2d 676
This decision sets out the basic elements to be considered by courts when asked to confirm or vacate a disciplinary arbitrator’s award.
The facts in this case are relatively simple. Frank Turner, an Albany Housing Authority custodian, was found smoking marijuana in a vacant authority apartment in violation of authority rules. Turner was dismissed and Local 801 demanded arbitration in accordance with the collective bargaining agreement between the parties. Local 801 and the authority agreed to submit the following issues to the arbitrator:
1. Was Turner was guilty of violating the authority’s policy and procedures prohibiting entry into vacant apartments and the unlawful possession or use of marijuana; and
2. Was the penalty imposed - termination - for this violation unreasonable or made in bad faith.
The local and the authority, however, could not agree as to whether the arbitrator had the power to fashion a new or different penalty in the event Turner was found guilty of the charges. Accordingly, this issue in the disciplinary arbitration was not certified to the arbitrator.
Ultimately the arbitrator found Turner guilty of the charges. But, said the arbitrator, imposing the penalty of termination was unreasonable. The arbitrator, concluding that “he had the power to modify the penalty,” imposed a different penalty on Turner: a four-week suspension and reinstatement with back pay.
Local 801 brought an Article 75 action to confirm the award; the authority countered with a petition to reinstate the penalty of dismissal on the grounds that the arbitrator had exceeded his authority.
A State Supreme Court justice confirmed the arbitrator’s award insofar as it determined Turner was guilty of the charges filed against him. The court, however, ruled that the arbitrator had exceeded his authority by imposing a new and different penalty and vacated that portion of the award. Local 801 appealed.
The relevant contract provision -- Article 15.3 -- provided that “[t]he arbitrator shall only determine if guilt or misconduct or incompetence has been proven by a preponderance of the evidence and if the penalty was imposed in bad faith or was unreasonable. On the issue of the penalty, the employee’s entire record of employment may be considered.”
In resolving the appeal, the Appellate Division set out the following basic points:
1. Judicial review of an arbitration award is severely limited and will be upheld unless “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
2. Any limitation upon the remedial power of the arbitrator must be clearly contained, either explicitly or incorporated by reference, in the arbitration clause itself.
3. To infer a limitation from an ambiguous and general clause in the substantive provisions of the agreement would, in effect, require judicial interpretation of the contract and judicial interference with an arbitration award which should be avoided unless that award be violative of strong public policy, totally irrational or in excess of a specifically enumerated limitation upon arbitral authority.
The Appellate Division concluded that Article 15.3 contains a specific limitation of the arbitrator’s authority and restricts the arbitrator to making two decisions: (1) was the employee’s guilt proven by a preponderance of the evidence and, if so, (2) was the penalty imposed in bad faith or unreasonable.
Further, said the court, Section 15.3 of the agreement does not permit the arbitrator to impose a new or different penalty and that the arbitrator acted “in excess of a specifically enumerated limitation upon arbitral authority” when he modified the penalty imposed on Turner.
Finding that “... the arbitrator’s interpretation results in a new and different contract for the parties,” the Appellate Division sustained the lower court’s vacating that portion of the arbitrator’s award that imposed a different penalty.
In other words, although the arbitrator could determine if the penalty imposed was unreasonable, neither Article 15.3 nor the questions submitted to the arbitrator by the parties permitted the arbitrator to determine an alternative penalty.
If the arbitrator determines that the penalty imposed was unreasonable or made in bad faith, presumably Article 15.3 requires the arbitrator to return the matter to the authority for it to set a different penalty.
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CSEA Albany County Local 801 v Albany Housing Authority, 266 AD2d 676
This decision sets out the basic elements to be considered by courts when asked to confirm or vacate a disciplinary arbitrator’s award.
The facts in this case are relatively simple. Frank Turner, an Albany Housing Authority custodian, was found smoking marijuana in a vacant authority apartment in violation of authority rules. Turner was dismissed and Local 801 demanded arbitration in accordance with the collective bargaining agreement between the parties. Local 801 and the authority agreed to submit the following issues to the arbitrator:
1. Was Turner was guilty of violating the authority’s policy and procedures prohibiting entry into vacant apartments and the unlawful possession or use of marijuana; and
2. Was the penalty imposed - termination - for this violation unreasonable or made in bad faith.
The local and the authority, however, could not agree as to whether the arbitrator had the power to fashion a new or different penalty in the event Turner was found guilty of the charges. Accordingly, this issue in the disciplinary arbitration was not certified to the arbitrator.
Ultimately the arbitrator found Turner guilty of the charges. But, said the arbitrator, imposing the penalty of termination was unreasonable. The arbitrator, concluding that “he had the power to modify the penalty,” imposed a different penalty on Turner: a four-week suspension and reinstatement with back pay.
Local 801 brought an Article 75 action to confirm the award; the authority countered with a petition to reinstate the penalty of dismissal on the grounds that the arbitrator had exceeded his authority.
A State Supreme Court justice confirmed the arbitrator’s award insofar as it determined Turner was guilty of the charges filed against him. The court, however, ruled that the arbitrator had exceeded his authority by imposing a new and different penalty and vacated that portion of the award. Local 801 appealed.
The relevant contract provision -- Article 15.3 -- provided that “[t]he arbitrator shall only determine if guilt or misconduct or incompetence has been proven by a preponderance of the evidence and if the penalty was imposed in bad faith or was unreasonable. On the issue of the penalty, the employee’s entire record of employment may be considered.”
In resolving the appeal, the Appellate Division set out the following basic points:
1. Judicial review of an arbitration award is severely limited and will be upheld unless “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
2. Any limitation upon the remedial power of the arbitrator must be clearly contained, either explicitly or incorporated by reference, in the arbitration clause itself.
3. To infer a limitation from an ambiguous and general clause in the substantive provisions of the agreement would, in effect, require judicial interpretation of the contract and judicial interference with an arbitration award which should be avoided unless that award be violative of strong public policy, totally irrational or in excess of a specifically enumerated limitation upon arbitral authority.
The Appellate Division concluded that Article 15.3 contains a specific limitation of the arbitrator’s authority and restricts the arbitrator to making two decisions: (1) was the employee’s guilt proven by a preponderance of the evidence and, if so, (2) was the penalty imposed in bad faith or unreasonable.
Further, said the court, Section 15.3 of the agreement does not permit the arbitrator to impose a new or different penalty and that the arbitrator acted “in excess of a specifically enumerated limitation upon arbitral authority” when he modified the penalty imposed on Turner.
Finding that “... the arbitrator’s interpretation results in a new and different contract for the parties,” the Appellate Division sustained the lower court’s vacating that portion of the arbitrator’s award that imposed a different penalty.
In other words, although the arbitrator could determine if the penalty imposed was unreasonable, neither Article 15.3 nor the questions submitted to the arbitrator by the parties permitted the arbitrator to determine an alternative penalty.
If the arbitrator determines that the penalty imposed was unreasonable or made in bad faith, presumably Article 15.3 requires the arbitrator to return the matter to the authority for it to set a different penalty.
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Sep 23, 2010
HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces
HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.
The leave may be taken intermittent or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.
It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.
Mr. Bosland Comments: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!
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Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.
The leave may be taken intermittent or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.
It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.
Mr. Bosland Comments: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!
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Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault
Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher
Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001).
The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.
Mitchell H. Rubinstein
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Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher
Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001).
The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.
Mitchell H. Rubinstein
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Filing an employer application for disability retirement pursuant GML 207-c
Filing an employer application for disability retirement pursuant GML 207-c
City of Schenectady v McCall, AD 3rd Dept., 245 A.D.2d 708
The City of Schenectady filed an application for accidental disability benefits for one of its police officers, Kevin J. Coker, with the New York State and Local Policemens' and Firemens' Retirement System [PFRS]. It claimed that Coker had sustained at least four neck and back injuries while on duty. Although Coker had returned to duty after each episode, in 1992 he ceased working claiming that the back pain resulting from these accidents permanently incapacitated him.
Section 207-c.2 of the General Municipal Law authorizes the filing of an application for accidental disability retirement on behalf of a disabled police officer if the officer does not elect to do so.
PFRS' medical expert, Neurologist Neil Lava, testified that Coker was not "permanently incapacitated" and that there was no medical explanation for Coker's complaints of pain and a limited range of motion. The City's medical expert, Police Surgeon Dominic Belmonte, an occupational physician, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming employment as a police officer. The application was rejected by PFRS and the City appealed.
The Appellate Division, with Judge Mikoll dissenting, sustained the System's disapproval of the City's application to have Coker retired for work-related disability. The Court said that the System's determination "is supported by substantial evidence, even though there is other evidence that would support a contrary result."
However, the PFRS' determination may have triggered another provision of the General Municipal Law, Section 207-c.3. Section 207-c.3 provides that if a police officer is not eligible for or not granted an accidental disability retirement allowance, he or she may be required to perform "light duty ... consistent with his [or her] status as a policeman" if found medically qualified to perform such duties. If the police officer refuses to perform such light or modified duty, Section 207-c payments "shall be discontinued." As PFRS has found Coker is not "permanently disabled," the City could have Coker evaluated by its medical experts to determine whether he is able to perform "light police duties."
Another alternative: the City could, if Coker agrees, transfer him to a position with another City agency or department [see Section 207-c.4, General Municipal Law] if he meets the civil service qualifications for the position to which the transfer is to be made.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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City of Schenectady v McCall, AD 3rd Dept., 245 A.D.2d 708
The City of Schenectady filed an application for accidental disability benefits for one of its police officers, Kevin J. Coker, with the New York State and Local Policemens' and Firemens' Retirement System [PFRS]. It claimed that Coker had sustained at least four neck and back injuries while on duty. Although Coker had returned to duty after each episode, in 1992 he ceased working claiming that the back pain resulting from these accidents permanently incapacitated him.
Section 207-c.2 of the General Municipal Law authorizes the filing of an application for accidental disability retirement on behalf of a disabled police officer if the officer does not elect to do so.
PFRS' medical expert, Neurologist Neil Lava, testified that Coker was not "permanently incapacitated" and that there was no medical explanation for Coker's complaints of pain and a limited range of motion. The City's medical expert, Police Surgeon Dominic Belmonte, an occupational physician, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming employment as a police officer. The application was rejected by PFRS and the City appealed.
The Appellate Division, with Judge Mikoll dissenting, sustained the System's disapproval of the City's application to have Coker retired for work-related disability. The Court said that the System's determination "is supported by substantial evidence, even though there is other evidence that would support a contrary result."
However, the PFRS' determination may have triggered another provision of the General Municipal Law, Section 207-c.3. Section 207-c.3 provides that if a police officer is not eligible for or not granted an accidental disability retirement allowance, he or she may be required to perform "light duty ... consistent with his [or her] status as a policeman" if found medically qualified to perform such duties. If the police officer refuses to perform such light or modified duty, Section 207-c payments "shall be discontinued." As PFRS has found Coker is not "permanently disabled," the City could have Coker evaluated by its medical experts to determine whether he is able to perform "light police duties."
Another alternative: the City could, if Coker agrees, transfer him to a position with another City agency or department [see Section 207-c.4, General Municipal Law] if he meets the civil service qualifications for the position to which the transfer is to be made.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Determining seniority for tenure purposes
Determining seniority for tenure purposes
Kaufman v Fallsburg CSD, Court of Appeals, 91 NY2d 57
Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In the Kaufman case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by the Fallsburg Central School District.
Two teachers, Forman and Kaufman, were both appointed to the elementary tenure area on September 1, 1992. Forman had been given a probationary appointment in the special education tenure area in November 1990 but in the 1991-92 academic year she was assigned to teach sixth grade subjects to mixed classes consisting of regular education students and six learning-disabled special needs students. On September 1, 1992, the District additionally appointed Foreman to the elementary tenure area, and assigned her to teach fourth grade.
Kaufman, who had prior service in the District as a substitute teacher, also received a probationary appointment in the elementary tenure area on September 1, 1992. Kaufman then took over the instruction of Foreman's sixth grade class.
Effective June 30, 1994, the District abolished four elementary education positions. Kaufman was excessed when the District determined that she had the least seniority in the elementary tenure area. Kaufman sued, contending that she was entitled to additional credit in the elementary tenure area for the two months she taught as a regular substitute elementary teacher during the 1991-1992 school year and thus had greater seniority in the elementary tenure area than did Foreman.
While the District conceded that Kaufman was entitled to the two months of additional credit as she claimed, it said it had also recalculated Foreman's seniority and concluded that she was entitled to additional credit in the elementary tenure area for the entire 1991-1992 school year during which she taught the mixed sixth grade class of regular education and special needs students. This, the District argued, meant that Foreman still remained senior to Kaufman in the elementary tenure area.
Kaufman challenged this, contending that: (1) The facts in the record did not establish that Foreman served in the elementary tenure area during the 1991-1992 school year; and (2) the District did not have any authority to grant Foreman seniority credit in the elementary tenure area as of September 1991 because the District (a) failed to expressly notify Foreman that her assignment for the 1991-1992 school year was outside her initial special education appointment, and (b) it had not obtained Foreman's prior written consent to that out-of-tenure area assignment.
These omissions, Kaufman contended, barred the District from retroactively crediting Foreman with elementary tenure area seniority for her service during the 1991-1992 school year. A New York State Supreme Court justice disagreed, reasoning that accepting Kaufman's theory would penalize teachers for school district mistakes by depriving them of credit to which they would have been entitled but for the school district's error. The Appellate Division concurred with the Supreme Court's analysis and affirmed the lower court's ruling (234 AD2d 698).
The Court of Appeals agreed, dismissing Kaufman's appeal. It said that the lower courts "correctly concluded that there was a sound factual basis for the District's determination that Foreman devoted a substantial portion of her time during the 1991-1992 school year to teaching in the elementary tenure area." The Court said that the record contains "ample evidence to support the District's finding that Foreman devoted over 40% of her time to teaching the "common branch subjects" of reading, science, arithmetic and language arts to her sixth grade students."*
The Court also held that the fact that some of her sixth-graders were learning-disabled special needs students "does not, under these circumstances, compel a different conclusion and thus Foreman was entitled to seniority credit in the elementary tenure area for her service during the 1991-1992 school year."
What about the District's failure to comply with the notice provisions set out in 8 NYCRR 30.9(b)? Shouldn't this prevent the District from giving Foreman retroactive elementary area seniority credit for the 1991-1992 sixth-grade assignment?
The Court of Appeals said that "concededly, Foreman was not formally notified that her assignment to teach sixth grade in 1991-1992 was out of her original tenure area, and her consent was not obtained." More important, said the Court, 8 NYCRR 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors," citing Ricca v Board of Education., 47 NY2d 385, 391.
Finding that the underlying purpose of 8 NYCRR 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area, the Court said that the regulation has a two-fold protective purpose: (1) it protects teachers from being required to accept assignments outside of their designated tenure areas involuntarily; and (2) it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments.
The Court of Appeals concluded that 8 NYCRR 30.9(b) was intended, and has been consistently construed administratively, as a safeguard for teachers who are assigned (either involuntarily or without their knowledge) outside of their designated tenure areas. Accordingly, the provision should not be interpreted to prevent a teacher from knowingly and voluntarily waiving that section's consent requirement when strict application of the regulation would itself impose adverse consequences upon the teacher.
* 8 NYCRR 30.1[g] provides that a "substantial portion" of the teacher's time "means 40 percent or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Kaufman v Fallsburg CSD, Court of Appeals, 91 NY2d 57
Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In the Kaufman case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by the Fallsburg Central School District.
Two teachers, Forman and Kaufman, were both appointed to the elementary tenure area on September 1, 1992. Forman had been given a probationary appointment in the special education tenure area in November 1990 but in the 1991-92 academic year she was assigned to teach sixth grade subjects to mixed classes consisting of regular education students and six learning-disabled special needs students. On September 1, 1992, the District additionally appointed Foreman to the elementary tenure area, and assigned her to teach fourth grade.
Kaufman, who had prior service in the District as a substitute teacher, also received a probationary appointment in the elementary tenure area on September 1, 1992. Kaufman then took over the instruction of Foreman's sixth grade class.
Effective June 30, 1994, the District abolished four elementary education positions. Kaufman was excessed when the District determined that she had the least seniority in the elementary tenure area. Kaufman sued, contending that she was entitled to additional credit in the elementary tenure area for the two months she taught as a regular substitute elementary teacher during the 1991-1992 school year and thus had greater seniority in the elementary tenure area than did Foreman.
While the District conceded that Kaufman was entitled to the two months of additional credit as she claimed, it said it had also recalculated Foreman's seniority and concluded that she was entitled to additional credit in the elementary tenure area for the entire 1991-1992 school year during which she taught the mixed sixth grade class of regular education and special needs students. This, the District argued, meant that Foreman still remained senior to Kaufman in the elementary tenure area.
Kaufman challenged this, contending that: (1) The facts in the record did not establish that Foreman served in the elementary tenure area during the 1991-1992 school year; and (2) the District did not have any authority to grant Foreman seniority credit in the elementary tenure area as of September 1991 because the District (a) failed to expressly notify Foreman that her assignment for the 1991-1992 school year was outside her initial special education appointment, and (b) it had not obtained Foreman's prior written consent to that out-of-tenure area assignment.
These omissions, Kaufman contended, barred the District from retroactively crediting Foreman with elementary tenure area seniority for her service during the 1991-1992 school year. A New York State Supreme Court justice disagreed, reasoning that accepting Kaufman's theory would penalize teachers for school district mistakes by depriving them of credit to which they would have been entitled but for the school district's error. The Appellate Division concurred with the Supreme Court's analysis and affirmed the lower court's ruling (234 AD2d 698).
The Court of Appeals agreed, dismissing Kaufman's appeal. It said that the lower courts "correctly concluded that there was a sound factual basis for the District's determination that Foreman devoted a substantial portion of her time during the 1991-1992 school year to teaching in the elementary tenure area." The Court said that the record contains "ample evidence to support the District's finding that Foreman devoted over 40% of her time to teaching the "common branch subjects" of reading, science, arithmetic and language arts to her sixth grade students."*
The Court also held that the fact that some of her sixth-graders were learning-disabled special needs students "does not, under these circumstances, compel a different conclusion and thus Foreman was entitled to seniority credit in the elementary tenure area for her service during the 1991-1992 school year."
What about the District's failure to comply with the notice provisions set out in 8 NYCRR 30.9(b)? Shouldn't this prevent the District from giving Foreman retroactive elementary area seniority credit for the 1991-1992 sixth-grade assignment?
The Court of Appeals said that "concededly, Foreman was not formally notified that her assignment to teach sixth grade in 1991-1992 was out of her original tenure area, and her consent was not obtained." More important, said the Court, 8 NYCRR 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors," citing Ricca v Board of Education., 47 NY2d 385, 391.
Finding that the underlying purpose of 8 NYCRR 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area, the Court said that the regulation has a two-fold protective purpose: (1) it protects teachers from being required to accept assignments outside of their designated tenure areas involuntarily; and (2) it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments.
The Court of Appeals concluded that 8 NYCRR 30.9(b) was intended, and has been consistently construed administratively, as a safeguard for teachers who are assigned (either involuntarily or without their knowledge) outside of their designated tenure areas. Accordingly, the provision should not be interpreted to prevent a teacher from knowingly and voluntarily waiving that section's consent requirement when strict application of the regulation would itself impose adverse consequences upon the teacher.
* 8 NYCRR 30.1[g] provides that a "substantial portion" of the teacher's time "means 40 percent or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Terminating an interim appointee
Terminating an interim appointee
Amnawah v NYC Bd. of Education, 266 AD2d 455
Linda Amnawah, an interim-acting “Special Education Review Specialist,” was terminated from her position by the New York City Board of Education.. She sued, seeking reinstatement to her former position. A State Supreme Court justice dismissed her petition.
In affirming the lower court’s determination, the Appellate Division quickly disposed of Amnawah appeal, commenting that because she was a “non-tenured, interim-acting employee,” the board of education could terminate her employment without any statement of reasons, provided that the termination was not made in bad faith or for impermissible reasons.
The court said that while Amnawah had the burden of proving that her termination was made in bad faith or was for an impermissible reason she only offered “conclusory, unsupported, and irrelevant arguments” to this end. Thus, said the court, Amnawah failed to sustain her evidentiary burden and dismissed her appeal.
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Amnawah v NYC Bd. of Education, 266 AD2d 455
Linda Amnawah, an interim-acting “Special Education Review Specialist,” was terminated from her position by the New York City Board of Education.. She sued, seeking reinstatement to her former position. A State Supreme Court justice dismissed her petition.
In affirming the lower court’s determination, the Appellate Division quickly disposed of Amnawah appeal, commenting that because she was a “non-tenured, interim-acting employee,” the board of education could terminate her employment without any statement of reasons, provided that the termination was not made in bad faith or for impermissible reasons.
The court said that while Amnawah had the burden of proving that her termination was made in bad faith or was for an impermissible reason she only offered “conclusory, unsupported, and irrelevant arguments” to this end. Thus, said the court, Amnawah failed to sustain her evidentiary burden and dismissed her appeal.
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Rescinding a letter of retirement
Rescinding a letter of retirementElmira CSD v Newcomb, 266 AD2d 622, Motion for leave to appeal dismissed, 94 NY2d 899
Among the basic general rules applicable to resignation from public service are the following:
1. An individual may rescind his or her letter resignation prior to its delivery to the appropriate authority.
2. The letter of resignation is effective upon delivery to the appointing authority unless an “approval” or “acceptance” of the resignation is mandated by law or a provision in a collective bargaining agreement.
3. Once delivered, the individual cannot withdraw or rescind his or her resignation without the approval of the appointing authority.
4. An appointing authority may elect to ignore a resignation and proceed with disciplinary action against the individual.
Do the same rules apply in cases involving an individual’s submission of a letter indicating his or her intent to retire? In the Newcomb case, the Appellate Division considered the effort of an individual to rescind his notice of his intention to retire.
James E. Newcomb, a tenured guidance counselor employed by the Elmira City School District, told the district that he could not return to his position due to “medical problems.” He was absent for practically all of the Fall 1997 semester.
Eventually Newcomb and the district entered into a “settlement agreement” in lieu of district’s pursuing disciplinary action against Newcomb. Under the terms of the settlement Newcomb agreed to submit his “written notice of retirement,” to take effect February 1, 1998. The district agreed to keep Newcomb on the payroll from December 11, 1997 until January 31, 1998. Newcomb submitted his “retirement letter” in December 1997. For its part, the district continued Newcomb on the payroll.
However, in January 1998 Newcomb sent the district a second letter rescinding his December 1997 letter of retirement. This second letter was delivered to the district before Board of Education had taken formal action on Newcomb’s December retirement letter. The board voted to disregard Newcomb’s attempt to rescind his letter of retirement unless he (1) returned “the previously paid leave funds” and (2) “presented medical documentation certifying his ability to work.” Newcomb failed to comply with either of these conditions and ultimately was deemed “retired” and terminated from the payroll.
When Newcomb sued to void the board action and to reclaim his position, the district countered with a petition asking the court to rule that Newcomb “had no right to unilaterally rescind his retirement letter and that his retirement was effective February 1, 1998.” The district argued that it had acted in reliance of the settlement agreed to by the parties in lieu of its bringing disciplinary action against Newcomb, pursuant to which Newcomb agreed to retire, when it continued him on the payroll as agreed and had hired his replacement. The Supreme Court justice denied Newcomb’s motion for summary judgment and he appealed.
Newcomb’s basic argument:
This is a simple rescission before acceptance case, i.e., I rescinded my retirement letter prior to its acceptance by the Board and thus the district had no authority to terminate my employment.
The district position:
Newcomb’s letter of retirement was not a unilateral act on his part but rather reflected a settlement agreement between the parties and therefore it was not obligated to honor the letter Newcomb submitted in a unilateral effort to rescind his retirement letter.
The Appellate Division commenced its analysis be noting that “authority exists to support the general proposition that a retirement letter may be withdrawn prior to a legally binding acceptance by a board of education,” citing a number of court decision and rulings by the Commissioner of Education. This, according to the ruling, means that although submitting a notice of an intention to retire simultaneously implies a “resignation” from one’s position, delivery of the “retirement letter” is not the operative factor; the appointing authority must take some action to “finalize it.”
The Appellate Division, however, concluded that there were questions of fact that barred the application of this general principle -- a retirement letter must be formally acted upon to be effective -- at this stage of the litigation. Among the issues of fact to be resolved:
1. Was Newcomb’s retirement letter, submitted in compliance with a settlement of a disciplinary action, essentially a term or condition of the settlement and thus he could not unilaterally rescind it notwithstanding the fact that the board had not formally acted on his retirement letter; and, if not,
2. Was the absence of a formal acceptance by the Board fatal in view of the fact that it had indicated its acceptance of the settlement by continuing Newcomb on the payroll and recruiting his replacement?
The Appellate Division, ruling that the Supreme Court was correct in denying Newcomb’s motion for summary judgment, returned the matter to Supreme Court for its consideration of these issues.
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Among the basic general rules applicable to resignation from public service are the following:
1. An individual may rescind his or her letter resignation prior to its delivery to the appropriate authority.
2. The letter of resignation is effective upon delivery to the appointing authority unless an “approval” or “acceptance” of the resignation is mandated by law or a provision in a collective bargaining agreement.
3. Once delivered, the individual cannot withdraw or rescind his or her resignation without the approval of the appointing authority.
4. An appointing authority may elect to ignore a resignation and proceed with disciplinary action against the individual.
Do the same rules apply in cases involving an individual’s submission of a letter indicating his or her intent to retire? In the Newcomb case, the Appellate Division considered the effort of an individual to rescind his notice of his intention to retire.
James E. Newcomb, a tenured guidance counselor employed by the Elmira City School District, told the district that he could not return to his position due to “medical problems.” He was absent for practically all of the Fall 1997 semester.
Eventually Newcomb and the district entered into a “settlement agreement” in lieu of district’s pursuing disciplinary action against Newcomb. Under the terms of the settlement Newcomb agreed to submit his “written notice of retirement,” to take effect February 1, 1998. The district agreed to keep Newcomb on the payroll from December 11, 1997 until January 31, 1998. Newcomb submitted his “retirement letter” in December 1997. For its part, the district continued Newcomb on the payroll.
However, in January 1998 Newcomb sent the district a second letter rescinding his December 1997 letter of retirement. This second letter was delivered to the district before Board of Education had taken formal action on Newcomb’s December retirement letter. The board voted to disregard Newcomb’s attempt to rescind his letter of retirement unless he (1) returned “the previously paid leave funds” and (2) “presented medical documentation certifying his ability to work.” Newcomb failed to comply with either of these conditions and ultimately was deemed “retired” and terminated from the payroll.
When Newcomb sued to void the board action and to reclaim his position, the district countered with a petition asking the court to rule that Newcomb “had no right to unilaterally rescind his retirement letter and that his retirement was effective February 1, 1998.” The district argued that it had acted in reliance of the settlement agreed to by the parties in lieu of its bringing disciplinary action against Newcomb, pursuant to which Newcomb agreed to retire, when it continued him on the payroll as agreed and had hired his replacement. The Supreme Court justice denied Newcomb’s motion for summary judgment and he appealed.
Newcomb’s basic argument:
This is a simple rescission before acceptance case, i.e., I rescinded my retirement letter prior to its acceptance by the Board and thus the district had no authority to terminate my employment.
The district position:
Newcomb’s letter of retirement was not a unilateral act on his part but rather reflected a settlement agreement between the parties and therefore it was not obligated to honor the letter Newcomb submitted in a unilateral effort to rescind his retirement letter.
The Appellate Division commenced its analysis be noting that “authority exists to support the general proposition that a retirement letter may be withdrawn prior to a legally binding acceptance by a board of education,” citing a number of court decision and rulings by the Commissioner of Education. This, according to the ruling, means that although submitting a notice of an intention to retire simultaneously implies a “resignation” from one’s position, delivery of the “retirement letter” is not the operative factor; the appointing authority must take some action to “finalize it.”
The Appellate Division, however, concluded that there were questions of fact that barred the application of this general principle -- a retirement letter must be formally acted upon to be effective -- at this stage of the litigation. Among the issues of fact to be resolved:
1. Was Newcomb’s retirement letter, submitted in compliance with a settlement of a disciplinary action, essentially a term or condition of the settlement and thus he could not unilaterally rescind it notwithstanding the fact that the board had not formally acted on his retirement letter; and, if not,
2. Was the absence of a formal acceptance by the Board fatal in view of the fact that it had indicated its acceptance of the settlement by continuing Newcomb on the payroll and recruiting his replacement?
The Appellate Division, ruling that the Supreme Court was correct in denying Newcomb’s motion for summary judgment, returned the matter to Supreme Court for its consideration of these issues.
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Provisional appointee covered by the State’s “Whistle Blower Law”
Provisional appointee covered by the State’s “Whistle Blower Law”
Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858
The fact that an individual is a provisional employee does not necessarily mean that the individual cannot challenge his or her dismissal in court. For example, the individual may allege that he or she was discharged for “whistle blowing.” In such a case, the individual has a statutory right to sue his or her former employer. The Sisson decision illustrates this.
Dismissed from his provisional appointment with the Niagara County Department of Mental Health, Joseph A. Sisson sued. Although a State Supreme Court justice summarily dismissed his petition, the Appellate Division reversed and said that the matter should go to trial.
Sisson alleged that “he was terminated from his public employment in violation of Civil Service Law Section 75-b, commonly referred to as the ‘whistleblower’s law’, and that he was terminated in bad faith.”
It is well settled that a provisional employee may be “discharged at will” after completing the minimum period of probation and before the end of his or her maximum period of probation unless there was evidence that his or her termination “was for a constitutionally impermissible purpose or in violation of statutory or decisional law.” The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal for any alleged “whistle blowing.”
Section 75-b defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”
According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior, Antoinette Lech, acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Lech]” and thus neither Lech nor the department were entitled to summary judgment.
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Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858
The fact that an individual is a provisional employee does not necessarily mean that the individual cannot challenge his or her dismissal in court. For example, the individual may allege that he or she was discharged for “whistle blowing.” In such a case, the individual has a statutory right to sue his or her former employer. The Sisson decision illustrates this.
Dismissed from his provisional appointment with the Niagara County Department of Mental Health, Joseph A. Sisson sued. Although a State Supreme Court justice summarily dismissed his petition, the Appellate Division reversed and said that the matter should go to trial.
Sisson alleged that “he was terminated from his public employment in violation of Civil Service Law Section 75-b, commonly referred to as the ‘whistleblower’s law’, and that he was terminated in bad faith.”
It is well settled that a provisional employee may be “discharged at will” after completing the minimum period of probation and before the end of his or her maximum period of probation unless there was evidence that his or her termination “was for a constitutionally impermissible purpose or in violation of statutory or decisional law.” The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal for any alleged “whistle blowing.”
Section 75-b defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”
According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior, Antoinette Lech, acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Lech]” and thus neither Lech nor the department were entitled to summary judgment.
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Sep 22, 2010
An entertaining example of enforcing administrative law
An entertaining example of enforcing administrative law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
"Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air September 20, 2010", posted on the International Municipal Lawyers Association - Local Government Blog by Dwight Merriam (Robinson & Cole, LLP, Hartford, CT):
DeKalb County, Georgia, can teach us all something about zoning enforcement.
The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone. Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.
Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale? ...
EMM
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Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
"Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air September 20, 2010", posted on the International Municipal Lawyers Association - Local Government Blog by Dwight Merriam (Robinson & Cole, LLP, Hartford, CT):
DeKalb County, Georgia, can teach us all something about zoning enforcement.
The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone. Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.
Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale? ...
EMM
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Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing
Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing
Ozol v Center Moriches UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to an Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.
Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:
1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and
2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.
A copy of the letter was placed in Ozol's personnel file.
According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.
The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future."
In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.
The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.
The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."
The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."
The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.
Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.
Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.
In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.
Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.
Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.
Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.
Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.
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Ozol v Center Moriches UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to an Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.
Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:
1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and
2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.
A copy of the letter was placed in Ozol's personnel file.
According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.
The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future."
In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.
The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.
The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."
The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."
The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.
Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.
Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.
In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.
Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.
Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.
Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.
Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.
.
Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813
Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.
Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.
The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.
The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"
The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.
The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.
Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
...
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813
Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.
Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.
The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.
The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"
The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.
The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.
Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
...
An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
Public Employees Federation and New York, 30 PERB 3045
Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.
New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.
PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.
However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.
PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."
The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.
PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
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Public Employees Federation and New York, 30 PERB 3045
Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.
New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.
PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.
However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.
PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."
The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.
PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
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Termination from a position funded by a federal grant
Termination from a position funded by a federal grant
Mucci v Binghamton, Appellate Division, 245 AD2d 678, Appeal dismissed, 91 NY2d 921, Motion for leave to appeal denied, 92 NY2d 802
In the Mucci case, the Appellate Division was asked to determine if the City of Binghamton abolished a position as a subterfuge to avoid having to file disciplinary charges against the permanent incumbent of the position.
City Community Development Attorney Lawrence A. Mucci's position was funded by federal Community Development Block Grant [CDBG] monies. The City's 1996 budget did not include Mucci's position among the positions to be funded from the Block Grant. As a result, Mucci's position was abolished and he was terminated.
Mucci sued, contending that Binghamton acted in bad faith in eliminating his position because "his termination was not for economic or efficiency reasons but was related to job performance entitling him to a hearing pursuant to Section 75 of the Civil Service Law." The City's action, Mucci complained, was a subterfuge for disciplinary action, thereby denying him his statutory due process right to notice and hearing as required by Section 75.
The Appellate Division concluded that Mucci did not prove that his position was eliminated in an effort to avoid having to file disciplinary charges against him in order to remove him from his position. The Court said that Mucci had the burden of proof of demonstrating that the City acted in bad faith, which, under the circumstances, meant that he had to show that:
1. There were no bona fide reasons for the elimination of the position; or
2. That there were no savings resulting from the abolishment of the position; or
3. Someone was appointed to perform Mucci's former duties.
While observing that the City could have used other funds to continue Mucci's position or could have modified CDBG's budget to continue the position, the fact that it did not do so was not persuasive. The Appellate Division ruled that Mucci failed to meet his burden of proof.
The Court noted that Binghamton was faced with a "financial crisis" due to declining revenues. Although Mucci's former duties were performed by the City's Corporation Counsel or by "outside private counsel on an as needed basis," critical to the Court's holding was the fact that no one was hired in Mucci's place nor was another position created to perform his former duties.
According to the ruling, indications of the City's "good faith" in abolishing Mucci's position included: (1) an evaluation "by an outside source" that Mucci's position was not required and (2) some 20 positions, including Mucci's, were abolished in the 1996 budget, allowing the City to reduce its tax burden and to make more efficient use of limited Federal monies.
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Mucci v Binghamton, Appellate Division, 245 AD2d 678, Appeal dismissed, 91 NY2d 921, Motion for leave to appeal denied, 92 NY2d 802
In the Mucci case, the Appellate Division was asked to determine if the City of Binghamton abolished a position as a subterfuge to avoid having to file disciplinary charges against the permanent incumbent of the position.
City Community Development Attorney Lawrence A. Mucci's position was funded by federal Community Development Block Grant [CDBG] monies. The City's 1996 budget did not include Mucci's position among the positions to be funded from the Block Grant. As a result, Mucci's position was abolished and he was terminated.
Mucci sued, contending that Binghamton acted in bad faith in eliminating his position because "his termination was not for economic or efficiency reasons but was related to job performance entitling him to a hearing pursuant to Section 75 of the Civil Service Law." The City's action, Mucci complained, was a subterfuge for disciplinary action, thereby denying him his statutory due process right to notice and hearing as required by Section 75.
The Appellate Division concluded that Mucci did not prove that his position was eliminated in an effort to avoid having to file disciplinary charges against him in order to remove him from his position. The Court said that Mucci had the burden of proof of demonstrating that the City acted in bad faith, which, under the circumstances, meant that he had to show that:
1. There were no bona fide reasons for the elimination of the position; or
2. That there were no savings resulting from the abolishment of the position; or
3. Someone was appointed to perform Mucci's former duties.
While observing that the City could have used other funds to continue Mucci's position or could have modified CDBG's budget to continue the position, the fact that it did not do so was not persuasive. The Appellate Division ruled that Mucci failed to meet his burden of proof.
The Court noted that Binghamton was faced with a "financial crisis" due to declining revenues. Although Mucci's former duties were performed by the City's Corporation Counsel or by "outside private counsel on an as needed basis," critical to the Court's holding was the fact that no one was hired in Mucci's place nor was another position created to perform his former duties.
According to the ruling, indications of the City's "good faith" in abolishing Mucci's position included: (1) an evaluation "by an outside source" that Mucci's position was not required and (2) some 20 positions, including Mucci's, were abolished in the 1996 budget, allowing the City to reduce its tax burden and to make more efficient use of limited Federal monies.
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Reassignment of personnel
Reassignment of personnel
Superior Officers v Triborough Bridge & Tunnel Authority, Appellate Division, 244 AD2d 154
The Superior Officers Benevolent Association challenged the Triborough Bridge and Tunnel Authority's practice of assigning a sergeant to a lieutenant's post if the lieutenant was absent.
The Appellate Division dismissed the Superior Officer's petition, commenting that it would defer to the Authority's interpretation of its procedures for designating replacements for an absent lieutenant "since such interpretation is neither irrational nor unreasonable and effects a managerial determination within its purview." In other words, in the view of the Court the Authority was merely exercising its "management prerogatives" when it assigned a sergeant to a lieutenant's post if the lieutenant was absent.
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Superior Officers v Triborough Bridge & Tunnel Authority, Appellate Division, 244 AD2d 154
The Superior Officers Benevolent Association challenged the Triborough Bridge and Tunnel Authority's practice of assigning a sergeant to a lieutenant's post if the lieutenant was absent.
The Appellate Division dismissed the Superior Officer's petition, commenting that it would defer to the Authority's interpretation of its procedures for designating replacements for an absent lieutenant "since such interpretation is neither irrational nor unreasonable and effects a managerial determination within its purview." In other words, in the view of the Court the Authority was merely exercising its "management prerogatives" when it assigned a sergeant to a lieutenant's post if the lieutenant was absent.
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Sep 21, 2010
Dismissal for disqualifying misconduct bars unemployment insurance benefits
Dismissal for disqualifying misconduct bars unemployment insurance benefits
Lubin v Sweeney, Appellate Division, 244 AD2d 755, Motion for leave to appeal denied, 91 NY2d 810
The State's Unemployment Insurance Appeal Board will not grant unemployment insurance benefits to a person who has lost a job if the reason for the discharge was misconduct or for some other disqualifying reason. In Lubin the Appellate Division sustained the board's denial of unemployment benefits.
Lubin, a New York City Transit Authority platform conductor, was terminated because he struck a passenger with a flashlight. The passenger had inserted her arm between the subway's car doors in an effort to reopen them after they had shut, leaving her minor son unattended outside on the subway's platform. As a result, Lubin was terminated for violating the Authority's rule prohibiting employees from striking passengers under any circumstances.
The Appellate Division sustained the Unemployment Insurance Appeal Board's ruling that Lubin "had lost his position under disqualifying conditions." It said that "a physical assault in the course of one's employment has been found to constitute disqualifying misconduct, as has the knowing violation of an employer's rules or policy" citing Graham v Sweeney, 233 AD2d 660.
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Lubin v Sweeney, Appellate Division, 244 AD2d 755, Motion for leave to appeal denied, 91 NY2d 810
The State's Unemployment Insurance Appeal Board will not grant unemployment insurance benefits to a person who has lost a job if the reason for the discharge was misconduct or for some other disqualifying reason. In Lubin the Appellate Division sustained the board's denial of unemployment benefits.
Lubin, a New York City Transit Authority platform conductor, was terminated because he struck a passenger with a flashlight. The passenger had inserted her arm between the subway's car doors in an effort to reopen them after they had shut, leaving her minor son unattended outside on the subway's platform. As a result, Lubin was terminated for violating the Authority's rule prohibiting employees from striking passengers under any circumstances.
The Appellate Division sustained the Unemployment Insurance Appeal Board's ruling that Lubin "had lost his position under disqualifying conditions." It said that "a physical assault in the course of one's employment has been found to constitute disqualifying misconduct, as has the knowing violation of an employer's rules or policy" citing Graham v Sweeney, 233 AD2d 660.
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Family medical leave
Family medical leave
Dintino v Doubletree Hotels Corp., USDC EPa, 4 WH Cases2d 413
The Dintino case illustrates that under the Family Medical Leave Act [FMLA], the employer has the duty of determining whether or not an employee wishes to "charge" his or her absence from work to the 12-week FMLA period allowed employees each year.
Also, it is the responsibility of the employer to advise the individual, in writing, that it will count a particular absence against the individual's available FMLA leave.
According to U.S. District Court Judge John Fullam, the Doubletree Hotels Corporation failed in both duties in connection with Audrey Dintino's maternity. As a result, Judge Fullam found that the Company violated the FMLA because:
(1) it neglected to advise Dintino of her rights under the Americans With Disabilities Act and
(2) it terminated her when she did not return to work when her maternity leave ended.
Dintino had told Doubletree of her pregnancy and of her plans to take a three-month maternity leave commencing in July 1994. She actually left work on June 21, 1994 at the request of her physician when medical complications arose.
Doubletree claimed that her 12-week FMLA leave commenced on June 21, while Dintino contended that her "medical complications" triggered a "separate unpaid medical leave" under Doubletree's personnel policy and therefore her FMLA leave did not commenced until the expiration of that leave.
When Doubletree told Dintino that she had "abandoned her job" when she failed to work in October as scheduled, Dintino sued claiming the Company had violated her FMLA rights.
The Court agreed. It said that Doubletree had to give Dintino a written notice that the leave she was taking commencing in June was being charged as FMLA leave in order for it to be counted against her available annual FMLA leave. Doubletree's failure to do so was fatal to its claim that Dintino's June-October absence was part of her FMLA leave.
The Court pointed out that the employee is not required to identify the absence as being FMLA leave. According to the ruling, under federal Department of Labor regulations, "where there is ambiguity in the employee's request for leave the burden is on the employer to determine whether the leave is FMLA-qualifying" or not.
Finding that Dintino's FMLA leave commenced October 1994, the Court ruled that Doubletree's terminating her the following November "constituted an interference of [Dintino's] exercise of her FMLA rights." Why? Because, said the Court, Doubletree's failure to determine the type of leave Dintino intended to take from June 21, 1994 through October 7, 1994, coupled with its own leave policy, which the policy handbook distinguished from FMLA absences, supported its conclusion that the Company did not treat Dintino's June-October absence as FMLA leave.
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Dintino v Doubletree Hotels Corp., USDC EPa, 4 WH Cases2d 413
The Dintino case illustrates that under the Family Medical Leave Act [FMLA], the employer has the duty of determining whether or not an employee wishes to "charge" his or her absence from work to the 12-week FMLA period allowed employees each year.
Also, it is the responsibility of the employer to advise the individual, in writing, that it will count a particular absence against the individual's available FMLA leave.
According to U.S. District Court Judge John Fullam, the Doubletree Hotels Corporation failed in both duties in connection with Audrey Dintino's maternity. As a result, Judge Fullam found that the Company violated the FMLA because:
(1) it neglected to advise Dintino of her rights under the Americans With Disabilities Act and
(2) it terminated her when she did not return to work when her maternity leave ended.
Dintino had told Doubletree of her pregnancy and of her plans to take a three-month maternity leave commencing in July 1994. She actually left work on June 21, 1994 at the request of her physician when medical complications arose.
Doubletree claimed that her 12-week FMLA leave commenced on June 21, while Dintino contended that her "medical complications" triggered a "separate unpaid medical leave" under Doubletree's personnel policy and therefore her FMLA leave did not commenced until the expiration of that leave.
When Doubletree told Dintino that she had "abandoned her job" when she failed to work in October as scheduled, Dintino sued claiming the Company had violated her FMLA rights.
The Court agreed. It said that Doubletree had to give Dintino a written notice that the leave she was taking commencing in June was being charged as FMLA leave in order for it to be counted against her available annual FMLA leave. Doubletree's failure to do so was fatal to its claim that Dintino's June-October absence was part of her FMLA leave.
The Court pointed out that the employee is not required to identify the absence as being FMLA leave. According to the ruling, under federal Department of Labor regulations, "where there is ambiguity in the employee's request for leave the burden is on the employer to determine whether the leave is FMLA-qualifying" or not.
Finding that Dintino's FMLA leave commenced October 1994, the Court ruled that Doubletree's terminating her the following November "constituted an interference of [Dintino's] exercise of her FMLA rights." Why? Because, said the Court, Doubletree's failure to determine the type of leave Dintino intended to take from June 21, 1994 through October 7, 1994, coupled with its own leave policy, which the policy handbook distinguished from FMLA absences, supported its conclusion that the Company did not treat Dintino's June-October absence as FMLA leave.
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U.S. Circuit Court of Appeals rules that transsexuals are not a protected class for purposes of Title VII
U.S. Circuit Court of Appeals rules that transsexuals are not a protected class for purposes of Title VII
Krystal S. Etsitty v Utah Transit Authority, CA10, v. No. 05-4193
Krystal Etsitty, a transsexual and former employee of Utah Transit Authority (UTA), sued UTA and Betty Shirley, her former supervisor, pursuant to 42 USC. §2000e-2(a)(1) (Title VII) and 42 USC. §1983 (The Federal Civil Rights Act).
Etsitty alleged the Transit Authority terminated her because she was a transsexual and because she failed to conform to their expectations of stereotypical male behavior. She alleged that terminating her on this basis constituted gender discrimination in violation of both Title VII and the Equal Protection Clause of the Fourteenth Amendment.
The Transit Authority filed a motion for summary judgment and the District Court granted its motion.
The court ruled that transsexuals are not a protected class for purposes of Title VII and the prohibition against sex stereotyping recognized by some courts should not be applied to transsexuals.
The District Court also concluded that even if a transsexual could state a Title VII claim under a sex stereotyping theory, there was no evidence in this case that Etsitty was terminated for failing to conform to a particular gender stereotype. Etsitty appeals the district court’s order granting summary judgment to the defendants.
The Circuit Court of Appeals affirmed the District Court’s granting the Authority’s motion for summary judgment.
The full text of the Circuit Court’s decision is on the Internet at:
http://www.ca10.uscourts.gov/opinions/05/05-4193.pdf
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Krystal S. Etsitty v Utah Transit Authority, CA10, v. No. 05-4193
Krystal Etsitty, a transsexual and former employee of Utah Transit Authority (UTA), sued UTA and Betty Shirley, her former supervisor, pursuant to 42 USC. §2000e-2(a)(1) (Title VII) and 42 USC. §1983 (The Federal Civil Rights Act).
Etsitty alleged the Transit Authority terminated her because she was a transsexual and because she failed to conform to their expectations of stereotypical male behavior. She alleged that terminating her on this basis constituted gender discrimination in violation of both Title VII and the Equal Protection Clause of the Fourteenth Amendment.
The Transit Authority filed a motion for summary judgment and the District Court granted its motion.
The court ruled that transsexuals are not a protected class for purposes of Title VII and the prohibition against sex stereotyping recognized by some courts should not be applied to transsexuals.
The District Court also concluded that even if a transsexual could state a Title VII claim under a sex stereotyping theory, there was no evidence in this case that Etsitty was terminated for failing to conform to a particular gender stereotype. Etsitty appeals the district court’s order granting summary judgment to the defendants.
The Circuit Court of Appeals affirmed the District Court’s granting the Authority’s motion for summary judgment.
The full text of the Circuit Court’s decision is on the Internet at:
http://www.ca10.uscourts.gov/opinions/05/05-4193.pdf
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Police officer dismissed after failing to properly surrender a weapon
Police officer dismissed after failing to properly surrender a weapon
Doolittle v McMahon, Appellate Division, 245 AD2d 736
A State Trooper's failure to properly dispose of a weapon ultimately led to a fellow Trooper’s dismissal for "official misconduct." The misconduct, in the words of the Appellate Division, involved Doolittle's "purchasing [a] pistol from [a fellow Trooper] knowing that it was not lawfully possessed by him."
Dorothy Snyder had turned over a .32 caliber semiautomatic pistol that had belonged to her deceased husband to Trooper Warren Meizner. Meizner sold the weapon to Trooper James E. Doolittle for $50.
According to the court, the weapon was required to be surrendered to the Division of State Police. Rather than surrendering the pistol as required, Meizner sold the pistol to Doolittle who was then under an obligation to surrender it to the Division. Doolittle, rather than surrendering the firearm, attempted to convert it as his own property by filling out a State Police Acquisition or Disposition of Firearm Report [“D Form”] which was false.
In the course of filing the D Form, it was learned that the pistol had never been registered to Snyder. After an investigation, Doolittle was served disciplinary charges and found guilty of violating State Police regulations by "knowing violating Penal Law Sections 155.30 (larceny); 175.30 (offering a false instrument for filing); and 195.00 (official misconduct). The penalty imposed: dismissal.
The Appellate Division rejected Doolittle's appeal, holding that the disciplinary determination was supported by substantial evidence and the penalty imposed "was not so disproportionate as to be shocking to one's sense of fairness," citing Pell v Board of Education, 34 NY2d 222.
The Court said that the disciplinary panel had substantial evidence that Doolittle had "acquired the weapon in an unauthorized manner for his own benefit while acting in his official capacity ... and was under a duty to surrender the gun as a nuisance weapon to [the Division]. Not having done so, Doolittle was guilty of official misconduct.
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Doolittle v McMahon, Appellate Division, 245 AD2d 736
A State Trooper's failure to properly dispose of a weapon ultimately led to a fellow Trooper’s dismissal for "official misconduct." The misconduct, in the words of the Appellate Division, involved Doolittle's "purchasing [a] pistol from [a fellow Trooper] knowing that it was not lawfully possessed by him."
Dorothy Snyder had turned over a .32 caliber semiautomatic pistol that had belonged to her deceased husband to Trooper Warren Meizner. Meizner sold the weapon to Trooper James E. Doolittle for $50.
According to the court, the weapon was required to be surrendered to the Division of State Police. Rather than surrendering the pistol as required, Meizner sold the pistol to Doolittle who was then under an obligation to surrender it to the Division. Doolittle, rather than surrendering the firearm, attempted to convert it as his own property by filling out a State Police Acquisition or Disposition of Firearm Report [“D Form”] which was false.
In the course of filing the D Form, it was learned that the pistol had never been registered to Snyder. After an investigation, Doolittle was served disciplinary charges and found guilty of violating State Police regulations by "knowing violating Penal Law Sections 155.30 (larceny); 175.30 (offering a false instrument for filing); and 195.00 (official misconduct). The penalty imposed: dismissal.
The Appellate Division rejected Doolittle's appeal, holding that the disciplinary determination was supported by substantial evidence and the penalty imposed "was not so disproportionate as to be shocking to one's sense of fairness," citing Pell v Board of Education, 34 NY2d 222.
The Court said that the disciplinary panel had substantial evidence that Doolittle had "acquired the weapon in an unauthorized manner for his own benefit while acting in his official capacity ... and was under a duty to surrender the gun as a nuisance weapon to [the Division]. Not having done so, Doolittle was guilty of official misconduct.
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Sep 20, 2010
New York State Comptroller alleges retired police officer involved in a "pension padding scheme"
New York State Comptroller alleges retired police officer involved in a "pension padding scheme"
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli announced in a press release issued on September 17, 2010 that his Department's investigators found that a retired City of Rome Police Officer, Thomas C. Hubal, was involved in a “pension padding scheme."
The Comptroller said that Hubal was indicted “for illegally collecting more than $88,000 from the New York State and Local Retirement System over a nine-year period.” According to a report* published in September 2010 by the Comptroller's Investigations Unit, investigators from the Investigations Unit and Oneida County District Attorney Scott McNamara’s office found that Hubal was working for the Rome City School District without having obtained a waiver from the State Civil Service Commission, as required by State Law,** and without notifying the Comptroller’s Office that he would be returning to public employment.
In general, §150 of the New York State Civil Service Law prohibits a retired member of a public retirement system of this state*** collecting a retirement allowance from a New York public pension system from being employed by New York State or a political subdivision of New York State and simultaneously collecting a salary in excess of statutory salary limits imposed for such retirees returning to public service by law.
There are, however, certain exceptions to this general prohibition whereby:
1. A retiree who is age 65 or more may return to public sector employment without a reduction or suspension of his or her pension regardless of the amount of his or her public sector compensation;
2. The retiree may suspend his or her retirement allowance and rejoin the Retirement System;
3. The retiree, regardless of age, may be reemployed by the State or a political subdivision of the State without any reduction or suspension of his or her pension if he or she does not earn a salary in excess of the earnings limits set out in the RSSL.
4. A retiree "may be able to temporarily (and for a finite period of time)" earn a public sector salary in excess of the limits imposed by the RSSL if the retiree and the retiree’s prosective appointing appointing authority (on his or her behalf) apply for and are granted a waiver under very specific circumstances" prescribed in §211.
Although the New York State Retirement and Social Security Law permits a retiree receiving a retirement allowance from a public retirement system of New York State to temporarily return to work for a public entity without a reduction in his or her existing retirement benefits, provided the retiree satisfies specific legal requirements to do so, Hubal, said the Commissioner, "circumvented those legal requirements."
The Comptroller said that Hubal was arraigned in Oneida County Court on Friday, September 17, 2010 and charged with second-degree grand larceny and defrauding the government, both felonies.
The Comptroller also said Department investigators found evidence suggesting that others in the school district attempted to help Hubal illegally “double-dip,” commencing with Hubal’s hiring by school district officials in 1995 and their disregarding the requirements set out in New York State's laws concerning the reemployment of individuals receiving a retirement allowance from a public retirement system of this State.
In addition, DiNapoli said that the investigators found evidence suggesting that school district officials allowed Hubal to collect funds for travel and other expenses without the required documentation to support such expenses in excess of $20,000.
A retiree's failure to obtain the required §211 waiver in a timely fashion could result in civil financial liability as well. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.
However, there are no limitiations with respect to the reemployment of a retiree of a New York public retirement system by an employer in the private section, by the federal government or by another state or a political subdivision of another state.
* The full text of the Comptroller’s report is posted on the Internet at http://www.osc.state.ny.us/reports/investigations/Rome_Report.pdf
** See §150 of the Civil Service Law and §211 of the Retirement and Social Security Law.
*** The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
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Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli announced in a press release issued on September 17, 2010 that his Department's investigators found that a retired City of Rome Police Officer, Thomas C. Hubal, was involved in a “pension padding scheme."
The Comptroller said that Hubal was indicted “for illegally collecting more than $88,000 from the New York State and Local Retirement System over a nine-year period.” According to a report* published in September 2010 by the Comptroller's Investigations Unit, investigators from the Investigations Unit and Oneida County District Attorney Scott McNamara’s office found that Hubal was working for the Rome City School District without having obtained a waiver from the State Civil Service Commission, as required by State Law,** and without notifying the Comptroller’s Office that he would be returning to public employment.
In general, §150 of the New York State Civil Service Law prohibits a retired member of a public retirement system of this state*** collecting a retirement allowance from a New York public pension system from being employed by New York State or a political subdivision of New York State and simultaneously collecting a salary in excess of statutory salary limits imposed for such retirees returning to public service by law.
There are, however, certain exceptions to this general prohibition whereby:
1. A retiree who is age 65 or more may return to public sector employment without a reduction or suspension of his or her pension regardless of the amount of his or her public sector compensation;
2. The retiree may suspend his or her retirement allowance and rejoin the Retirement System;
3. The retiree, regardless of age, may be reemployed by the State or a political subdivision of the State without any reduction or suspension of his or her pension if he or she does not earn a salary in excess of the earnings limits set out in the RSSL.
4. A retiree "may be able to temporarily (and for a finite period of time)" earn a public sector salary in excess of the limits imposed by the RSSL if the retiree and the retiree’s prosective appointing appointing authority (on his or her behalf) apply for and are granted a waiver under very specific circumstances" prescribed in §211.
Although the New York State Retirement and Social Security Law permits a retiree receiving a retirement allowance from a public retirement system of New York State to temporarily return to work for a public entity without a reduction in his or her existing retirement benefits, provided the retiree satisfies specific legal requirements to do so, Hubal, said the Commissioner, "circumvented those legal requirements."
The Comptroller said that Hubal was arraigned in Oneida County Court on Friday, September 17, 2010 and charged with second-degree grand larceny and defrauding the government, both felonies.
The Comptroller also said Department investigators found evidence suggesting that others in the school district attempted to help Hubal illegally “double-dip,” commencing with Hubal’s hiring by school district officials in 1995 and their disregarding the requirements set out in New York State's laws concerning the reemployment of individuals receiving a retirement allowance from a public retirement system of this State.
In addition, DiNapoli said that the investigators found evidence suggesting that school district officials allowed Hubal to collect funds for travel and other expenses without the required documentation to support such expenses in excess of $20,000.
A retiree's failure to obtain the required §211 waiver in a timely fashion could result in civil financial liability as well. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.
However, there are no limitiations with respect to the reemployment of a retiree of a New York public retirement system by an employer in the private section, by the federal government or by another state or a political subdivision of another state.
* The full text of the Comptroller’s report is posted on the Internet at http://www.osc.state.ny.us/reports/investigations/Rome_Report.pdf
** See §150 of the Civil Service Law and §211 of the Retirement and Social Security Law.
*** The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
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Incompetence and misconduct in the context of a disciplinary action
Incompetence and misconduct in the context of a disciplinary action
Brey v Jefferson-Youngsville CSD, App. Div., 245 AD2d 613
Incompetence and misconduct have different meanings in disciplinary actions.
Incompetence basically refers to a lack of the ability to do the work properly; misconduct frequently involves the employee's failure to comply with instructions or ignoring appropriate procedures.
Elvira Brey, business manager for the Jefferson-Youngsville school district in Sullivan County, was charged with incompetence because she failed meet deadlines for filing various forms and applications with the State Department of Education and neglected to make timely interest payments on a series of the School District's bonds.
The charges involving misconduct arose for her alleged "failure to comply with [the Superintendent's] repeated written directives' to complete the forms required to be filed with the Education Department. The disciplinary action was brought pursuant to Section 75 of the Civil Service Law.
Found guilty of all charges and specifications, Brey was terminated from her position. She challenged the Board's action, contending that:
(1) the findings of the hearing officer were not supported by substantial evidence and
(2) the penalty imposed was "grossly disproportionate ... because she had not intentionally failed to timely file the reports and make the interest payments."
The Appellate Division was not impressed by these representations. It concluded that the Board's determination was based on the testimony of School District witnesses, Brey's admissions, and documentary evidence "amply supported by proof in the record,” which satisfied the substantial evidence test.
The Court dismissed Brey's appeal, indicating that the penalty imposed met the Pell test in that it is "not so disproportionate to the offenses as to be shocking to one's sense of fairness."
Another factor in this case was Brey's claim that she was the victim of retaliation within the meaning of Section 75-b of the Civil Service Law, the so-called "Whistle Blower" statute. After commenting that Brey "did not sufficiently establish her defense of retaliatory discharge," the Court said that "a defense under Section 75-b cannot be sustained when a public employer has a separate and independent basis for the action taken" against the individual.
The lesson here is that even in cases where the individual is able to demonstrate he or she has suffered retaliation in violation of Section 75-b, such a defense will not be sufficient to prevent an employer from disciplining an employee merely because the employee's actions are protected by Section 75-b if the employer has a separate and different basis for the disciplinary action.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Brey v Jefferson-Youngsville CSD, App. Div., 245 AD2d 613
Incompetence and misconduct have different meanings in disciplinary actions.
Incompetence basically refers to a lack of the ability to do the work properly; misconduct frequently involves the employee's failure to comply with instructions or ignoring appropriate procedures.
Elvira Brey, business manager for the Jefferson-Youngsville school district in Sullivan County, was charged with incompetence because she failed meet deadlines for filing various forms and applications with the State Department of Education and neglected to make timely interest payments on a series of the School District's bonds.
The charges involving misconduct arose for her alleged "failure to comply with [the Superintendent's] repeated written directives' to complete the forms required to be filed with the Education Department. The disciplinary action was brought pursuant to Section 75 of the Civil Service Law.
Found guilty of all charges and specifications, Brey was terminated from her position. She challenged the Board's action, contending that:
(1) the findings of the hearing officer were not supported by substantial evidence and
(2) the penalty imposed was "grossly disproportionate ... because she had not intentionally failed to timely file the reports and make the interest payments."
The Appellate Division was not impressed by these representations. It concluded that the Board's determination was based on the testimony of School District witnesses, Brey's admissions, and documentary evidence "amply supported by proof in the record,” which satisfied the substantial evidence test.
The Court dismissed Brey's appeal, indicating that the penalty imposed met the Pell test in that it is "not so disproportionate to the offenses as to be shocking to one's sense of fairness."
Another factor in this case was Brey's claim that she was the victim of retaliation within the meaning of Section 75-b of the Civil Service Law, the so-called "Whistle Blower" statute. After commenting that Brey "did not sufficiently establish her defense of retaliatory discharge," the Court said that "a defense under Section 75-b cannot be sustained when a public employer has a separate and independent basis for the action taken" against the individual.
The lesson here is that even in cases where the individual is able to demonstrate he or she has suffered retaliation in violation of Section 75-b, such a defense will not be sufficient to prevent an employer from disciplining an employee merely because the employee's actions are protected by Section 75-b if the employer has a separate and different basis for the disciplinary action.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Terminations based on political affiliation
Terminations based on political affiliation
Bavaro v Pataki, CA2, 130 F.3d 46 9181
In this case there was no question that Ralph Bavaro and Elizabeth Hogan were fired from their respective jobs as Associate and Assistant Counsels to "make room" for two political appointees. They sued, seeking damages and injunctive relief pursuant to 42 USC. 1983.
Were the attorneys subject to dismissal on the basis of their political affiliation or were they protected against such political patronage dismissals under the First Amendment to the United States Constitution? The U.S. Circuit Court of Appeals upheld a federal district court ruling that the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.
According to the decision, in 1976 the Supreme Court first held that patronage dismissals may infringe upon government employees' First Amendment rights to political belief and association, citing Elrod v. Burns, 427 U.S. 347. However, Elrod also holds that "[l]imiting patronage dismissals to policymaking positions is sufficient to achieve a governmental end."
In Branti v. Finkel, 445 U.S. 507, a 1980 decision, a majority of the U.S. Supreme Court reaffirmed its view that patronage dismissals may contravene the First Amendment but said incumbents would not be protected against patronage dismissals where the hiring authority able to demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
The Circuit Court explained that a rational connection exists between political affiliation and performance of the inherent duties of a position, when the employee:
(1) is exempt from civil service protection;
(2) has some technical competence or expertise;
(3) controls others; and
(4) is empowered to act and speak on behalf of a policymaker, especially an elected official.
The Circuit Court decided that under the circumstances, the politically motivated termination of Bavaro and Hogan did not violate their First Amendment rights.
It ruled that the positions held by Bavaro and Hogan were not protected against patronage dismissal because the four elements listed by the 2nd Circuit were satisfied.
Suppose the individual does not actually perform the duties that are actually set out in the official job description for the position. The Circuit Court said that in analyzing whether a government employee is protected under this standard, the "inherent duties of the position, not the actual duties performed by the employee in a particular case" control.
The full text of the opinion is on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/terminations-based-on-political.html
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Bavaro v Pataki, CA2, 130 F.3d 46 9181
In this case there was no question that Ralph Bavaro and Elizabeth Hogan were fired from their respective jobs as Associate and Assistant Counsels to "make room" for two political appointees. They sued, seeking damages and injunctive relief pursuant to 42 USC. 1983.
Were the attorneys subject to dismissal on the basis of their political affiliation or were they protected against such political patronage dismissals under the First Amendment to the United States Constitution? The U.S. Circuit Court of Appeals upheld a federal district court ruling that the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.
According to the decision, in 1976 the Supreme Court first held that patronage dismissals may infringe upon government employees' First Amendment rights to political belief and association, citing Elrod v. Burns, 427 U.S. 347. However, Elrod also holds that "[l]imiting patronage dismissals to policymaking positions is sufficient to achieve a governmental end."
In Branti v. Finkel, 445 U.S. 507, a 1980 decision, a majority of the U.S. Supreme Court reaffirmed its view that patronage dismissals may contravene the First Amendment but said incumbents would not be protected against patronage dismissals where the hiring authority able to demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
The Circuit Court explained that a rational connection exists between political affiliation and performance of the inherent duties of a position, when the employee:
(1) is exempt from civil service protection;
(2) has some technical competence or expertise;
(3) controls others; and
(4) is empowered to act and speak on behalf of a policymaker, especially an elected official.
The Circuit Court decided that under the circumstances, the politically motivated termination of Bavaro and Hogan did not violate their First Amendment rights.
It ruled that the positions held by Bavaro and Hogan were not protected against patronage dismissal because the four elements listed by the 2nd Circuit were satisfied.
Suppose the individual does not actually perform the duties that are actually set out in the official job description for the position. The Circuit Court said that in analyzing whether a government employee is protected under this standard, the "inherent duties of the position, not the actual duties performed by the employee in a particular case" control.
The full text of the opinion is on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/terminations-based-on-political.html
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Reasonable accommodation of employee's disability may not always trumpet collective bargaining seniority agreement
Reasonable accommodation of employee's disability may not always trumpet collective bargaining seniority agreement
Kralik v Durbin, CA3, 130 F.3d 76
The Third Circuit U.S. Court of Appeals in Philadelphia has decided that an accommodation of a disabled individual under the Americans with Disabilities Act [ADA] does not take precedence over the terms of a collective bargaining agreement.
The case focused on a conflict between employee seniority rights under a collective bargaining agreement and an employee's right to a reasonable accommodation under ADA that would adversely impact the seniority rights of other workers.
Karen Kralik, a highway toll collector, contended that she could not work "forced overtime" because her back condition prevented her from sitting for more than eight continuous hours. When her employer refused to exempt her from forced overtime, she contended that its action constituted a violation of the ADA. Kralik alleged that the reason her employer had refused to provide her with the accommodation was that it would require another employee with more seniority to work overtime and thereby infringe on the rights of these employees under the collective bargaining agreement then in place.
The U.S. Circuit Court of Appeals rejected Kralik's argument. It commented that there was a well-established precedent in place when Congress passed ADA -- reasonable accommodation under the federal Rehabilitation Act "had never been held to require trumping the seniority rights of other employees."
Why did the Court conclude that the accommodation requested by Kralik -- no forced overtime -- was not a “reasonable accommodation" under the circumstances? The Court said "even minor infringements on other employees' seniority rights impose unreasonable burdens on employers who, by reason of these infringements, must face the consequences of violating the collective bargaining agreement."
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Kralik v Durbin, CA3, 130 F.3d 76
The Third Circuit U.S. Court of Appeals in Philadelphia has decided that an accommodation of a disabled individual under the Americans with Disabilities Act [ADA] does not take precedence over the terms of a collective bargaining agreement.
The case focused on a conflict between employee seniority rights under a collective bargaining agreement and an employee's right to a reasonable accommodation under ADA that would adversely impact the seniority rights of other workers.
Karen Kralik, a highway toll collector, contended that she could not work "forced overtime" because her back condition prevented her from sitting for more than eight continuous hours. When her employer refused to exempt her from forced overtime, she contended that its action constituted a violation of the ADA. Kralik alleged that the reason her employer had refused to provide her with the accommodation was that it would require another employee with more seniority to work overtime and thereby infringe on the rights of these employees under the collective bargaining agreement then in place.
The U.S. Circuit Court of Appeals rejected Kralik's argument. It commented that there was a well-established precedent in place when Congress passed ADA -- reasonable accommodation under the federal Rehabilitation Act "had never been held to require trumping the seniority rights of other employees."
Why did the Court conclude that the accommodation requested by Kralik -- no forced overtime -- was not a “reasonable accommodation" under the circumstances? The Court said "even minor infringements on other employees' seniority rights impose unreasonable burdens on employers who, by reason of these infringements, must face the consequences of violating the collective bargaining agreement."
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Retirees are not employees within the meaning of the Taylor Law
Retirees are not employees within the meaning of the Taylor Law
New Action and United Federation of Teachers, 30 PERB 3048
New Action, a retiree group, asked the United Federation of Teachers [UFT] for a list of the names and addresses of its retired members. When UFT refused, New Action complained to PERB, contending UFT violated Section 209-a.2(a) of the Taylor Law. Section 209-a.2(a) prohibits an employee organization from interfering with the rights given public employees under the Act.
PERB affirmed the Director of Public Employment Practices and Representation's dismissal of New Action's claims. It agreed with the Director that UFT was permitted to refuse to provide New Action with the names of its retired members because:
1. New Action was not an employee organization within the meaning of the Taylor Law;
2. New Action's demand was not related to the terms and conditions of employment; and
3. The information sought by New Action concerned matters internal to UFT.
While PERB noted that an employee organization has a "general duty" to provide information to the employees it represents concerning their terms and conditions of employment when asked, retirees are not public employees, have no terms and conditions of employment and are not in the UFT bargaining unit.
PERB also rejected New Action's theory that it was entitled to the names and address of UFT retirees because UFT supposedly "allows retirees to vote on ratification of collective bargaining agreements and in elections for union officers." Even if true, PERB ruled, this would not matter as such participation concerns internal union affairs falling outside the scope of the Taylor Law.
.
New Action and United Federation of Teachers, 30 PERB 3048
New Action, a retiree group, asked the United Federation of Teachers [UFT] for a list of the names and addresses of its retired members. When UFT refused, New Action complained to PERB, contending UFT violated Section 209-a.2(a) of the Taylor Law. Section 209-a.2(a) prohibits an employee organization from interfering with the rights given public employees under the Act.
PERB affirmed the Director of Public Employment Practices and Representation's dismissal of New Action's claims. It agreed with the Director that UFT was permitted to refuse to provide New Action with the names of its retired members because:
1. New Action was not an employee organization within the meaning of the Taylor Law;
2. New Action's demand was not related to the terms and conditions of employment; and
3. The information sought by New Action concerned matters internal to UFT.
While PERB noted that an employee organization has a "general duty" to provide information to the employees it represents concerning their terms and conditions of employment when asked, retirees are not public employees, have no terms and conditions of employment and are not in the UFT bargaining unit.
PERB also rejected New Action's theory that it was entitled to the names and address of UFT retirees because UFT supposedly "allows retirees to vote on ratification of collective bargaining agreements and in elections for union officers." Even if true, PERB ruled, this would not matter as such participation concerns internal union affairs falling outside the scope of the Taylor Law.
.
Ignoring directives given by superiors
Ignoring directives given by superiors
Lowery v Office of Court Admin., App. Div., 244 AD2d 192
Patricia Lowery, an employee of the Office of Court Administration, was alleged to have "disregarded express directives" given to her by her supervisor.
Found guilty, Lowery was terminated from her position.
Was termination an excessive penalty to impose on Lowery for being insubordinate? The Appellate Division did not think it was and affirmed the decision of the Chief Administrative Judge to dismiss Lowery.
.
Lowery v Office of Court Admin., App. Div., 244 AD2d 192
Patricia Lowery, an employee of the Office of Court Administration, was alleged to have "disregarded express directives" given to her by her supervisor.
Found guilty, Lowery was terminated from her position.
Was termination an excessive penalty to impose on Lowery for being insubordinate? The Appellate Division did not think it was and affirmed the decision of the Chief Administrative Judge to dismiss Lowery.
.
Evaluating applications for disability retirement
Evaluating applications for disability retirement
Vasquez v Board of Trustees NYCFD, NYS Supreme Court [Not selected for publication in the Official Reports]
Furch v Bucci, Appellate Division, 245 AD2d 749, Motion to appeal dismissed as not a final order, 91 NY2d 953
The rejection of an application for accidental disability retirement typically hinge on the resolution of two important questions: (1) Did the individual suffer a line-of-duty injury? and, if so, (2) did the injury result in a permanent disability? The Vasquez and Furch consider the elements involved in making such determinations.
The Vasquez Case:
Vasquez, a New York City firefighter, claimed that he had sustained line-of-duty injuries including the rupture of his right Achilles tendon in 1983, a meniscus injury to his left knee in 1988, partial rupture of his left Achilles tendon in 1991, and a herniated disc in the cervical spine in 1993. The Fire Department filed an application for disability retirement on behalf of Vasquez on December 19, 1994 and on February 20, 1996 and on August 26, 1996, Vasquez filed his own applications for accident disability retirement. On September 10, 1996, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund [Trustees] decided to retire petitioner on ordinary disability retirement, not accidental disability retirement.
According to the ruling, the 1-B Medical Board concluded that the Achilles injuries and the lumbar degeneration were non-disabling; the herniated disc in the cervical spine was non-duty related; and the knee problem was not permanently disabling.
Vasquez sued, seeking a judgment annulling the Trustees' decisions. He argued there was no credible or substantive dispute as to his condition among the medical experts. The Trustees, on the other hand, argued that Vasquez failed to meet his burden of proof that his line-of-duty accidents caused his disability. Significantly, the Trustees contended that Vasquez had filed untimely line-of-duty injury reports concerning the events underlying his claims, "although over the years he had filed many."
Two fellow firefighters provided affidavits supporting Vasquez’s account of the events at issue. But the Trustees urged that the Court not give much weight to the fact that because the statements were dated more than a year and a half after the incident Vasquez claimed caused his disability.
Finally, the Trustees contended that the fact that Vasquez never returned to full duty "is not sufficient to overcome the copious medical evidence on the record."
Although the Medical Board's determination as to whether an applicant is disabled is binding upon the Trustees, the Court said that the issue of whether the disability is service-related is solely for the Board of Trustees to decide, citing Canfora v. Board of Trustees, 60 NY2d 347, 351. Commenting that there was an "exhaustive review of the objective and subjective evidence" by the 1-B Medical Board, the Court concluded that the record supported the Trustees' determination.
New York State Supreme Court Justice Belen noted the Trustee's vote was 6-6. Justice Belen commented that "if the Trustees' decision is based on a tie vote, the court cannot disturb an administrative determination unless it can find causation as a matter of law (City of New York v Schoeck, 294 NY 559, 570)." To prevail, Vasquez had to show that "the circumstances admit but one inference," i.e., that his line-of-duty injuries were the proximate cause of his disability. As he did not meet this test, "nor has he proved that they exacerbated a latent condition," the Court sustained the Trustees' determination and dismissed Vasquez's petition.
The Furch Case:
City of Binghamton firefighter James L. Furch applied for General Municipal Law Section 207-a benefits, claiming that he suffered from arteriosclerosis brought on by job-related factors. He claimed these job-related factors ultimately resulted in a heart attack while he was raising a flag while on duty at a fire station.
The hearing officer appointed by the City, Director of Personnel and Safety David W. Watkins, ruled that Furch's "myocardial infarction and underlying arteriosclerosis were not caused by the performance of his duties as a firefighter" and his application for Section 207-a benefits was rejected by the City.
Among the points made by the Appellate Division in the appeal that followed was the following:
The fact that a Workers' Compensation Law Judge ruled that Furch's myocardial infarction was causally related to his employment, the binding effect of the decision rendered in the workers' compensation proceeding did not preclude [Binghamton] from denying [Furch's] application for benefits pursuant to General Municipal Law Section 207-a.
============================================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
============================================
.
Vasquez v Board of Trustees NYCFD, NYS Supreme Court [Not selected for publication in the Official Reports]
Furch v Bucci, Appellate Division, 245 AD2d 749, Motion to appeal dismissed as not a final order, 91 NY2d 953
The rejection of an application for accidental disability retirement typically hinge on the resolution of two important questions: (1) Did the individual suffer a line-of-duty injury? and, if so, (2) did the injury result in a permanent disability? The Vasquez and Furch consider the elements involved in making such determinations.
The Vasquez Case:
Vasquez, a New York City firefighter, claimed that he had sustained line-of-duty injuries including the rupture of his right Achilles tendon in 1983, a meniscus injury to his left knee in 1988, partial rupture of his left Achilles tendon in 1991, and a herniated disc in the cervical spine in 1993. The Fire Department filed an application for disability retirement on behalf of Vasquez on December 19, 1994 and on February 20, 1996 and on August 26, 1996, Vasquez filed his own applications for accident disability retirement. On September 10, 1996, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund [Trustees] decided to retire petitioner on ordinary disability retirement, not accidental disability retirement.
According to the ruling, the 1-B Medical Board concluded that the Achilles injuries and the lumbar degeneration were non-disabling; the herniated disc in the cervical spine was non-duty related; and the knee problem was not permanently disabling.
Vasquez sued, seeking a judgment annulling the Trustees' decisions. He argued there was no credible or substantive dispute as to his condition among the medical experts. The Trustees, on the other hand, argued that Vasquez failed to meet his burden of proof that his line-of-duty accidents caused his disability. Significantly, the Trustees contended that Vasquez had filed untimely line-of-duty injury reports concerning the events underlying his claims, "although over the years he had filed many."
Two fellow firefighters provided affidavits supporting Vasquez’s account of the events at issue. But the Trustees urged that the Court not give much weight to the fact that because the statements were dated more than a year and a half after the incident Vasquez claimed caused his disability.
Finally, the Trustees contended that the fact that Vasquez never returned to full duty "is not sufficient to overcome the copious medical evidence on the record."
Although the Medical Board's determination as to whether an applicant is disabled is binding upon the Trustees, the Court said that the issue of whether the disability is service-related is solely for the Board of Trustees to decide, citing Canfora v. Board of Trustees, 60 NY2d 347, 351. Commenting that there was an "exhaustive review of the objective and subjective evidence" by the 1-B Medical Board, the Court concluded that the record supported the Trustees' determination.
New York State Supreme Court Justice Belen noted the Trustee's vote was 6-6. Justice Belen commented that "if the Trustees' decision is based on a tie vote, the court cannot disturb an administrative determination unless it can find causation as a matter of law (City of New York v Schoeck, 294 NY 559, 570)." To prevail, Vasquez had to show that "the circumstances admit but one inference," i.e., that his line-of-duty injuries were the proximate cause of his disability. As he did not meet this test, "nor has he proved that they exacerbated a latent condition," the Court sustained the Trustees' determination and dismissed Vasquez's petition.
The Furch Case:
City of Binghamton firefighter James L. Furch applied for General Municipal Law Section 207-a benefits, claiming that he suffered from arteriosclerosis brought on by job-related factors. He claimed these job-related factors ultimately resulted in a heart attack while he was raising a flag while on duty at a fire station.
The hearing officer appointed by the City, Director of Personnel and Safety David W. Watkins, ruled that Furch's "myocardial infarction and underlying arteriosclerosis were not caused by the performance of his duties as a firefighter" and his application for Section 207-a benefits was rejected by the City.
Among the points made by the Appellate Division in the appeal that followed was the following:
The fact that a Workers' Compensation Law Judge ruled that Furch's myocardial infarction was causally related to his employment, the binding effect of the decision rendered in the workers' compensation proceeding did not preclude [Binghamton] from denying [Furch's] application for benefits pursuant to General Municipal Law Section 207-a.
============================================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
============================================
.
Sep 17, 2010
Retirement benefits and divorce
Retirement benefits and divorce
Massaro v Massaro, NYS Supreme Court, [Not selected for publication in the Official Reports, see 2002 WL 243385]
In Massaro v Massaro, New York State Supreme Court Justice Blydenburgh answered an important question concerning the rights of a divorced spouse to benefits from a public retirement system such as the New York State Employees' Retirement System [ERS]. The question:
Should the final pension amount to be divided between divorced spouses include benefits due an employee at the time of his or her retirement that can be attributed to promotions received by the employee after the commencement of an action for divorce?
Both parties agreed that the divorced wife "is entitled to one half that pension that was earned as martial property." When the divorce action was commenced, the husband was a sergeant with the Suffolk County Police Department and a member of the Police and Firefighters Retirement System [PFRS].
Although there was no question that "an increase in the final pension amounts due solely to length of years in service, is marital property" and his former wife was entitled to share in that increase, Massaro argued that any increase because of promotions which came after the commencement of the divorce action are similar to a change of job, and no increase in his pension due to his increased salary because of promotions should be considered marital property. Massaro's theory was that "any promotion ... beyond Sergeant, coming not only after the commencement of this action, but subsequent to the divorce itself, could not be attributed to any action of [his former spouse] and for which she did not reasonably have any expectation."
His former wife, on the other hand, contended that she was entitled to her percentage of the retirement allowance actually paid to her former spouse, regardless of the reasons why his pension may have been increased.
According to Justice Blydenburgh, Massaro's promotion resulted from tests taken or lists established after the commencement of the divorce proceedings. Justice Blydenburgh reasoned that since neither party had any expectation of future pension increases due to promotions, any promotion earned by Massaro after the commencement of the divorce would have resulted from his actions alone.
Accordingly, the Court ruled that Massaro's former spouse was not entitled to share in any increase to his pension at the time of his retirement resulting from increases as a result of any post divorce promotions. What should she receive? The amount she would have been entitled to receive had Massaro not been promoted and retired from service as a Sergeant.
In dollars and cents, this means that Massaro's former spouse will be only entitled to that portion of Massaro's retirement allowance based on his "final average salary" as a Sergeant, but calculated using his total period of PFRS member service.
Massaro's portion of his retirement allowance, on the other hand, will be determined on the basis of his post-promotion "final average salary," which, presumably, would be higher than his "Sergeant final average salary," and his total member service credit in the system.
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Massaro v Massaro, NYS Supreme Court, [Not selected for publication in the Official Reports, see 2002 WL 243385]
In Massaro v Massaro, New York State Supreme Court Justice Blydenburgh answered an important question concerning the rights of a divorced spouse to benefits from a public retirement system such as the New York State Employees' Retirement System [ERS]. The question:
Should the final pension amount to be divided between divorced spouses include benefits due an employee at the time of his or her retirement that can be attributed to promotions received by the employee after the commencement of an action for divorce?
Both parties agreed that the divorced wife "is entitled to one half that pension that was earned as martial property." When the divorce action was commenced, the husband was a sergeant with the Suffolk County Police Department and a member of the Police and Firefighters Retirement System [PFRS].
Although there was no question that "an increase in the final pension amounts due solely to length of years in service, is marital property" and his former wife was entitled to share in that increase, Massaro argued that any increase because of promotions which came after the commencement of the divorce action are similar to a change of job, and no increase in his pension due to his increased salary because of promotions should be considered marital property. Massaro's theory was that "any promotion ... beyond Sergeant, coming not only after the commencement of this action, but subsequent to the divorce itself, could not be attributed to any action of [his former spouse] and for which she did not reasonably have any expectation."
His former wife, on the other hand, contended that she was entitled to her percentage of the retirement allowance actually paid to her former spouse, regardless of the reasons why his pension may have been increased.
According to Justice Blydenburgh, Massaro's promotion resulted from tests taken or lists established after the commencement of the divorce proceedings. Justice Blydenburgh reasoned that since neither party had any expectation of future pension increases due to promotions, any promotion earned by Massaro after the commencement of the divorce would have resulted from his actions alone.
Accordingly, the Court ruled that Massaro's former spouse was not entitled to share in any increase to his pension at the time of his retirement resulting from increases as a result of any post divorce promotions. What should she receive? The amount she would have been entitled to receive had Massaro not been promoted and retired from service as a Sergeant.
In dollars and cents, this means that Massaro's former spouse will be only entitled to that portion of Massaro's retirement allowance based on his "final average salary" as a Sergeant, but calculated using his total period of PFRS member service.
Massaro's portion of his retirement allowance, on the other hand, will be determined on the basis of his post-promotion "final average salary," which, presumably, would be higher than his "Sergeant final average salary," and his total member service credit in the system.
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Salary determinations by political subdivisions of the State
Salary determinations by political subdivisions of the State
Kent v Town of Niskayuna, Appellate Division, 244 AD2d 829
Peter E. Kent, Commissioner of Public Works for the Town of Niskayuna in Schenectady County, anticipated receiving an increase in his compensation as a Grade 27 employee in accordance with the salary table set out in the Town's employee handbook. But the Town decided to (1) change some of his duties and responsibilities and (2) eliminate all salary grades 26 and higher from the salary table effective January 1, 1996. As a result, Kent's 1996 salary was set at the salary rate for a "Grade 25, Step 5" employee instead of the salary for "Grade 27, Step 4" as he expected.
When his grievance seeking compensation at Grade 27, Step 4 was rejected by the Town, Kent sued. He contended that the Town did not have the authority to reduce the salary grade of his position and its action was arbitrary and capricious. A Supreme Court justice agreed and ordered the Town to reinstate Kent to the Grade 27 level with back pay "due to the [Town's] failure to comply with Civil Service Law Section 75 before it adjusted [Kent's] salary." However, the Appellate Division overturned that ruling.
The Appellate Division said that the authority to fix the salary of a town employee had been delegated to the town board employing the employee [Section 27, Town Law]. Citing Stetter v Amherst, 46 AD2d 1006, the Appellate Division observed that "courts will not interfere with the actions of such legislative bodies or inquire into their underlying motives 'absent fraud, corruption or oppression.'"
The Court decided that the Town presented evidence "indicating a need to tend to budgetary concerns." This, "coupled with the changes [in Kent's responsibilities and Kent's] failure to sustain a showing that the [Town's] action was done in contravention of, or in an attempt to circumvent, the protections afforded by Civil Service Law Section 75," provided substantial evidence supporting the Town's action.
The lesson here is that a municipal public employer may reallocate a position to a different salary grade consistent with the duties and responsibilities of the position provided its action is supported by substantial evidence and is neither arbitrary nor capricious. The employee has the burden of persuading the courts to the contrary.
It should be remembered that Kent was a municipal employee. The classification and allocation of positions in the service of the State to a salary grade, and the reclassification and reallocation of such positions, is controlled by Article 8 of the Civil Service Law.
Article 8, however, does not apply to classification and allocation of positions established by a political subdivision of the State.
.
Kent v Town of Niskayuna, Appellate Division, 244 AD2d 829
Peter E. Kent, Commissioner of Public Works for the Town of Niskayuna in Schenectady County, anticipated receiving an increase in his compensation as a Grade 27 employee in accordance with the salary table set out in the Town's employee handbook. But the Town decided to (1) change some of his duties and responsibilities and (2) eliminate all salary grades 26 and higher from the salary table effective January 1, 1996. As a result, Kent's 1996 salary was set at the salary rate for a "Grade 25, Step 5" employee instead of the salary for "Grade 27, Step 4" as he expected.
When his grievance seeking compensation at Grade 27, Step 4 was rejected by the Town, Kent sued. He contended that the Town did not have the authority to reduce the salary grade of his position and its action was arbitrary and capricious. A Supreme Court justice agreed and ordered the Town to reinstate Kent to the Grade 27 level with back pay "due to the [Town's] failure to comply with Civil Service Law Section 75 before it adjusted [Kent's] salary." However, the Appellate Division overturned that ruling.
The Appellate Division said that the authority to fix the salary of a town employee had been delegated to the town board employing the employee [Section 27, Town Law]. Citing Stetter v Amherst, 46 AD2d 1006, the Appellate Division observed that "courts will not interfere with the actions of such legislative bodies or inquire into their underlying motives 'absent fraud, corruption or oppression.'"
The Court decided that the Town presented evidence "indicating a need to tend to budgetary concerns." This, "coupled with the changes [in Kent's responsibilities and Kent's] failure to sustain a showing that the [Town's] action was done in contravention of, or in an attempt to circumvent, the protections afforded by Civil Service Law Section 75," provided substantial evidence supporting the Town's action.
The lesson here is that a municipal public employer may reallocate a position to a different salary grade consistent with the duties and responsibilities of the position provided its action is supported by substantial evidence and is neither arbitrary nor capricious. The employee has the burden of persuading the courts to the contrary.
It should be remembered that Kent was a municipal employee. The classification and allocation of positions in the service of the State to a salary grade, and the reclassification and reallocation of such positions, is controlled by Article 8 of the Civil Service Law.
Article 8, however, does not apply to classification and allocation of positions established by a political subdivision of the State.
.
Eligibility of employee for unemployment insurance benefits following resignation
Eligibility of employee for unemployment insurance benefits following resignation
De Benedetto v Brookhaven, Appellate Division, 244 AD2d 740
Is an employee who agrees to resign rather than face disciplinary charges entitled to unemployment insurance benefits? As indicated by the De Benedetto decision by the Appellate Division, it depends on the circumstances.
Town of Brookhaven sanitation inspector Frank De Benedetto was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. The matter was "settled" when the De Benedetto agreed to resign and the Town agreed to withdraw the charges and to advise any prospective employers that he had "resigned for personal reasons." Although De Benedetto's application for unemployment insurance benefits initially was denied because "he had voluntarily left his employment without good cause," the Unemployment Insurance Appeals Board reversed, remanding the issue to the local office. The Board said that the question to be resolved was whether or not De Benedetto should be disqualified "because of misconduct."
The Appellate Division affirmed the Board's determination, holding that "there is precedent that a claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." The Court cited La Rocca v New York City Department of Transportation, 59 NY2d 683, in support of its ruling.
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De Benedetto v Brookhaven, Appellate Division, 244 AD2d 740
Is an employee who agrees to resign rather than face disciplinary charges entitled to unemployment insurance benefits? As indicated by the De Benedetto decision by the Appellate Division, it depends on the circumstances.
Town of Brookhaven sanitation inspector Frank De Benedetto was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. The matter was "settled" when the De Benedetto agreed to resign and the Town agreed to withdraw the charges and to advise any prospective employers that he had "resigned for personal reasons." Although De Benedetto's application for unemployment insurance benefits initially was denied because "he had voluntarily left his employment without good cause," the Unemployment Insurance Appeals Board reversed, remanding the issue to the local office. The Board said that the question to be resolved was whether or not De Benedetto should be disqualified "because of misconduct."
The Appellate Division affirmed the Board's determination, holding that "there is precedent that a claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." The Court cited La Rocca v New York City Department of Transportation, 59 NY2d 683, in support of its ruling.
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Union dues a factor in a divorce proceeding
Union dues a factor in a divorce proceeding
Elizabeth A. v Hector S., NYS Supreme Court, Judge Bednar, [Not selected for publication in the Official Reports]
Would you think that union dues could be a factor in a divorce proceeding? It was in the case of Elizabeth A. v Hector S.
Hector was told that he had to pay $157.00 bi-weekly as child support. He objected, contending that the hearing examiner had miscalculated his adjusted gross income by neglecting to deduct his union dues from his gross income.
Judge Bednar ruled the hearing officer's calculations were correct. While the federal Internal Revenue Code allows a taxpayer to deduct union dues as a "miscellaneous itemized deduction," the Family Court Act [FCA] does not. Although FCA allows a limited number of exclusions from income when determining child support, union dues is not one of the enumerated deductions allowed by the Act in determining a parent's child support obligations.
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Elizabeth A. v Hector S., NYS Supreme Court, Judge Bednar, [Not selected for publication in the Official Reports]
Would you think that union dues could be a factor in a divorce proceeding? It was in the case of Elizabeth A. v Hector S.
Hector was told that he had to pay $157.00 bi-weekly as child support. He objected, contending that the hearing examiner had miscalculated his adjusted gross income by neglecting to deduct his union dues from his gross income.
Judge Bednar ruled the hearing officer's calculations were correct. While the federal Internal Revenue Code allows a taxpayer to deduct union dues as a "miscellaneous itemized deduction," the Family Court Act [FCA] does not. Although FCA allows a limited number of exclusions from income when determining child support, union dues is not one of the enumerated deductions allowed by the Act in determining a parent's child support obligations.
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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.
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