Staying a grievance arbitration

Staying a grievance arbitration
Newfield CSD v Newfield Teachers Asso., 258 AD2d 845, motion to appeal denied, 93 NY2d 809

Newfield Central School District subcontracted with BOCES to staff various positions. In July 1997, the Newfield Central School Teachers Association filed a grievance alleging that the district had violated its collective bargaining agreement with the teachers association.

The superintendent denied the grievance, and the school board affirmed that ruling on administrative appeal. The teachers next filed a demand for arbitration. The district, however, obtained a stay from a state Supreme Court justice barring arbitration because the collective bargaining agreement was silent as to the district’s right to subcontract. The Supreme Court reasoned that absent clear contractual basis for arbitration on such an issue, the Teachers Association’s grievance was not arbitrable. The teachers appealed to the Appellate Division.

In a 4 to 1 ruling, the Appellate Division, Third Department, agreed with the lower court.

The court applied a two-part test set out in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509.

The first test was whether subject of the arbitration claim was prohibited under the Taylor Law (Civil Service Law Section 200 et seq.) For instance, issues involving strong public policy typically are not subject to arbitration. The court said the BOCES subcontracting issue was not prohibited under the Taylor Law.

Having passed the first test, the next question was whether the parties had agreed by the terms of their collective bargaining agreement to submit this type of dispute to arbitration. No, said the court.

Courts are likely to deny arbitration of a grievance unless the language of the arbitration clause in a collective bargaining agreement specifically provides for such arbitration. To determine whether an issue sought to be arbitrated falls within the ambit of an arbitration clause, a court is “to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration; anything less will lead to denial of arbitration.”

In the Liverpool case, the Court of Appeals held: The Appellate Division said it may be appropriate for a school district and a teachers association to negotiate the degree to which a school district utilizes the resources available through BOCES.

The court characterized the subject as a permissible, rather than a mandatory, subject of negotiation.

Accordingly, said the court, it makes little sense to require the district, under the guise of a broad arbitration clause, to arbitrate a provision that it is not even required to negotiate. It ruled that in the absence of a valid and specific agreement between the parties clearly showing an intent to arbitrate claims arising out of subcontracting with BOCES, the district’s application to stay arbitration was properly granted.

The lesson here is that unless the contract arbitration provision specifically states that it is applicable to certain other, or all, controversies concerning issues not covered by the negotiated agreement arising between the parties during the life of the agreement, the courts usually will limit the scope of arbitration to those claims alleging a violation of a specified contract provision.

In a dissenting opinion, Presiding Judge Ann Mikoll said that “for a public employment dispute to be arbitrable, it is not necessary that the parties have specifically addressed its subject matter and specifically agreed to arbitrate it. Rather, the focus must be solely upon the language of the parties’ arbitration clause, and whether or not it extends to the particular dispute.” Judge Mikoll said that she believed that “the instant dispute falls within the scope of the parties’ broad arbitration clause, which extends to all ‘claimed violations’ thereof,” and concluded that the matter should be resolved by arbitration.
NYPPL

Employee terminated following loss of a license required to perform the duties of the position

Employee terminated following loss of a license required to perform the duties of the position
Lytle v U.S. Postal Service, 257 AD2d 779

One of the conditions of Christopher M. Lytle’s employment by the United States Postal Service was that he posses a valid driver’s license so that he could perform his postal duties.

Lytle was arrested for driving while intoxicated and his license was suspended. As he could not lawfully drive a motor vehicle, he was terminated from his position. Finding that he was “terminated due to misconduct,” the Unemployment Insurance Appeals Board denied his application for unemployment insurance benefits.

The Appellate Division sustained the board’s ruling, holding that since Lytle “engaged in a voluntary act which violated a reasonable condition of his employment, we decline to disturb the Board’s decision that [Lytle’s] behavior constituted disqualifying misconduct.”
NYPPL

Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement

Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement
Matter of Town of Tuxedo v Town of Tuxedo Police Benevolent Assn., 2010 NY Slip Op 08122, decided on November 9, 2010, Appellate Division, Second Department

On December 4, 2004, Town of Tuxedo Police Officer John Tamburello was injured in the line of duty. He never returned to work and was awarded a disability retirement on or about December 23, 2008.

In March 2009 the Tuxedo Park PBA filed a grievance alleging that Tamburello had not been paid for all of his unused leave as mandated by the collective bargaining agreement [CBA]. According to the PBA, leave time continued to accrue during the four-year period that Tamburello was receiving benefits pursuant to General Municipal Law §207-c.

When it demanded that the question be submitted to arbitration, Tuxedo Park filed a petition pursuant to Article 75 seeking a permanent stay of arbitration.

Ultimately the Appellate Division ruled that “benefits provided to a police officer pursuant to General Municipal Law §207-c, like the benefits provided to a firefighter pursuant to General Municipal Law §207-a, are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits.”*

“Unless,” said the court, “a collective bargaining agreement expressly provides for compensation rights to disabled officers in addition to those provided by General Municipal Law § 207-c, there is no entitlement to such additional compensation,” citing Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686.

As the Appellate Division found that the controlling CBA “did not contain any language expressly providing that leave time would accrue during the period that a disabled officer receives General Municipal Law §207-c benefits, or that a disabled officer would be paid for such leave time upon retirement,”. Supreme Court should have granted the petition in Proceeding No. 2 to permanently stay arbitration.

Comment: The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.

The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.

Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c.

Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement.

Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.

Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary, i.e., a Section 207-a level of benefits.

Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.

Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:

1. Had been included in the contract by mistake and

2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.

The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.

Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.

In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.

As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.

Accordingly, Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement were entitle to Section 207-a type benefits.

* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08122.htm

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NYPPL

Disciplinary suspension without pay tolled while individual incarcerated

Disciplinary suspension without pay tolled while individual incarcerated
Manning v Warsaw CSD, CEd 14071

The Warsaw Central School District served disciplinary charges against a tenured teacher, William Manning, Jr., related to his alleged operating a motor vehicle under the influence of alcohol.

Following a disciplinary hearing and an appeal, on November 22, 1994 former Commission of Education Sobol issued a decision and imposed a penalty of suspension without pay for two years. The decision was sustained by a State Supreme Court justice [Manning v Sobol, August 7, 1995, not officially reported].

Manning, however, was incarcerated in the Wyoming County jail on July 19, 1994. Because he was “unavailable” to work, the district changed his pay status from suspension with pay pending resolution of the Section 3020-a action to suspension without pay effective July 19, 1994.

Released from prison and claiming that his two-year suspension without pay commenced on November 22, 1994, Manning advised the district that he intended to return to work on November 22, 1996. The District said that the two-year suspension period commenced on March 21, 1995, when he was released from prison and therefore he could not return to work earlier than March 21, 1997. Manning appealed.

Commissioner of Education Richard P. Mills said that the two-year suspension imposed by former Commissioner Sobol commenced when Manning was released from incarceration since allowing the suspension to run concurrently with his incarceration “nullifies a portion of the suspension, since [Manning] could not work during that period in any event.”

The Commissioner rejected Manning’s claim that he was entitled to back salary from November 22, 1996, holding that to do so would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol.
NYPPL

Payment for vacation credits upon resignation

Payment for vacation credits upon resignation
Karp v North Country Community College, 258 AD2d 775

After 15 years of service, Robert Karp resigned from his position with the North Country Community College in 1997. When the college refused to pay him for accrued vacation credits he claimed he accrued between 1982 and 1985, he sued.

Although Karp admitted that the college lacked express authority to pay him for his unused vacation time, he nevertheless claimed that he was entitled to such payments because the college had paid other employees for unused vacation time in the past. Karp argued that this meant that the college was obligated to pay him for such credits as well.

Karp claimed that in 1986 two employees received compensation for their unused vacation time when they resigned. He also referred to a 1986 memorandum written by respondent’s then-Dean of Administration recognizing that the school’s policy respecting unused vacation time needed clarification and that, in the interim, respondent would honor its past practice for vacation time accrued up until August 31, 1985.

Supreme Court said that if not expressly authorized by statute, local law, resolution or pursuant to a contract term, a public employee may not be paid for unused vacation time, citing General Municipal Law Section 92. The court noted that payments made without such authority are deemed public gifts, prohibited by Article VIII, Section 1 of the New York State Constitution.

The Appellate Division agreed, commenting that “the mere fact that [the college] despite lacking authority to do so, may have on prior occasions compensated employees for unused vacation time does not validate [Karp’s] claim. Express authorization being required, prior conduct cannot satisfy the express statutory authorization needed to form a basis for recovery against a public body.”

Also noted was the fact that in 1986 the college advised Karp that he should develop a plan to use any remaining vacation time during that academic year.
NYPPL

Educator terminated before the end of the probationary period

Educator terminated before the end of the probationary period
Strax v Rockland County BOCES, 257 AD2d 578

The Rockland County Board of Cooperative Educational Services dismissed Carol Strax, a probationary administrative assistant, from her position. Strax sued, seeking a court order reinstating her to the position.

The Appellate Division rejected her appeal, commenting that “it is well established that a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period, without a hearing, unless that person establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription.”

According to the ruling, Strax did not allege that the BOCES had terminated her probationary employment for a constitutionally impermissible reason nor did she demonstrate that it failed to comply with the procedural requirements of Education Law Section 3031 or otherwise acted in violation of a statutory proscription.

Accordingly, the Appellate Division ruled that under the circumstances the Supreme Court properly ruled that Strax’s termination was neither arbitrary nor capricious.
NYPPL

Employee terminated after refusing to work overtime

Employee terminated after refusing to work overtime
Mack v Comm. of Labor, 257 AD2d 828

One of the requirements of toll collector Tijuana R. Mack’s employment was that she occasionally was needed to work overtime before or after her regular shift. However, she declined to accept a number of overtime assignments and was given a number of written warnings.

After she once again refused to accept an overtime assignment, she was discharged. When she applied for unemployment insurance, her claim was rejected on the grounds that her refusing the overtime assignment constituted disqualifying misconduct.

The Appellate Division affirmed the Unemployment Insurance Appeals Board’s determination, holding that “an employee’s refusal to accept reasonable overtime work assignments when he or she has agreed to do so at the time of hiring can constitute disqualifying misconduct” for the purposes of qualifying for unemployment insurance benefits.
NYPPL

Unemployment insurance benefit adjusted to reflect retirement allowance

Unemployment insurance benefit adjusted to reflect retirement allowance
Licciardello v Comm. of Labor, 255 AD2d 850

Marie Licciardello left her teaching position with the City of New York. She later began to receive payments from her pension fund at the rate of $250 per week. In addition, Licciardello was receiving unemployment insurance benefits at the rate of $300 per week.

However, Section 600.7 of the Labor Law provides that an unemployment insurance claimant’s benefit rate is to be reduced in cases where the employer has contributed to the employee’s pension fund.

The Unemployment Insurance Appeal Board held that Licciardello’s unemployment benefit rate was subject to reductions by the amount of 50% of her pension payments, reflecting her employer’s contribution of over 50% of the funding of her pension plan. In addition, the board said that Licciardello was liable for, and had to repay, $3,250 for the overpayment of benefits.

The board determined that the actuarial value of Licciardello’s pension was $138,000 and that her contributions were $33,000, about a quarter of the actuarial value of the pension.

The Appellate Division said that this constituted substantial evidence supporting the board’s ruling that “her employer contributed over half of the actuarial value of [Licciardello’s] pension, thereby triggering the statutory reduction in benefits imposed by the Board.”
NYPPL

Determining if a demand for arbitration was timely filed

Determining if a demand for arbitration was timely filed
Matter of Town of N. Hempstead v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 08121, decided on November 9, 2010, Appellate Division, Second Department

Two days after the Town of North Hempstead terminated the employment of an employee CSEA advised the Town that it intended to proceed to arbitration. Two months after the employee’s date of dismissal CSEA submitted a demand for arbitration to the American Arbitration Association [AAA] challenging the employee’s dismissal.

North Hampstead filed an Article 75 petition to stay the arbitration contending that under the parties' collective bargaining agreement as well as a subsequent stipulation entered into between the parties, the demand for arbitration to the AAA had to be made within 10 days after the termination of the employee's employment.* The Town’s theory: CSEA’s demand for arbitration was untimely and it was thus entitled to a permanent stay of arbitration.

Although Supreme Court granted the Town’s petition, holding that "[t]here is no precedent for finding that notice to the [Town] of an intent to arbitrate also constitutes timely notice to the AAA as required by the [2008 stipulation],” the Appellate Division reversed the lower court’s decision.

In this instance, said the court, the relevant provisions state that "[w]ithin ten (10) days after . . . discharge . . . only the Union may proceed to Disciplinary Arbitration by written notification to . . . the Town Attorney, and in accordance with the rules and requirements of the AAA as they relate to Labor Arbitration."** This language, said the Appellate Division, “does not require that a demand for arbitration be made to the AAA within that 10-day period.” It simply requires that the Town be notified of the union’s intent within such period.

The court explained that the Stipulation, requiring that a demand for arbitration be made to the AAA within 10 days, refers only to those situations where there has been a Step 1 disciplinary procedure. Here there was “no such Step 1 procedure” making the 10-day rule for making a demand for arbitration to the AAA inapplicable.

Finally, said the court, “to the extent that the subject language governing the time to demand arbitration may be ambiguous, it should be resolved in favor of the employee's right to proceed to arbitration.”

* The Appellate Division noted that the Stipulation specifically provides that the Agreement's time "deadlines . . . are conditions precedent to arbitration." Rejecting CSEA argument that the issue of whether its demand for arbitration was timely made to AAA was for the arbitrator to determine, the court, citing Matter of All Metro Health Care Serv., Inc. v Edwards, 57 AD3d 892, ruled that a court, rather than an arbitrator, was to decide the matter.

** AAA rules do not impose any time limits for filing a demand for arbitration

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08121.htm
NYPP:

Hearsay evidence may be the basis for an administrative disciplinary determination

Hearsay evidence may be the basis for an administrative disciplinary determination
Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 07932, Decided on November 3, 2010, Appellate Division, Second Department

Thomas Hughes, an Office of Court Administration [OCA] court officer, was served with disciplinary charges alleging, among other offenses, failing to keep his uniform in proper condition, failing to keep his weapon properly loaded, and keeping an impermissible metal-jacketed round in his weapon.

The disciplinary hearing officer found that Hughes was guilty of “engaging in acts of misconduct and incompetency prejudicial to the good order and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court office.” OCA accepted the hearing officer’s recommendation that Hughes be dismissed from his position.

Hughes filed a petition pursuant to CPLR Article 78 seeking a court order vacating OCA’s decision to terminate him.

The Appellate Division dismissed Hughes petition noting that “appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.” In this instance, said the court, the hearing officer’s findings were supported by substantial evidence.*

Addressing another issue concerning the evidence presented in the course of the disciplinary hearing, the Appellate Division commented that “Hearsay evidence may be the basis for an administrative determination,” citing Gray v Adduci, 73 NY2d 741.

As to the penalty imposed, dismissal, the court said that “termination of employment was not so disproportionate to the misconduct as to shock the conscience.”

* Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07932.htm
NYPPL

Termination during probation

Termination during probation
Rigney v Nassau Co. CSC, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Rigney decision illustrates that individuals who complain that their employer acted in bad faith in terminating them prior to the end of their probationary periods must demonstrate that their probationary performance was otherwise satisfactory in order to prevail.

Rigney, a former Nassau County probationary police officer, complained that her supervisor, Sergeant Daniel P. Flanagan, arbitrarily decided that she would not successfully complete her training at the Police Academy. According to her complaint, Sergeant Flanagan told Rigney “that the decision was already made and that it was only a matter of time before she was terminated.”

Ultimately the Academy’s Deputy Inspector, George Gudmundsen, recommended that Rigney be terminated because she had not maintained a 75 percent average, which constituted “unsatisfactory performance during her probationary period including a failure to satisfy the minimum academic criteria” The report also said that Rigney “repeatedly argues with Academy staff members”; “failed simulations training”; and “repeatedly failed to address Academy staff members in [the] prescribed manner.”

Rigney sued, seeking a court order annulling her dismissal. She contended that her termination was made in bad faith because “Sergeant Flanagan arbitrarily determined that she would be terminated notwithstanding [her attaining] a passing (i.e., 75 percent or higher average) grade.”

State Supreme Court Justice McCaffrey pointed out that a probationary employee, unlike a tenured public employee, has no property rights in the position and can be discharged without a hearing and without a stated specific reason, provided that: (1) the employee has completed the minimum but not yet served the maximum period of probation, (2) the discharge is in good faith, and (3) the action is not in violation of constitutional, statutory, or decisional law. [See McKee v. Jackson, 152 AD2d 547].

Justice McCaffrey dismissed Rigney’s petition, commenting that even assuming that Nassau County had predetermined that Rigney was to be terminated irrespective of her final grade, her unilateral failure to acquire the minimum passing average (75 percent) provided an independent lawful predicate for terminating her employment.

Significantly, the employee has the burden of proof in actions challenging his or her dismissal during the probationary period. As the Appellate Division recently stated in dismissing an appeal filed by a former probationer at the Town of Brookhaven, the employee has a burden to present “legal and competent evidence to show a deprivation of his rights, bad faith, or other arbitrary action constituting an abuse of discretion” by the employer [Iannuzzi v Town of Brookhaven, 258 AD2d 651].

In Iannuzzi’s case, the Appellate Division said that Iannuzzi’s termination “was based upon his unsatisfactory performance and was not arbitrary and capricious, but had a rational basis and was carried out in good faith.”
NYPPL

A public employer may discipline an employee for refusing to support employer’s change in its operation

A public employer may discipline an employee for refusing to support employer’s change in its operation
Lewis v Cowen,165 F.3d 154

J. Blaine Lewis, head of Connecticut’s lottery, was fired for refusing to publicly support a change in the lottery’s operations. Lewis was an unclassified employee and served at the pleasure of the Executive Director of the Connecticut Division of Special Revenue and the Gaming Policy Board.

Lewis had national prominence in the public gaming community. He served as President of the National Association of State and Provincial Lotteries, an association of public gaming executives in the United States and Canada, and had been featured on the cover of Public Gaming International, a trade magazine.

Problems began in 1988, when the state awarded a contract to install a statewide computer system for the sale of lottery tickets to General Instrument Corporation (GIC). Lewis opposed this move. After GIC’s system malfunctioned and created a system-wide breakdown of on-line sales, Lewis criticized GIC to the press. The board ordered him and other unit heads to stop all media contact, but this gag order was eventually lifted.

Another change Lewis opposed was increasing the pool of numbers from which the winning Lotto numbers were picked was from 40 to 44. Lewis believed that revenues would decrease and suspected that GIC had recommended the change merely to cover up problems with on-line ticketing.

His superior, the Executive Director, ordered him to present the change to the Board at a public meeting and to cite “all positives and no negatives.” Lewis balked and was fired by the board one day after it unanimously approved the change.

Lewis sued, contending that his termination constituted a violation of his First Amendment rights. He won a substantial jury verdict in U.S. District Court -- $2 million in compensatory damages and punitive damages plus $380,000 in attorney’s fees.

On appeal, the Second Circuit U.S. Court of Appeals reversed. While “it is by now well established that public employees do not check all of their First Amendment rights at the door upon accepting public employment,” the court said that Lewis’ case involves a different issue: may a public employer discipline an employee for refusing to speak?

Connecticut argued that it was entitled to terminate Lewis pursuant to the standard announced in cases such as Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968), and in the alternative, that its decision to terminate Lewis is shielded by a qualified immunity. The Circuit Court applied the so-called Pickering balancing test typically used in considering free-speech cases involving public employees in resolving the issue.

The Pickering test has two elements. The court must first decide whether the speech addresses a matter of public concern. If so, the court then must balance the interests of the employer in providing “effective and efficient” public services against the employee’s First Amendment right to free expression. The court addressed two key questions:

1. Did Lewis’s refusal to speak to the Board touch on a matter of public concern?; and

2. Did the potential disruptiveness of Lewis’s refusal to speak outweigh his First Amendment-based interest in not speaking?

Reviewing the evidence, the circuit panel concluded that as a matter of law Connecticut’s interest in the effective and efficient operation of its Lottery Division outweighed Lewis’s First Amendment interest in refusing to present the proposed Lotto change before the Board in a positive manner.

State officials testified that Lewis’s speech would “potentially interfere” with the Division’s operations and that his refusal to promote the proposed change would result in negative publicity and decreased morale, in turn impairing the profitability of the lottery. Concluding that under the circumstances Lewis’s termination was justified, the Court ruled that:

1. The lower court should have dismissed the action on the ground of qualified immunity.

2. The state defendants are immune from liability on Lewis’s state law wrongful discharge claim.

The decision also considered “the exceptional significance of a government employee’s interest in testifying truthfully before a legislative committee,” referring to Piesco v City of New York, 933 F.2d 1149,. In Piesco, the Second Circuit “refused to force employees like Dr. Piesco to choose between answering questions honestly and risk being fired on one hand, and committing perjury on the other” holding that there was no evidence that Dr. Piesco’s testimony interfered with government operations in a manner outweighing Dr. Piesco’s strong interest in testifying truthfully.

In contrast, the court said although Lewis had a strong First Amendment interest in testifying truthfully before the Board, it “did not believe that interest to have been implicated here because Lewis was directed to present the Division’s views, not his own.”

NYPPL

Employee has the burden of showing the abolishment of his or her position was not made in good faith

Employee has the burden of showing the abolishment of his or her position was not made in good faith
Belvey v Tioga County, 257 AD2d 967

In January 1998 the Tioga County legislature abolished its position of Director of Data Processing and, implementing recommendations by both a private consultant and the Governor’s Task Force on Information Resource Management regarding future data processing needs for the county, created a new position -- Director, Division of Information Technology and Communication Services.

Richard J. Belvey, the then Director of Data Processing was terminated when that position was abolished. Efforts to find Belvey alternative employment with the County were unsuccessful. He sued, seeking reinstatement to either his former position or the new position or appointment to a similar one within Tioga County’s public service.

Belvey alleged that characterizing the abolition of his position as being undertaken for the purpose of economy or efficiency was a “subterfuge to avoid the statutory protection afforded to civil servants [by Civil Service Law Section 75].”

The Appellate Division disagreed, and dismissed his appeal. The court noted that the record demonstrated that the county had undertaken a needed expansion of its computer operations and required an individual “with qualifications far greater than that previously required.”

The decision also stated that the new position was in the noncompetitive class and required either a master’s degree in computer science and three years of experience or a bachelor’s degree and five years of experience. Presumably Belvey could not meet either of these requirements of training and experience.

The Appellate Division held that the county met its burden of showing that the former director of data processing position was abolished for economic or efficiency reasons. Accordingly, the burden shifted to Belvey to demonstrate that the county did not act in good faith or that his termination was based upon his job performance.

Belvey, said the court, failed to show that there the county’s decision was arbitrary or capricious by demonstrating that there were no bona fide reasons for the elimination of his position or that someone was hired to replace him as Director of Data Processing. Thus Belvey did not demonstrate that the protections afforded by Civil Service Law Section 75 were triggered when his position was abolished and he was laid off [Section 80 of the Civil Service Law].

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NYPPL

Retirement benefits based on only an employee’s regular salary and termination pay or other compensation paid in anticipation of retirement excluded

Retirement benefits based on only an employee’s regular salary and termination pay or other compensation paid in anticipation of retirement excluded
Davies v NYS LPFRS, 259 AD2d 912, motion for leave to appeal denied, 93 NY2d 810

A Taylor Law contract negotiated by the City of Corning and its police officers allowed unit members to elect to participate in a “senior officer” program. This program permitted police officers electing to participate to give up 20 percent of their accumulated sick leave credits in exchange for a salary increase equal to 30 percent of the value of his or her remaining sick leave accruals. This increased hourly rate applied to a participant’s base salaries, overtime credits and holiday pay.

The Local Police and Fireman Retirement System [LPFRS] subsequently advised retired participants of the “senior officer” program that the increase in their base salaries resulting from their participation in the program should not have been included in determining their “final average salary” for purposes of calculating their retirement allowance.

As a result, the retirement allowances of such retired officers were recalculated and reduced. LPFRS than made arrangements to recoup the overpayments that it had made to such retirees. Terrance Davies appealed this ruling by LPFRS to the Comptroller seeking reinstatement of their initial retirement benefit.

The Comptroller denied their appeal, concluding that Corning’s senior officer program “was nothing more than an attempt to circumvent the prohibition contained in Retirement and Social Security Law Section 431.” Section 431, said the Comptroller, prohibits the Retirement System from using accumulated sick leave credits in calculating an applicant’s final average salary.

Unhappy with this ruling, Davies, together with other retirees affected by the Comptroller’s decision filed an Article 78 [Article 78, Civil Practice Law and Rules] seeking reversal of the Comptroller’s determination and an order reinstating their former level of retirement benefits.

The Appellate Division commenced its analysis of Davies’ appeal by commenting that “it is well settled that the Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld. Based upon its review of the record as a whole, the panel said that “we cannot say that such determination is not supported by substantial evidence.”

The decision noted that in Tooley v McCall, 676 NY2d 259 the Appellate Division ruled that, “retirement benefits are to be computed on the basis of an employee’s regular salary and not on any kind of termination pay or other form of additional compensation paid in anticipation of retirement.”

The court rejected Davies’ argument that the “senior officer” program did not violate Section 431 because the participants had not received a lump-sum payment of accumulated sick leave credits.

The Appellate Division said that such an argument “misses the mark.” In determining what constitutes termination pay or compensation paid in anticipation of retirement, the panel said that it “must look to the substance of the transaction and not to what the parties may label it.” Concluding, as did the Comptroller, that the senior officer program was designed to circumvent the provisions of Retirement and Social Security Law Section 431, the Appellate Division dismissed the appeal.

The clear lesson here is that courts will not allow parties to obtain a benefit otherwise prohibited by law by including the benefit in a collective bargaining agreement negotiated pursuant to the Taylor Law.

One issued not addressed in the opinion was whether the election to participate in the “senior officer” program had an adverse impact on the benefits otherwise available to participants as a result of the Comptroller’s determination and, if so, what remedy, if any, the retired police officers had available to them.
NYPPL

Settlement of disciplinary arbitration must be in writing to be enforced by a court

Settlement of disciplinary arbitration must be in writing to be enforced by a court
Marpe v Dometsch, 256 AD2d 914

Sometimes the parties to a grievance or disciplinary proceeding agree to “settle” the matter. The terms of the settlement may be read into the record at an administrative hearing or before an arbitrator or the parties may simply “sign an agreement of settlement.” The Marpe case shows that the settlement of a pending lawsuit must follow a more formal procedure.

Terri L. Marpe sued Paul Dometsch and Capital Area Community Health Plan Inc. [CHP], alleging that sexual harassment and negligence arising out of psychiatric treatment provided by her supervisor, Paul Dometsch. During a pretrial deposition with her attorney, Marpe and CHP entered into an on-the-record oral stipulation of settlement providing that Marpe would execute a written release and confidentiality agreement in exchange for CHP’s agreement to pay her a specified sum of money. CHP forwarded the proposed settlement papers to Marpe but she refused to sign them. When a State Supreme Court justice denied CHP’s motion to enforce the stipulation of settlement, it appealed.

The Appellate Division affirmed the lower court’s determination, commenting that “a stipulation of settlement is not enforceable unless it is made in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys.” Since the stenographic record created at the deposition was made outside the presence of a judge, the Appellate Division ruled that it was insufficient to satisfy the requirements of Section 2104 of the Civil Practice Law and Rules.
NYPPL

Educator’s assignments must be consistent with tenure area of the position in which he or she is employed

Educator’s assignments must be consistent with tenure area of the position in which he or she is employed
Banschback v Middle Country CSD, CEd. 14078
Dowler v Middle Country CSD, CEd 14078

Eileen Banschback and Timothy Dowler, certified physical education teachers, were employed by the Middle Country Central School District as teaching assistants* and assigned to teach adaptive physical education under the general supervision of a certified physical education teacher.

The district conceded that they were to perform “primary instruction duties” related to adaptive physical education such as individualized education plans and preparing lesson plans, teaching students, determining student grades and giving supervision and direction to teacher aides.

Both teaching assistants appealed to the Commissioner of Education, contending that their assignments violated State Education Department guidelines and constituted an assignment outside their teaching assistant tenure area.

The Commissioner set out the following guidelines concerning their assignment:

1. Without a certified teacher present, Banschback and Dowler may teach adaptive physical education and supervise and direct teacher aides assigned to such classes, provided that they do so under the general supervision of such a teacher.

2. The certified teacher must review and approve the lesson plans and progress reports prepared by Banschback and Dowler as “deficient supervision may, as a practical matter, result in teachers being supplanted by teaching assistants, which is not permissible under law.”

* Section 80.33(b)(1) of the Commissioner’s Regulations defines a teaching assistant as a person “appointed by a board of education to provide, under the general supervision of a licensed or certified teacher, direct instructional services to students.”
NYPPL

New York Public Personnel Law readers

New York Public Personnel Law readers
Source: Google/Blogspot Statistical Report

Google/Blogspot reports that during the past six month the "top ten" of NYPPL readers were from the following nations:

Nation………………# of Readers

United States............34.721
Germany………………..1.207
Russia………………………643
France……………………..608
Netherlands……………..477
United Kingdom……….415
South Korea……...………395
Canada…………….……….312
Ukraine………...…………170
Philippines………………..140
NYPPL

Hearsay evidence may be the basis for an administrative disciplinary determination

Hearsay evidence may be the basis for an administrative disciplinary determination
Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 07932, Decided on November 3, 2010, Appellate Division, Second Department

Thomas Hughes, an Office of Court Administration [OCA] court officer, was served with disciplinary charges alleging, among other offenses, failing to keep his uniform in proper condition, failing to keep his weapon properly loaded, and keeping an impermissible metal-jacketed round in his weapon.

The disciplinary hearing officer found that Hughes was guilty of “engaging in acts of misconduct and incompetency prejudicial to the good order and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court office.” OCA accepted the hearing officer’s recommendation that Hughes be dismissed from his position. Hughes filed a petition pursuant to CPLR Article 78 seeking a court order vacating OCA’s decision to terminate him.

The Appellate Division dismissed Hughes petition noting that “appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.”

In this instance, said the court, the hearing officer’s findings were supported by substantial evidence.*

Addressing another issue concerning the evidence presented in the course of the disciplinary hearing, the Appellate Division commented that “Hearsay evidence may be the basis for an administrative determination,” citing Gray v Adduci, 73 NY2d 741.

As to the penalty imposed, dismissal, the court said that “termination of employment was not so disproportionate to the misconduct as to shock the conscience.”

* Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07932.htm
NYPPL

Supervisor’s performing employee’s duties while employee suspended pending a criminal investigation leads to additional disciplinary charges

Supervisor’s performing employee’s duties while employee suspended pending a criminal investigation leads to additional disciplinary charges
Matter of Covert v Schuyler County, 2010 NY Slip Op 07861, Decided on November 4, 2010, Appellate Division, Third Department

Beth E. Covert was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that she had asked a neighbor to lie to law enforcement officials conducting a criminal investigation of Covert.

Covert was suspended from her duties as a probation officer as a result of the criminal investigation and her supervisor assumed responsibility for her pending probation case files. In the course of the supervisors handling Covert’s cases, the supervisor found a number of irregularities and deficiencies relating to Covert’s record keeping and supervision of probationers

These finding resulted in additional §75 charges being filed against Covert. As a result of these additional charges, Covet was also found guilty of incompetence.

Based on the findings of misconduct and incompetence, together with her prior unsatisfactory service and her failure to take responsibility for her acts and omissions, the Schuyler County Administrator terminated Covert’s employment.

When Covert sued seeking to vacate the Administrator’s determination the Appellate Division dismissed her petition stating that it would not disturb the Administrator's determination made following a hearing pursuant to Civil Service Law § 75 as long as it supported by substantial evidence.

As to the charges alleging Covert had asked a neighbor to lie on her behalf, Covert’s supervisor testified that Covert had admitted to him that she had asked the neighbor to lie for her and then declared that "it's not like asking someone to lie for you is against the law." Covert, in contrast, testified that she had neither made such an admission nor asked anyone to lie.

This conflict in testimony, said the Appellate Division, was resolved against Covert by the Administrator and it will not substitute the court’s own credibility determinations for those of the Administrator,

As for the determination of incompetence, the evidence established that despite Covert's position as the designee responsible for transfers, she was unaware of the travel restrictions and written policies governing interstate transfers. Further, her incompetence with respect to the handling of a convicted sex offender on probation was also documented by evidence reflecting her continued failure to require the probationer to complete sex offender therapy.

Further, said the Appellate Division, charges of incompetence relating to Covert’s failure to properly use the computerized systems and failures in record keeping are also supported by substantial evidence.

Finally, the court rejected Covert’s argument that the statute of limitations barred certain of the charges, holding that “given the continuous nature of the incompetence,” such an argument is “unavailing.”

In the light of the findings in the disciplinary action and the fact that a prior letter of reprimand had been placed in Covert’s personnel file,* the Appellate Division said that the penalty of termination “is not so disproportionate to the offense as to be shocking to one's sense of fairness.”

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07861.htm
NYPPLPL

Court rejects attorney’s claim that public funds were wasted because he was qualified and would have done the legal work for substantially less money

Court rejects attorney’s claim that public funds were wasted because he was qualified and would have done the legal work for substantially less money
Matter of Diederich v Lawrence, 2010 NY Slip Op 07850, Decided on November 4, 2010, Appellate Division, Third Department

Attorney Michael Diederich Jr., a resident of Rockland County, sued the Rockland County Solid Waste Management Authority contending that Authority had “wasted taxpayer money” by paying a law firm, Holland & Knight, LLP, a legal fee of $104,000 for preparing an amicus curiae brief submitted to the United States Supreme Court.*

Diederich argued that he, as well as other attorneys, had more relevant expertise and would have completed the legal work for substantially less money.

The Authority and Holland & Knight moved for summary judgment challenging both Diederich's standing to bring the action and his substantive allegations. Supreme Court dismissed Diederich's petition, finding that he had not established standing under the common law or State Finance Law §123-b.**

The Appellate Division sustained Supreme Court’s ruling, noting that “Common-law standing requires a showing of ‘an injury in fact, distinct from that of the general public,’ that falls within the zone of interests promoted or protected by the pertinent regulation or statute.” Diederich, said the court, failed to allege an injury distinct from other taxpayers and, thus, has not met his burden as to common-law standing.

As to Diederich’s argument that the Authority acted ultra vires*** when it spent funds for an amicus brief, the Appellate Division observed that “Common-law taxpayer standing implicates "important governmental actions" that would otherwise evade judicial review, and the doctrine ‘should not be applied . . . to permit challenges to the determinations of local governmental officials having no appreciable public significance beyond the immediately affected parties, by persons having only the remotest legitimate interest in the matter’ [and] this criteria is not satisfied by [Diederich’s] personal interest in providing allegedly less expensive legal services and the apparent slight tax increase reportedly caused by the Authority's decision to use Holland & Knight, a law firm with which it had an ongoing relationship for several years.”

Addressing the merits of Diederich’s ultra vires argument, the court said that “retaining a law firm to prepare an amicus brief for a case pending before the United States Supreme Court that includes an issue of significance to the Authority falls within the powers conferred to the Authority by the Legislature,” citing Public Authorities Law §2053-c [4]; §2053-e [12]..

* The brief amicus curiae [friend of the court] had been prepared by Holland & Knight in for submission to the Supreme Court in United Haulers Assn. v Oneida-Herkimer Solid Waste Mgt. Auth, 550 US 330.

** The Appellate Division noted that Diederich had not argued that he has standing under State Finance Law §123-b on appeal and deemed that he had abandoned that claim.

*** Ultra vires - Latin for "beyond its powers," referring to an organization or its officers that exceeds the powers granted it by law.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07850.htm
NYPPL

No “anti-arbitrating” presumption to resolving grievances alleging a violation of a collective bargaining agreement

No “anti-arbitrating” presumption to resolving grievances alleging a violation of a collective bargaining agreement
Watertown CSD v Watertown Education Association
Indian River CSD v Indian River Education Association
Court of Appeals, Nos. 50 & 51, joint decision issued 93 NY2d 132

In numerous decisions, New York State courts have frowned on the use of arbitration to settle disputes between public employers and unions unless the collective bargaining agreement specifically states that the subject matter involved is subject to the contract grievance procedure set out in the agreement. In the combined decision issued for the Watertown and Indian River cases, the Court of Appeals -- New York State’s highest court -- articulated a much more liberal view regarding the use of arbitration to resolve public sector collective bargaining issues. It ruled that there is no anti-arbitration presumption in the Taylor Law or as a matter of public policy, and signaled lower courts to be less strict when deciding if arbitration is required by contracts.

Both cases involved claims regarding the arbitrability of an increase in employees’ health insurance co-payments. Although the relevant collective bargaining agreements were silent regarding whether resolving co-payments complaints was subject to contract grievance procedures, the Court of Appeals found the issue was arbitrable.

Key was the fact that the Taylor Law contracts involved each contained a broad arbitration clause that provided that “any alleged violation of this Agreement, or any dispute with respect to its meaning or application” was arbitrable.

Given the broad arbitration clause in the Watertown and Indian River agreements, and the presence of some language dealing with health insurance benefits, the Court of Appeals ruled that “the reduction of benefits by increasing the employees’ co-payments was an arbitrable issue.”

The dispute arose after Watertown and Indian River, together with a number of other school districts, formed a Municipal Cooperation Agreement to provide health insurance benefits for employees of participating districts. When the Plan raised the employees’ co-payment cap in response to “financial conditions,” the Watertown and Indian River Teacher Associations each filed a grievance alleging that the change in employee contributions constituted an impermissible, unilateral reduction in employee benefits and a violation of their respective collective bargaining agreements.

The grievances were denied. When the Associations sought arbitration, both districts asked for, and obtained, stays on the grounds that the parties had not agreed to arbitrate the dispute at issue.

But the Court of Appeals ruled that it is not necessary for a given issue to be specifically enumerated in the contract grievance portion of a collective bargaining agreement for it to be arbitrable. It ordered the parties in both cases to “proceed to arbitration.”

The court noted that there were two basic arbitration concepts contained in the Taylor Law:

1. Compulsory arbitration: Also referred to as “interest arbitration,” such arbitration is authorized by Section 209 of the Civil Service Law. It is triggered by an impasse in the course of negotiating terms and conditions of employment for police personnel. The decision of the arbitration panel “is final and binding” on the parties. Section 209.4 is a legislatively mandated alternative to striking by police officers or firefighters. This provision will expire June 30, 1999 unless extended by the Legislature.

2. Permissive arbitration refers to the ability of the parties to a collective bargaining agreement to voluntarily agree to arbitrate any subject matter as long as it does not concern a matter of public policy. Court held matters of public policy that are off-limits to arbitration include: (1) tenure decisions, (2) decisions to terminate an employee for violation of the federal Hatch Act, (3) seniority disputes involving academic standards, and (4) accessibility to personnel files. [See the Court of Appeal’s decision in Matter of United Liverpool Faculty Association, 42 NY2d 509]

In the Watertown and Indian River cases, the Court of Appeals clarified its stance on arbitrability of disputes. It said that Liverpool did not expressly create a “presumption” against public sector arbitration. The high court said: “[T]o the extent ... that one may be implied or fairly so characterized, an anti-arbitrational presumption is no longer justified either in law, or in the public sector labor environment.”

To determine if a given subject is arbitrable under permissive arbitration, the court said it would stay with a two-step analysis set out in Liverpool because “it has been workable for over two decades.” The Liverpool tests are:

1. Is the arbitration concerning an area subject to the Taylor Law (i.e., not a matter involving public policy)?

and, if so,

2. Did the parties agree, by the terms of their particular arbitration clause, to refer their differences in this specific area to arbitration?

In regard to the second test, the Court of Appeals sent a message to judges throughout the state that they should not be too strict in evaluating whether the parties had agreed to arbitrate specific types of disputes. “A court confronted with a contest of this kind should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement,” the Court of Appeals said.

It set out the following guidelines for lower courts to follow:

1. If a court finds that there is no reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement, the issue, as a matter of law, is not arbitrable.

2. If a reasonable relationship is present, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the collective bargaining agreement, and whether the subject matter of the dispute fits within them.

The court implied that if an employer seeks a stay of a demand for arbitration, the judicial standard would be “strict scrutiny.” In other words, the employer would have to show compelling governmental interest in avoiding the arbitration. The decision also states that “it is also clear that the merits of the grievance are not the courts’ concern.”

The court noted that “the decisional law reflects the reality of greatly increased public sector arbitration, and its acceptance, compatible with the government’s public policy concerns.” As an illustration, the court listed the following types of disputes as having been ruled subject to resolution by an arbitrator.

1. Union’s use of public office space.

2. Rehiring on basis of seniority.

3. Employee evaluations.

4. Grievance filed by a nonteaching employee under teachers’ collective bargaining agreement.

5. Violation of disciplinary provisions claimed by a probationer.

6. Denial of a sabbatical leave.

7. Failure to submit a change in educational policy to advisory professional council.

8. Compensating a peace officer for an off-duty arrest.

9. Violation of a “no-reprisal clause in agreement.”
NYPPL

Police officer’s association with individuals involved in alleged criminal activity results in dismissal from the position

Police officer’s association with individuals involved in alleged criminal activity results in dismissal from the position
Richardson v Safir, 258 AD2d 328

The Appellate Division upheld the dismissal of New York City police officer Edward Richardson based on a determination that Richardson “knowingly associated with a person he reasonably believed was engaged in criminal activity.”

Richardson was also found guilty of making “false and misleading statements in an official Department investigation.”

The court said that the determination leading to Richardson’s termination was supported by substantial evidence, “including, in particular, [Richardson’s] own testimony in the official investigation.”
NYPPL

Assurance of reemployment of an educator negates his or her eligibility for unemployment insurance benefits between school years

Assurance of reemployment of an educator negates his or her eligibility for unemployment insurance benefits between school years
Huff v Commissioner of Labor, 247 AD2d 734, 257 AD2d 832

In case involving a claim for unemployment insurance benefits, Buffalo City School District teacher’s aide Dennis Huff, Sr. filed an application for unemployment insurance benefits in June 1997 at the end of the 1996-1997 academic year.

Applying the provisions of Section 590.11 of the Labor Law, the Unemployment Insurance Appeals Board ruled that Huff was ineligible for such benefits for the summer of 1997 because the Buffalo City School District had given him a reasonable assurance that he would be rehired on the same terms and conditions of employment for the 1997-1998 school year effective September 1997.

Huff appealed, contending that Section 590.11 did not apply in his situation “because he normally provided services for an educational institution that accepts students year-round.” The Appellate Division, noting that Huff had made the same argument “in prior unsuccessful claims,” observed that the applicable Taylor Law contract covers Huff’s employment only during the academic year -- September through the June next following. The employment of aides for summer school, said the court, “is dictated by entirely different criteria.”
NYPPL

Discontinuation of employer’s cafeteria service a mandatory subject for collective bargaining

Discontinuation of employer’s cafeteria service a mandatory subject for collective bargaining
CSEA Local 1000 & Nassau County, 32 PERB 3005

For at least nine years the Nassau County Medical Center (NCMC) provided food service in its cafeteria between the hours of 2:00 a.m. and 4:00 a.m. When the County unilaterally discontinued providing such service and refused to negotiate its action, CSEA filed an improper practice charge with PERB.

A PERB administrative law judge ruled that Nassau County violated the Taylor Law by acting unilaterally with respect to mandatory subjects of negotiations “without a meritorious defense.” PERB sustained the ruling, pointing out that the cafeteria was open for at least nine years to serve the 200 to 300 employees who worked the midnight shift at NCMC. This, said PERB, affected the employees’ term and conditions of employment since its use by employees “is both an economic fringe benefit, as it avoids any need for employees to eat and drink off premises at higher cost, and it is a matter directly affecting their health, personal comfort and convenience.” PERB told Nassau to reinstate the food service it provided before it closed NCMC’s cafeteria and “to make unit employees whole” to the extent that it can be shown that the closing resulted in their incurring additional expense for food and beverages.

A collateral issue involved the County’s directing the employees to discontinue the use of their personal appliances such as electronic ovens and “heat generating electrical appliances” at their workstations. PERB said that the County’s interest in protecting the patient’s safety overcame the employees’ interest in their having such convenience items available to them at their workstation and dismissed this branch of CSEA’s improper practice charge.
NYPPL

Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence

Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence
NYC Department of Sanitation v O’Neill, OATH Index #2632/10

The New York City Department of Sanitation’s General Order No. 2001-19 addressing “trade waste” prohibits its employees from removing material originating from a home renovation performed by a contractor.*

OATH Administrative Law Judge Alessandra Zorgniotti found that circumstantial evidence,** supported by other evidence, proved the charge brought against Brian O’Neill, a sanitation worker employed by the Department.

Significantly, the ALJ found that a telephone tip from a man who called a Department Superintendent on July 30, 2007, was corroborated by other evidence gathered by the agency such as the caller’s description of the two sanitation workers involved. The descriptions matched O’Neill and his partner, and the caller’s reporting that “he saw these men loading construction debris onto a sanitation truck at a location at the end of [O’Neill’s] route in Brooklyn.”

The Department’s Borough Chief went to the location and he saw a house under renovation with signs of recent construction activity.

Additional circumstantial evidence consisted of the contents of O’Neill’s truck when it was “dumped.” The last material loaded came out first and it included construction debris, including carpet the Borough Chief had seen at the house.

In addition, there was testimony by a supervisor that the tonnage reports for July 30, 2007, for the section indicated that “most trucks picked up between nine and ten tons and that [O’Neill’s] truck was the only truck over thirteen tons” if waste,

Although the ALJ found that there was insufficient evidence to prove O’Neill had accepted a gratuity from anyone in connection with the removal of the “trade waste,” she recommended that O’Neill be terminated in view of his “short tenure and the absence of mitigating circumstances.”

* Even if collected materials have not been generated by a contractor for a fee, the trade waste directive can be violated if a sanitation worker services a residential stop which contains construction debris in excess of six bags, bundles, boxes, and cans. If the material exceeds this six-container limit, the sanitation worker is permitted to complete the collection only by notifying and procuring the approval of his or her supervisor.

** A finding of misconduct may be established in a disciplinary proceeding solely by circumstantial evidence. Dep’t of Sanitation v. Guastafeste, OATH Index No. 658/00, at 10, aff’d, 282 A.D.2d 398

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2632.pdf
NYPPL

Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties

Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties
Ramos v City of New York, 2010 NY Slip Op 07821, Decided on November 4, 2010, Appellate Division, First Department

Tristar provided security services at the premises pursuant to a contract between it and the City whereby Tristar personnel were to check ID’s of people who worked at the premises, scanning people who did not work there, checking bags for weapons, and patrolling the exterior of the building.

The contract between the City and Tristar required Tristar to provide unarmed and armed uniformed guard services at the City's premises and included a provision that Tristar was to indemnify the City for "claims arising out of or in any way related to this Contract . . . resulting or alleged as resulting from the negligence of the Contractor . . . in its performance of this Contract."

Guillermo Ramos was employed by Tristar as a security guard and was injured while working at premises owned by the City of New York. Ramos claimed that he was directed by an employee of the City, who supervised him at the premises, to turn off the heater/fan that was located in a closet on the main floor of the premises and allegedly received a severe electric shock in so doing. Ramos sued the City and the City commenced a third-party action against Tristar for contractual indemnification.

The Appellate Division dismissed the City’s action seeking indemnification from Tristar, noting that although Tristar had a duty to indemnify the City for Tristar's negligence in the performance of its duties, it was not obligated to indemnify the City for the City’s negligence.

Here, said the court, Ramos’ “injuries arose when he attempted to turn off the switch for the heater/fan which was an activity clearly outside of the scope of his duties as a security guard.”

Accordingly, Tristar was not obligated to indemnify the City as a matter of law as there was no proof that Ramos’ injuries arose from Tristar's breach of a duty of care owed to the City or from the work Tristar performed under its contract with the City.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07821.htm
NYPPL

Employee’s dismissal after refusing to participate in a counseling program held reasonable under the circumstances

Employee’s dismissal after refusing to participate in a counseling program held reasonable under the circumstances
Siciliano v Safir, 259 AD2d 366

Matthew Siciliano, a New York City police officer, was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.

Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.

The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”

The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving [the] Department’s requirements for order, authority and discipline.” It ruled that the department’s determination to dismiss Siciliano is entitled to “great leeway.” Commenting that the penalty imposed did not shock its sense of fairness, the Court dismissed Siciliano’s appeal.
NYPPL

Designation of the hearing officer in an administrative disciplinary action

Designation of the hearing officer in an administrative disciplinary action
Stein v Rockland Co., 259 AD2d 552

William J. Stein was terminated from his position with the Rockland County Highway Department after he was found guilty of striking another employee. However, during the second day of hearing Stein had protested “the lack of a proper, written designation of the hearing officer” as required by Civil Service Law Section 75(2). Stein argued that omission meant that the hearing officer did not have jurisdiction to hear testimony in the matter.

According to case law, “in the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee” (Wiggins v Board of Educ. of City of New York, 60 NY2d 385).

The Highway Superintendent provided the hearing officer with a “new written designation,” and the hearing continued. However, the hearing officer “specifically stated in his recommendations that he credited the testimony of the two witnesses who testified on the first day of the hearing.

This, said the Appellate Division meant that the hearing officer’s report was “fatally defective.” The Appellate Division annulled the determination and remitted the matter to the county “for a new hearing and determination with respect to the charges.”

In addition, the Appellate Division said that the determination had to be annulled because the Highway Superintendent should have disqualified himself from making the final determination because of his personal involvement in the case.

The Superintendent was present when the incident leading to disciplinary action against Stein occurred and he made a statement as to what he heard and saw. Furthermore, he conducted the initial investigation, preferred the charges against the Stein, and appointed the hearing officer.

Such “personal involvement in the case,” said the Court, required the Superintendent to disqualify himself from reviewing the recommendation of the hearing officer and acting on any of the charges.
NYPPL

Summary dismissal during a disciplinary probation period

Summary dismissal during a disciplinary probation period
Williams v NYSOMH, 259 AD2d 623

Disciplinary charges were filed against Henry Williams, an employee of the New York State Office of Mental Health, alleging that he was guilty of excessive absenteeism.

The disciplinary action was settled when Williams agreed to serve a disciplinary probation period during which period he could be terminated “without recourse to Article 33 of the State-CSEA Agreement [a negotiated disciplinary grievance procedure] or any other provision of law.”

Williams was absent from work seven times during the six-month period following the execution of the settlement agreement. The department terminated him and he commenced an Article 78 proceeded seeking reinstatement to his former position. The Appellate Division dismissed Williams’ petition, commenting that “a probationary employee may be terminated without a hearing and without a statement of reasons provided that the termination is not in bad faith, or for unconstitutional or illegal reasons.” Further, the decision notes, Williams had the burden of proving that his dismissal was based on bad faith or unlawful conduct.

However, the specific terms of a disciplinary settlement could prove critical if the employee is terminated for his or her alleged failure to satisfy the terms of his or her disciplinary probation.

In Taylor v Cass, 505 N.Y.S.2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, a state corrections officer, Tina Ramos, agreed to pay a $1,000 fine and be placed on disciplinary probation for one year in settlement of disciplinary charges filed against her alleging improper behavior while escorting a prisoner. She was subsequently observed carrying her weapon in a hospital examination room in violation of departmental rules. The Appellate Division sustained her termination without a hearing, finding that Ramos had violated the terms of her disciplinary probation (Ramos v Coombs, App Div, 237 AD2d 713).
NYPPL

Employee disciplined for alleged acts of misconduct that took place 20 years earlier

Employee disciplined for alleged acts of misconduct that took place 20 years earlier
DeMichele v Greenburgh CSD #7, 167 F.3d 784

Section 3020-a(1) of the New York State Education Law provides that “no charges ... shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.”*

In the DeMichele case, a teacher in the Greenburgh Central School District #7 was found guilty of having inappropriate sexual contact with female students in incidents occurring more than 20 years earlier. The Second Circuit U.S. Court of Appeals sustained the school board’s decision to dismiss the teacher, even though the teacher had not been convicted of any “criminal act.”

Following the same logic as New York State courts that have addressed similar issues involving statutes of limitation under various disciplinary provisions, the federal court observed that the law does not require the individual to be found guilty of a felony in a criminal court for disciplinary charges to be filed after the three-year statute of limitations has expired.

Rather, the law merely characterizes the nature of the allegation. The law says that if a Section 3020-a hearing officer or disciplinary panel finds an individual guilty of an act that fits the definition of a felony under relevant criminal statutes, then a penalty may be imposed even if the disciplinary charges were brought after the three-year statute of limitations has expired (see Re Board of Education of City School District of the City of New York, Opinions of the Commissioner of Education No. 11353.**

The 20-year-old sexual misconduct charges arose after a newspaper reported that Greenburgh #7 teacher Robert DeMichele had been restored to the payroll in 1996 after serving one and one-half year disciplinary suspension. The article noted that the suspension without pay was imposed as a penalty after DeMichele was found guilty of having inappropriate conduct with female students during the 1991-92 and 1992-93 academic years.

After the article appeared, two women contacted district officials and alleged that DeMichele had sexually abused or molested them when they had been students in the district decades earlier -- during the 1972-73 and 1974-75 school years.

There was no dispute that the district was unaware of these allegations prior to its receiving the February 1996 reports. On March 11, 1996, the district initiated a second Section 3020-a disciplinary action against DeMichele. The hearing officer found DeMichele guilty of all but one of seven specifications set out in the charges. As a result, DeMichele was dismissed. The disciplinary determination was reported to the press.

The hearing officers ruled that (1) each instance of misconduct alleged in the second disciplinary proceeding constituted a crime when committed and (2) Section 3020-a does not require that the misconduct actually be the subject of a criminal prosecution. Rather than appeal the hearing officer’s determination, DeMichele sued in federal district court claiming that the second disciplinary action violated his rights under 42 USC. Section 1983. He contended that his rights were violated because:

1. The district forced him to defend charges concerning events that occurred more than 20 years ago, which left him unable to defend himself in violation of his right to due process under the Fourteenth Amendment; and

2. He was deprived of a liberty interest without due process under the Fourteenth Amendment when the district’s prosecutor disclosed the results of the hearing to the media.

In an unpublished decision, a federal district court judge granted the district’s motion for summary judgment and thus dismissed DeMichele’s petition without a hearing on the merits of the complaint. The Circuit Court of Appeals affirmed the lower court’s decision.

The Circuit Court said that to show a violation of due process as a result of delay in a hearing, New York State law requires the subject of an administrative disciplinary proceeding demonstrate that delay in initiating proceedings caused “actual prejudice” to his or her ability to defend against the charges. The court suggested that if the school district had known about the 1970s allegations before 1996 but delayed proceeding with discipline, DeMichele might have been able to show that his ability to defend himself had been compromised.

The court also addressed DeMichele’s claim that the dissemination to the media of the results of his second disciplinary hearing stigmatized him and wrongfully deprived him of his liberty interest under the Fourteenth Amendment. The court noted that this argument rested on the assumption that the results of the disciplinary proceeding were not a matter of public record, but instead were part of his “employment history” which could not be released under New York’s Freedom of Information Law, [Public Officers Law, Article 6, (“FOIL”)].

However, the decision noted that New York courts have found that the disposition of misconduct charges does not constitute part of an employee’s “employment history” as that phrase is used in FOIL, citing LaRocca v. Board of Educ. of Jericho Union Free School District, 632 N.Y.S.2d 576. The Circuit Court ruled that under the circumstances, the dissemination of the background and result of the first disciplinary hearing to the press did not deprived DeMichele of any liberty interest and dismissed the appeal.

* Section 75 of the Civil Service Law, a statutory disciplinary procedure covering employees in the classified service, also provides that there is no statute of limitations with respect to bringing disciplinary action against an individual where the charges of incompetency or misconduct “constitute a crime.”

** Section 3020-a(1) of the Education Law also requires that disciplinary charges be filed “during the period between the actual opening and closing of the school year” during which the employee is normally required to serve.
NYPPL

Potential conflict of interest between official duties and private business should be eliminated by appointing authority

Potential conflict of interest between official duties and private business should be eliminated by appointing authority
Informal opinion of the Attorney General 98-39

A part-time village police officer also conducted a towing business. When asked if the officer’s towing business could be included on the village police force’s list of towing companies, the Attorney General said it could be listed, “provided the village takes appropriate steps to eliminate any potential conflicts of interests.”

The Attorney General said that an appearance of impropriety would be created if the police officer’s towing service were called when that officer is at the scene of an accident. Further, a conflict of interest would arise if village police officers recommended their colleagues’ business to individuals in need of towing services rather than resort to the list.
NYPPL

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith
Rosioreanu v New York City Off. of Collective Bargaining, 2010 NY Slip Op 07797, Decided on November 4, 2010, Appellate Division, First Department

Upon conclusion of a grievance procedure that resulted in her termination, Cleopatra Rosioreanu filed an improper practices petition with the New York City Office of Collective Bargaining [OCB] contending that her union failed to provide adequate representation throughout the grievance process.

OCB denied the petition and Rosioreanu filed an Article 78 proceeding challenging OCB’s determination.

The Appellate Division said that Rosioreanu’s Article 78 petition advanced the theory that because the grievance process ended with her termination, her union representatives must have acted arbitrarily, capriciously or in bad faith.

The court characterize Rosioreanu’s claim as a “conclusory assertion,” commenting that there was nothing in the record that suggests malfeasance by the union representatives, much less fraud, deceitful action, dishonest conduct or discrimination on the part of union representatives, citing Mellon v Benker, 186 AD2d 1020.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07797.htm
NYPPL

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)
Matter of Rivera v DiNapoli, 2010 NY Slip Op 07852, Decided on November 4, 2010, Appellate Division, Third Department

Although typically an applicant for accidental disability retirement benefits or performance of duty disability benefits has the burden of proof with respect to showing that his or her disability resulted from the performance of his or duties, such is not always the case.

For example, the Retirement and Social Security Law §507-b(c) sets out a rebuttable presumption that where an individual has "successfully passed a physical examination on entry into service as a correction officer" that did not reveal evidence of heart disease and later becomes disabled as the result of a heart condition sustained during employment, it is presumed that the disability was "incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence."

Juan C. Rivera’s had successfully passed his physical examination when he began his employment as a correction officer. He subsequently suffered a myocardial infarction after falling ill while at work.

When it was determined that he could not return to work because of his resulting medical condition, Rivera applied for performance of duty disability retirement benefits.

The New York State and Local Retirement System [ERS], however, denied his application, concluding that although Rivera was permanently incapacitated, his disability "was not sustained as a result of the performance or discharge of his . . . duties."

Ultimately the Comptroller sustained the ERS’s denial of his application for benefits and Rivera filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Comptroller’s determination.

Under the circumstances, said the Appellate Division, ERS had the obligation to rebut the statutory presumption that Rivera's disability occurred as a result of his performance and discharge of his duties as a correction officer.

The Appellate Division concluded that ERS had rebutted the presumption that Rivera’s disability was related to his employment as a correction officer by presenting evidence of risk factors coupled with expert testimony that excludes an applicant's employment as a causative factor" and sustained the Comptroller’s decision.

The court said that considering the record as a whole, it found that ERS had “effectively rebutted” the presumption set out in RSSL §507-b(c) and thus Rivera’s application for benefits was properly denied.

The record indicated that ERS had relied on the opinion of a cardiologist who, after examining Rivera, concluded that while work-related stress "can aggravate the symptoms of coronary artery disease," Rivera's coronary artery disease "was not related to his employment as a correction officer." The cardiologist made reference to the fact that Rivera suffered from a variety of risk factors commonly associated with coronary heart disease, including obesity and hypertension.

The Appellate Division said that it had previously held "the [statutory] presumption is effectively rebutted when evidence of risk factors is coupled with expert testimony that excludes an applicant's employment as a causative factor," citing Bryant v Hevesi, 41 AD3d at 932.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07852.htm
NYPPL

Independent contractors in the public service

Independent contractors in the public service
Roesch v BOCES, App Div, 259 AD2d 900

The Roesch case is another in a series of actions involving claims for retroactive membership in a public retirement system.

Dorothy E. Roesch claimed that her service as a school psychologist with the Wayne-Finger Lakes BOCES qualified her for retroactive membership in the New York State Teachers’ Retirement System [TRS]. BOCES had rejected Roesch’s application on the grounds that she was a consultant on a per diem basis serving as an independent contractor and therefore she was ineligible to join TRS during the time in question.

The decision indicated that there were neither payroll or personnel records nor any formal appointment action by BOCES to employ her.

In contrast, such types of records were produced concerning others serving in similar positions indicating that such personnel “were formally appointed” to positions as employees of BOCES. Was this sufficient to support the conclusion that Roesch served as an independent contractor rather than as a BOCES employee?

The Appellate Division ruled that it was, sustaining BOCES’ rejection of Roesch’s application. The court said that there was rational basis for this determination, noting that the BOCES’ minutes of board meetings during the relevant period established that BOCES had a pattern and practice of making formal appointments of full and part-time employees.

The court said that the minutes “were devoid of any reference to the appointment of Roesch during this period when other school psychologists were so appointed by BOCES.”

This, coupled with the lack of any [IRS payroll withholding] W-4 forms that were completed by Roesch while others were produced for school psychologists employed near the relevant time period, “provides a rational basis to support the denial of Roesch’s application for retroactive membership in TRS based on her status as an independent contractor.”

The decision is silent as to whether or not BOCES produced copies of “an employment contract” between it and Roesch or copies of IRS Forms 1099, Miscellaneous to support its position that Roesch was an independent contractor rather than an employee. Typically, an individual providing personnel services to a public entity is deemed to be a public employee unless a contract for “personnel services” is authorized under law and a contract providing for such services has actually been executed by the parties.

In another application for retroactive membership in TRS case, Storrar v Mahopac Central School District, 257 AD2d 628, [motion to appeal denied, 93 NY2d 808], that the statement of the school district’s former payroll clerk that she and Barbara Storrar, a former member of TRS, discussed “FICA [Social Security] deductions versus reenrollment” in TRS was sufficient to establish that the district had “procedure that a reasonable person would recognize as an explanation or request requiring a formal decision ... to join a public retirement system” in place.
NYPPL

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense
Russo v Wantagh UFSD, 259 AD2d 703

Smoky conditions prompted school officials of the Wantagh school district to evacuate students from a school building. Investigation showed the fire began in the custodians’ area of the school and was caused by cigarettes igniting waste paper in a plastic trash pail that had not been emptied.

The school board dismissed custodian Clement Russo after he was found guilty of “charges of misconduct and incompetence concerning a smoke condition in the school at which he was employed.” Russo appealed.

The Appellate Division sustained the district’s determination, finding that it was supported by substantial evidence in the record.

Russo also protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty. The court said that “under the circumstances of this case, the termination of [Russo’s] employment was not so disproportionate to the offense as to shock one’s sense of fairness,” quoting the Pell standard in imposing a penalty [Pell v Bd. of Ed., 34 NY2D 222].
NYPPL

Employer fined after docking employee’s pay for jury duty absence
People v Rosenbach, Nassau Co. Ct. [Justice DeMaro], [Not selected for publication in the Official Reports]

From time to time a public employee is called to serve on jury duty. The attendance rules for state officers and employees [4 NYCRR 28.1.9], for example, grants employees “leave with pay without charge to leave accruals” when called upon for jury service. Other jurisdictions provide for similar benefits.

In contrast, penalizing an employee for performing his or her civic duty by reporting for jury duty can be expensive, as attorney Ann Rosenbach has learned. Rosenbach was fined $1310 for criminal contempt after she docked one and one-half weeks of pay from the salary of an attorney in her employ when the attorney was called for jury duty.*

State Assistant Attorney General Jennifer Brand, who prosecuted the case, said “this may be the first time an employer was held in criminal contempt for ‘penalizing’ an employee called to serve on jury duty.

* Lynn Weit, who worked as an attorney in Rosenbach’s law office, received a jury summons and informed Rosenbach that she would be absent from work for an expected two days to fulfill her civic obligation.
NYPPL

Fitness of a witness determined by the credibility of his or her testimony

Fitness of a witness determined by the credibility of his or her testimony
Goodman v Safir, 259 A.D.2d 344

In the Goodman case, the Appellate Division considered the value of testimony provided by “corrupt former employees” called by the employer as witnesses against another employee in a disciplinary action.

New York City police officer Keith Goodman was terminated from his position after being found guilty of participating in unlawful searches in violation of the Fourth Amendment to the U. S. Constitution on a number of occasions. Goodman challenged his dismissal, contending that there was no substantial evidence supporting the Commissioner’s action because, Goodman alleged, a number of the witnesses testifying against him were corrupt former police officers.

The Appellate Division dismissed Goodman’s appeal, commenting that it found “no reason to disturb [the Commissioner’s] credibility findings rejecting [Goodman’s] version of the events.” The fact that some of the witnesses testifying for the employer were characterized by Goodman as “corrupt former police officers” did not mean that their testimony was not “substantial” insofar as the Appellate Division was concerned.

Finding that the penalty of dismissal did not shock its sense of fairness, the Appellate Division sustained the commissioner’s determination and his terminating Goodman from his position.
NYPPL