Absence due to incarceration
Karp v Comm. of Labor, App. Div., 3rd Dept., 262 AD2d 925
Matyjczuk v Delphi Automotive Sys., App. Div., 3rd Dept., 262 AD2d 847
Sometimes an employee cannot report to work because he or she is in jail. May the employee be terminated because of his or her inability to report to work because the incarceration? How far must the employer go to “accommodate” the employee’s incarceration? If terminated because of the incarceration, is the employee eligible for unemployment insurance benefits? These are some of the questions considered by the Appellate Division in the Karp and Matyjczuk cases.
The Karp decision
Susan Karp was dismissed from her position with the State Insurance Fund because she failed to “provide appropriate documentation regarding her unauthorized absence from work.” It seems that Karp had been arrested on May 27, 1998. She notified her supervisor that she could not report to work because she was in jail. Because she did not post, or arrange for, bail, Karp remained in jail.
The Fund wrote to Karp “acknowledging her arrest and informed her that because her absence from work was unauthorized, she was required to provide appropriate explanatory documentation by June 10, 1998.” Karp never replied to this letter. According to the decision, the Fund subsequently terminated her, deeming Karp to have “abandoned her employment.”
Former Section 4 NYCRR 5.3(d), of the New York State Civil Service Commission’s Rules for the Classified Service [repealed effective February 27, 1979] provided that a state employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position. This rule was held to violate the employee’s right to due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. Such a provision, however, has been held lawful if the parties had agreed to such a result through the collective bargaining process. Typically the courts will decline to void the provisions of such agreements except in cases involving the violation of a strong public policy.
The Unemployment Insurance Appeals Board disapproved Karp’s application for unemployment insurance, ruling that she was disqualified for benefits because she had been terminated as a result of her misconduct -- failing to respond to the letter that the Fund had sent to her.
The Appellate Division sustained the Board’s determination, pointing out that Karp conceded that she had been arrested and failed to post bail. It noted that the Unemployment Insurance Administrative Law Judge [ALJ] had asked Karp why she did not contact a bail bondsperson and she responded that “somebody said that they wouldn’t do it”. In other words she did not make any reasonable effort to be released from her incarceration.*
The Appellate Division said that it agreed with the Board that it was Karp’s “own willful or deliberate conduct [i.e., her failing to attempt to obtain bail] that rendered her unable to report to work.” This, coupled with Karp’s failing to respond to the letter sent to her, was deemed “disqualifying misconduct” for the purposes of claiming unemployment insurance benefits.
The Matyjczuk decision
The Appellate Division came to essentially the same conclusion in the Matyjczuk case -- failing to report to work because the employee was in jail under the circumstances present in this case constituted disqualifying misconduct.
Bob Matyjczuk was denied unemployment insurance benefits after he was dismissed by Delphi Automotive Systems.
Matyjczuk had been convicted of driving while intoxicated and was in jail from January 7, 1997 until September 5, 1997. Delphi initially allowed Matyjczuk to use his accrued vacation time and then granted him a 90-day leave of absence.
However, when this initial 90-day leave of absence expired on May 5, 1997, Delphi denied Matyjczuk’s request for a second leave of absence. It also refused to allow Matyjczuk to return to work under an approved county work release program because he had previously participated in a work release program during a prior incarceration.
Matyjczuk was unable to report to work upon the expiration of his leave of absence because he was still in jail. Delphi terminated him effective close of business May 5. Disqualified from receiving unemployment insurance benefits on the basis a finding that he was terminated for misconduct, Matyjczuk sued. An unsympathetic Appellate Division dismissed his appeal.
First the Court acknowledged that Matyjczuk “suffers from alcoholism.” It then noted the Snell v General Motors, 195 AD2d 746 and Opoka v Sweeney, 232 AD2d 718, decisions, cases which set out the proposition that alcoholism can excuse disqualifying misconduct in cases such as his if there is substantial evidence to show that:
1. The individual is an alcoholic;
2. The alcoholism caused the behavior leading to the individual’s discharge; and
3. The individual was available for and capable of work.
The Appellate Division said that Matyjczuk could not satisfy the third test -- being available and capable of work -- because his incarceration precluded him from being available for work. It rejected Matyjczuk’s argument that he would have been available for work if Delphi had “again afforded him the opportunity to participate in a work release program.” It agreed with the Unemployment Insurance Appeals Board that “the employer was not obligated to provide this accommodation a second time” and thus Matyjczuk could not satisfy all of the three elements essential to claiming he was eligible for an “exception” to his otherwise disqualifying misconduct.
The lesson here is that if an individual cannot report to work because he or she is in jail, the employer should attempt to determine the reason or reasons for the incarceration. It should then determine if it is possible and appropriate to make a reasonable effort to accommodate the employee’s situation. If, however, the employee fails to cooperate or if he or she has been provided with an “accommodation” related to an incarceration in the past, the employer is not required to undertake “heroic efforts” to continue the individual’s employment. Finally, unless a collective bargaining agreement so provides, a public employer may not deem an individual to have abandoned his or her position merely because he or she fails to report for work, with or without an explanation.
* When the ALJ asked her why she did not “more vigorously pursue help from her union following her termination,” Karp replied, “To tell you the truth, I really didn’t want to work there.”
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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.
Oct 19, 2010
Effective date of appointment
Effective date of appointment
Challandes v Shew, Supreme Ct., Westchester Co., [not officially reported]
Which one of the following best describes when the appointment of an individual in the classified service is binding on the appointing authority?
a. The date on which the appointing authority decides to appoint the individual.
b. The date on which the individual accepts the appointment.
c. The date on which the individual is scheduled to report for duty.
d. None of the above.
According to the Challandes decision, the best answer is “none of the above.” State Supreme Court Judge Peter M. Leavitt ruled that an appointment takes effect upon the execution [signing] of the letter of appointment by the appointing authority. Further, the individual’s “acceptance of the appointment” is not a necessary element, Judge Leavitt ruled.
Judge Leavitt’s decision, in part, parallels the law concerning resignation from the public service. The state Civil Service Commission’s Rules for state workers in the classified service mandate that an individual’s resignation from his or her position be in writing [4 NYCRR 5.3].
Case law holds that such a resignation becomes operative upon its delivery to the appointing authority -- “acceptance” of the resignation is not required. At most, all that the appointing authority may wish to do is to “acknowledge” its receipt of the resignation. Further, the effective date of the resignation is the date specified but if no date is specified, it is effective upon delivery. Many jurisdictions have adopted rules and procedures that track the State Commission’s rule concerning resignation. “Delivery” is frequently critical in determining an individual’s “employment status” since the general rule is that once delivered, the individual may not withdraw his or her resignation without the approval of the appointing authority.
The case involved Joyce Challandes, a provisional Data Entry Operator with the Village of Ossining. She took and passed the examination for permanent appointment to the position. The village manager signed a letter offering her “a permanent appointment” to the position “effective January 1, 1999.” On December 30, 1998, the executed letter was faxed to Challandes’ union representative but it was never sent to Challandes.
The next day the village manager handed Challandes a different letter -- a letter informing her that she would not be appointed to the position. Challandes sued, contending that she had been lawfully permanently appointed to the position. Judge Leavitt agreed, ruling that Challandes had been unlawfully terminated from her permanent appointment. He directed that she be reinstated as a probationary employee with back salary. Judge Leavitt held that “the execution of the letter [i.e., the village manager’s signing the letter] constituted a clear, unequivocal and voluntary act by the village manager which became effective immediately upon such execution."
Judge Leavitt declared that although the faxing of the letter to the union on December 30 was evidence of its execution, “no delivery - to [Challandes] or anyone else - was required to effectuate the appointment memorialized therein.” The judge also ruled that reporting the appointment to “proper personnel and payroll officers” was not necessary to effect the appointment. Concluding that Challandes “was duly and lawfully permanently appointed” to the position, Judge Leavitt said that “she could not be removed therefrom without cause during [her] minimum probationary period.”
Case law indicates that an individual permanently appointed to a position in the competitive class is protected by the due process provisions of Civil Service Law Section 75 during his or her minimum probationary period and must be given “notice and hearing” if he or she is to be terminated before completing his or her minimum period of probation. A probationer, however, may be terminated without notice and hearing after completing his or her minimum period of probation and before the end of his or her maximum period of probation.
Notwithstanding this, it would seem that delivery, in contrast to mere execution, of a letter of appointment is as critical a step in the appointment process as is delivery of a resignation in the separation process. It could argued that the faxing of the appointment letter to the union in the course of negotiations “concerning the pay grade within which [Challandes] would be compensated” satisfied the “delivery” requirement.
Is the delivery of the letter of appointment one of the key elements in the appointment process? Case law supports this concept. For example, the refusal to “deliver” an executed commission [letter of appointment] which was essential to effecting the appointment of the individual was the genesis of one of the most famous cases decided by the U.S. Supreme Court, Marbury v Madison, 1 Cranch 137, [1803].
Marbury was one of the so-called “midnight judges,” individuals selected for these appointments during the final hours of the outgoing presidential administration but whose commissions were never sent to them.
The new administration’s Secretary of State, James Madison, had found the commissions among the former Secretary of State’s papers, but had refused to deliver them to the appointees thereby frustrating their ability to take office. Ultimately U.S. Supreme Court Chief Justice John Marshall held that Congress did not have the authority to adopt legislation compelling the delivery of the commissions, thereby establishing the precedent for the Supreme Court’s review of the constitutionality of an act of Congress.
It may be of interest to note that Marshall was the incumbent Secretary of State who had neglected to provide for the timely delivery of the commissions to Marbury and his co-appointees.
As to the question of the withdrawal of an appointment, courts have held that a written resignation may be withdrawn or canceled by the individual without the approval of the appointing authority if the notice rescinding the resignation is received by the appointing authority before delivery of the resignation. [see Wright v Town Board, 160 AD2D 1156; Informal Opinions of the Attorney General, August 23, 1974].
By analogy, it would appear that an appointment may be rescinded by an appointing authority if the appointee receives notice of the cancellation of his or her appointment prior to the “delivery of the letter of appointment”.
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Challandes v Shew, Supreme Ct., Westchester Co., [not officially reported]
Which one of the following best describes when the appointment of an individual in the classified service is binding on the appointing authority?
a. The date on which the appointing authority decides to appoint the individual.
b. The date on which the individual accepts the appointment.
c. The date on which the individual is scheduled to report for duty.
d. None of the above.
According to the Challandes decision, the best answer is “none of the above.” State Supreme Court Judge Peter M. Leavitt ruled that an appointment takes effect upon the execution [signing] of the letter of appointment by the appointing authority. Further, the individual’s “acceptance of the appointment” is not a necessary element, Judge Leavitt ruled.
Judge Leavitt’s decision, in part, parallels the law concerning resignation from the public service. The state Civil Service Commission’s Rules for state workers in the classified service mandate that an individual’s resignation from his or her position be in writing [4 NYCRR 5.3].
Case law holds that such a resignation becomes operative upon its delivery to the appointing authority -- “acceptance” of the resignation is not required. At most, all that the appointing authority may wish to do is to “acknowledge” its receipt of the resignation. Further, the effective date of the resignation is the date specified but if no date is specified, it is effective upon delivery. Many jurisdictions have adopted rules and procedures that track the State Commission’s rule concerning resignation. “Delivery” is frequently critical in determining an individual’s “employment status” since the general rule is that once delivered, the individual may not withdraw his or her resignation without the approval of the appointing authority.
The case involved Joyce Challandes, a provisional Data Entry Operator with the Village of Ossining. She took and passed the examination for permanent appointment to the position. The village manager signed a letter offering her “a permanent appointment” to the position “effective January 1, 1999.” On December 30, 1998, the executed letter was faxed to Challandes’ union representative but it was never sent to Challandes.
The next day the village manager handed Challandes a different letter -- a letter informing her that she would not be appointed to the position. Challandes sued, contending that she had been lawfully permanently appointed to the position. Judge Leavitt agreed, ruling that Challandes had been unlawfully terminated from her permanent appointment. He directed that she be reinstated as a probationary employee with back salary. Judge Leavitt held that “the execution of the letter [i.e., the village manager’s signing the letter] constituted a clear, unequivocal and voluntary act by the village manager which became effective immediately upon such execution."
Judge Leavitt declared that although the faxing of the letter to the union on December 30 was evidence of its execution, “no delivery - to [Challandes] or anyone else - was required to effectuate the appointment memorialized therein.” The judge also ruled that reporting the appointment to “proper personnel and payroll officers” was not necessary to effect the appointment. Concluding that Challandes “was duly and lawfully permanently appointed” to the position, Judge Leavitt said that “she could not be removed therefrom without cause during [her] minimum probationary period.”
Case law indicates that an individual permanently appointed to a position in the competitive class is protected by the due process provisions of Civil Service Law Section 75 during his or her minimum probationary period and must be given “notice and hearing” if he or she is to be terminated before completing his or her minimum period of probation. A probationer, however, may be terminated without notice and hearing after completing his or her minimum period of probation and before the end of his or her maximum period of probation.
Notwithstanding this, it would seem that delivery, in contrast to mere execution, of a letter of appointment is as critical a step in the appointment process as is delivery of a resignation in the separation process. It could argued that the faxing of the appointment letter to the union in the course of negotiations “concerning the pay grade within which [Challandes] would be compensated” satisfied the “delivery” requirement.
Is the delivery of the letter of appointment one of the key elements in the appointment process? Case law supports this concept. For example, the refusal to “deliver” an executed commission [letter of appointment] which was essential to effecting the appointment of the individual was the genesis of one of the most famous cases decided by the U.S. Supreme Court, Marbury v Madison, 1 Cranch 137, [1803].
Marbury was one of the so-called “midnight judges,” individuals selected for these appointments during the final hours of the outgoing presidential administration but whose commissions were never sent to them.
The new administration’s Secretary of State, James Madison, had found the commissions among the former Secretary of State’s papers, but had refused to deliver them to the appointees thereby frustrating their ability to take office. Ultimately U.S. Supreme Court Chief Justice John Marshall held that Congress did not have the authority to adopt legislation compelling the delivery of the commissions, thereby establishing the precedent for the Supreme Court’s review of the constitutionality of an act of Congress.
It may be of interest to note that Marshall was the incumbent Secretary of State who had neglected to provide for the timely delivery of the commissions to Marbury and his co-appointees.
As to the question of the withdrawal of an appointment, courts have held that a written resignation may be withdrawn or canceled by the individual without the approval of the appointing authority if the notice rescinding the resignation is received by the appointing authority before delivery of the resignation. [see Wright v Town Board, 160 AD2D 1156; Informal Opinions of the Attorney General, August 23, 1974].
By analogy, it would appear that an appointment may be rescinded by an appointing authority if the appointee receives notice of the cancellation of his or her appointment prior to the “delivery of the letter of appointment”.
.
Are school counselors teachers?
Are school counselors teachers?
North Tonawanda CSD v Mills, App. Div. 3rd Dept., 263 AD2d 574, Motion for leave to appeal denied, 94 NY2d 751
Teachers have many rights and entitlements under the Education Law. Should school counselors and social workers be considered teachers when determining their rights and benefits? Generally, the answer is no, as the North Tonawanda case shows.
Effective September 1996, the North Tonawanda City School District discontinued using the Orleans-Niagara BOCES to provide counseling and social work services to its special education students in favor of using its own employees to provide such services. The district appointed eight former BOCES employees for this purpose.
Seven of these former BOCES employees were certified school social workers; the eighth was a school counselor.
The appeal concerned the district’s denial of certain prior service credits for salary purposes and sick leave credits granted to the eight former BOCES employees upon their appointment by the district.
While at BOCES, the employees’ salaries reflected both their service and experience prior to their being employed by BOCES, together with their actual years of service at BOCES. When appointed by the district they were only given service credit for salary purposes for their actual BOCES service; no service credit was allowed for any pre-BOCES employment. In addition, the eight were not credited with any “BOCES sick leave” accruals.
The eight claimed that the district’s decision violated their rights under Section 3014-b (3) of the Education Law, which sets out the rights of teachers where a school district has taken over a program formerly operated by a BOCES. However, the term “teacher” is not defined in Article 61, where Education Law Section 3014-b is found.
The eight appealed to the Commissioner of Education. The then-Acting Commissioner ruled in favor of the employees and ordered the district to place them at the same salary step they had at BOCES and give them their BOCES sick leave credits.
North Tonawanda appealed the Acting Commissioner’s determination, contending that the former BOCES employees were not teachers and, therefore, not entitled to the rights given BOCES teachers by Education Law Section 3014-b. A State Supreme Court judge agreed and annulled the Acting Commissioner’s determination and the employees, together with the Department of Education, appealed. The Appellate Division concurred with the lower court, holding that counselors and social workers are not “teachers” for purposes of Section 3014-b.
The Appellate Division noted that the Legislature recently amended Section 3014-b to include “teaching assistants and teachers’ aides.” This, said the court, indicates that the term “teacher” has a very narrow meaning for the purposes of Section 3014-b.
The court also cited Fink v Avon Central School District, 207 AD2d 973, in which the Appellate Division, 4th Department, concluded that “the position of school psychologist does not fall within the scope of the term ‘teacher’ as used in Education Law Section 3014-b”. Because the positions of school psychologist, social worker and counselor are similar, the Fink decision suggested that school social workers and counselors are not “teachers.”
.
North Tonawanda CSD v Mills, App. Div. 3rd Dept., 263 AD2d 574, Motion for leave to appeal denied, 94 NY2d 751
Teachers have many rights and entitlements under the Education Law. Should school counselors and social workers be considered teachers when determining their rights and benefits? Generally, the answer is no, as the North Tonawanda case shows.
Effective September 1996, the North Tonawanda City School District discontinued using the Orleans-Niagara BOCES to provide counseling and social work services to its special education students in favor of using its own employees to provide such services. The district appointed eight former BOCES employees for this purpose.
Seven of these former BOCES employees were certified school social workers; the eighth was a school counselor.
The appeal concerned the district’s denial of certain prior service credits for salary purposes and sick leave credits granted to the eight former BOCES employees upon their appointment by the district.
While at BOCES, the employees’ salaries reflected both their service and experience prior to their being employed by BOCES, together with their actual years of service at BOCES. When appointed by the district they were only given service credit for salary purposes for their actual BOCES service; no service credit was allowed for any pre-BOCES employment. In addition, the eight were not credited with any “BOCES sick leave” accruals.
The eight claimed that the district’s decision violated their rights under Section 3014-b (3) of the Education Law, which sets out the rights of teachers where a school district has taken over a program formerly operated by a BOCES. However, the term “teacher” is not defined in Article 61, where Education Law Section 3014-b is found.
The eight appealed to the Commissioner of Education. The then-Acting Commissioner ruled in favor of the employees and ordered the district to place them at the same salary step they had at BOCES and give them their BOCES sick leave credits.
North Tonawanda appealed the Acting Commissioner’s determination, contending that the former BOCES employees were not teachers and, therefore, not entitled to the rights given BOCES teachers by Education Law Section 3014-b. A State Supreme Court judge agreed and annulled the Acting Commissioner’s determination and the employees, together with the Department of Education, appealed. The Appellate Division concurred with the lower court, holding that counselors and social workers are not “teachers” for purposes of Section 3014-b.
The Appellate Division noted that the Legislature recently amended Section 3014-b to include “teaching assistants and teachers’ aides.” This, said the court, indicates that the term “teacher” has a very narrow meaning for the purposes of Section 3014-b.
The court also cited Fink v Avon Central School District, 207 AD2d 973, in which the Appellate Division, 4th Department, concluded that “the position of school psychologist does not fall within the scope of the term ‘teacher’ as used in Education Law Section 3014-b”. Because the positions of school psychologist, social worker and counselor are similar, the Fink decision suggested that school social workers and counselors are not “teachers.”
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Oct 18, 2010
School district may reassign an educator to a different location in the district and assign new duties consistent with his or her tenure area
School district may reassign an educator to a different location in the district and assign new duties consistent with his or her tenure area
Roberta-Michele Jodre v Board of Education of the Locust Valley Central School District, Decisions of the Commissioner of Education, Decision #16,162
Roberta-Michele Jodre, a tenured director of guidance services for grades kindergarten through 12. In October 2009, her primary office was relocated from Locust Valley’s high school to its middle school and her duties were modified so that she focused more of her time on the middle school.
Characterizing the change as “discipline* without due process,” the attorney for Jodre’s collective bargaining unit asked that Jodre be returned to her office in the high school and that she continute to perform her former duties. Locust Valley’s attorney responded, indicating that no disciplinary action had been taken against Jodre, her reassignment was within the authority of the school board and that “the superintendent’s discretion to have [Jodre] focus her efforts on the middle school.” Jodre appealed.
Initially the Commissioner addressed a procedural issue: was Jodre’s appeal timely.
Noting that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16)” the Commissioner found that Jodre’s appeal was untimely.
The Commissioner explained that Jodre’s work site and assignments had been changed in October 2009 but that she had not commenced her appeal until December 16, 2009, more than 30 days later. As to the letter dated November 4, 2009 sent by the collective bargaining agent’s attorney questioning the legality of school district’s actions, the Commissioner said that the letter “constituted a request for reconsideration” and a reconsideration request does not extend the time within which an appeal to the Commissioner must be filed.
In any event, the Commissioner indicated that even if the appeal had been timely filed he would have dismissed it on the merits as a “board of education has broad discretion in assigning members of its professional staff, so long as the employees tenure rights are not infringed.”
In this instance, said the Commissioner, although Jodre was unhappy with the change, she had been continued in her tenured position and had been assigned to duties consistent with that tenured position. Significantly, the Commissioner indicated that there is no general requirement that a school district assign a teacher to a particular classroom and changes in assignments are permissible provided the new assignments are within the same tenure area.
As to Jodre’s claim that the changes were “disciplinary in nature and required an Education Law §3020-a hearing,” the Commissioner explained that “a school board’s decision to reassign a tenured employee based on the district’s educational needs does not constitute discipline for which procedural due process must be provided under Education Law §3020-a as long as the employee’s rights are not infringed,” citing Matter of Mishkoff v Nyquist, 57 AD2d 649.
* In his decision, the Commissioner noted that Jodre failed to submit any evidence as to the conduct for which she was allegedly being disciplined.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16162.htm
NYPPL
Roberta-Michele Jodre v Board of Education of the Locust Valley Central School District, Decisions of the Commissioner of Education, Decision #16,162
Roberta-Michele Jodre, a tenured director of guidance services for grades kindergarten through 12. In October 2009, her primary office was relocated from Locust Valley’s high school to its middle school and her duties were modified so that she focused more of her time on the middle school.
Characterizing the change as “discipline* without due process,” the attorney for Jodre’s collective bargaining unit asked that Jodre be returned to her office in the high school and that she continute to perform her former duties. Locust Valley’s attorney responded, indicating that no disciplinary action had been taken against Jodre, her reassignment was within the authority of the school board and that “the superintendent’s discretion to have [Jodre] focus her efforts on the middle school.” Jodre appealed.
Initially the Commissioner addressed a procedural issue: was Jodre’s appeal timely.
Noting that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16)” the Commissioner found that Jodre’s appeal was untimely.
The Commissioner explained that Jodre’s work site and assignments had been changed in October 2009 but that she had not commenced her appeal until December 16, 2009, more than 30 days later. As to the letter dated November 4, 2009 sent by the collective bargaining agent’s attorney questioning the legality of school district’s actions, the Commissioner said that the letter “constituted a request for reconsideration” and a reconsideration request does not extend the time within which an appeal to the Commissioner must be filed.
In any event, the Commissioner indicated that even if the appeal had been timely filed he would have dismissed it on the merits as a “board of education has broad discretion in assigning members of its professional staff, so long as the employees tenure rights are not infringed.”
In this instance, said the Commissioner, although Jodre was unhappy with the change, she had been continued in her tenured position and had been assigned to duties consistent with that tenured position. Significantly, the Commissioner indicated that there is no general requirement that a school district assign a teacher to a particular classroom and changes in assignments are permissible provided the new assignments are within the same tenure area.
As to Jodre’s claim that the changes were “disciplinary in nature and required an Education Law §3020-a hearing,” the Commissioner explained that “a school board’s decision to reassign a tenured employee based on the district’s educational needs does not constitute discipline for which procedural due process must be provided under Education Law §3020-a as long as the employee’s rights are not infringed,” citing Matter of Mishkoff v Nyquist, 57 AD2d 649.
* In his decision, the Commissioner noted that Jodre failed to submit any evidence as to the conduct for which she was allegedly being disciplined.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16162.htm
NYPPL
Disciplinary charges filed against employee alleging refusing a post assignment
Disciplinary charges filed against employee alleging refusing a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10
The New York City Department of Corrections filed disciplinary charges against NYC Corrections Officer Regina Callabrass alleging that she had disobeyed an order to take a post assignment, abandoned her post while on duty and made a false logbook entry.
OATH Administrative Law Judge Tynia Richard dismissed the charge that Callabrass had abandoned her post, finding that the post was not left unsecured as another officer remained there “during the seven minutes respondent was away to use the bathroom.”
ALJ Richard also recommended dismissal of the charge that Callabrass had disobeyed an order to take an assignment. Although Callabrass had objected to it, the supervisor did not insist that she accept the assignment but instead began looking for someone else to take it.
However ALJ Richard found Callabrass guilty of a charge that she had threatened to call in sick when she received the unwanted assignment. This, said the ALJ, constituted conduct unbecoming an office but in consideration of her “long service record with no prior discipline,” recommended a 5-day suspension without pay as the penalty.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1981.pdf
NYPPL
NYC Department of Corrections v Callabrass, OATH Index #1981/10
The New York City Department of Corrections filed disciplinary charges against NYC Corrections Officer Regina Callabrass alleging that she had disobeyed an order to take a post assignment, abandoned her post while on duty and made a false logbook entry.
OATH Administrative Law Judge Tynia Richard dismissed the charge that Callabrass had abandoned her post, finding that the post was not left unsecured as another officer remained there “during the seven minutes respondent was away to use the bathroom.”
ALJ Richard also recommended dismissal of the charge that Callabrass had disobeyed an order to take an assignment. Although Callabrass had objected to it, the supervisor did not insist that she accept the assignment but instead began looking for someone else to take it.
However ALJ Richard found Callabrass guilty of a charge that she had threatened to call in sick when she received the unwanted assignment. This, said the ALJ, constituted conduct unbecoming an office but in consideration of her “long service record with no prior discipline,” recommended a 5-day suspension without pay as the penalty.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1981.pdf
NYPPL
Excessive absenteeism could result in dismissal from service
Excessive absenteeism could result in dismissal from service
Fischer v Smithtown CSD, 262 AD2d 560
A Section 3020-a arbitrator found Joan Fischer guilty of charges filed against her by the Smithtown Central School District alleging neglect of duty and incompetence based on her “excessive absenteeism.” The penalty imposed: termination.
Fischer failed in her attempt to have the award vacated, demonstrating the limited authority given the courts for overturning an arbitration award.
Fisher, however, was initially successful in her appeal, winning an order by a State Supreme Court judge vacating the arbitration award and directing the matter be remitted to the district “for a new hearing.” When the Appellate Division got the case, it reversed the lower court’s ruling and confirmed the arbitration award.
The Appellate Division said that the hearing officer’s determination had a rational basis and was supported by the record.
Significantly, it commented that the evidence at the hearing supported the hearing officer’s determination that Fisher’s “absences disrupted the educational process and adversely affected her students.” The court noted that Fisher “did not demonstrate any basis for vacating the determination pursuant to CPLR 7511,” referring to the appeal procedure set out in Section 3020-a[5] of the Education Law.
.
Fischer v Smithtown CSD, 262 AD2d 560
A Section 3020-a arbitrator found Joan Fischer guilty of charges filed against her by the Smithtown Central School District alleging neglect of duty and incompetence based on her “excessive absenteeism.” The penalty imposed: termination.
Fischer failed in her attempt to have the award vacated, demonstrating the limited authority given the courts for overturning an arbitration award.
Fisher, however, was initially successful in her appeal, winning an order by a State Supreme Court judge vacating the arbitration award and directing the matter be remitted to the district “for a new hearing.” When the Appellate Division got the case, it reversed the lower court’s ruling and confirmed the arbitration award.
The Appellate Division said that the hearing officer’s determination had a rational basis and was supported by the record.
Significantly, it commented that the evidence at the hearing supported the hearing officer’s determination that Fisher’s “absences disrupted the educational process and adversely affected her students.” The court noted that Fisher “did not demonstrate any basis for vacating the determination pursuant to CPLR 7511,” referring to the appeal procedure set out in Section 3020-a[5] of the Education Law.
.
Exhausting the administrative remedy
Exhausting the administrative remedy
Ciccone v Jacobson, App. Div., First Dept., 262 AD2d 78
Before a public employee may sue his or her employer, he or she generally must have exhausted all forms of “administrative remedy” at the individual’s disposal. Administrative remedy refers simply to appeals procedures outside the courts. One of the most common forms of administrative remedy is a Taylor Law contract grievance procedure.
If the individual claims his or her statutory rights were violated, he or she may be able to proceed directly to the courts. But if the collective bargaining agreement incorporates the law that was allegedly broken, the Ciccone decision holds that individual cannot go directly to the courts but must first seek satisfaction through the grievance procedure.
What constitutes incorporation of a specific law in a Taylor Law agreement? A law may be incorporated “by reference.” That is, if the contract refers to the law, and all matters of dispute involving the contract are to be handled in a grievance procedure, then the individual must use that grievance procedure before he or she has access to the courts.
As Ciccone illustrates, it is necessary to evaluate the availability of “an administrative remedy” such as filing a contract grievance before initiating litigation.
New York City correction officer Joe Ciccone sued his employer, the New York City Department of Corrections, contending it had violated Section 9-117.1(a) of New York City’s administrative code when it refused his claim for sick pay.
The city, however, succeeded in having a court dismiss his Article 78 action on the grounds that Ciccone had failed to exhaust his administrative remedies.
The Appellate Division pointed out that Article XXI, Section 1 of the collective bargaining agreement between Ciccone’s union and the department defined the term “grievance” to include “a claimed violation, misinterpretation or inequitable application of the provisions of [this] Agreement”.
Another contract provision, Article X, Section 2(1), incorporated “by both reference and repetition” Administrative Code Section 9-117.1(a), under which correction officers are entitled to “leave with pay for the full period of any incapacity caused by a service-connected injury.”
The court said that reading these two provisions together requires a finding that Ciccone’s claim for sick pay is a grievance within the meaning of the collective bargaining agreement and, therefore, is subject to the exclusive grievance/arbitration remedies contained in the contract. In other words, the Taylor Law agreement’s contract grievance procedure barred Ciccone from commencing a lawsuit concerning the issue.
Ciccone had argued that he could bring an action in court because the contract also provided that the union’s right to seek arbitration was contingent upon [the union’s] and the represented employee’s “written waiver of the right, if any, ... to submit the underlying dispute to any other administrative or judicial tribunal except for the purpose of enforcing the arbitrator’s award.” The Appellate Division rejected this theory. It said the employee’s refusal to sign a waiver of his presumed right to go to court does not give him the right to sue.
In contrast to the Ciccone decision, a Hauppauge schools employee won the right to sue the school district concerning a salary dispute notwithstanding the contract arbitration provision then in force [Marino v Hauppauge UFSD, decided by the Appellate Division, Second Department [262 AD2d 321]. Frank Marino alleged that the district had violated his rights under Education Law Section 3013. The court said that Marino “had every right to seek redress for the alleged violation of his statutory rights in this proceeding, even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”
The rationale underlying the Second Department’s decision: “The issues presented and the remedies sought in each forum were separate and distinct.”
.
Ciccone v Jacobson, App. Div., First Dept., 262 AD2d 78
Before a public employee may sue his or her employer, he or she generally must have exhausted all forms of “administrative remedy” at the individual’s disposal. Administrative remedy refers simply to appeals procedures outside the courts. One of the most common forms of administrative remedy is a Taylor Law contract grievance procedure.
If the individual claims his or her statutory rights were violated, he or she may be able to proceed directly to the courts. But if the collective bargaining agreement incorporates the law that was allegedly broken, the Ciccone decision holds that individual cannot go directly to the courts but must first seek satisfaction through the grievance procedure.
What constitutes incorporation of a specific law in a Taylor Law agreement? A law may be incorporated “by reference.” That is, if the contract refers to the law, and all matters of dispute involving the contract are to be handled in a grievance procedure, then the individual must use that grievance procedure before he or she has access to the courts.
As Ciccone illustrates, it is necessary to evaluate the availability of “an administrative remedy” such as filing a contract grievance before initiating litigation.
New York City correction officer Joe Ciccone sued his employer, the New York City Department of Corrections, contending it had violated Section 9-117.1(a) of New York City’s administrative code when it refused his claim for sick pay.
The city, however, succeeded in having a court dismiss his Article 78 action on the grounds that Ciccone had failed to exhaust his administrative remedies.
The Appellate Division pointed out that Article XXI, Section 1 of the collective bargaining agreement between Ciccone’s union and the department defined the term “grievance” to include “a claimed violation, misinterpretation or inequitable application of the provisions of [this] Agreement”.
Another contract provision, Article X, Section 2(1), incorporated “by both reference and repetition” Administrative Code Section 9-117.1(a), under which correction officers are entitled to “leave with pay for the full period of any incapacity caused by a service-connected injury.”
The court said that reading these two provisions together requires a finding that Ciccone’s claim for sick pay is a grievance within the meaning of the collective bargaining agreement and, therefore, is subject to the exclusive grievance/arbitration remedies contained in the contract. In other words, the Taylor Law agreement’s contract grievance procedure barred Ciccone from commencing a lawsuit concerning the issue.
Ciccone had argued that he could bring an action in court because the contract also provided that the union’s right to seek arbitration was contingent upon [the union’s] and the represented employee’s “written waiver of the right, if any, ... to submit the underlying dispute to any other administrative or judicial tribunal except for the purpose of enforcing the arbitrator’s award.” The Appellate Division rejected this theory. It said the employee’s refusal to sign a waiver of his presumed right to go to court does not give him the right to sue.
In contrast to the Ciccone decision, a Hauppauge schools employee won the right to sue the school district concerning a salary dispute notwithstanding the contract arbitration provision then in force [Marino v Hauppauge UFSD, decided by the Appellate Division, Second Department [262 AD2d 321]. Frank Marino alleged that the district had violated his rights under Education Law Section 3013. The court said that Marino “had every right to seek redress for the alleged violation of his statutory rights in this proceeding, even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”
The rationale underlying the Second Department’s decision: “The issues presented and the remedies sought in each forum were separate and distinct.”
.
Free Speech protections for public employees
Free Speech protections for public employeesFry v McCall, USDC SDNY, 945 F. Supp. 655
In the Fry case, a federal district court judge was asked to determine if a public official’s statements concerning matters alleged to be of “public concern” served as a shield against his or her removal from the position.
Patricia C. Fry sued State Comptroller Carl McCall complaining that she had been dismissed from her position as Director of the Bureau of Budget Analysis with the Office of the State Deputy Comptroller because she spoke out on a matter of public concern and that her discharge deprived her of her First Amendment right to free speech in violation of 42 USC. Section 1983.
Fry alleged that she had been terminated because she had questioned reports concerning a New York City “budget crisis” in 1993 and 1994 and that the Comptroller discharged her because she expressed skepticism about the accuracy or integrity of those reports.
The Comptroller, on the other hand, contended that Fry “had become insubordinate to her supervisor, disruptive at staff meetings, unwilling to cooperate in the preparation of the OSDC reports, and abusive toward a colleague.” In addition, the Comptroller argued that even if he had discharged Fry because of her statements, this “did not violate her First Amendment rights because the State’s interest in the effective and efficient operations of the [agency] outweighed any free speech rights [Fry] may have had.”
The court said that to win her Section 1983 claim for wrongful termination based on a First Amendment violation, Fry was required to prove by a preponderance of the evidence (a) that the speech at issue was constitutionally protected, and (b) that it was a “substantial” or “motivating” factor in the decision to terminate her employment. Judge Koeltl concluded that “Fry has failed to prove by a preponderance of the evidence that her expressions of concern [regarding the reports] were a ‘substantial’ or ‘motivating’ factor in the decision to dismiss her.”
The decision notes that there are a number of relevant factors to be considered in such cases, including [a] the time, manner, and place of the speech; [b] the extent of the disruption caused by the employee’s conduct; [c] the responsibilities of the employee and [d] whether the employee held a policymaking position....” Significantly, the court observed that “[a] high-ranking policy-making employee does not have, and never has had, a First Amendment right to refuse [her] employer’s directive to promote agency policy.”
In Vezzetti v. Pellearini, 22 F.3d 483, the Second Circuit Court of Appeals, which has jurisdiction over New York State, set out a number of guidelines for determining “policymaker status.” To resolve the issue, the courts should determine whether the individual:
(1) Is exempt from civil service protection,
(2) Has some technical competence or expertise,
(3) Controls others,
(4) Is authorized to speak in the name of the policymakers,
(5) Is perceived as a policymaker by the public,
(6) Influences government programs,
(7) Has contact with elected officials, and
(8) Is responsive to partisan politics and political leaders.
The court said that Fry satisfied all of these eight criteria with respect to the issue of her “policymaker” status. Under the Pickering balancing test [see Pickering v Board of Education, 391 U.S. 563], said the court, the Comptroller “justifiably terminated Ms. Fry, a policymaking employee whose behavior not only threatened to become disruptive, but had already become disruptive, in order to preserve the efficiency and effectiveness of the OSDC.”
Having found that Fry “failed to demonstrate that Comptroller McCall, or indeed any state employee, acting under color of state law, deprived her of her right to free speech in violation of the First Amendment”, dismissed her action on the merits and closed the case.
.
Hearing officer may not the attorney of a party to draft findings of fact and determination to the attorney of a party in the proceeding
Hearing officer may not the attorney of a party to draft findings of fact and determination to the attorney of a party in the proceeding
LePore v McCall, 262 AD2d 919
This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.
Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.
In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.
Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”
After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.
PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.
Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.
PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”
The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.
The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
.
LePore v McCall, 262 AD2d 919
This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.
Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.
In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.
Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”
After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.
PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.
Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.
PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”
The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.
The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
.
Hearing officer, not the attorney of a party, may draft findings of fact and determinations in the proceeding
Hearing officer, not the attorney of a party, makes the findings of fact and determination in the proceeding
LePore v McCall, 262 AD2d 919
This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.
Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.
In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.
Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”
After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.
PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.
Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.
PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”
The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.
The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
.
LePore v McCall, 262 AD2d 919
This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.
Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.
In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.
Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”
After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.
PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.
Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.
PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”
The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.
The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
.
Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing
Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing
Foster v Commissioner of Labor, 262 AD2d 899
The Carthage Central School District dismissed Sharon Foster after a Section 75 disciplinary hearing officer found her guilty of misconduct in the operation of her school bus. The hearing officer found that Foster had backed up her school bus on a state highway on numerous occasions, although she knew that such a maneuver was unsafe.
Following her dismissal, Foster was denied unemployment insurance benefits on the grounds that she was terminated from her position for “disqualifying misconduct.”
After a number of procedural steps had been completed, an Unemployment Insurance Administrative Law Judge concluded that he was bound by the factual findings of the Section 75 proceeding and held that Foster’s action constituted disqualifying misconduct. The Appellate Division agreed, sustaining the Unemployment Insurance Board’s determination.
The Appellate Division also rejected Foster’s claim that she did not get a fair hearing before the Unemployment Insurance Board’s ALJ because she was not permitted to present a witness who was available to testify. The Appellate Division said that the witness’s testimony was irrelevant once the ALJ concluded that the underlying facts had been established by the final determination in the Section 75 proceeding.
According to the ruling, Foster, who was represented by counsel in the Section 75 disciplinary proceeding, had a full and fair opportunity to litigate all the factual issues concerning the charges of misconduct.
The court said that the factual findings made in during the Section 75 hearing were entitled to be given a collateral estoppel effect and thus Foster was “precluded from relitigating the factual issues” in the course of her unemployment insurance hearing.
In a parallel type of situation, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are filed related to that same incident of theft, there is no lawful way for an administrative disciplinary hearing officer to find the employee not guilty of stealing. This was the holding in Kelly v. Levin, 440 NY2d 424, a case that challenged the acquittal an employee in an administrative disciplinary action earlier found guilty of a criminal act involving the same allegations.
.
Foster v Commissioner of Labor, 262 AD2d 899
The Carthage Central School District dismissed Sharon Foster after a Section 75 disciplinary hearing officer found her guilty of misconduct in the operation of her school bus. The hearing officer found that Foster had backed up her school bus on a state highway on numerous occasions, although she knew that such a maneuver was unsafe.
Following her dismissal, Foster was denied unemployment insurance benefits on the grounds that she was terminated from her position for “disqualifying misconduct.”
After a number of procedural steps had been completed, an Unemployment Insurance Administrative Law Judge concluded that he was bound by the factual findings of the Section 75 proceeding and held that Foster’s action constituted disqualifying misconduct. The Appellate Division agreed, sustaining the Unemployment Insurance Board’s determination.
The Appellate Division also rejected Foster’s claim that she did not get a fair hearing before the Unemployment Insurance Board’s ALJ because she was not permitted to present a witness who was available to testify. The Appellate Division said that the witness’s testimony was irrelevant once the ALJ concluded that the underlying facts had been established by the final determination in the Section 75 proceeding.
According to the ruling, Foster, who was represented by counsel in the Section 75 disciplinary proceeding, had a full and fair opportunity to litigate all the factual issues concerning the charges of misconduct.
The court said that the factual findings made in during the Section 75 hearing were entitled to be given a collateral estoppel effect and thus Foster was “precluded from relitigating the factual issues” in the course of her unemployment insurance hearing.
In a parallel type of situation, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are filed related to that same incident of theft, there is no lawful way for an administrative disciplinary hearing officer to find the employee not guilty of stealing. This was the holding in Kelly v. Levin, 440 NY2d 424, a case that challenged the acquittal an employee in an administrative disciplinary action earlier found guilty of a criminal act involving the same allegations.
.
Oct 15, 2010
Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"
Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"
Matter of Board of Educ. of Deer Park Union Free School Dist. v Deer Park Teachers' Assn., 2010 NY Slip Op 07338, Decided on October 12, 2010, Appellate Division, Second Department
Regina Moraitis was appointed to the position of Computer Teacher and subsequently she was awarded tenure in that area. In January 2009 the petitioner, Deer Park Union Free School District abolished Moraitis's position and terminated her employment.
The Deer Park Teachers' Association filed a grievance on behalf of Regina Moraitis pursuant to a collective bargaining agreement between the Deer Park School Union Free District and the Teachers' Association and ultimately demanded that the grievance be submitted to arbitration. The demand described the nature of the grievance as one for contract interpretation, and asserted that Deer Park had violated the collective bargaining agreement by abolishing Moraitis's teaching position and not offering her an available position.
Deer Park, in the course of the litigation, said that its appointment of Moraitis to the position of Computer Teacher was a mistake it did not discover until years after the appointment and she should have been appointed as a Computer Technology Staff Developer and that the Developer position was not in the collective bargaining unit represented by the Association.
Deer Park commenced an Article 75 proceeding seeking to permanently stay arbitration on the ground that Moraitis did not hold a position within the bargaining unit represented by the Teachers' Association. The Supreme Court denied Deer Park’s petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.
The Appellate Division said that to determine whether a dispute between a public sector employer and employee is arbitrable the courts apply a “two-prong test” described by the Court of Appeals in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.
The first prong of the test: is any statutory, constitutional, or public policy prohibition against arbitrating the grievance? If there is no prohibition against arbitrating, the second prong of the test is triggered and the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute.
As Deer Park did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy, the only issue to be resolved is whether the parties agreed to arbitrate the particular dispute.
In such a situation, said the Appellate Division, if the arbitration clause is broad enough to encompass the subject matter of a dispute, "[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," citing Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311.
As the Court of Appeals ruled in Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, a stay of arbitration is inappropriate where "the parties' agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract."
Pointing out that the “Recognition Clause” in the collective bargaining agreement “explicitly excludes certain employees,” the court noted that the list of excluded employees did not include either the position of Computer Technology Staff Developer or Computer Teacher.
As Article XIII, Section 1(a) of the collective bargaining agreement defines a grievance terminating in binding arbitration as "a claim based upon interpretation, meaning or application of any provision of this contract" with only claim excluded from Article XIII, Section 1(a) is a claim regarding the denial of tenure, the Appellate Division concluded that collective bargaining agreement clearly provides for arbitration of a dispute involving the proper interpretation of its provisions and, on its face, “the subject matter of the dispute as set forth in the [Association’s] demand for arbitration is arbitrable.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07338.htm
NYPPL
Matter of Board of Educ. of Deer Park Union Free School Dist. v Deer Park Teachers' Assn., 2010 NY Slip Op 07338, Decided on October 12, 2010, Appellate Division, Second Department
Regina Moraitis was appointed to the position of Computer Teacher and subsequently she was awarded tenure in that area. In January 2009 the petitioner, Deer Park Union Free School District abolished Moraitis's position and terminated her employment.
The Deer Park Teachers' Association filed a grievance on behalf of Regina Moraitis pursuant to a collective bargaining agreement between the Deer Park School Union Free District and the Teachers' Association and ultimately demanded that the grievance be submitted to arbitration. The demand described the nature of the grievance as one for contract interpretation, and asserted that Deer Park had violated the collective bargaining agreement by abolishing Moraitis's teaching position and not offering her an available position.
Deer Park, in the course of the litigation, said that its appointment of Moraitis to the position of Computer Teacher was a mistake it did not discover until years after the appointment and she should have been appointed as a Computer Technology Staff Developer and that the Developer position was not in the collective bargaining unit represented by the Association.
Deer Park commenced an Article 75 proceeding seeking to permanently stay arbitration on the ground that Moraitis did not hold a position within the bargaining unit represented by the Teachers' Association. The Supreme Court denied Deer Park’s petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.
The Appellate Division said that to determine whether a dispute between a public sector employer and employee is arbitrable the courts apply a “two-prong test” described by the Court of Appeals in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.
The first prong of the test: is any statutory, constitutional, or public policy prohibition against arbitrating the grievance? If there is no prohibition against arbitrating, the second prong of the test is triggered and the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute.
As Deer Park did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy, the only issue to be resolved is whether the parties agreed to arbitrate the particular dispute.
In such a situation, said the Appellate Division, if the arbitration clause is broad enough to encompass the subject matter of a dispute, "[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," citing Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311.
As the Court of Appeals ruled in Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, a stay of arbitration is inappropriate where "the parties' agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract."
Pointing out that the “Recognition Clause” in the collective bargaining agreement “explicitly excludes certain employees,” the court noted that the list of excluded employees did not include either the position of Computer Technology Staff Developer or Computer Teacher.
As Article XIII, Section 1(a) of the collective bargaining agreement defines a grievance terminating in binding arbitration as "a claim based upon interpretation, meaning or application of any provision of this contract" with only claim excluded from Article XIII, Section 1(a) is a claim regarding the denial of tenure, the Appellate Division concluded that collective bargaining agreement clearly provides for arbitration of a dispute involving the proper interpretation of its provisions and, on its face, “the subject matter of the dispute as set forth in the [Association’s] demand for arbitration is arbitrable.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07338.htm
NYPPL
Liability for line of duty injuries
Liability for line of duty injuries
Gonzalez v Iocovello, Appellate Division, 249 AD2d 143, Ct. of Appeals, 93 NY2d 539
The so-called “firefighter’s rule” refers to the strict limits that the courts have placed on the ability of police officers and firefighters to sue co-workers or others for injuries suffered in the line of duty, even if negligence was involved. One notable decision is Santangelo v New York State, 71 NY2d 393, in which the Court of Appeals -- the state’s highest court -- said the firefighter’s rule barred a police officer from suing a co-worker for injuries the officer suffered in the line of duty.
The legislature responded to the Santangelo ruling by enacting Section 205-e of the General Municipal Law in 1989 to nullify it. Essentially, Section 205-e allows a police officer to sue a co-worker and, or, the employer in cases where the defendant’s violation of a law, rule or regulation caused the police officer’s or firefighter’s line of duty injury.*
The ability of police officers to sue, and win damages, when the violation of a law by a fellow officer caused the injury was confirmed by the Court of Appeals in the Gonzalez decision. The case involved New York City police officer Maria C. Gonzalez, who suffered a permanent line of duty injury when the patrol car in which she was a passenger drove through a red light while responding to a “burglary in progress” call and was struck by another vehicle.
Gonzalez sued the city, claiming that she had been injured in the line of duty because her partner violated the Vehicle and Traffic Law. The city, on the other hand, contended that Gonzalez could not sue it on the theory that she suffered the injury as a result of her partner’s violation of a law. But the Court of Appeals disagreed and let her $3,300,000 jury award stand. Finding that there was nothing in Section 205-e to prevent Gonzalez from suing, the court commented that if the legislature had intended to bar such lawsuits, it “could have easily” done so in view of the several amendments to Section 205-e it had enacted.
The decision states that a violation of the Vehicle and Traffic Law is a valid basis for a claim under Section 205-e. The court pointed out that although Section 1104(e) of the V&T Law “allows emergency vehicles to run stoplights and violate other traffic laws in emergency situations,” the emergency vehicle driver is liable for his or her “reckless disregard for the safety of others.’”
In another case decided at the same time, Cosgriff v City of New York, 93 NY2d 539, the Court of Appeals ruled that the city’s failure to keep its sidewalks in “safe repair” violated the City’s Charter and its Administrative Code and thus it could be sued pursuant to Section 205-e by a police officer who tripped on a defective sidewalk while chasing a drug dealer.
* The General Obligations Law allows lawuits by police officers and firefighters injured by the negligence or intentional conduct of any person, except an employer or co-employee (Chapter 703, Laws of 1996). The Court of Appeals said that “[t]he inclusion of the explicit exception in General Obligations Law Section 11-106 magnifies its absence in General Municipal Law Section 205-e,” especially since Section 205-e was amended by the same Chapter 703.
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Gonzalez v Iocovello, Appellate Division, 249 AD2d 143, Ct. of Appeals, 93 NY2d 539
The so-called “firefighter’s rule” refers to the strict limits that the courts have placed on the ability of police officers and firefighters to sue co-workers or others for injuries suffered in the line of duty, even if negligence was involved. One notable decision is Santangelo v New York State, 71 NY2d 393, in which the Court of Appeals -- the state’s highest court -- said the firefighter’s rule barred a police officer from suing a co-worker for injuries the officer suffered in the line of duty.
The legislature responded to the Santangelo ruling by enacting Section 205-e of the General Municipal Law in 1989 to nullify it. Essentially, Section 205-e allows a police officer to sue a co-worker and, or, the employer in cases where the defendant’s violation of a law, rule or regulation caused the police officer’s or firefighter’s line of duty injury.*
The ability of police officers to sue, and win damages, when the violation of a law by a fellow officer caused the injury was confirmed by the Court of Appeals in the Gonzalez decision. The case involved New York City police officer Maria C. Gonzalez, who suffered a permanent line of duty injury when the patrol car in which she was a passenger drove through a red light while responding to a “burglary in progress” call and was struck by another vehicle.
Gonzalez sued the city, claiming that she had been injured in the line of duty because her partner violated the Vehicle and Traffic Law. The city, on the other hand, contended that Gonzalez could not sue it on the theory that she suffered the injury as a result of her partner’s violation of a law. But the Court of Appeals disagreed and let her $3,300,000 jury award stand. Finding that there was nothing in Section 205-e to prevent Gonzalez from suing, the court commented that if the legislature had intended to bar such lawsuits, it “could have easily” done so in view of the several amendments to Section 205-e it had enacted.
The decision states that a violation of the Vehicle and Traffic Law is a valid basis for a claim under Section 205-e. The court pointed out that although Section 1104(e) of the V&T Law “allows emergency vehicles to run stoplights and violate other traffic laws in emergency situations,” the emergency vehicle driver is liable for his or her “reckless disregard for the safety of others.’”
In another case decided at the same time, Cosgriff v City of New York, 93 NY2d 539, the Court of Appeals ruled that the city’s failure to keep its sidewalks in “safe repair” violated the City’s Charter and its Administrative Code and thus it could be sued pursuant to Section 205-e by a police officer who tripped on a defective sidewalk while chasing a drug dealer.
* The General Obligations Law allows lawuits by police officers and firefighters injured by the negligence or intentional conduct of any person, except an employer or co-employee (Chapter 703, Laws of 1996). The Court of Appeals said that “[t]he inclusion of the explicit exception in General Obligations Law Section 11-106 magnifies its absence in General Municipal Law Section 205-e,” especially since Section 205-e was amended by the same Chapter 703.
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Rating the oral test performance by applicants in a civil service examination to be based on objective standards
Rating the oral test performance by applicants in a civil service examination to be based on objective standards
Merlino v Schneider, Ct. of Appeals, 93 NY2d 477
Oral tests are sometimes included as part of the examination for appointment and promotion in the public service. The Merlino case sets out the basic standard used by the courts in reviewing appeals challenging the candidate’s oral test score.
Carmen Merlino challenged her oral test score for an examination for language proficiency. The Court of Appeals held that Merlin’s test results were based on “objective standards,” commenting that the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated. Essentially, courts require oral tests to provide a reviewable record and an objective rating scheme to pass judicial scrutiny.
The court said that in this instance:
The oral language exam tested grammar, pronunciation, and vocabulary in the context of a 15-minute extemporaneous conversation. These qualities cannot be measured solely by objective criteria. Although some subjective elements, of necessity, entered into the evaluation, the fact that a subjective element may have been involved to some degree in petitioner's rating is not sufficient in and of itself to invalidate the Department's ultimate determination: "The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.”
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Merlino v Schneider, Ct. of Appeals, 93 NY2d 477
Oral tests are sometimes included as part of the examination for appointment and promotion in the public service. The Merlino case sets out the basic standard used by the courts in reviewing appeals challenging the candidate’s oral test score.
Carmen Merlino challenged her oral test score for an examination for language proficiency. The Court of Appeals held that Merlin’s test results were based on “objective standards,” commenting that the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated. Essentially, courts require oral tests to provide a reviewable record and an objective rating scheme to pass judicial scrutiny.
The court said that in this instance:
The oral language exam tested grammar, pronunciation, and vocabulary in the context of a 15-minute extemporaneous conversation. These qualities cannot be measured solely by objective criteria. Although some subjective elements, of necessity, entered into the evaluation, the fact that a subjective element may have been involved to some degree in petitioner's rating is not sufficient in and of itself to invalidate the Department's ultimate determination: "The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.”
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Overtime and the Fair Labor Standards Act
Overtime and the Fair Labor Standards Act
Alden v Maine, US Supreme Court, 527 U.S. 706
The question of the enforceability of the Fair Labor Standards Act’s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years.
In Alden v Maine the U.S. Supreme Court held that federal courts do not have jurisdiction to adjudicate alleged FLSA violations insofar as states are concerned, nor does a state court have jurisdiction to consider a state’s alleged FLSA violations without the consent of the state. Why? Because the 11th Amendment, which provides states with sovereign immunity, bars such lawsuits in federal court.
In the words of the High Court, “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.
However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].
In Mueller, where Wisconsin was the employer, the court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.” Wisconsin had incorporated FLSA into state law in 1971. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions. The 7th Circuit concluded that “on this legislative history” Wisconsin had not waived its 11th Amendment immunity because it adopted a state FLSA prior to 1974. Does this mean that payment for overtime is no longer required to be paid to employees of New York State? No, for a number of reasons.
Section 134 of the Civil Service Law provides for the payment of overtime at “time and one-half” to eligible state workers. Alleged violations of Section 134 - a state law - may be tested in state court. In addition, collective bargaining agreements negotiated pursuant to the Taylor Law may require payment for overtime. Violation of such types of provisions are typically subject to contract grievance arbitration procedures.
What about suing a political subdivision of a state for alleged violations of FLSA in federal court? According to the Alden ruling there is an “important limit” to the principle of sovereign immunity barring suits against States -- the immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.
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Alden v Maine, US Supreme Court, 527 U.S. 706
The question of the enforceability of the Fair Labor Standards Act’s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years.
In Alden v Maine the U.S. Supreme Court held that federal courts do not have jurisdiction to adjudicate alleged FLSA violations insofar as states are concerned, nor does a state court have jurisdiction to consider a state’s alleged FLSA violations without the consent of the state. Why? Because the 11th Amendment, which provides states with sovereign immunity, bars such lawsuits in federal court.
In the words of the High Court, “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.
However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].
In Mueller, where Wisconsin was the employer, the court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.” Wisconsin had incorporated FLSA into state law in 1971. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions. The 7th Circuit concluded that “on this legislative history” Wisconsin had not waived its 11th Amendment immunity because it adopted a state FLSA prior to 1974. Does this mean that payment for overtime is no longer required to be paid to employees of New York State? No, for a number of reasons.
Section 134 of the Civil Service Law provides for the payment of overtime at “time and one-half” to eligible state workers. Alleged violations of Section 134 - a state law - may be tested in state court. In addition, collective bargaining agreements negotiated pursuant to the Taylor Law may require payment for overtime. Violation of such types of provisions are typically subject to contract grievance arbitration procedures.
What about suing a political subdivision of a state for alleged violations of FLSA in federal court? According to the Alden ruling there is an “important limit” to the principle of sovereign immunity barring suits against States -- the immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.
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The employee organization's duty of fair representation
The employee organization's duty of fair representation
Pietraszewski and CSEA Local 1000, 32 PERB 3019
Does a union’s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr. when he filed an improper practice charge against CSEA Local 1000.
CSEA Local 1000 declined to represent Pietraszewski in his age discrimination lawsuit against the state. It also refused to reimburse him for the fees he paid to a private attorney whom he retained to represent him in that lawsuit.
Contending that CSEA’s actions violated its duty of fair representation, Pietraszewski filed improper practice charges against CSEA with PERB.
CSEA told PERB that it decided not to provide Pietraszewski with legal assistance or financial support in his lawsuit because, after reviewing his allegations, it believed that his case was “not sufficiently meritorious for CSEA to take it on.”
PERB dismissed Pietraszewski’s complaint, commenting that a union enjoys “wide latitude” with respect to the investigation and prosecution of contract grievances. In other words, the union can exercise its discretion with respect to filing the grievance or prosecuting the grievance beyond a particular step in the grievance procedure.
This same “wide latitude,” said PERB, is equally applicable with respect to a union’s decision regarding its providing legal services concerning matters arising outside the collective bargaining agreement.
PERB found that CSEA had made its decision in good faith, commenting that even if CSEA were in error regarding the merits of Pietraszewski’s age discrimination allegations, that judgmental mistake would not constitute a breach of its duty of fair representation.
According to the ruling, having properly denied Pietraszewski’s request for representation, CSEA was not required reimburse him for his attorney’s fees and other expenses he may have incurred in pursuing the litigation he initiated.
In another case duty of fair representation case, Brignoni and Council 82, 32 PERB 3020, PERB said that settling a grievance under terms that may adversely affect some, but not other, unit members does not support a finding that the employee organization violated its duty of fair representation without evidence of arbitrary or discriminatory action or bad faith on the part of the employee organization, citing United University Professionals, 22 PERB 3013.
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Pietraszewski and CSEA Local 1000, 32 PERB 3019
Does a union’s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr. when he filed an improper practice charge against CSEA Local 1000.
CSEA Local 1000 declined to represent Pietraszewski in his age discrimination lawsuit against the state. It also refused to reimburse him for the fees he paid to a private attorney whom he retained to represent him in that lawsuit.
Contending that CSEA’s actions violated its duty of fair representation, Pietraszewski filed improper practice charges against CSEA with PERB.
CSEA told PERB that it decided not to provide Pietraszewski with legal assistance or financial support in his lawsuit because, after reviewing his allegations, it believed that his case was “not sufficiently meritorious for CSEA to take it on.”
PERB dismissed Pietraszewski’s complaint, commenting that a union enjoys “wide latitude” with respect to the investigation and prosecution of contract grievances. In other words, the union can exercise its discretion with respect to filing the grievance or prosecuting the grievance beyond a particular step in the grievance procedure.
This same “wide latitude,” said PERB, is equally applicable with respect to a union’s decision regarding its providing legal services concerning matters arising outside the collective bargaining agreement.
PERB found that CSEA had made its decision in good faith, commenting that even if CSEA were in error regarding the merits of Pietraszewski’s age discrimination allegations, that judgmental mistake would not constitute a breach of its duty of fair representation.
According to the ruling, having properly denied Pietraszewski’s request for representation, CSEA was not required reimburse him for his attorney’s fees and other expenses he may have incurred in pursuing the litigation he initiated.
In another case duty of fair representation case, Brignoni and Council 82, 32 PERB 3020, PERB said that settling a grievance under terms that may adversely affect some, but not other, unit members does not support a finding that the employee organization violated its duty of fair representation without evidence of arbitrary or discriminatory action or bad faith on the part of the employee organization, citing United University Professionals, 22 PERB 3013.
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Accidental disability retirement
Accidental disability retirement
Bloom v City of New York, NYS Supreme Court, 7/99, Justice Braun [Not selected for publication in the Official Reports]
Bloom, a guidance counselor for the New York City School District, filed a grievance contending that she was disabled as a result of her inhaling toxic substances that arose from construction, repairs, and renovation of her school. Former New York City Board of Education Chancellor Joseph Fernandez sustained her grievance, holding that Bloom had suffered “a line of duty injury.”
But when Bloom filed an accidental disability retirement application with the New York City Teachers’ Retirement System [TRS], TRS held that her injuries were not causally related to the alleged exposure to construction materials and rejected her application. TRS’ decision was upheld by the courts (Bloom v TRS, 233 AD2d 254, dismissed in part and denied in part, 90 NY2d 838.
Bloom then sued the district and the City for “a personal injury,” negligence and reckless conduct. The board of education moved for summary judgment, arguing that TRS’s determination “has a collateral estoppel effect.”
Bloom, also relying on “collateral estoppel,” asked the court for summary judgment based on the favorable grievance determination by the Chancellor, contending that the Chancellor’s determination constituted an admission of the district’s liability.
As to the board’s claim of collateral estoppel, the court explained that Bloom had “voluntarily chose to participate in the adjudicative resolution process of TRS by applying for benefits, and thus she may fairly be collaterally estopped by the TRS determination.”
With respect to Bloom’s argument, the court said that the Chancellor’s acknowledgement of the causal connection in the grievance adjudication normally would be a binding admission against the board.
Justice Braun said that although “... a quasi-judicial agency determination can have a collateral estoppel effect” that would bar further litigation; here there are “two conflicting decisions.” Therefore, the court concluded, “logically they must be held to cancel out each other.”
Since there is a significant issue of fact exists as to whether the actions and inactions of board was the proximate cause of Bloom’s injuries, granting summary judgment to either Bloom or the board would not be appropriate.
Accordingly, a trial was required.
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Bloom v City of New York, NYS Supreme Court, 7/99, Justice Braun [Not selected for publication in the Official Reports]
Bloom, a guidance counselor for the New York City School District, filed a grievance contending that she was disabled as a result of her inhaling toxic substances that arose from construction, repairs, and renovation of her school. Former New York City Board of Education Chancellor Joseph Fernandez sustained her grievance, holding that Bloom had suffered “a line of duty injury.”
But when Bloom filed an accidental disability retirement application with the New York City Teachers’ Retirement System [TRS], TRS held that her injuries were not causally related to the alleged exposure to construction materials and rejected her application. TRS’ decision was upheld by the courts (Bloom v TRS, 233 AD2d 254, dismissed in part and denied in part, 90 NY2d 838.
Bloom then sued the district and the City for “a personal injury,” negligence and reckless conduct. The board of education moved for summary judgment, arguing that TRS’s determination “has a collateral estoppel effect.”
Bloom, also relying on “collateral estoppel,” asked the court for summary judgment based on the favorable grievance determination by the Chancellor, contending that the Chancellor’s determination constituted an admission of the district’s liability.
As to the board’s claim of collateral estoppel, the court explained that Bloom had “voluntarily chose to participate in the adjudicative resolution process of TRS by applying for benefits, and thus she may fairly be collaterally estopped by the TRS determination.”
With respect to Bloom’s argument, the court said that the Chancellor’s acknowledgement of the causal connection in the grievance adjudication normally would be a binding admission against the board.
Justice Braun said that although “... a quasi-judicial agency determination can have a collateral estoppel effect” that would bar further litigation; here there are “two conflicting decisions.” Therefore, the court concluded, “logically they must be held to cancel out each other.”
Since there is a significant issue of fact exists as to whether the actions and inactions of board was the proximate cause of Bloom’s injuries, granting summary judgment to either Bloom or the board would not be appropriate.
Accordingly, a trial was required.
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Union sued for negligence for allegedly providing misinformation concerning retirement benefits
Union sued for negligence for allegedly providing misinformation concerning retirement benefits
Grahame v Rochester Teachers Association, 262 AD2d 963, motion to appeal dismissed, 94 NY2d 796
May a union be sued for alleged negligence with respect to information it provided to a member? This was the question presented by Harriet E. Grahame, as the executrix of the estate of Carole A. Wemett. Grahame is suing the Rochester Teachers Association for negligence, alleging that it provided Wemett with “erroneous information ... regarding her retirement benefits.” The Appellate Division has upheld a State Supreme Court’s refusal to dismiss Grahame’s negligence action.
The association attempted to have the case dismissed because Grahame “failed to allege that the individual members of defendant union ratified the acts of their representative.” The Appellate Division said that it was unnecessary for Grahame to do so as her action against the union is based on the negligence of its agent “in the course of performing an essential activity of the [union].” Also rejected was the association’s argument that Grahame’s complaint “is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems.”
The Appellate Division said that because the collective bargaining agreement does not address employees’ retirement benefits, “the alleged negligent misrepresentation action was not subsumed by the duty of fair representation.”
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Grahame v Rochester Teachers Association, 262 AD2d 963, motion to appeal dismissed, 94 NY2d 796
May a union be sued for alleged negligence with respect to information it provided to a member? This was the question presented by Harriet E. Grahame, as the executrix of the estate of Carole A. Wemett. Grahame is suing the Rochester Teachers Association for negligence, alleging that it provided Wemett with “erroneous information ... regarding her retirement benefits.” The Appellate Division has upheld a State Supreme Court’s refusal to dismiss Grahame’s negligence action.
The association attempted to have the case dismissed because Grahame “failed to allege that the individual members of defendant union ratified the acts of their representative.” The Appellate Division said that it was unnecessary for Grahame to do so as her action against the union is based on the negligence of its agent “in the course of performing an essential activity of the [union].” Also rejected was the association’s argument that Grahame’s complaint “is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems.”
The Appellate Division said that because the collective bargaining agreement does not address employees’ retirement benefits, “the alleged negligent misrepresentation action was not subsumed by the duty of fair representation.”
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Oct 14, 2010
Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement
Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement
Matter of Glick v Commissioner of Labor, 2010 NY Slip Op 07103, decided on October 7, 2010, Appellate Division, Third Department
Joseph Glick was terminated from his position with the Office of Children and Family Services on October 27, 2005. He applied for and received unemployment insurance benefits in the amount of $10,165.50, covering the period from November 2005 through May 2006.
Subsequently Glick sued Children and Family Services alleging wrongful discharge. Ultimately the matter was settled and Glick received $92,317.15 in back pay covering the period between his termination in October 2005 and May 1, 2008.
The Department of Labor then notified Glick that, in light of the settlement, he was no longer entitled to the unemployment insurance benefits he received because he was not totally unemployed "at that time." When Labor Department charged Glick with a recoverable overpayment of unemployment benefits in the amount of $10,165.50, he sued.
The Appellate Division affirmed Labor’s determination, holding that a lump-sum payment of back pay constitutes wages for the purpose of determining benefits and, therefore, the Board's determination that Glick was not totally unemployed and the overpayment was recoverable is supported by substantial evidence.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07103.htm
NYPPL
Matter of Glick v Commissioner of Labor, 2010 NY Slip Op 07103, decided on October 7, 2010, Appellate Division, Third Department
Joseph Glick was terminated from his position with the Office of Children and Family Services on October 27, 2005. He applied for and received unemployment insurance benefits in the amount of $10,165.50, covering the period from November 2005 through May 2006.
Subsequently Glick sued Children and Family Services alleging wrongful discharge. Ultimately the matter was settled and Glick received $92,317.15 in back pay covering the period between his termination in October 2005 and May 1, 2008.
The Department of Labor then notified Glick that, in light of the settlement, he was no longer entitled to the unemployment insurance benefits he received because he was not totally unemployed "at that time." When Labor Department charged Glick with a recoverable overpayment of unemployment benefits in the amount of $10,165.50, he sued.
The Appellate Division affirmed Labor’s determination, holding that a lump-sum payment of back pay constitutes wages for the purpose of determining benefits and, therefore, the Board's determination that Glick was not totally unemployed and the overpayment was recoverable is supported by substantial evidence.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07103.htm
NYPPL
Collateral estoppel
Collateral estoppel
Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542
The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.
The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.
Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”
The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.
Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.
According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.
The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.
The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
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Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542
The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.
The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.
Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”
The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.
Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.
According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.
The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.
The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
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Union takes disciplinary action against union member
Union takes disciplinary action against union member
Perez v Local 39, IUOE, USDC EDNY
Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.
The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.
The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.
Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.
A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”
The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.
Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].
The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
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Perez v Local 39, IUOE, USDC EDNY
Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.
The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.
The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.
Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.
A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”
The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.
Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].
The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
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Appeal of an administrative disciplinary action must be presented to the proper forum
Appeal of an administrative disciplinary action must be presented to the proper forum
Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411
School districts can pursue disciplinary charges against school employees in three different ways: (1) under Section 75 of the Civil Service Law (for employees in the classified service); (2) under Section 3020-a of Education Law (for teachers and others in the unclassified service); or, in some cases, (3) under an arbitration provision set out in of collective bargaining agreement. Appeal procedures, depend on the nature of the disciplinary action involved.
Typically disciplinary action taken pursuant to Section 75 may be appealed to either the courts as provided by Article 78 of the Civil Practice Law and Rules [CPLR] or the responsible civil service commission.
Disciplinary action taken pursuant to a “disciplinary arbitration procedure” (such as the one provided by Section 3020-a or by an arbitration provision of a collective bargaining agreement) is subject to review pursuant to Article 75 of the CPLR.*
The Westhampton Beach UFSD case involved the appeal of a disciplinary determination by hearing officer who heard charges filed under Education Law Section 3020-a. Westhampton Beach challenged the hearing officer’s Section 3020-a determination by bringing an Article 78 action rather than pursuant to CPLR Article 75. In other words, the district tried to appeal a Section 3020-a disciplinary procedure under the appeals procedure ordinarily available in appealing Section 75 disciplinary decisions.
The case involved a teacher named Ziparo who was found guilty by a Section 3020-a hearing officer of inflicting corporal punishment on several students by striking them with a belt. [On one occasion, the teacher allegedly “pushed a student and issued vulgarities.”]
In light of the teacher’s “otherwise 23 year unblemished teaching record” with the district, the hearing officer recommended that the teacher “be suspended without pay for one year, from February 1, 1999 until January 31, 2000, subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.”
In an effort to have the teacher terminated from his employment, the district filed a petition pursuant to Article 78. It contended that the hearing officer’s recommendation was irrational and violative of public policy. It argued that the hearing officer’s decision was subject to review under Article 78 because the award was arbitrary, capricious and an abuse of discretion.
The Court dismissed the appeal, saying that any judicial review of a Section 3020-a determination is controlled by CPLR Article 75 rather than CPLR Article 78. It cited Section 3020-a(5) of the Education Law, which provides that “...the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to Section 7511 of the Civil Practice Law and Rules.”
Accordingly, the standard of review to be applied was the standard set out in Section 7511 of the CPLR and not the standard used in resolving an Article 78 action.
CPLR 7511(b)(1) allows a court to vacate or modify an award if it finds [a] Corruption, fraud or misconduct in procuring the award; or [b] Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or [c] An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or [d] Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a “strong public policy.”
Supreme Court Judge Floyd said that applying the criteria set out in Section 7511, there was nothing in the record before the court that justified the modification or vacating of the hearing officer’s recommendation to impose a one-year suspension without pay rather than termination as the penalty. The Appellate Division agreed.
The decision noted that Section 3020-a permits a hearing officer to impose a variety of penalties including a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. Further, in lieu of imposing any of these penalties, “the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment.”
Confirming the arbitration award, the court said that the hearing officer was well within his authority to direct Ziparo’s suspension for one year and that his return to his teaching duties was to be conditioned upon his being certified as fit for duty by a psychiatrist.
Given the charges and Ziparo’s otherwise unblemished record, the court decided that a one year suspension without pay was “a significant financial penalty, reflecting the seriousness of the charges preferred and proven by the district and cannot be construed as irrational.”
The decision also states that the hearing officer was within his authority to condition Ziparo’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. The court indicated that “such [a] condition is remedial in nature, does not violate Section 913 of the Education Law and insures that the District’s, the hearing officer’s, and the teacher’s concerns regarding his fitness to continue [in] his profession are judged by an impartial objective evaluation.” [Section 913 provides for the medical examination of teachers and other school district or BOCES employees “by a physician of his choice” or a physician selected by the district.]
* Before Section 3020-a was modified by the state Legislature in 1994, individuals would appeal a 3020-a disciplinary decisions to the Commissioner of Education. For this reason, one occasionally finds references to disciplinary appeal decisions by the Commissioner.
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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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Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411
School districts can pursue disciplinary charges against school employees in three different ways: (1) under Section 75 of the Civil Service Law (for employees in the classified service); (2) under Section 3020-a of Education Law (for teachers and others in the unclassified service); or, in some cases, (3) under an arbitration provision set out in of collective bargaining agreement. Appeal procedures, depend on the nature of the disciplinary action involved.
Typically disciplinary action taken pursuant to Section 75 may be appealed to either the courts as provided by Article 78 of the Civil Practice Law and Rules [CPLR] or the responsible civil service commission.
Disciplinary action taken pursuant to a “disciplinary arbitration procedure” (such as the one provided by Section 3020-a or by an arbitration provision of a collective bargaining agreement) is subject to review pursuant to Article 75 of the CPLR.*
The Westhampton Beach UFSD case involved the appeal of a disciplinary determination by hearing officer who heard charges filed under Education Law Section 3020-a. Westhampton Beach challenged the hearing officer’s Section 3020-a determination by bringing an Article 78 action rather than pursuant to CPLR Article 75. In other words, the district tried to appeal a Section 3020-a disciplinary procedure under the appeals procedure ordinarily available in appealing Section 75 disciplinary decisions.
The case involved a teacher named Ziparo who was found guilty by a Section 3020-a hearing officer of inflicting corporal punishment on several students by striking them with a belt. [On one occasion, the teacher allegedly “pushed a student and issued vulgarities.”]
In light of the teacher’s “otherwise 23 year unblemished teaching record” with the district, the hearing officer recommended that the teacher “be suspended without pay for one year, from February 1, 1999 until January 31, 2000, subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.”
In an effort to have the teacher terminated from his employment, the district filed a petition pursuant to Article 78. It contended that the hearing officer’s recommendation was irrational and violative of public policy. It argued that the hearing officer’s decision was subject to review under Article 78 because the award was arbitrary, capricious and an abuse of discretion.
The Court dismissed the appeal, saying that any judicial review of a Section 3020-a determination is controlled by CPLR Article 75 rather than CPLR Article 78. It cited Section 3020-a(5) of the Education Law, which provides that “...the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to Section 7511 of the Civil Practice Law and Rules.”
Accordingly, the standard of review to be applied was the standard set out in Section 7511 of the CPLR and not the standard used in resolving an Article 78 action.
CPLR 7511(b)(1) allows a court to vacate or modify an award if it finds [a] Corruption, fraud or misconduct in procuring the award; or [b] Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or [c] An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or [d] Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a “strong public policy.”
Supreme Court Judge Floyd said that applying the criteria set out in Section 7511, there was nothing in the record before the court that justified the modification or vacating of the hearing officer’s recommendation to impose a one-year suspension without pay rather than termination as the penalty. The Appellate Division agreed.
The decision noted that Section 3020-a permits a hearing officer to impose a variety of penalties including a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. Further, in lieu of imposing any of these penalties, “the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment.”
Confirming the arbitration award, the court said that the hearing officer was well within his authority to direct Ziparo’s suspension for one year and that his return to his teaching duties was to be conditioned upon his being certified as fit for duty by a psychiatrist.
Given the charges and Ziparo’s otherwise unblemished record, the court decided that a one year suspension without pay was “a significant financial penalty, reflecting the seriousness of the charges preferred and proven by the district and cannot be construed as irrational.”
The decision also states that the hearing officer was within his authority to condition Ziparo’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. The court indicated that “such [a] condition is remedial in nature, does not violate Section 913 of the Education Law and insures that the District’s, the hearing officer’s, and the teacher’s concerns regarding his fitness to continue [in] his profession are judged by an impartial objective evaluation.” [Section 913 provides for the medical examination of teachers and other school district or BOCES employees “by a physician of his choice” or a physician selected by the district.]
* Before Section 3020-a was modified by the state Legislature in 1994, individuals would appeal a 3020-a disciplinary decisions to the Commissioner of Education. For this reason, one occasionally finds references to disciplinary appeal decisions by the Commissioner.
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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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Retirement benefits and divorce
Retirement benefits and divorce
Rogovin v Rogovin, NYS Supreme Court (Justice Flug), [Not selected for publication in the Official Reports]
One of the elements in a divorce settlement is the right of a former spouse to a share of the retirement benefits paid to his or her former spouse. As Judge Flug noted, the leading case in New York regarding pension rights in a divorce situation is Olivo v. Olivo, 82 NY2d 202.
In Olivo the Court of Appeals held that “a pension right jointly owned as marital property is subject to modification by future actions of the employee” and that the former spouse of an employee who earned a promotion after the divorce, which was not in ‘the “pipeline” at the time of the divorce “... is not entitled to keep the ‘excess’ earned beyond what would have accrued at the time of expected retirement.” Here Judge Flug concluded that the parties to a divorce may, by a specific agreement, provide for a different result.
When the Rogovins divorced, the wife agreed, “as part and parcel of the settlement of this action...” to assign husband “a sum equal to ten percent of the monthly [retirement] benefits from her employment ....” Following the divorce, the wife sought and attained a promotion, which resulted in her receiving higher compensation, which will eventually provide her with a higher retirement allowance.
The former Mrs. Rogovin attempted to have the terms of the divorce settlement revised. She contended that since her pension benefits will be substantially enhanced as the result of her promotion and her former husband, “having not contributed to such enhanced benefits,” does not deserve any pension benefit attributable to her promotion. She asked to court to direct that her former spouse’s “participation in the pension” be limited to an amount equal to ten per cent of what she would have received had she remained a teacher.
Judge Flug said no, holding that “the parties entered into a written stipulation.” Such agreement, said Judge Flug, has the force and effect of a contract. The Court refused “to interpret and redraft the parties’ agreement” as this would be a clear derogation of the sanctity of contracts.
The court said that “it is clearly and unequivocally established that the stipulation called for the [husband] to receive ten per cent of the pension whenever his former wife retired and whatever the amount.
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Rogovin v Rogovin, NYS Supreme Court (Justice Flug), [Not selected for publication in the Official Reports]
One of the elements in a divorce settlement is the right of a former spouse to a share of the retirement benefits paid to his or her former spouse. As Judge Flug noted, the leading case in New York regarding pension rights in a divorce situation is Olivo v. Olivo, 82 NY2d 202.
In Olivo the Court of Appeals held that “a pension right jointly owned as marital property is subject to modification by future actions of the employee” and that the former spouse of an employee who earned a promotion after the divorce, which was not in ‘the “pipeline” at the time of the divorce “... is not entitled to keep the ‘excess’ earned beyond what would have accrued at the time of expected retirement.” Here Judge Flug concluded that the parties to a divorce may, by a specific agreement, provide for a different result.
When the Rogovins divorced, the wife agreed, “as part and parcel of the settlement of this action...” to assign husband “a sum equal to ten percent of the monthly [retirement] benefits from her employment ....” Following the divorce, the wife sought and attained a promotion, which resulted in her receiving higher compensation, which will eventually provide her with a higher retirement allowance.
The former Mrs. Rogovin attempted to have the terms of the divorce settlement revised. She contended that since her pension benefits will be substantially enhanced as the result of her promotion and her former husband, “having not contributed to such enhanced benefits,” does not deserve any pension benefit attributable to her promotion. She asked to court to direct that her former spouse’s “participation in the pension” be limited to an amount equal to ten per cent of what she would have received had she remained a teacher.
Judge Flug said no, holding that “the parties entered into a written stipulation.” Such agreement, said Judge Flug, has the force and effect of a contract. The Court refused “to interpret and redraft the parties’ agreement” as this would be a clear derogation of the sanctity of contracts.
The court said that “it is clearly and unequivocally established that the stipulation called for the [husband] to receive ten per cent of the pension whenever his former wife retired and whatever the amount.
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Eligibility to serve as a school board member
Eligibility to serve as a school board member
Jackson and City of Long Beach CSD, Decisions of the Commissioner of Education, #14,131
Norman B. Alpren, a member of the Long Beach City School District since 1989, was appointed Commissioner of the Long Beach Auxiliary Police [CAP] in 1994. This was a volunteer position.
Mark Jackson and Scott Abramson challenged Alpren’s continuing to serve as a member of the school board while simultaneously serving as CAP. They asked the Commissioner of Education to declare Alpren ineligible for the board, citing Section 2502(7) of the Education Law, which forbids holders of city offices , with some exceptions, from being members of school boards. According to their petition, the position of CAP is a “city office.” Although police officers are exempt and can serve on school boards, the petitioners claimed that the CAP role “does not fall within the statutory exception of ‘policeman’ because it does not ‘endow police officer status.’”
The Commissioner ruled that Alpren could simultaneously serve in both positions, noting that the CAP position was established by the bylaws of the Long Beach Police Department rather than by statute or ordinance and thus Alpren did not hold “public office” within the meaning of Section 2502(7).
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Jackson and City of Long Beach CSD, Decisions of the Commissioner of Education, #14,131
Norman B. Alpren, a member of the Long Beach City School District since 1989, was appointed Commissioner of the Long Beach Auxiliary Police [CAP] in 1994. This was a volunteer position.
Mark Jackson and Scott Abramson challenged Alpren’s continuing to serve as a member of the school board while simultaneously serving as CAP. They asked the Commissioner of Education to declare Alpren ineligible for the board, citing Section 2502(7) of the Education Law, which forbids holders of city offices , with some exceptions, from being members of school boards. According to their petition, the position of CAP is a “city office.” Although police officers are exempt and can serve on school boards, the petitioners claimed that the CAP role “does not fall within the statutory exception of ‘policeman’ because it does not ‘endow police officer status.’”
The Commissioner ruled that Alpren could simultaneously serve in both positions, noting that the CAP position was established by the bylaws of the Long Beach Police Department rather than by statute or ordinance and thus Alpren did not hold “public office” within the meaning of Section 2502(7).
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Testing for illegal drugs
Testing for illegal drugs
Davis v Safir, App. Div., 262 AD2d 107
New York City police officer Freida Davis tested positive for cocaine after being given EMIT and GC/MS tests. This ultimately resulted in the Police Commissioner dismissing her from the force.
Davis sued, contending that GC/MS tests were unreliable and could give “false positive” results. The Appellate Division dismissed her appeal, holding that the positive test results “constitute substantial evidence of petitioner’s possession and use of cocaine.” The court rejected Davis’ argument that the GC/MS testing procedures were unreliable and likely to produce a false positive.
The decision points out that “even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which [Davis] does not challenge, would alone constitute substantial evidence of the use of cocaine, citing Lahey v Kelly, 71 NY2d 135.
As to the penalty imposed, the court said that “the penalty of dismissal does not shock our sense of fairness” and sustained the Commissioner’s determination.
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Davis v Safir, App. Div., 262 AD2d 107
New York City police officer Freida Davis tested positive for cocaine after being given EMIT and GC/MS tests. This ultimately resulted in the Police Commissioner dismissing her from the force.
Davis sued, contending that GC/MS tests were unreliable and could give “false positive” results. The Appellate Division dismissed her appeal, holding that the positive test results “constitute substantial evidence of petitioner’s possession and use of cocaine.” The court rejected Davis’ argument that the GC/MS testing procedures were unreliable and likely to produce a false positive.
The decision points out that “even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which [Davis] does not challenge, would alone constitute substantial evidence of the use of cocaine, citing Lahey v Kelly, 71 NY2d 135.
As to the penalty imposed, the court said that “the penalty of dismissal does not shock our sense of fairness” and sustained the Commissioner’s determination.
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Oct 13, 2010
An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances
An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances
Nancy Pearse v Board of Education of the Burnt Hills-Ballston Lake Central School District, Decisions of the Commissioner of Education, Decision #16,159
The Commissioner of Education sustained, in part, an appeal filed by Nancy Pearse challenging the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and its Superintendent, James Schultz, to excess her as a foreign language teacher.
Pearse served in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher. On January 22, 2008, the board granted Pearse tenure in the administrative tenure area of dean of students, effective March 19, 2008.
In June 2008 the district abolished Pearse’s .4 teaching assignment as a foreign language teacher and she was laid off as a result.
Pearse appealed to the Commissioner contending that the board had violated her tenure and seniority rights as a foreign language teacher. She argued that she had received tenure by estoppel* in the foreign language tenure area and that she was not the least senior foreign language teacher in the district at the time it abolished her postion.
As redress, Pearse asked the Commissioner to direct the district to reinstate her to her foreign language teaching position, with back pay and benefits.
The district, on the other hand, argued that as Pearse’s teaching position was part-time, she was not eligible to receive tenure in the foreign language tenure area. In addition, the district contended that the decision to layoff Pearse’s was lawful because she was not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district.
The Commissioner said that Pearse’s appeal “presents a novel issue -- whether an educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.
The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties. The test with respect to teachers attaining "tenure" is that the educator spend at least 40% of his or her duties in the relvent teacher tenure area.**
The Commissioner rejected the school district’s theory that Pearse could not have accrued tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations, noting that 8 NYCRR §30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:
Professional educator means an individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the Commissioner to the State Civil Service Commission pursuant to the provisions of section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.
Although, said the Commissioner, “§30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, [it] does not require an individual to be employed solely in a full-time teaching position.”
The Commissioner also rejected the district’s claim that “an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously,” noting that Part 30 of the Commissioner’s regulations clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area, citing 8 NYCRR §30-1.9[d].
Accordingly, the Commissioner ruled that an educator “should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.”
Also, noted the Commissioner “Public policy favors the protection of the tenure rights of both teachers and administrators.”
However, the Commissioner said that it was “unclear from the record” if Pearse was the most senior teacher in the foreign language tenure area on the date on she was excessed. He deemed it appropriate “to remand this matter” to school district for it to calculate Pearse’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.
* Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term" (see Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 185, 186].
** Part 30 of the Commissioner’s regulations [8 NYCRR 30] provide that teachers are deemed to serve in any tenure area in which they spend at least 40% of their time. Further, the test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16159.htm
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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/ ============================================
NYPPL
Nancy Pearse v Board of Education of the Burnt Hills-Ballston Lake Central School District, Decisions of the Commissioner of Education, Decision #16,159
The Commissioner of Education sustained, in part, an appeal filed by Nancy Pearse challenging the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and its Superintendent, James Schultz, to excess her as a foreign language teacher.
Pearse served in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher. On January 22, 2008, the board granted Pearse tenure in the administrative tenure area of dean of students, effective March 19, 2008.
In June 2008 the district abolished Pearse’s .4 teaching assignment as a foreign language teacher and she was laid off as a result.
Pearse appealed to the Commissioner contending that the board had violated her tenure and seniority rights as a foreign language teacher. She argued that she had received tenure by estoppel* in the foreign language tenure area and that she was not the least senior foreign language teacher in the district at the time it abolished her postion.
As redress, Pearse asked the Commissioner to direct the district to reinstate her to her foreign language teaching position, with back pay and benefits.
The district, on the other hand, argued that as Pearse’s teaching position was part-time, she was not eligible to receive tenure in the foreign language tenure area. In addition, the district contended that the decision to layoff Pearse’s was lawful because she was not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district.
The Commissioner said that Pearse’s appeal “presents a novel issue -- whether an educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.
The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties. The test with respect to teachers attaining "tenure" is that the educator spend at least 40% of his or her duties in the relvent teacher tenure area.**
The Commissioner rejected the school district’s theory that Pearse could not have accrued tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations, noting that 8 NYCRR §30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:
Professional educator means an individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the Commissioner to the State Civil Service Commission pursuant to the provisions of section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.
Although, said the Commissioner, “§30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, [it] does not require an individual to be employed solely in a full-time teaching position.”
The Commissioner also rejected the district’s claim that “an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously,” noting that Part 30 of the Commissioner’s regulations clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area, citing 8 NYCRR §30-1.9[d].
Accordingly, the Commissioner ruled that an educator “should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.”
Also, noted the Commissioner “Public policy favors the protection of the tenure rights of both teachers and administrators.”
However, the Commissioner said that it was “unclear from the record” if Pearse was the most senior teacher in the foreign language tenure area on the date on she was excessed. He deemed it appropriate “to remand this matter” to school district for it to calculate Pearse’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.
* Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term" (see Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 185, 186].
** Part 30 of the Commissioner’s regulations [8 NYCRR 30] provide that teachers are deemed to serve in any tenure area in which they spend at least 40% of their time. Further, the test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16159.htm
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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/ ============================================
NYPPL
Educator terminated after being found guilty of berating and belittling less senior staff members
Educator terminated after being found guilty of berating and belittling less senior staff members
Matter of Denhoff v Mamaroneck Union Free School Dist., 2010 NY Slip Op 51742(U), decided on September 30, 2010, Supreme Court, Westchester County, Judge John P. Colangelo
Elizabeth Denhoff filed a petition pursuant to CPLR 7511* in an effort to vacate the findings and recommendations made by Hearing Officer Jay M. Siegel, Esq. The hearing officer found Denhoff guilty of 14 of 20 disciplinary charges filed against her by the District and recommended termination of her employment as a guidance teacher.
The District had alleged that Denhoff had “systematically berated and belittled less senior guidance counselors, criticized their work and threatened to negatively impact their careers” over the course of three academic years. The Hearing Officer had found that “Denhoff engaged in predominantly verbal conduct directed against fellow members of the Guidance Department that denigrated their respective intelligence and competence as teachers and obstructed their desire to work;” which he described as falling into one of four general categories:
1. Verbal criticism tending toward outright disparagement of the abilities of three fellow teachers, usually outside their presence.
2. Verbal and non-verbal criticism by eye rolling or other gestures - - that was either directed to such teachers or took place in such teachers' presence.
3. Attempts to impose "rules" upon or otherwise direct or influence the behavior of such teachers with respect to work hours, participation in extra curricular activities, and reporting matters to the school administration.
4. "Obstructing" the conduct of these teachers, generally with an eye toward inhibiting them from performing their work as guidance counselors, including certain activities that were above and beyond contractually required duties.
One portion of Judge Colangelo’s decision focused on the nature of Denhoff’s conduct, i.e.,”did her conduct amount to violations of the Education Law's proscriptions - - particularly in view of the fact that Denhoff's offensive behavior was that of a teacher without supervisory responsibilities, and was directed toward fellow teachers rather than towards a supervisor, student or parent.”
Because the hearing officer “failed to cite any specific provision of the Education Law violated by Denhoff or base his reason for the sanction imposed on a violation of any specific rule by which a tenured teacher must abide,” the court said this task “had been relegated to the arguments of the parties, and now to the judgment of the Court.”
As the school district conceded, Denhoff was not insubordinate since her actions were not directed at a supervisor, and since no physical violence or violation of the criminal law was shown. Rather, the district’s argument focuses on the general prohibition against "conduct unbecoming a teacher."
In this regard, the court noted that in Matter of Uniondale, 26 Educ. Dept. 498 501 (1987) the Commissioner of Education indicated that certain verbal conduct of a teacher however distasteful, is only deemed "unbecoming" if such conduct has a negative impact on the educational process. In Uniondale the Commissioner commented "Although the panel found that respondent expressed himself to his superiors in an antagonistic and discourteous manner, it held that such conduct does not constitute conduct unbecoming a teacher as long as [his] actions do not affect [his] ability to teach and are not disruptive."'
Denhoff argued that as her verbal assaults were not directed against a student or supervisor, but rather against her teaching colleagues, each act did not have such a significant impact on the educational process as to justify a finding that she had violated the Education Law by engaging in unbecoming conduct - - or, at the least, to merit the ultimate sanction of dismissal.
The court, however, said that Denhoff’s “atomistic approach, focusing on each instance of [her] misconduct in isolation, is at once misleading and misplaced. It is misleading because this approach ignores the cumulative detrimental effect of such behavior on the educational process. It is misplaced because the Hearing Officer and, ultimately, the Court are permitted to consider the totality of [Denhoff's] conduct and how it affected the educational setting and a teacher's ability to carry out his or her pedagogical responsibilities.”
Judge Colangelo, considering “the totality of the circumstances,” said they amply support the Hearing Officer's conclusion that Denhoff, in league with her fellow senior guidance counselor Haruko Hirose,** created a toxic and disruptive environment within the Hommocks' Guidance Department.
As to an appropriate penalty, Judge Colangelo agreed with the hearing officer and said that the school district “ has just cause to terminate [Denhoff’s] employment.” “Indeed,” said the court,” to not confirm the Hearing Officer's decision under the circumstances that obtain herein - - where the penalty of dismissal is not shocking to the conscience or to a "sense of fairness"*** - - would impermissibly substitute the Court's judgment for that of the Hearing Officer who saw, heard and evaluated the testimony of all of the witnesses, including Denhoff.”
* See §3020 - a (5) of the Education Law
** The District also brought charges against Haruko Hirose, another member of the Guidance Department, who resigned her position before any hearing was commenced.
*** The Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51742.htm
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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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NYPPL
Matter of Denhoff v Mamaroneck Union Free School Dist., 2010 NY Slip Op 51742(U), decided on September 30, 2010, Supreme Court, Westchester County, Judge John P. Colangelo
Elizabeth Denhoff filed a petition pursuant to CPLR 7511* in an effort to vacate the findings and recommendations made by Hearing Officer Jay M. Siegel, Esq. The hearing officer found Denhoff guilty of 14 of 20 disciplinary charges filed against her by the District and recommended termination of her employment as a guidance teacher.
The District had alleged that Denhoff had “systematically berated and belittled less senior guidance counselors, criticized their work and threatened to negatively impact their careers” over the course of three academic years. The Hearing Officer had found that “Denhoff engaged in predominantly verbal conduct directed against fellow members of the Guidance Department that denigrated their respective intelligence and competence as teachers and obstructed their desire to work;” which he described as falling into one of four general categories:
1. Verbal criticism tending toward outright disparagement of the abilities of three fellow teachers, usually outside their presence.
2. Verbal and non-verbal criticism by eye rolling or other gestures - - that was either directed to such teachers or took place in such teachers' presence.
3. Attempts to impose "rules" upon or otherwise direct or influence the behavior of such teachers with respect to work hours, participation in extra curricular activities, and reporting matters to the school administration.
4. "Obstructing" the conduct of these teachers, generally with an eye toward inhibiting them from performing their work as guidance counselors, including certain activities that were above and beyond contractually required duties.
One portion of Judge Colangelo’s decision focused on the nature of Denhoff’s conduct, i.e.,”did her conduct amount to violations of the Education Law's proscriptions - - particularly in view of the fact that Denhoff's offensive behavior was that of a teacher without supervisory responsibilities, and was directed toward fellow teachers rather than towards a supervisor, student or parent.”
Because the hearing officer “failed to cite any specific provision of the Education Law violated by Denhoff or base his reason for the sanction imposed on a violation of any specific rule by which a tenured teacher must abide,” the court said this task “had been relegated to the arguments of the parties, and now to the judgment of the Court.”
As the school district conceded, Denhoff was not insubordinate since her actions were not directed at a supervisor, and since no physical violence or violation of the criminal law was shown. Rather, the district’s argument focuses on the general prohibition against "conduct unbecoming a teacher."
In this regard, the court noted that in Matter of Uniondale, 26 Educ. Dept. 498 501 (1987) the Commissioner of Education indicated that certain verbal conduct of a teacher however distasteful, is only deemed "unbecoming" if such conduct has a negative impact on the educational process. In Uniondale the Commissioner commented "Although the panel found that respondent expressed himself to his superiors in an antagonistic and discourteous manner, it held that such conduct does not constitute conduct unbecoming a teacher as long as [his] actions do not affect [his] ability to teach and are not disruptive."'
Denhoff argued that as her verbal assaults were not directed against a student or supervisor, but rather against her teaching colleagues, each act did not have such a significant impact on the educational process as to justify a finding that she had violated the Education Law by engaging in unbecoming conduct - - or, at the least, to merit the ultimate sanction of dismissal.
The court, however, said that Denhoff’s “atomistic approach, focusing on each instance of [her] misconduct in isolation, is at once misleading and misplaced. It is misleading because this approach ignores the cumulative detrimental effect of such behavior on the educational process. It is misplaced because the Hearing Officer and, ultimately, the Court are permitted to consider the totality of [Denhoff's] conduct and how it affected the educational setting and a teacher's ability to carry out his or her pedagogical responsibilities.”
Judge Colangelo, considering “the totality of the circumstances,” said they amply support the Hearing Officer's conclusion that Denhoff, in league with her fellow senior guidance counselor Haruko Hirose,** created a toxic and disruptive environment within the Hommocks' Guidance Department.
As to an appropriate penalty, Judge Colangelo agreed with the hearing officer and said that the school district “ has just cause to terminate [Denhoff’s] employment.” “Indeed,” said the court,” to not confirm the Hearing Officer's decision under the circumstances that obtain herein - - where the penalty of dismissal is not shocking to the conscience or to a "sense of fairness"*** - - would impermissibly substitute the Court's judgment for that of the Hearing Officer who saw, heard and evaluated the testimony of all of the witnesses, including Denhoff.”
* See §3020 - a (5) of the Education Law
** The District also brought charges against Haruko Hirose, another member of the Guidance Department, who resigned her position before any hearing was commenced.
*** The Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51742.htm
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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/
===========================================
NYPPL
Employer’s internal regulations are not a “well-developed body of law and regulation” for the purposes of §205-a of the General Municipal Law
Employer’s internal regulations are not a “well-developed body of law and regulation” for the purposes of §205-a of the General Municipal Law
Vosilla v City of New York, 2010 NY Slip Op 07162, decided on October 5, 2010, Appellate Division, Second Department
§205-a of the General Municipal Law, in pertinent part, provides for an additional right of action to firefighters “in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus.”
Joseph Vosilla, a New York City firefighter, filed a lawsuit seeking to recover damages for personal injuries he alleged he sustained as a result of the City’s violation of certain provisions of the New York City Fire Department All Unit Circulars, Incident Command System manual provisions, and internal rules concerning, classification and inspection of buildings, “and that such violations directly or indirectly caused the injuries he sustained in the line of duty.”
The Appellate Division, however, rejected Vosilla’s theory that the City was liable for damages in this instance, ruling that “These internal regulations … cannot serve as a predicate for liability under General Municipal Law §205-a, since they are not part of a "well-developed body of law and regulation" imposing clear legal duties or mandating the performance or nonperformance of specific acts.”
Accordingly, said the court, the City established its prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to GML §205-a insofar as asserted against it and, in opposition, Vosilla failed to raise a triable issue of fact and thus Supreme Court properly granted that branch of the City's motion summary judgment dismissing the cause of action pursuant to GML §205-a insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07162.htm
NYPPL
Vosilla v City of New York, 2010 NY Slip Op 07162, decided on October 5, 2010, Appellate Division, Second Department
§205-a of the General Municipal Law, in pertinent part, provides for an additional right of action to firefighters “in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus.”
Joseph Vosilla, a New York City firefighter, filed a lawsuit seeking to recover damages for personal injuries he alleged he sustained as a result of the City’s violation of certain provisions of the New York City Fire Department All Unit Circulars, Incident Command System manual provisions, and internal rules concerning, classification and inspection of buildings, “and that such violations directly or indirectly caused the injuries he sustained in the line of duty.”
The Appellate Division, however, rejected Vosilla’s theory that the City was liable for damages in this instance, ruling that “These internal regulations … cannot serve as a predicate for liability under General Municipal Law §205-a, since they are not part of a "well-developed body of law and regulation" imposing clear legal duties or mandating the performance or nonperformance of specific acts.”
Accordingly, said the court, the City established its prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to GML §205-a insofar as asserted against it and, in opposition, Vosilla failed to raise a triable issue of fact and thus Supreme Court properly granted that branch of the City's motion summary judgment dismissing the cause of action pursuant to GML §205-a insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07162.htm
NYPPL
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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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