Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Nov 24, 2010
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Claim of mistake does not permit a party to rescind provisions set out in collective bargaining agreement
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or her income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, motion to appeal denied, 93 NY2d 807
Disabled firefighters and disabled police officers are entitled to significantly different benefits under New York’s General Municipal Law, Sections 207-a (firefighters) and 207-c (police officers).
If a police collective bargaining agreement dealing with disability benefits cites General Municipal Law Section 207-a as the basis for providing such benefits, does this give police officers the right to disability benefits ordinarily reserved for firefighters? And if the municipality claims the citation of GML 207-a rather than GML 207-c was an error on the part of both parties, does this mean the parties must be required to re-negotiate the contract?
The Appellate Division considered these questions in the Plattsburgh case. The City of Plattsburgh and its police officers union agreed while negotiating their 1995-1998 Taylor Law contract to include a provision -- referred to as the “207-c benefits” -- in the agreement. The contract’s “207-c benefits” clause provided that permanently disabled police officers would receive the same benefits provided permanently disabled firefighters pursuant to GML Sect. 207-a.
The benefits under 207-a and 207-c are nearly identical except for retirement salary supplements. If a firefighter is receiving an accidental or line-of-duty disability retirement allowance, the municipality must pay him or her a supplement to bring his or her income up to the level of compensation that the firefighter would have earned had he or she not been disabled. This supplement is paid until the firefighter attains the mandatory age of retirement or he or she completes the period of service required before he or she could be terminated or retired. However, Section 207-c does not require municipalities to pay such salary supplements upon a disabled police officer’s retirement.
How Section 207-a became cited in the Plattsburgh police agreement is a bit of a mystery. According to court documents, city officials drafted the agreement after looking at several models provided by the union. These included police contracts that cited 207-c as well as the city’s own agreement with its firefighters, which cited 207-a. It is common practice to borrow language from reference agreements, which might explain how the 207-a benefit may have been negotiated for the police.
Plattsburgh city officials claimed they discovered the “mistaken inclusion of this [207-a] benefit” in 1966. However, nothing much happened until February 4, 1997 when a permanently disabled police officer applied for a disability benefit under the terms of the agreement.
When Plattsburgh refused to pay the benefit, the union demanded arbitration. The city asked a state Supreme Court judge, and later the Appellate Division, for a stay of arbitration. It further requested “reformation of the 207-c agreement on the ground of mutual mistake.”
The Appellate Division said that in an application for a stay of arbitration of a public sector labor dispute, two tests are applied: (1) does a statute, court decision or public policy bar arbitration of the matter in accordance with the Taylor Law? and (2) do the terms of the contract’s arbitration clause include the subject matter of the dispute?
The Appellate Division found that the parties should submit the matter to arbitration.
Plattsburgh contended that the 207-c agreement “runs afoul” of statutes prohibiting public employers and employees from negotiating with respect to any benefit provided by a public retirement system [Section 470, Retirement and Social Security Law].
The Appellate Division brushed aside that objection, holding that the contract provided 207-c benefits were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In addition, the Appellate Division pointed out that the Public Employment Relations Board had previously decided that GML Section 207-c “establishes a floor below which an employee’s benefits may not fall and, thus, a public employer may, pursuant to collective bargaining negotiations, provide benefits to their employees in excess of those provided by GML 207-c [Matter of CSEA Local 830, 23 PERB 4595].
As to Plattsburgh’s motion to stay the arbitration and hold a judicial hearing on the issue of reformation of its 207-c agreement, the Appellate Division pointed out that “the scope of the substantive provisions of the collective bargaining agreement, including the failure to reflect a meeting of the minds, is for the arbitrator to decide.”
Ultimately, the arbitrator, Howard A. Rubenstein, Esq., ruled that the language used in the collective bargaining agreement controlled and thus the City was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a.
NYPPL
Nov 23, 2010
Facing the Legal Dangers of Social Media – a Complimentary Webinar
Facing the Legal Dangers of Social Media – a Complimentary Webinar
Source: The Virtual LegalTech Team
The Virtual LegalTech Team has announced that a one-hour webinar entitled, "Facing the Legal Dangers of Social Media," will take place in the Virtual Auditorium at Virtual LegalTech on December 14, 2010 from 10:00 – 11:00 AM EST." The webinar session is eligible for CLE credit in certain states.*
According to the Team, "This Webinar will take a close look at the most challenging social media issues arising in the legal industry today, including:
1. The good and the bad of employees and social media;
2. Monitoring online content and combating the negatives; and
3. Preserving privilege and avoiding inadvertent contact with adversaries online."
The Team also notes that those participating in the December 14 session will be able to "chat with vendors, see product demonstrations, collect information, network with colleagues and get the latest news from the ever-evolving legal industry."
Register at http://www.virtuallegaltechshow.com/.
Registration is complimentary and use Priority Code SOCIAL1 when registering.
For additional information please go to http://alm-promotions-us.msgfocus.com/c/1fH13YdyA5u8FZO5Tc or telephone 212-457-7905
* According to the Team, Complimentary CLE will only be offered for credits in NY, CA and IL by attending the Virtual LegalTech show on December 14, 2010. CLE credit is pending in FL. Not all sessions are CLE eligible. Other terms and conditions apply. All potential participants will be contacted with further details prior to the show.
NYPPL
Source: The Virtual LegalTech Team
The Virtual LegalTech Team has announced that a one-hour webinar entitled, "Facing the Legal Dangers of Social Media," will take place in the Virtual Auditorium at Virtual LegalTech on December 14, 2010 from 10:00 – 11:00 AM EST." The webinar session is eligible for CLE credit in certain states.*
According to the Team, "This Webinar will take a close look at the most challenging social media issues arising in the legal industry today, including:
1. The good and the bad of employees and social media;
2. Monitoring online content and combating the negatives; and
3. Preserving privilege and avoiding inadvertent contact with adversaries online."
The Team also notes that those participating in the December 14 session will be able to "chat with vendors, see product demonstrations, collect information, network with colleagues and get the latest news from the ever-evolving legal industry."
Register at http://www.virtuallegaltechshow.com/.
Registration is complimentary and use Priority Code SOCIAL1 when registering.
For additional information please go to http://alm-promotions-us.msgfocus.com/c/1fH13YdyA5u8FZO5Tc or telephone 212-457-7905
* According to the Team, Complimentary CLE will only be offered for credits in NY, CA and IL by attending the Virtual LegalTech show on December 14, 2010. CLE credit is pending in FL. Not all sessions are CLE eligible. Other terms and conditions apply. All potential participants will be contacted with further details prior to the show.
NYPPL
Employee fined for using employer’s equipment for personal business
Employee fined for using employer’s equipment for personal business
Conflicts of Interest Board v Raymond McNeil, OATH Index #09-307
OATH Administrative Law Judge Faye Lewis found that former New York City procurement analyst Raymond McNeil had used his City computer and his City e-mail account for a non-City purpose – engaging in his personal business -- during normal working hours.
Judge Lewis found that McNeil had violated the New York City Conflict of Interest Board’s Rules by using his City computer to send e-mails concerning his notary public services. Further, the decision notes that “[p]roviding one’s City government e-mail address and phone number as contact information for outside employment is in conflict with the proper discharge of [the employee’s] official duties.”
Although Judge Lewis recommended that a $600 fine be imposed on McNeil, the Conflicts of Interest Board decided to impose a $2,000 fine as the penalty for violated its Rules.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1790.pdf
NYPPL
Conflicts of Interest Board v Raymond McNeil, OATH Index #09-307
OATH Administrative Law Judge Faye Lewis found that former New York City procurement analyst Raymond McNeil had used his City computer and his City e-mail account for a non-City purpose – engaging in his personal business -- during normal working hours.
Judge Lewis found that McNeil had violated the New York City Conflict of Interest Board’s Rules by using his City computer to send e-mails concerning his notary public services. Further, the decision notes that “[p]roviding one’s City government e-mail address and phone number as contact information for outside employment is in conflict with the proper discharge of [the employee’s] official duties.”
Although Judge Lewis recommended that a $600 fine be imposed on McNeil, the Conflicts of Interest Board decided to impose a $2,000 fine as the penalty for violated its Rules.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1790.pdf
NYPPL
Notice requirements for filing an complaint with PERB alleging an improper practice
Notice requirements for filing an complaint with PERB alleging an improper practice
Union Endicott CSD v PERB, 250 AD2d 82, motion to appeal denied, 93 NY2d 805
In the Union Endicott decision the Appellate Division, Third Department, affirmed its position that a union’s failure to file a timely notice of claim with a school district as mandated by Section 3813(1) of the Education Law prevents it from prosecuting improper practice charges filed against the district with PERB.
The case arose in 1992 in connection with the New York State Electric and Gas Company’s rebate program designed to encourage the replacement of the components of thousands of the Union-Endicott Central School District’s fluorescent fixtures with “high efficiency energy-saving models.”
The district decided to participate in the program and, after receiving competitive bids, awarded the work to an independent electrical contractor. In 1993, the Union-Endicott Maintenance Workers Association filed an improper employer practice charge with PERB contending that the district had awarded work previously performed exclusively by Association members to an independent contractor in violation of Section 209-a(1)(d) of the Civil Service Law [the Taylor Law].
PERB agreed and directed the district to cease subcontracting out the work and to make the Association members “whole for any wages or benefits lost as a result of the contracting out of the [unit] work.”
The district asked the courts to annul PERB’s decision on the ground that the Association had not complied with the “notice of claim” requirement set out in Section 3813 of the Education Law. This omission, the district argued, required PERB to dismiss the improper practice charged filed by the Association.
The Appellate Division agreed, pointing out that it has “unequivocally held that the filing of a timely notice of claim pursuant to Education Law Section 3813(1) is a condition precedent to a collective bargaining unit’s filing of an improper practice charge against a school district.”
Accordingly, the Court decided that PERB should have granted the district’s motion to dismiss the Association’s improper employer practice charge based on the Association’s failure to file a timely notice of claim with the district.*
Courts have noted that there are some exceptions to this requirement, however. For example, in CSEA v Lakeland Central School District, the Appellate Division rejected the School District’s claim that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in Section 3813(1).
The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement” by the School District.
Similarly, in a case involving an employee’s applying for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law, State Supreme Court Justice Anthony Kane rejected a school district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district [Elmsford UFSD v Alfred G. Meyer, Supreme Court, Albany County, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807].
While exceptions to the “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
* PERB has dismissed improper practice charges filed by a union on the grounds that it failed to filed a notice of claim with the district as required by 3813(1) of the Education Law in other cases such as Watertown Education Association and Watertown City Schools, 28 PERB 3033.
NYPPL
Union Endicott CSD v PERB, 250 AD2d 82, motion to appeal denied, 93 NY2d 805
In the Union Endicott decision the Appellate Division, Third Department, affirmed its position that a union’s failure to file a timely notice of claim with a school district as mandated by Section 3813(1) of the Education Law prevents it from prosecuting improper practice charges filed against the district with PERB.
The case arose in 1992 in connection with the New York State Electric and Gas Company’s rebate program designed to encourage the replacement of the components of thousands of the Union-Endicott Central School District’s fluorescent fixtures with “high efficiency energy-saving models.”
The district decided to participate in the program and, after receiving competitive bids, awarded the work to an independent electrical contractor. In 1993, the Union-Endicott Maintenance Workers Association filed an improper employer practice charge with PERB contending that the district had awarded work previously performed exclusively by Association members to an independent contractor in violation of Section 209-a(1)(d) of the Civil Service Law [the Taylor Law].
PERB agreed and directed the district to cease subcontracting out the work and to make the Association members “whole for any wages or benefits lost as a result of the contracting out of the [unit] work.”
The district asked the courts to annul PERB’s decision on the ground that the Association had not complied with the “notice of claim” requirement set out in Section 3813 of the Education Law. This omission, the district argued, required PERB to dismiss the improper practice charged filed by the Association.
The Appellate Division agreed, pointing out that it has “unequivocally held that the filing of a timely notice of claim pursuant to Education Law Section 3813(1) is a condition precedent to a collective bargaining unit’s filing of an improper practice charge against a school district.”
Accordingly, the Court decided that PERB should have granted the district’s motion to dismiss the Association’s improper employer practice charge based on the Association’s failure to file a timely notice of claim with the district.*
Courts have noted that there are some exceptions to this requirement, however. For example, in CSEA v Lakeland Central School District, the Appellate Division rejected the School District’s claim that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in Section 3813(1).
The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted a waiving compliance with that requirement” by the School District.
Similarly, in a case involving an employee’s applying for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law, State Supreme Court Justice Anthony Kane rejected a school district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district [Elmsford UFSD v Alfred G. Meyer, Supreme Court, Albany County, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807].
While exceptions to the “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813(1) rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
* PERB has dismissed improper practice charges filed by a union on the grounds that it failed to filed a notice of claim with the district as required by 3813(1) of the Education Law in other cases such as Watertown Education Association and Watertown City Schools, 28 PERB 3033.
NYPPL
Probation and layoff rights of an educator being employed by a school district following a take-back BOCES program
Probation and layoff rights of an educator being employed by a school district following a take-back BOCES program
Decisions of the Commissioner of Education 13964
As a result of a “take-back” of programs by component school districts of Rensselaer-Columbia-Greene BOCES, Ellen Chernoff was excessed.
Chernoff subsequently accepted a full-time position with the Wynantskill Central School District in Rensselaer County. Later Chernoff resigned from Wynantskill after she was offered full-time employment by the BOCES, also called Questar III. However, she objected to the statement in her letter of appointment indicating that she would be required to serve a two-year probationary period.
Questar III countered by stating that Chernoff had “freely and knowingly” became a full-time Wynantskill employee and thus extinguished her preferred list rights with it. Commissioner of Education Richard P. Mills agreed and dismissed Chernoff’s appeal.
Another issue in the appeal involved a BOCES form in which excessed employees, including Chernoff, stated they had been advised that by taking a job with a component school district of the BOCES, they had forfeited their place on a preferred list to be re-hired by BOCES. The form included a statement of resignation:
"I have been advised of my rights under Section 3014-b [of the Education Law] and have accepted a full-time position [with the Wynantskill Central School District] in the Tenure area of General Special Education. As a result, I hereby resign as an employee of Questar III effective June 30, 1997. "
The Commissioner found no significance in Chernoff’s execution of this form to the issues under appeal. However, he commented that BOCES lacked authority to require such a document be signed when a teacher is excessed pursuant to Section 3014-b. He recommended that Questar III discontinue the practice.
_______________________________
For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
_______________________________
NYPPL
Decisions of the Commissioner of Education 13964
As a result of a “take-back” of programs by component school districts of Rensselaer-Columbia-Greene BOCES, Ellen Chernoff was excessed.
Chernoff subsequently accepted a full-time position with the Wynantskill Central School District in Rensselaer County. Later Chernoff resigned from Wynantskill after she was offered full-time employment by the BOCES, also called Questar III. However, she objected to the statement in her letter of appointment indicating that she would be required to serve a two-year probationary period.
Questar III countered by stating that Chernoff had “freely and knowingly” became a full-time Wynantskill employee and thus extinguished her preferred list rights with it. Commissioner of Education Richard P. Mills agreed and dismissed Chernoff’s appeal.
Another issue in the appeal involved a BOCES form in which excessed employees, including Chernoff, stated they had been advised that by taking a job with a component school district of the BOCES, they had forfeited their place on a preferred list to be re-hired by BOCES. The form included a statement of resignation:
"I have been advised of my rights under Section 3014-b [of the Education Law] and have accepted a full-time position [with the Wynantskill Central School District] in the Tenure area of General Special Education. As a result, I hereby resign as an employee of Questar III effective June 30, 1997. "
The Commissioner found no significance in Chernoff’s execution of this form to the issues under appeal. However, he commented that BOCES lacked authority to require such a document be signed when a teacher is excessed pursuant to Section 3014-b. He recommended that Questar III discontinue the practice.
_______________________________
For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
_______________________________
NYPPL
Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Representation and indemnification of public officers and employees sued for acts or omissions related to the performance of official duties
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]
In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.
Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.
The county declined to do so, claiming that Gasser “never made the required written request for a defense.”
A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.
The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”
According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”
The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.
The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL
Walsh v County of Saratoga, 256 AD2d 953 [decided with Mason v County of Saratoga]
In this “tax sale” lawsuit, the Saratoga County Treasurer, George Gasser, said that his official position in the matter and that of the Board of Supervisors were incongruous. When the County Attorney said that he would represent the County in the litigation, Gasser sought independent counsel.
Gasser subsequently asked the County to reimburse his attorney’s fees as provided under Section 18 of the Public Officers Law.
The county declined to do so, claiming that Gasser “never made the required written request for a defense.”
A State Supreme Court justice ruled that Gasser “should be insulated from litigation expenses arising out of the performance of his duties” and the county appealed.
The Appellate Division rejected the county’s contention that Gasser’s failure to “tender the required written notice” precluded its reimbursing him for his legal costs. It said it “consistently held that a statute’s notice requirements need not be deemed a condition precedent to an employee’s right to legal representation.”
According to the ruling, the purpose of such a notice is “to prevent default and to afford the municipality an opportunity to promptly investigate the incident to determine, among other things, whether the employee was acting within the scope of his or her employment.”
The court found that “it was undisputed” that Gasser was acting within the scope of his employment” and that the county was aware of the proceedings at their commencement and had ample opportunity to investigate.
The Appellate Division, affirming the lower court’s ruling, said that there was “no impediment to [Gasser’s] representation pursuant to Public Officers Law Section 18.” Gasser was statutorily entitled to representation by independent counsel once the County Attorney informed him that he would not be appearing on his behalf in the matter.
NYPPL
The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
The interpretation of a “management right’s clause” in a collective bargaining agreement is for the arbitrator rather than PERB to resolve
Roma v Ruffo, Court of Appeals, 92 NY2d 489
The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.
The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.
Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.
When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.
The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.
But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.
The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.
If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.
In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:
1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.
2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.
Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”
As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL
Roma v Ruffo, Court of Appeals, 92 NY2d 489
The collective bargaining agreement between the Susquehanna Valley Central School District and CSEA Local 1000 provided that school matrons would normally work an eight-hour day/40-hour work week and that the district would negotiate any changes in the matron’s working conditions with Local 1000.
The agreement also included a “management rights” clause reserving to the district the right to “transfer and abolish positions” and a “non-binding arbitration” provision. The “final grievance decision” was vested in the school board.
Without negotiating the change with Local 1000, the district told the matrons that their work schedule would be changed to a six-hour day/30-hour workweek “due to budgetary considerations.” The union filed a grievance under the collective bargaining agreement contending that this unilateral change in the work schedule constituted a violation of the contract.
When the school board, the final step in the grievance procedure, denied the grievance after finding that the agreement had not been violated, Local 1000 sued. A state Supreme Court justice decided that the school board’s determination was arbitrary in view of the specific contract provision at issue. It directed the district to reinstate the matron’s former work schedule.
The district appealed, arguing that the lower court’s order was unenforceable because “PERB had exclusive jurisdiction” over the controversy. In other words, the district argued that the Supreme Court did not have jurisdiction to decide the matter. The Appellate Division agreed, vacating the lower court’s decision.
But on further appeal, the Court of Appeals, New York State’s highest court, found the issue involved an allegation that the terms of the contract were violated, not that the district may have committed and improper practice by refusing to negotiate. The court held that if a term and condition of employment specifically covered by the collective bargaining agreement is alleged to have been violated, the issue may be resolved through the agreement’s grievance procedure.
The decision notes that because the matrons’ work hours were covered by a provision in the contract, “neither party had a statutory duty to negotiate changes in those hours.” Thus, said the court, “it necessarily follows that the school district’s unilateral change cannot constitute the improper practice of failure to bargain in good faith.” The court characterized the district’s action as a breach of the contract, remediable through the contractual grievance procedure agreed upon by the parties.
If, however, the contract’s work hours provision was subject to a so-called “contract re-opener” clause, in which the parties identify in the contract a specific issue to be reconsidered at a later date, any change would be subject to collective bargaining. If a party then failed to bargain in good faith, PERB would have exclusive jurisdiction to resolve that issue.
In Susquehanna Valley situation, however, the court ruled that PERB does not have “exclusive jurisdiction” for two reasons:
1. CSEA did not allege anything that was within PERB’s jurisdiction under Section 209-a[1][d] of the Civil Service Law. This subdivision provides that an employer’s alleged failure to bargain in good faith constitutes an “improper employer practice” as Local 1000 simply complained that the district had violated specific terms and conditions of employment set out in the agreement.
2. Section 205(5)(d) places limits PERB’s authority and PERB does not have jurisdiction with respect to (a) enforcing the terms of an agreement between the parties, nor (b) considering alleged violations of a Taylor Law agreement.
Reinstating the ruling by the Supreme Court, the Court of Appeals held that the district had violated the “unambiguous” terms of the Taylor Law agreement between the parties. It directed the district to restore their full-time working hours, salary and benefits “unless/until the conditions of said employment are altered in accordance with the provisions of the collective bargaining agreement.”
As to the “management right’s clause” aspect of the controversy, the Court of Appeals observed that “the scope of the management prerogative clauses was ... ‘a contractual issue beyond PERB’s jurisdiction’” as well. Presumably, this provision could be advanced by the district in support of claim that its unilateral change in the matron’s work schedule did not violate the contract.
NYPPL
Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Individual dismissed employee pursuant to Civil Service Law §71 may apply for reinstatement within one year of the termination of the disability
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]
The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.
Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.
If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.
In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.
Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”
The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.
Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”
Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.
The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.
Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.
Stroh v Harrison School District, NYS Sup. Ct., [Not selected for publication in the Official Reports]
The Stroh case illustrates some of the elements an employer should consider in the event an individual is disabled as the result of a work-connected injury or disease for the purposes of Section 71 of the Civil Service Law.
Essentially Section 71 provides that where an individual has been disabled within the meaning of the Workers’ Compensation Law, he or she is entitled to a leave of absence for at least one year, unless the individual is permanently incapacitated from performing the duties of his or her position. This is commonly referred to as “Section 71 leave.” If the employee is terminated from a Section 71 leave, he or she may seek reinstatement by applying to the civil service commission having jurisdiction for a medical examination. This application must be submitted by the individual within one year of the termination of his or her disability.
If the commission’s medical officer certifies that the individual is physically and mentally fit to perform the duties of the position, the individual is to be reinstated to his or her former position, if it is available. If it is not available, the individual is to be reinstated to a similar position or a position for which he or she is eligible. If no position is available, the individual’s name is to be placed on a preferred list.
In this case, State Supreme Court Justice Samuel G. Fredman held that Thomas Stroh, the Harrison School District’s head custodian, had not been “properly terminated” within the meaning of Section 71 because he had never been placed on leave pursuant to Section 71. Accordingly, Stroh, said the court, was entitled to reinstatement with back salary and benefits as of December 31, 1995.
Justice Fredman concluded that Stroh had not been placed on leave pursuant to Section 71 because the district did not establish “either that [Stroh’s] date of injury was the date of commencement of the governing Section 71 time period, or that [Stroh] was made aware of this fact in any event.”
The court found that Stroh suffered a work-related injury and was out “on workers’ compensation” from April 1994 until he returned to work in February 1995. On March 20, 1995, the district determined that Stroh “was unable to perform his job duties” and placed him on “sick leave.” It later told him that was terminated pursuant to Section 71. The decision also notes that Stroh applied for, but was denied, accidental disability retirement by the New York State Employees’ Retirement System.
Justice Fredman said that he “declines to leave [Stroh] in the untenable position into which [the district’s] actions have placed him, namely, that his employment was terminated by [the district] because he allegedly was disabled, but the Retirement System has found him ‘not permanently incapacitated for the performance’ of the very same duties and denied his application for an Accidental Disability Retirement.”
Another element noted by the court was the medical opinion submitted by the district’s physician which stated that it was the “physician’s ‘impression’ that ‘Mr. Stroh will not be able to fulfill his duties as so outlined’ in ‘the job description of a Head Custodial worker’....” This, said the Justice Fredman, does not “indicate unequivocally” that Stroh was unable to fulfill his duties.
The Americans with Disabilities Act [ADA] could also be a factor in Section 71 cases. If an individual is found, or is perceived to be, disabled, ADA requires that the employer consider the practicability of providing a “reasonable accommodation” of the employee’s disability. Stroh claimed that he could perform the duties of his position while his employer decided that he was not qualified to do so.
Although the ruling is silent on this point, the respective positions of the parties suggest that it would have been appropriate for the district to have explored the possibility of providing Stroh with a “reasonable accommodation” in order to be in compliance with ADA.
NYPPL
Nov 22, 2010
Hearing officer recommends termination of employee unwilling to follow instructions
Hearing officer recommends termination of employee unwilling to follow instructions
Dept. of Housing Preservation and Development v Hand, OATH Index #2594/10
OATH Administrative Law Judge Kara Miller decided that a clerical employee's persistent unwillingness to properly process tenant appointments warranted termination.
Judge Miller found that the employee, Deborrah Hand, had improperly processed 112 appointments despite the fact that she had been given step-by-step instructions on how to do the task.
Hand, instead, “deliberatively chose to do it her own way.” As a result of Hand's failure to make proper computer entries complaints were automatically closed out and inspectors were not sent to scheduled inspections.
Consequently, Housing received complaints from tenants who waited at home for inspectors who never came.
Judge Miller recommend that Hand be terminated because of her unwillingness to follow instructions “constituted incompetence.” The ALJ also commented that Hand’s incompetence “cannot be cured by moving her to another job title.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2594.pdf
NYPPL
Dept. of Housing Preservation and Development v Hand, OATH Index #2594/10
OATH Administrative Law Judge Kara Miller decided that a clerical employee's persistent unwillingness to properly process tenant appointments warranted termination.
Judge Miller found that the employee, Deborrah Hand, had improperly processed 112 appointments despite the fact that she had been given step-by-step instructions on how to do the task.
Hand, instead, “deliberatively chose to do it her own way.” As a result of Hand's failure to make proper computer entries complaints were automatically closed out and inspectors were not sent to scheduled inspections.
Consequently, Housing received complaints from tenants who waited at home for inspectors who never came.
Judge Miller recommend that Hand be terminated because of her unwillingness to follow instructions “constituted incompetence.” The ALJ also commented that Hand’s incompetence “cannot be cured by moving her to another job title.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2594.pdf
NYPPL
A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75
A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75
Matter of Smith v New York City Dept. of Educ., 2010 NY Slip Op 51989(U), Decided on November 8, 2010, Supreme Court, New York County, Judge Barbara Jaffe, [Not selected for publication in the Official Reports]
Theodore Smith, a tenured physical education teacher at the New York City Department of Education’s Museum School, was served with 23 charges Education Law 3020-a.
Arbitrator Jack Tillem was assigned to conduct the hearing in the [first] proceeding. In the course of this proceeding Smith’s attorney, David Kearney,* told Tillem that Smith had threatened to kill Tillem, whereupon Tillem recused himself from conducting the hearing in the first proceeding. .
Following an investigation by Office of the Special Commissioner of Investigations (SCI) into Kearney's allegations Smith was referred to the Department of Education’s Medical Unit for psychiatric evaluation. In the meanwhile, Kearney moved for leave to withdraw as counsel for Smith in the federal court action and described why he wished to so withdraw -- the threats Smith allegedly made against Tillem.**
Subsequently a new arbitrator conducted the disciplinary hearing , found Smith guilty of certain charges and recommended that Smith be suspended without pay for one year, a ruling that was ultimately sustained by the Appellate Division. [Smith v Department of Education, 67 AD3d 555, motion for leave to appeal denied, Slip Opinion No: 2010 NY Slip Op 66952].
The Department of Education then commenced a second disciplinary proceeding against Smith pursuant to Education Law 3020-a in which it alleged that Smith had made death threats against Tillem resulting in Tillem's recusing himself from the first proceeding thus “causing delay and thereby obstructing, impairing and perverting the administration of law.”***
The arbitrator found that Smith had "uttered death threats" against the arbitrator assigned to his first §3020-a hearing and that "such threats constituted just cause for [Smith's] dismissal from service."
Smith filed a petition pursuant to CPLR Article 75 contending that the arbitration award should be vacated on the ground of corruption, or fraud or misconduct by the arbitrator and the Department's attorneys, “which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him.”
Noting that the scope of judicial review of an arbitration proceeding is extremely limited, Judge Jaffe said that “The court must defer to the arbitrator's decision and is bound by the arbitrator's factual findings and interpretations of the agreement at issue.”
Judge Jaffe explained that after a hearing is held pursuant to §3020-a, a party may apply to vacate the arbitrator's decision pursuant to CPLR 7511 based on allegations of misconduct, bias, excess of power, or procedural defects.
The party challenging the arbitration award, however, has the burden of proving that the award is invalid for one or more of the reasons for vacating an arbitration award specified in CPLR Article 75. Further, an allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality.
Judge Jaffe, finding that the arbitrator’s award in the second proceeding was rational and supported by adequate evidence, ruled that Smith had not satisfied his burden of proving that the arbitrator engaged in corruption, or fraud, or misconduct, and confirmed the arbitration award.
* Prior to the charges being brought against Smith, Smith retained the law firm of Neal Brickman & Associates to file a lawsuit in federal court against the NYC Department of Education. David Kearney, an attorney with the firm, agreed to represent Smith in the Federal action and subsequently agreed to represent Smith in the §3020-a proceeding.
** SCI reported that it had substantiated Kearney's allegations regarding Smith’s threats and recommended that Smith's employment be terminated and that he be placed on the Department’s “ineligible employment list.”
*** Smith was later served with third set of charges related to time and attendance. All of the charges were consolidated and considered in the second §3020-a hearing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51989.htm
NYPPL
Matter of Smith v New York City Dept. of Educ., 2010 NY Slip Op 51989(U), Decided on November 8, 2010, Supreme Court, New York County, Judge Barbara Jaffe, [Not selected for publication in the Official Reports]
Theodore Smith, a tenured physical education teacher at the New York City Department of Education’s Museum School, was served with 23 charges Education Law 3020-a.
Arbitrator Jack Tillem was assigned to conduct the hearing in the [first] proceeding. In the course of this proceeding Smith’s attorney, David Kearney,* told Tillem that Smith had threatened to kill Tillem, whereupon Tillem recused himself from conducting the hearing in the first proceeding. .
Following an investigation by Office of the Special Commissioner of Investigations (SCI) into Kearney's allegations Smith was referred to the Department of Education’s Medical Unit for psychiatric evaluation. In the meanwhile, Kearney moved for leave to withdraw as counsel for Smith in the federal court action and described why he wished to so withdraw -- the threats Smith allegedly made against Tillem.**
Subsequently a new arbitrator conducted the disciplinary hearing , found Smith guilty of certain charges and recommended that Smith be suspended without pay for one year, a ruling that was ultimately sustained by the Appellate Division. [Smith v Department of Education, 67 AD3d 555, motion for leave to appeal denied, Slip Opinion No: 2010 NY Slip Op 66952].
The Department of Education then commenced a second disciplinary proceeding against Smith pursuant to Education Law 3020-a in which it alleged that Smith had made death threats against Tillem resulting in Tillem's recusing himself from the first proceeding thus “causing delay and thereby obstructing, impairing and perverting the administration of law.”***
The arbitrator found that Smith had "uttered death threats" against the arbitrator assigned to his first §3020-a hearing and that "such threats constituted just cause for [Smith's] dismissal from service."
Smith filed a petition pursuant to CPLR Article 75 contending that the arbitration award should be vacated on the ground of corruption, or fraud or misconduct by the arbitrator and the Department's attorneys, “which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him.”
Noting that the scope of judicial review of an arbitration proceeding is extremely limited, Judge Jaffe said that “The court must defer to the arbitrator's decision and is bound by the arbitrator's factual findings and interpretations of the agreement at issue.”
Judge Jaffe explained that after a hearing is held pursuant to §3020-a, a party may apply to vacate the arbitrator's decision pursuant to CPLR 7511 based on allegations of misconduct, bias, excess of power, or procedural defects.
The party challenging the arbitration award, however, has the burden of proving that the award is invalid for one or more of the reasons for vacating an arbitration award specified in CPLR Article 75. Further, an allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality.
Judge Jaffe, finding that the arbitrator’s award in the second proceeding was rational and supported by adequate evidence, ruled that Smith had not satisfied his burden of proving that the arbitrator engaged in corruption, or fraud, or misconduct, and confirmed the arbitration award.
* Prior to the charges being brought against Smith, Smith retained the law firm of Neal Brickman & Associates to file a lawsuit in federal court against the NYC Department of Education. David Kearney, an attorney with the firm, agreed to represent Smith in the Federal action and subsequently agreed to represent Smith in the §3020-a proceeding.
** SCI reported that it had substantiated Kearney's allegations regarding Smith’s threats and recommended that Smith's employment be terminated and that he be placed on the Department’s “ineligible employment list.”
*** Smith was later served with third set of charges related to time and attendance. All of the charges were consolidated and considered in the second §3020-a hearing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51989.htm
NYPPL
Statute of limitations for filing Section 75 disciplinary charges
Statute of limitations for filing Section 75 disciplinary charges
Wade v Ticonderoga Town Board, 256 AD2d 860, motion for leave to appeal denied, 93 NY2d 804
Section 75 disciplinary charges were brought against John K. Wade, then serving as the Town of Ticonderoga’s chief of police. The charges alleged that Wade had engaged in sexual misconduct directed at town employees or former town employees. Wade was found guilty of the charges and the penalty imposed was dismissal.
Wade appealed, contending that certain charges filed against him were barred by the statute of limitations as they were brought more than 12 months after the relevant incident. He argued that Section 75.4’s 18-month statute of limitation for bring such charges did not apply in his case because he was a “managerial employee” and the statute of limitations for such employees is one-year after the occurrence of the alleged incompetency or misconduct occurred.
The Appellate Division, however, pointed out that Wade’s theory overlooked one critical phrase contained in Section 75.4: a “state employee who is designated managerial or confidential” within the meaning of the Taylor Law. The court said “the simple answer is that, as Chief of a Town police force, [Wade] was not a State employee.”
Accordingly, the court ruled, Section 75.4’s “general 18-month Statute of Limitations will govern all of the specifications against [Wade] except those which, “if proved in a court of appropriate jurisdiction, [would] constitute a crime, in which case no limitations period applies.”
Apparently some of the charges were brought more than 18 months after the underlying incident. The Appellate Division commented that such charges, “if established at trial, have made out either the crime of sexual abuse in the third degree [Penal Law Section 130.55] or the crime of aggravated harassment in the second degree [Penal Law Section 240.30(1)] or both.”
As to the penalty imposed, dismissal, the court said that Wade’s “unprovoked, unwelcome and unwarranted sexual advances, sexual contact and demeaning comments of a sexual nature directed to female employees were entirely inappropriate and constitute conduct unbecoming a police officer.”
Finding that the penalty was “by no means so disproportionate as to shock our sense of fairness,” the Appellate Division pointed out that in Petties v NYS Department of Mental Retardation and Development Disabilities, 93 AD2d 960, it held that “sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.”
NYPPL
Wade v Ticonderoga Town Board, 256 AD2d 860, motion for leave to appeal denied, 93 NY2d 804
Section 75 disciplinary charges were brought against John K. Wade, then serving as the Town of Ticonderoga’s chief of police. The charges alleged that Wade had engaged in sexual misconduct directed at town employees or former town employees. Wade was found guilty of the charges and the penalty imposed was dismissal.
Wade appealed, contending that certain charges filed against him were barred by the statute of limitations as they were brought more than 12 months after the relevant incident. He argued that Section 75.4’s 18-month statute of limitation for bring such charges did not apply in his case because he was a “managerial employee” and the statute of limitations for such employees is one-year after the occurrence of the alleged incompetency or misconduct occurred.
The Appellate Division, however, pointed out that Wade’s theory overlooked one critical phrase contained in Section 75.4: a “state employee who is designated managerial or confidential” within the meaning of the Taylor Law. The court said “the simple answer is that, as Chief of a Town police force, [Wade] was not a State employee.”
Accordingly, the court ruled, Section 75.4’s “general 18-month Statute of Limitations will govern all of the specifications against [Wade] except those which, “if proved in a court of appropriate jurisdiction, [would] constitute a crime, in which case no limitations period applies.”
Apparently some of the charges were brought more than 18 months after the underlying incident. The Appellate Division commented that such charges, “if established at trial, have made out either the crime of sexual abuse in the third degree [Penal Law Section 130.55] or the crime of aggravated harassment in the second degree [Penal Law Section 240.30(1)] or both.”
As to the penalty imposed, dismissal, the court said that Wade’s “unprovoked, unwelcome and unwarranted sexual advances, sexual contact and demeaning comments of a sexual nature directed to female employees were entirely inappropriate and constitute conduct unbecoming a police officer.”
Finding that the penalty was “by no means so disproportionate as to shock our sense of fairness,” the Appellate Division pointed out that in Petties v NYS Department of Mental Retardation and Development Disabilities, 93 AD2d 960, it held that “sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.”
NYPPL
Employee charged with “computer trespass” for allegedly tampering with department’s computer records
Employee charged with “computer trespass” for allegedly tampering with department’s computer records
Saunders v Washington County, 255 AD2d 788
After announcing that she was resigning her from position as payroll clerk with the Washington County Sheriff’s Department, Mary Lou Saunders told a co-worker, Joanne Murone, she had deleted a budget report from the computer and planned on deleting other files.
Murone reported Saunders’ statement to her superiors and Saunders’ computer access code was deactivated the same day - July 22, 1992.
On July 23, 1992, a current purchase order list could not be retrieved from the computer. It was then discovered that between 9:30 a.m. and 9:42 a.m. “someone had accessed the computer from the communications center using Murone’s access code and deleted over 100 files.” When questioned by the Sheriff, Saunders admitted that she had used Murone’s access code without permission to delete the files, claiming that “she did not intentionally delete current files.”
During a subsequent investigation by the State Police, Saunders “indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone’s code to delete files in an ‘attempt to show the department the value of [her] services.’”
Saunders was arrested and charged with a felony count of “computer trespass” [Penal Law Section 156.10(2)] and a misdemeanor count of tampering with public records ... [Penal Law Section 175.20]. The felony charge was reduced to misdemeanor.
After a jury acquitted Saunders of all charges, she sued the county, alleging “false arrest, malicious prosecution and defamation.” A State Supreme Court justice granted the county’s motion for summary judgment, dismissing Saunders’ petition.
With respect to Saunders’ allegations of false arrest and malicious prosecution, the Appellate Division affirmed the lower court’s dismissal of her complaint, indicating that “the unrefuted evidence in the record, including [Saunders’] own admissions and the statements of her co-workers, supports a finding that a reasonable person would have believed that [Saunders] had committed the crimes for which she was arrested.”
As to Saunders’ defamation claims, which was based on the Sheriff’s Department’s issuing a press release reporting her arrest, the Appellate Division pointed out that “truth constitutes a complete defense to such a claim.”
Since there was no substantive factual dispute that all the statements contained in the press release were true, the Appellate Division held that Saunders’ defamation cause of action was also properly dismissed by the lower court.
NYPPL
Saunders v Washington County, 255 AD2d 788
After announcing that she was resigning her from position as payroll clerk with the Washington County Sheriff’s Department, Mary Lou Saunders told a co-worker, Joanne Murone, she had deleted a budget report from the computer and planned on deleting other files.
Murone reported Saunders’ statement to her superiors and Saunders’ computer access code was deactivated the same day - July 22, 1992.
On July 23, 1992, a current purchase order list could not be retrieved from the computer. It was then discovered that between 9:30 a.m. and 9:42 a.m. “someone had accessed the computer from the communications center using Murone’s access code and deleted over 100 files.” When questioned by the Sheriff, Saunders admitted that she had used Murone’s access code without permission to delete the files, claiming that “she did not intentionally delete current files.”
During a subsequent investigation by the State Police, Saunders “indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone’s code to delete files in an ‘attempt to show the department the value of [her] services.’”
Saunders was arrested and charged with a felony count of “computer trespass” [Penal Law Section 156.10(2)] and a misdemeanor count of tampering with public records ... [Penal Law Section 175.20]. The felony charge was reduced to misdemeanor.
After a jury acquitted Saunders of all charges, she sued the county, alleging “false arrest, malicious prosecution and defamation.” A State Supreme Court justice granted the county’s motion for summary judgment, dismissing Saunders’ petition.
With respect to Saunders’ allegations of false arrest and malicious prosecution, the Appellate Division affirmed the lower court’s dismissal of her complaint, indicating that “the unrefuted evidence in the record, including [Saunders’] own admissions and the statements of her co-workers, supports a finding that a reasonable person would have believed that [Saunders] had committed the crimes for which she was arrested.”
As to Saunders’ defamation claims, which was based on the Sheriff’s Department’s issuing a press release reporting her arrest, the Appellate Division pointed out that “truth constitutes a complete defense to such a claim.”
Since there was no substantive factual dispute that all the statements contained in the press release were true, the Appellate Division held that Saunders’ defamation cause of action was also properly dismissed by the lower court.
NYPPL
Employee denied unemployment insurance benefits following termination after threatening her supervisor
Employee denied unemployment insurance benefits following termination after threatening her supervisor
Tracy v Comm. of Labor, App. Div., 256 AD2d 800
In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy case indicates, however, leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence.
Pamela A. Tracy was apparently upset about the manner in which management handled her complaints concerning a co-worker’s conduct. She left a “vulgar and threatening” message on her supervisor’s voice mail. As a result she was fired. The Unemployment Insurance Appeals Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct.”
The Appellate Division sustained the board’s decision. It said that it was “well settled that the use of vulgar language and disrespectful conduct towards supervisors constitutes disqualifying misconduct.”
NYPPL
Tracy v Comm. of Labor, App. Div., 256 AD2d 800
In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy case indicates, however, leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence.
Pamela A. Tracy was apparently upset about the manner in which management handled her complaints concerning a co-worker’s conduct. She left a “vulgar and threatening” message on her supervisor’s voice mail. As a result she was fired. The Unemployment Insurance Appeals Board ruled that she was disqualified from receiving benefits because her employment was terminated due to misconduct.”
The Appellate Division sustained the board’s decision. It said that it was “well settled that the use of vulgar language and disrespectful conduct towards supervisors constitutes disqualifying misconduct.”
NYPPL
Payments for superintendent’s doctorate studies by school district found lawful
Payments for superintendent’s doctorate studies by school district found lawful
Decisions of the Commissioner of Education, 14032
Taxpayer David Shufelt complained that the Board of Education of Webutuck Central School District in Dutchess County “authorized payments to district employees without formal resolution or public vote.”
Among the payments challenged by Shufelt was an “educational allowance” supporting the superintendent’s studies towards her doctorate degree. The Commissioner of Education dismissed Shufelt’s appeal as untimely but nevertheless commented that:
The superintendent’s contract clearly allowed for the board to pay her an educational allowance. [Shufelt] has failed to demonstrate that this benefit was in any way improper.
NYPPL
Decisions of the Commissioner of Education, 14032
Taxpayer David Shufelt complained that the Board of Education of Webutuck Central School District in Dutchess County “authorized payments to district employees without formal resolution or public vote.”
Among the payments challenged by Shufelt was an “educational allowance” supporting the superintendent’s studies towards her doctorate degree. The Commissioner of Education dismissed Shufelt’s appeal as untimely but nevertheless commented that:
The superintendent’s contract clearly allowed for the board to pay her an educational allowance. [Shufelt] has failed to demonstrate that this benefit was in any way improper.
NYPPL
Nov 19, 2010
Goggle Blogger Reading List
Goggle Blogger Reading List
Source: Google
With the Blogger "Reading List" you can read all of the latest posts from your favorite blogs.
The "Blogger Reading List" you create enables you to subscribe to any blog with a feed* and will update instantly each time a new post is published on any blog listed on your "Blogger Reading List."
It is easy to add a blog to your Reading List, and it's a Google "free service." For additional information about creating a Blogger Reading List, please go to:
http://www.google.com/support/blogger/bin/answer.py?hl=en&answer=99761
* NYPPL’s feed is “ATOM” and access is posted at the bottom of each day’s posting at
Source: Google
With the Blogger "Reading List" you can read all of the latest posts from your favorite blogs.
The "Blogger Reading List" you create enables you to subscribe to any blog with a feed* and will update instantly each time a new post is published on any blog listed on your "Blogger Reading List."
It is easy to add a blog to your Reading List, and it's a Google "free service." For additional information about creating a Blogger Reading List, please go to:
http://www.google.com/support/blogger/bin/answer.py?hl=en&answer=99761
* NYPPL’s feed is “ATOM” and access is posted at the bottom of each day’s posting at
Employee organization may not rely of a FOIL request to obtain the names of charter school employees
Employee organization may not rely of a FOIL request to obtain the names of charter school employees
Matter of New York State United Teachers v Brighter Choice Charter School, 2010 NY Slip Op 08383, Decided on November 18, 2010, Court of Appeals
The New York State United Teachers (NYSUT) filed a Freedom of Information Law (FOIL) request with six Charter Schools* seeking, among other things, payroll records showing the full names, titles, corresponding salaries, and home addresses of all persons employed as teachers, instructors and faculty.**
The Charter Schools partially denied NYSUT's request, contending that full compliance would constitute an unwarranted invasion of personal privacy within the meaning of FOIL and “the commercial and fund-raising exemption of Public Officers Law §89(2)(b)(iii).”
Ultimately the issue presented to the Court of Appeals concerned the disclosure of the teachers' full names, NYSUT having abandoned its request for home address information.
The Court of Appeals said that “Charter schools are clearly subject to FOIL (see Education Law §2854[1][e]), meaning that they must maintain ‘a record setting forth the name, public office address, title and salary of every officer or employee,’ [and] … [t]here is a presumption that such records must be made ‘available for public inspection and copying’ … [although] an entity subject to FOIL may deny access to records*** that ‘if disclosed would constitute an unwarranted invasion of personal privacy,’ which, as relevant here, includes the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes’ (Public Officers Law §89 [2][b][iii]).”
The court, reversing the Appellate Division, denied that part of NYSUT’s petition seeking disclosure of the names of the teachers employed by the Charter Schools, explaining that ordering disclosure of the names would do nothing to further the purpose of FOIL, "which is to assist the public in formulating intelligent informed choices with respect to both the direction and scope of governmental activities."
“If anything,” said the court, "it is precisely because no governmental purpose is served by public disclosure" of this information that §87 2)(b)(iii)'s privacy exemption falls squarely within FOIL's statutory scheme.”
As NYSUT, the court concluded, seeks the teachers' names for contacting prospective members, it ruled that “although NYSUT certainly possesses a right to seek dues-paying members, it may not rely on FOIL to achieve that end.”
* Brighter Choice, Henry Johnson, Kipp Tech Valley, Albany Community, Albany Preparatory and Achievement Academy. None of the Charters Schools' teachers are members of a labor union.
** Subdivision 3(a) of §2859 of the State Education Law, in pertinent part, provides that “An employee of a charter school shall be deemed to be a public employee solely for purposes of article fourteen of the civil service law, [The Taylor Law] except for section two hundred twelve of such law, and for no other purposes ….” Education Law §2859 Subdivision (c-1) provides for the reasonable access to employees of a charter school "If employees of the charter school are not represented, .….” [§2859, Subdivision (b), applies to “The school employees of a charter school that has been converted from an existing public school,” while Section 2859, Subdivision (b-1), applies to “The employees of a charter school that is not a conversion from an existing public school …”]
*** The custodian of the records or documents requested pursuant to FOIL may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08383.htm
NYPPL
Matter of New York State United Teachers v Brighter Choice Charter School, 2010 NY Slip Op 08383, Decided on November 18, 2010, Court of Appeals
The New York State United Teachers (NYSUT) filed a Freedom of Information Law (FOIL) request with six Charter Schools* seeking, among other things, payroll records showing the full names, titles, corresponding salaries, and home addresses of all persons employed as teachers, instructors and faculty.**
The Charter Schools partially denied NYSUT's request, contending that full compliance would constitute an unwarranted invasion of personal privacy within the meaning of FOIL and “the commercial and fund-raising exemption of Public Officers Law §89(2)(b)(iii).”
Ultimately the issue presented to the Court of Appeals concerned the disclosure of the teachers' full names, NYSUT having abandoned its request for home address information.
The Court of Appeals said that “Charter schools are clearly subject to FOIL (see Education Law §2854[1][e]), meaning that they must maintain ‘a record setting forth the name, public office address, title and salary of every officer or employee,’ [and] … [t]here is a presumption that such records must be made ‘available for public inspection and copying’ … [although] an entity subject to FOIL may deny access to records*** that ‘if disclosed would constitute an unwarranted invasion of personal privacy,’ which, as relevant here, includes the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes’ (Public Officers Law §89 [2][b][iii]).”
The court, reversing the Appellate Division, denied that part of NYSUT’s petition seeking disclosure of the names of the teachers employed by the Charter Schools, explaining that ordering disclosure of the names would do nothing to further the purpose of FOIL, "which is to assist the public in formulating intelligent informed choices with respect to both the direction and scope of governmental activities."
“If anything,” said the court, "it is precisely because no governmental purpose is served by public disclosure" of this information that §87 2)(b)(iii)'s privacy exemption falls squarely within FOIL's statutory scheme.”
As NYSUT, the court concluded, seeks the teachers' names for contacting prospective members, it ruled that “although NYSUT certainly possesses a right to seek dues-paying members, it may not rely on FOIL to achieve that end.”
* Brighter Choice, Henry Johnson, Kipp Tech Valley, Albany Community, Albany Preparatory and Achievement Academy. None of the Charters Schools' teachers are members of a labor union.
** Subdivision 3(a) of §2859 of the State Education Law, in pertinent part, provides that “An employee of a charter school shall be deemed to be a public employee solely for purposes of article fourteen of the civil service law, [The Taylor Law] except for section two hundred twelve of such law, and for no other purposes ….” Education Law §2859 Subdivision (c-1) provides for the reasonable access to employees of a charter school "If employees of the charter school are not represented, .….” [§2859, Subdivision (b), applies to “The school employees of a charter school that has been converted from an existing public school,” while Section 2859, Subdivision (b-1), applies to “The employees of a charter school that is not a conversion from an existing public school …”]
*** The custodian of the records or documents requested pursuant to FOIL may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08383.htm
NYPPL
Individuals identified as “unknown petitioners” may not be named as plaintiffs in an Article 78 proceeding
Individuals identified as “unknown petitioners” may not be named as plaintiffs in an Article 78 proceeding
Matter of Westchester County Correction Officers Benevolent Assn. Inc. v County of Westchester, 29 Misc.3d 1219(A)
One of the issues in this CPLR Article 78 action was the “Naming of Unknown Petitioners” as plaintiffs by the Westchester County Correction Officers Benevolent Association.
County Court Judge Jeffrey A. Cohen agreed with Westchester County that the petition improperly names John Does "1" through "100" as Petitioners.
The court said that although CPLR 1024 provides for the naming of unknown parties as defendants in an action, it does not provide for the naming of unidentified Petitioners in an Article 78 proceeding.
The judge also faulted the Association for failing to come forward with any statutory authority for naming unknown Petitioners, merely asserting that “there are similarly situated individuals who are presently unknown.”*
In addition, the court commented that the Association failed to show that it had undertaken any efforts to determine the identities of the unidentified Petitioners and have failed to refute County’s evidence that documents in the Association’s possession reveal the identities of other correction officers similarly situated to the individual Petitioners.
Accordingly Judge Cohen dismissed “that branch of the motion to dismiss the petition with respect to the Petitioners named John Does ‘1’ through ‘100’ as motioned by the County.
* Judge Cohen indicated that he had conducted its own review of Article 78 and failed to find any authority for naming “unidentified Petitioners.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52719.htm
NYPPL
Matter of Westchester County Correction Officers Benevolent Assn. Inc. v County of Westchester, 29 Misc.3d 1219(A)
One of the issues in this CPLR Article 78 action was the “Naming of Unknown Petitioners” as plaintiffs by the Westchester County Correction Officers Benevolent Association.
County Court Judge Jeffrey A. Cohen agreed with Westchester County that the petition improperly names John Does "1" through "100" as Petitioners.
The court said that although CPLR 1024 provides for the naming of unknown parties as defendants in an action, it does not provide for the naming of unidentified Petitioners in an Article 78 proceeding.
The judge also faulted the Association for failing to come forward with any statutory authority for naming unknown Petitioners, merely asserting that “there are similarly situated individuals who are presently unknown.”*
In addition, the court commented that the Association failed to show that it had undertaken any efforts to determine the identities of the unidentified Petitioners and have failed to refute County’s evidence that documents in the Association’s possession reveal the identities of other correction officers similarly situated to the individual Petitioners.
Accordingly Judge Cohen dismissed “that branch of the motion to dismiss the petition with respect to the Petitioners named John Does ‘1’ through ‘100’ as motioned by the County.
* Judge Cohen indicated that he had conducted its own review of Article 78 and failed to find any authority for naming “unidentified Petitioners.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52719.htm
NYPPL
Employee terminated after being found guilty of falsifying his time records
Employee terminated after being found guilty of falsifying his time records
In the Application of Rodriguez, 258 AD2d 419
The Housing Authority terminated John Rodriguez after a disciplinary hearing officer found him guilty of claiming and obtaining overtime pay through the filing of false or misleading overtime records, including overtime pay for time spent commuting.
Rodriguez argued that because he was authorized to clock in and out at a place other than his work site, his claims for overtime were permitted under the Fair Labor Standards Act. The Appellate Division disagreed, stating that the agency’s imposing the “penalty of dismissal does not shock our sense of fairness given what was systematic dishonesty, misrepresentation and falsification of records” by Rodriguez.
NYPPL
In the Application of Rodriguez, 258 AD2d 419
The Housing Authority terminated John Rodriguez after a disciplinary hearing officer found him guilty of claiming and obtaining overtime pay through the filing of false or misleading overtime records, including overtime pay for time spent commuting.
Rodriguez argued that because he was authorized to clock in and out at a place other than his work site, his claims for overtime were permitted under the Fair Labor Standards Act. The Appellate Division disagreed, stating that the agency’s imposing the “penalty of dismissal does not shock our sense of fairness given what was systematic dishonesty, misrepresentation and falsification of records” by Rodriguez.
NYPPL
Tests applied by courts considering vacating an arbitration award
Tests applied by courts considering vacating an arbitration award
Recore v Chateaugay CSD, 256 AD2d 801, motion for leave to appeal dismissed, 93 NY2d 957
In Recore v Chateaugay Central School District, the Chateaugay district asked to have an arbitrator’s award vacated. The arbitrator had ruled that the district had violated a clause of its collective bargaining agreement with CSEA Local 1000 when it failed to appoint Deborah Recore, a teacher’s aide, to the position of kindergarten aide.
The contract clause involved provided that “[f]or the purposes of filling vacancies or new job openings ... [the district] shall consider both ... seniority and ... skills and abilities. Seniority shall be the determining factor when in the sole judgment of [the district] the affected applicant’s skills and abilities are equal.”
A State Supreme Court justice vacated the arbitrator’s award. The arbitrator erred by inserting the word “relatively” before “equal” in interpreting the contract provision.
This, the court said, meant that “the arbitrator failed to apply the language of the collective bargaining agreement” in resolving the grievance.
CSEA appealed. The Appellate Division decided that the award had defects that “render it irrational,” but did not use the same reasoning as the Supreme Court.
In its decision, the Appellate Division noted that the grounds for vacating an arbitration award are very limited. It said that an arbitration award will be vacated only where “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
It ruled that “given the considerable discretion afforded arbitrators in interpreting contract language [an arbitrator’s insertion of the word relatively] was an insufficient basis to invalidate the award.”
The Appellate Division emphasized that broad powers are vested in an arbitrator. Unless there is a provision in the arbitration clause to the contrary, an arbitrator is not bound by principles of substantive law or the rules of evidence and “may do justice by making an award reflective of the spirit rather than the letter of the parties’ agreement.”
Accordingly, said the court, an arbitrator’s interpretation of the parties’ agreement “may disregard the apparent, even the plain, meaning of the words of the contract before him and still be impervious to challenge in the courts.”
The Appellate Division found other defects in the arbitration award. The court noted that there were two different grievances arbitrations filed by Recore against the district.
The first concerned Recore’s not being selected for one kindergarten aide vacancy and the second concerned Recore’s not being selected for a second kindergarten aide vacancy.
According to the decision, apparently the arbitrator who conducted the second arbitration, Michael Lewandowski, “based his disposition [of the grievance] on the outcome of the first grievance” decided by another arbitrator, Walter Donnaruma.
Donnaruma had ruled that the district should have “utilized seniority as the primary consideration” with respect to Recore’s application for the first vacancy filled by the district and remitted the grievance to the district for its reconsideration. Upon reconsideration, the district reaffirmed its original decision.
Lewandowski considered the grievance that was filed after Recore was not selected for the second vacancy that the district filled.
The Appellate Division said “there is no discussion [of Recore’s] application for the second vacancy which culminated in the filing of the grievance that actually was before arbitrator Lewandowski, nor the evidence adduced at the hearing with respect to [Recore’s] and the chosen candidate’s qualifications for the position.”
In other words, the court concluded that Lewandowski based his decision of the determinations made by Donnaruma in the first arbitration.
Affirming the vacating of Lewandowski’s award because of this procedural defect rather than for the reasons stated by the lower court regarding Lewandowski’s interpretation of the contract’s language, the Appellate Division said that “inasmuch as [Lewandowski’s] disposition [of the grievance] leaves the controversy unresolved, a rehearing should be ordered” by the Supreme Court.
NYPPL
Recore v Chateaugay CSD, 256 AD2d 801, motion for leave to appeal dismissed, 93 NY2d 957
In Recore v Chateaugay Central School District, the Chateaugay district asked to have an arbitrator’s award vacated. The arbitrator had ruled that the district had violated a clause of its collective bargaining agreement with CSEA Local 1000 when it failed to appoint Deborah Recore, a teacher’s aide, to the position of kindergarten aide.
The contract clause involved provided that “[f]or the purposes of filling vacancies or new job openings ... [the district] shall consider both ... seniority and ... skills and abilities. Seniority shall be the determining factor when in the sole judgment of [the district] the affected applicant’s skills and abilities are equal.”
A State Supreme Court justice vacated the arbitrator’s award. The arbitrator erred by inserting the word “relatively” before “equal” in interpreting the contract provision.
This, the court said, meant that “the arbitrator failed to apply the language of the collective bargaining agreement” in resolving the grievance.
CSEA appealed. The Appellate Division decided that the award had defects that “render it irrational,” but did not use the same reasoning as the Supreme Court.
In its decision, the Appellate Division noted that the grounds for vacating an arbitration award are very limited. It said that an arbitration award will be vacated only where “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
It ruled that “given the considerable discretion afforded arbitrators in interpreting contract language [an arbitrator’s insertion of the word relatively] was an insufficient basis to invalidate the award.”
The Appellate Division emphasized that broad powers are vested in an arbitrator. Unless there is a provision in the arbitration clause to the contrary, an arbitrator is not bound by principles of substantive law or the rules of evidence and “may do justice by making an award reflective of the spirit rather than the letter of the parties’ agreement.”
Accordingly, said the court, an arbitrator’s interpretation of the parties’ agreement “may disregard the apparent, even the plain, meaning of the words of the contract before him and still be impervious to challenge in the courts.”
The Appellate Division found other defects in the arbitration award. The court noted that there were two different grievances arbitrations filed by Recore against the district.
The first concerned Recore’s not being selected for one kindergarten aide vacancy and the second concerned Recore’s not being selected for a second kindergarten aide vacancy.
According to the decision, apparently the arbitrator who conducted the second arbitration, Michael Lewandowski, “based his disposition [of the grievance] on the outcome of the first grievance” decided by another arbitrator, Walter Donnaruma.
Donnaruma had ruled that the district should have “utilized seniority as the primary consideration” with respect to Recore’s application for the first vacancy filled by the district and remitted the grievance to the district for its reconsideration. Upon reconsideration, the district reaffirmed its original decision.
Lewandowski considered the grievance that was filed after Recore was not selected for the second vacancy that the district filled.
The Appellate Division said “there is no discussion [of Recore’s] application for the second vacancy which culminated in the filing of the grievance that actually was before arbitrator Lewandowski, nor the evidence adduced at the hearing with respect to [Recore’s] and the chosen candidate’s qualifications for the position.”
In other words, the court concluded that Lewandowski based his decision of the determinations made by Donnaruma in the first arbitration.
Affirming the vacating of Lewandowski’s award because of this procedural defect rather than for the reasons stated by the lower court regarding Lewandowski’s interpretation of the contract’s language, the Appellate Division said that “inasmuch as [Lewandowski’s] disposition [of the grievance] leaves the controversy unresolved, a rehearing should be ordered” by the Supreme Court.
NYPPL
Automatic termination from public office by operation of law
Automatic termination from public office by operation of law
Schirmer v Town of Harrison, USDC, SDNY, 1999 WL 61843
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]
Police officers are public officers and as such a subject to the provisions of Section 30.1 of the Public Officers Law. Section 30.1(d) provides that if a public officer ceases to be an inhabitant of the state, or if he or she is a local officer, of the political subdivision of which he or she is required to be a resident, his or her office “shall be vacant.”
Section 30.1(e) provides for the same result if the officer is convicted of a felony or a crime involving a violation of his or her oath of office. The Schirmer, Foley and Griffin decisions consider the impact of these provisions in cases where the individual may otherwise claim the protection of Section 75 of the Civil Service Law or a disciplinary grievance procedure set out in a collective bargaining agreement.
The Schirmer case
Peter Schirmer was a police officer with the Town of Harrison. He was injured in the line of duty and in March 1994 applied for, and was granted, disability benefits.* In December 1994, Schirmer and his family moved to Connecticut. Harrison terminated him pursuant to Section 30.1(d) on the grounds that he had moved his domicile to Connecticut and therefore was no longer eligible for employment. Schirmer sued, contending that his termination without a hearing violated the Due Process clause of the Constitution and entitled him to relief under 42 USC 1983 and 42 USC 1988.
Federal District Court Judge Allen Schwartz ruled that the provisions of Section 30.1(d) controlled and that under the circumstances Schirmer was not entitled to the Section 75 pre-termination hearing he claimed was due him. The court said “public officials such as [Schirmer] should not expect that the protections of Section 75(1) will apply to all types of dismissals, especially those based on a change in residency.” A public officer should understand that he or she “is vulnerable to summary dismissal” if it appears that he or she fails to meet the conditions of employment set out in Section 30 of the Public Officers Law.
According to the ruling, Section 30.1(d) explicitly informs public officers that their position will be automatically vacated upon an apparent change in domicile and that “post-termination relief is all that such employees may expect.”
This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
The Foley and Bratton cases
Michael Foley, a New York City police officer, was convicted of a misdemeanor and a violation following an off-duty incident. Dennis Griffin, another New York City police officer was convicted of two misdemeanors. Both were dismissed without a hearing and their appeals were denied by the Supreme Court and the Appellate Division.
Three different statutes or ordinances were cited by the Court of Appeals in its analysis of the appeals filed by Foley and Griffin from the lower court rulings.
In addition to Section 30.1(e) of the Public Officer Law, the Court referred to:
1. Section 14-115(a) of the Administrative Code of the City of New York [The commissioner shall have power ... on conviction ... by any court ... of a member of the force of any criminal offense ... to punish ... by dismissal from the force], and Section 14-115(b) which provides for a pre-termination hearing.
2. Section 891 of the Unconsolidated Laws [A policeman serving in the competitive class ... in any city ... shall not be removed ... except for incompetency or misconduct shown after a hearing upon due notice upon stated charges].
Noting that the three provisions “are locked in a statutory clash,” the Court of Appeals said that “to the extent that the automatic removal provision of Public Officers Law contrast with the pre-dismissal administrative hearing requirements of Administrative Code 14-115 and Unconsolidated Laws 841, we have little difficulty in harmonizing the provisions by concluding that the Legislature flatly determined that a felony or “oath of office” conviction is serious enough, without more, to justify automatic removal.”
However, the court disagreed with the Police Commissioner’s claim that the Administrative Code permits summary termination for any misdemeanor conviction. “It is one thing for the Legislature to decree that certain convictions carry summary removal ... but it is quite different for a court to find, or to write in, a summary dismissal power under Administrative Code provisions that do not contain it.”
The Court of Appeals has held that a misdemeanor conviction for conduct outside the line of duty qualifies as an “oath of office” crime only if the violation is apparent from the Penal Law’s definition of the crime [Duffy v Ward, 81 NY2d 127].
Commenting that the Commissioner dismissed the officers “under Administrative Law 14-115 exclusively” and did not rely on Section 30.1(e) as a basis for the termination, the court reversed the lower courts’ rulings, indicating that if the Commissioner claims that a particular crime falls under the “oath of office” category, “he may proceed under Public Officers Law Section 30.1(e) and the issue will be determined in accordance with Duffy v Ward.” For other convictions a public hearing is required.... This hearing requirement does not compel a retrial of the criminal case. “The conviction may be presented as prima facie proof ... [and] the officer would then have an opportunity to present proof in mitigation....”
* This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
NYPPL
Schirmer v Town of Harrison, USDC, SDNY, 1999 WL 61843
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]
Police officers are public officers and as such a subject to the provisions of Section 30.1 of the Public Officers Law. Section 30.1(d) provides that if a public officer ceases to be an inhabitant of the state, or if he or she is a local officer, of the political subdivision of which he or she is required to be a resident, his or her office “shall be vacant.”
Section 30.1(e) provides for the same result if the officer is convicted of a felony or a crime involving a violation of his or her oath of office. The Schirmer, Foley and Griffin decisions consider the impact of these provisions in cases where the individual may otherwise claim the protection of Section 75 of the Civil Service Law or a disciplinary grievance procedure set out in a collective bargaining agreement.
The Schirmer case
Peter Schirmer was a police officer with the Town of Harrison. He was injured in the line of duty and in March 1994 applied for, and was granted, disability benefits.* In December 1994, Schirmer and his family moved to Connecticut. Harrison terminated him pursuant to Section 30.1(d) on the grounds that he had moved his domicile to Connecticut and therefore was no longer eligible for employment. Schirmer sued, contending that his termination without a hearing violated the Due Process clause of the Constitution and entitled him to relief under 42 USC 1983 and 42 USC 1988.
Federal District Court Judge Allen Schwartz ruled that the provisions of Section 30.1(d) controlled and that under the circumstances Schirmer was not entitled to the Section 75 pre-termination hearing he claimed was due him. The court said “public officials such as [Schirmer] should not expect that the protections of Section 75(1) will apply to all types of dismissals, especially those based on a change in residency.” A public officer should understand that he or she “is vulnerable to summary dismissal” if it appears that he or she fails to meet the conditions of employment set out in Section 30 of the Public Officers Law.
According to the ruling, Section 30.1(d) explicitly informs public officers that their position will be automatically vacated upon an apparent change in domicile and that “post-termination relief is all that such employees may expect.”
This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
The Foley and Bratton cases
Michael Foley, a New York City police officer, was convicted of a misdemeanor and a violation following an off-duty incident. Dennis Griffin, another New York City police officer was convicted of two misdemeanors. Both were dismissed without a hearing and their appeals were denied by the Supreme Court and the Appellate Division.
Three different statutes or ordinances were cited by the Court of Appeals in its analysis of the appeals filed by Foley and Griffin from the lower court rulings.
In addition to Section 30.1(e) of the Public Officer Law, the Court referred to:
1. Section 14-115(a) of the Administrative Code of the City of New York [The commissioner shall have power ... on conviction ... by any court ... of a member of the force of any criminal offense ... to punish ... by dismissal from the force], and Section 14-115(b) which provides for a pre-termination hearing.
2. Section 891 of the Unconsolidated Laws [A policeman serving in the competitive class ... in any city ... shall not be removed ... except for incompetency or misconduct shown after a hearing upon due notice upon stated charges].
Noting that the three provisions “are locked in a statutory clash,” the Court of Appeals said that “to the extent that the automatic removal provision of Public Officers Law contrast with the pre-dismissal administrative hearing requirements of Administrative Code 14-115 and Unconsolidated Laws 841, we have little difficulty in harmonizing the provisions by concluding that the Legislature flatly determined that a felony or “oath of office” conviction is serious enough, without more, to justify automatic removal.”
However, the court disagreed with the Police Commissioner’s claim that the Administrative Code permits summary termination for any misdemeanor conviction. “It is one thing for the Legislature to decree that certain convictions carry summary removal ... but it is quite different for a court to find, or to write in, a summary dismissal power under Administrative Code provisions that do not contain it.”
The Court of Appeals has held that a misdemeanor conviction for conduct outside the line of duty qualifies as an “oath of office” crime only if the violation is apparent from the Penal Law’s definition of the crime [Duffy v Ward, 81 NY2d 127].
Commenting that the Commissioner dismissed the officers “under Administrative Law 14-115 exclusively” and did not rely on Section 30.1(e) as a basis for the termination, the court reversed the lower courts’ rulings, indicating that if the Commissioner claims that a particular crime falls under the “oath of office” category, “he may proceed under Public Officers Law Section 30.1(e) and the issue will be determined in accordance with Duffy v Ward.” For other convictions a public hearing is required.... This hearing requirement does not compel a retrial of the criminal case. “The conviction may be presented as prima facie proof ... [and] the officer would then have an opportunity to present proof in mitigation....”
* This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
NYPPL
Denying unemployment insurance benefits based on a finding the individual left work without good cause
Denying unemployment insurance benefits based on a finding the individual left work without good cause
Williams v NYC General Services, App. Div., 256 AD2d 792
Rodriguez v Commissioner of Labor, App. Div., 256 AD2d 768
One basis for denying an individual unemployment insurance benefits is a finding that the applicant left his or her employment “without good cause.” The Williams and Rodriguez decisions involve determinations as to what constitutes leaving employment “without good cause.”
The Williams case
Carlton A. Williams, employed as a real property manager the New York City’s Office of General Services, decided to accept the city’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct.
Williams’ decision was based on a statement made by the “case conferencing judge at a prehearing conference” that if Williams decided to go forward with the hearing and the administrative law judge found him guilty, “he would discharged from his employment and would lose the employer’s contributions to his pension.” Williams elected to resign rather than risk dismissal. When the Unemployment Insurance Appeals Board rejected his application for unemployment insurance benefits, Williams appealed. The Appellate Division sustained the board’s determination.
The court said that “neither resigning in anticipation of discharge nor voluntarily separating from one’s employment in order to accept an early retirement incentive package when continuing work is available have been held to constitute good cause for leaving employment.”
The Rodriguez case
Usually leaving employment to relocate to another state in order to remain with one’s family will not disqualify an individual for unemployment insurance benefits. In Rodriguez’s case, the Appellate Division found there were mitigating circumstances sufficient to justify reversing the Unemployment Insurance Board’s rejection of her application for benefits.
In November 1995 Evelyn R. Rodriguez, a state disability claims examiner, remained behind when her husband and two daughters moved to Florida on the advice of their pediatrician, because her children had severe and chronic asthma. Rodriguez stayed because her employment was the source of the family’s health insurance, the family’s house had to be sold, she needed to continue to earn income and she wanted additional membership credit in the retirement system.
In August 1996, Rodriguez resigned and joined her family in Florida. The board, in rejecting her claim for benefits, held that she had “decided to live apart from her family indefinitely, if not permanently.” This, said the board, meant that she was disqualified from receiving benefits because she voluntarily left her job without good cause.
In reversing, the Appellate Division ruled that “the instant case is not a situation where a spouse is trying to decide if she will quit her job and join her transferred spouse.” Instead, said the court, “two parents have endured real hardship for the well-being of their children.”
Both spouses, said the court, had good cause to relocate to Florida, which was as compelling in August 1996 when Rodriguez resigned as the previous October when her husband moved to Florida with their children.
Essentially the court held that Rodriguez “from the outset” intended to relocate to Florida and that her uncertainty as to when she would do so was justified.
NYPPL
Williams v NYC General Services, App. Div., 256 AD2d 792
Rodriguez v Commissioner of Labor, App. Div., 256 AD2d 768
One basis for denying an individual unemployment insurance benefits is a finding that the applicant left his or her employment “without good cause.” The Williams and Rodriguez decisions involve determinations as to what constitutes leaving employment “without good cause.”
The Williams case
Carlton A. Williams, employed as a real property manager the New York City’s Office of General Services, decided to accept the city’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct.
Williams’ decision was based on a statement made by the “case conferencing judge at a prehearing conference” that if Williams decided to go forward with the hearing and the administrative law judge found him guilty, “he would discharged from his employment and would lose the employer’s contributions to his pension.” Williams elected to resign rather than risk dismissal. When the Unemployment Insurance Appeals Board rejected his application for unemployment insurance benefits, Williams appealed. The Appellate Division sustained the board’s determination.
The court said that “neither resigning in anticipation of discharge nor voluntarily separating from one’s employment in order to accept an early retirement incentive package when continuing work is available have been held to constitute good cause for leaving employment.”
The Rodriguez case
Usually leaving employment to relocate to another state in order to remain with one’s family will not disqualify an individual for unemployment insurance benefits. In Rodriguez’s case, the Appellate Division found there were mitigating circumstances sufficient to justify reversing the Unemployment Insurance Board’s rejection of her application for benefits.
In November 1995 Evelyn R. Rodriguez, a state disability claims examiner, remained behind when her husband and two daughters moved to Florida on the advice of their pediatrician, because her children had severe and chronic asthma. Rodriguez stayed because her employment was the source of the family’s health insurance, the family’s house had to be sold, she needed to continue to earn income and she wanted additional membership credit in the retirement system.
In August 1996, Rodriguez resigned and joined her family in Florida. The board, in rejecting her claim for benefits, held that she had “decided to live apart from her family indefinitely, if not permanently.” This, said the board, meant that she was disqualified from receiving benefits because she voluntarily left her job without good cause.
In reversing, the Appellate Division ruled that “the instant case is not a situation where a spouse is trying to decide if she will quit her job and join her transferred spouse.” Instead, said the court, “two parents have endured real hardship for the well-being of their children.”
Both spouses, said the court, had good cause to relocate to Florida, which was as compelling in August 1996 when Rodriguez resigned as the previous October when her husband moved to Florida with their children.
Essentially the court held that Rodriguez “from the outset” intended to relocate to Florida and that her uncertainty as to when she would do so was justified.
NYPPL
Barring an individual from a PERB proceeding
Barring an individual from a PERB proceeding
Advisory Opinion of Counsel, 32 PERB 5001*
PERB’s counsel was asked if PERB or its administrative law judges “have the power” to issue an order disqualifying an attorney from representing a party based on a “potential substantive violation of the Code of Professional Responsibility”.
After noting that the Appellate Division is vested with the authority to discipline attorneys for alleged misconduct, Counsel pointed out that under Section 205(5)(j) of the Civil Service Law, PERB is not restricted from taking action to “exclude, suspend, or disbar any representative for misconduct in accordance with the Board’s rules.”
Section 207.4(j) of PERB’s rules [4 NYCRR 204.7(j)] provides:
Misconduct at any hearing before an administrative law judge shall be grounds for summary exclusion from the hearing. Such misconduct, if of an aggravating character and engaged in by an attorney or other representative of a party, shall be grounds for suspension or disbarment from further practice before the board after due notice and hearing.
Counsel concluded that although a violation of the Code might also constitute misconduct in a PERB proceeding, “for PERB’s purposes, the critical issue regarding such conduct would not be whether it violated the Code of Professional Responsibility, but whether it was misconduct that threatened a party’s rights, the Taylor Law, or PERB’s administration of that law.”
* Advisory Opinions of Counsel are not binding on PERB
NYPPL
Advisory Opinion of Counsel, 32 PERB 5001*
PERB’s counsel was asked if PERB or its administrative law judges “have the power” to issue an order disqualifying an attorney from representing a party based on a “potential substantive violation of the Code of Professional Responsibility”.
After noting that the Appellate Division is vested with the authority to discipline attorneys for alleged misconduct, Counsel pointed out that under Section 205(5)(j) of the Civil Service Law, PERB is not restricted from taking action to “exclude, suspend, or disbar any representative for misconduct in accordance with the Board’s rules.”
Section 207.4(j) of PERB’s rules [4 NYCRR 204.7(j)] provides:
Misconduct at any hearing before an administrative law judge shall be grounds for summary exclusion from the hearing. Such misconduct, if of an aggravating character and engaged in by an attorney or other representative of a party, shall be grounds for suspension or disbarment from further practice before the board after due notice and hearing.
Counsel concluded that although a violation of the Code might also constitute misconduct in a PERB proceeding, “for PERB’s purposes, the critical issue regarding such conduct would not be whether it violated the Code of Professional Responsibility, but whether it was misconduct that threatened a party’s rights, the Taylor Law, or PERB’s administration of that law.”
* Advisory Opinions of Counsel are not binding on PERB
NYPPL
Nov 18, 2010
Circuit Court of Appeals rules that hearsay testimony is admissible to support the issuance of a preliminary injunction
Circuit Court of Appeals rules that hearsay testimony is admissible to support the issuance of a preliminary injunctionMullins v. City of New York, USCA, 2nd Circuit, 08-1839-cv, Decided November 11, 2010
The Circuit Court of Appeals affirmed a District Court ruling enjoining the City of New York and the New York City Police Department from investigating and disciplining a New York City police officer based upon testimony or participation in a pending lawsuit, concluding that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief based in part on such evidence.
About 4300 current and former New York City police sergeants sued the City, claiming “systematic violations of their overtime rights under the Fair Labor Standards Act of 1938 (“FLSA”).*
One plaintiff, Sergeant Paul Capotosto, Citywide Secretary of the Sergeants Benevolent Association, testified at the preliminary injunction hearing, reciting at least a dozen phone calls he received from worried plaintiffs in the lawsuit, who expressed concern to him that the NYPD was retaliating against them for their participation in the lawsuit.
Another plaintiff, Sergeant Edward Scott, alleged that his retirement was “administratively deferred” pending resolution of an unspecified “disciplinary matter” some months later. It subsequently “came to light that [Scott] was under investigation for testimony he had given during his deposition.” Sergeant Scott stated that, at the time, “I believed that if I withdrew from this FLSA lawsuit, the City would close its investigation into my deposition testimony.”
The Circuit court ruled that the district court did not abuse its discretion in finding either that Mullins, the named plaintiff in the action, is likely to succeed on the merits of their FLSA retaliation claim, or that Mullins established that irreparable harm is likely to flow from the putative FLSA violation absent injunctive relief and dismissed the Department’s arguments, concluding “that they are without merit.”
* N.B. This case may renew the question “Do federal courts have jurisdiction to consider alleged violations of the FLSA in actions brought against state and local governments?”
A decision by the U.S. Supreme Court holds that the federal courts have no authority to enforce the FLSA on non-federal governments under the 11th Amendment, which limits federal judicial power ["the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”].
The development of the jurisdiction of federal courts to consider alleged violations of the FLSA involving State and local governments is somewhat convoluted.
In 1996 the U.S. Supreme Court ruled that Congress cannot expand the authority of the judiciary beyond the constraints of the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. [Seminole Tribe v Florida, 116 S. Ct. 1114].
This decision profoundly affected FLSA issues because the Fair Labor Standards Act was enacted by Congress pursuant the Interstate Commerce Clause, which the Supreme Court said was indistinguishable from the Indian Commerce Clause.
The Supreme Court next indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided."
Following the Seminole ruling, a number of federal courts decided that federal courts lack power to enforce the provisions of the FLSA in a law suit against a State or a political subdivision of that State. Distinguishing between the State as the employer and political subdivisions of the State as the employer, however, the Supreme Court may have signaled a retreat from this expansive view.
In a footnote in Auer v Robbins, 519 U.S. 452, the Supreme Court commented that insofar as the Eleventh Amendment is implicated, a board of municipal police commissioners "does not share the immunity of the State of Missouri".
The Mullins decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/doc/08-1839-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/hilite/
NYPPL
The Circuit Court of Appeals affirmed a District Court ruling enjoining the City of New York and the New York City Police Department from investigating and disciplining a New York City police officer based upon testimony or participation in a pending lawsuit, concluding that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief based in part on such evidence.
About 4300 current and former New York City police sergeants sued the City, claiming “systematic violations of their overtime rights under the Fair Labor Standards Act of 1938 (“FLSA”).*
One plaintiff, Sergeant Paul Capotosto, Citywide Secretary of the Sergeants Benevolent Association, testified at the preliminary injunction hearing, reciting at least a dozen phone calls he received from worried plaintiffs in the lawsuit, who expressed concern to him that the NYPD was retaliating against them for their participation in the lawsuit.
Another plaintiff, Sergeant Edward Scott, alleged that his retirement was “administratively deferred” pending resolution of an unspecified “disciplinary matter” some months later. It subsequently “came to light that [Scott] was under investigation for testimony he had given during his deposition.” Sergeant Scott stated that, at the time, “I believed that if I withdrew from this FLSA lawsuit, the City would close its investigation into my deposition testimony.”
The Circuit court ruled that the district court did not abuse its discretion in finding either that Mullins, the named plaintiff in the action, is likely to succeed on the merits of their FLSA retaliation claim, or that Mullins established that irreparable harm is likely to flow from the putative FLSA violation absent injunctive relief and dismissed the Department’s arguments, concluding “that they are without merit.”
* N.B. This case may renew the question “Do federal courts have jurisdiction to consider alleged violations of the FLSA in actions brought against state and local governments?”
A decision by the U.S. Supreme Court holds that the federal courts have no authority to enforce the FLSA on non-federal governments under the 11th Amendment, which limits federal judicial power ["the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”].
The development of the jurisdiction of federal courts to consider alleged violations of the FLSA involving State and local governments is somewhat convoluted.
In 1996 the U.S. Supreme Court ruled that Congress cannot expand the authority of the judiciary beyond the constraints of the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. [Seminole Tribe v Florida, 116 S. Ct. 1114].
This decision profoundly affected FLSA issues because the Fair Labor Standards Act was enacted by Congress pursuant the Interstate Commerce Clause, which the Supreme Court said was indistinguishable from the Indian Commerce Clause.
The Supreme Court next indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided."
Following the Seminole ruling, a number of federal courts decided that federal courts lack power to enforce the provisions of the FLSA in a law suit against a State or a political subdivision of that State. Distinguishing between the State as the employer and political subdivisions of the State as the employer, however, the Supreme Court may have signaled a retreat from this expansive view.
In a footnote in Auer v Robbins, 519 U.S. 452, the Supreme Court commented that insofar as the Eleventh Amendment is implicated, a board of municipal police commissioners "does not share the immunity of the State of Missouri".
The Mullins decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/doc/08-1839-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/hilite/
NYPPL
Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position
Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position
New York State Socy. of Professional Engrs., Inc. v City of New York, 2010 NY Slip Op 08352, Decided on November 16, 2010, Appellate Division, First Department
Prior to September 3, 2008, the New York City Charter required that the Commissioner of Buildings had to be a licensed professional engineer or registered architect.
New York City Local Law 39, which took effect on September 3, 2008, amending §641 of New York’s City Charter to provided that either the Commissioner of Buildings or the First Deputy Commissioner to be a licensed professional engineer or a registered architect. §642 was also amended to authorize the Commissioner to delegate any duties to the First Deputy Commissioner.
New York State Society of Professional Engineers, Inc., challenged this amendment and asked the court to declare Local Law 39 unconstitutional on its face on the grounds that it was inconsistent with and preempted by Articles 145 and 147 of the State Education Law, which, respectively, set out the State’s licensing requirements for professional engineers and registered architects.
The Society also contended that by no longer requiring the Commissioner to be a licensed professional engineer or registered architect, the City Council has thereby permitted that official to engage in the practice of engineering without a license.
The Appellate Division rejected the Society’s claim, holding that the fact that an unlicensed Commissioner had the expressed power to delegate any duties that involve the practice of engineering or architecture to a properly licensed Deputy First Commissioner validates Local Law 39.
In addition, the court ruled that the State law does not preempt the City from establishing the qualifications for the offices of Commissioner and First Deputy Commissioner of Buildings, as the City is specifically permitted to set and enforce its own Building Code.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08352.htm
New York State Socy. of Professional Engrs., Inc. v City of New York, 2010 NY Slip Op 08352, Decided on November 16, 2010, Appellate Division, First Department
Prior to September 3, 2008, the New York City Charter required that the Commissioner of Buildings had to be a licensed professional engineer or registered architect.
New York City Local Law 39, which took effect on September 3, 2008, amending §641 of New York’s City Charter to provided that either the Commissioner of Buildings or the First Deputy Commissioner to be a licensed professional engineer or a registered architect. §642 was also amended to authorize the Commissioner to delegate any duties to the First Deputy Commissioner.
New York State Society of Professional Engineers, Inc., challenged this amendment and asked the court to declare Local Law 39 unconstitutional on its face on the grounds that it was inconsistent with and preempted by Articles 145 and 147 of the State Education Law, which, respectively, set out the State’s licensing requirements for professional engineers and registered architects.
The Society also contended that by no longer requiring the Commissioner to be a licensed professional engineer or registered architect, the City Council has thereby permitted that official to engage in the practice of engineering without a license.
The Appellate Division rejected the Society’s claim, holding that the fact that an unlicensed Commissioner had the expressed power to delegate any duties that involve the practice of engineering or architecture to a properly licensed Deputy First Commissioner validates Local Law 39.
In addition, the court ruled that the State law does not preempt the City from establishing the qualifications for the offices of Commissioner and First Deputy Commissioner of Buildings, as the City is specifically permitted to set and enforce its own Building Code.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08352.htm
Employee dismissed for altering the value of his paycheck
Employee dismissed for altering the value of his paycheck
Local 375 v NYC Health & Hospital Corp., 257 AD2d 530
Jose Hernandez was charged with changing a “3” on his pay check into an “8,” “significantly enhancing the putative value of the check.” Hernandez explained that the change was caused by his inadvertent “doodling.”
A disciplinary arbitrator found him guilty of altering the value of the amount of the check payable to him, concluding that “Hernandez’s consistent conduct [with respect to attempting to cash the check or have it reissued in the “forged amount”] evinced an effort to benefit from an alteration concededly made by him.” Hernandez was terminated and his union, Local 375, appealed.
A State Supreme Court justice, finding some inconsistencies in the arbitrator’s findings and that criminal charges concerning the same allegations had been dismissed,* vacated the award on the grounds that the arbitrator had exceed her authority.
The Appellate Division reversed and reinstating the arbitrator’s determination. It noted that Section 7511 of the Civil Practice Law and Rules allows an arbitration award to be vacated only in situations such as “fraud, corruption or bias of the arbitrator” or a procedural violation by the arbitrator, or in the event the arbitrator exceeds his or her authority, none of which were present here.
The court said that it found no basis to set the arbitration award aside “notwithstanding the explainable absence of the check and some possible inconsistencies in the arbitrator’s findings.** It commented that the lower court’s conclusions “amount to no more than impermissible second-guessing these factual findings.”
* In Kelly v. Levin, 440 NYS2d 424, the court ruled that is reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations. In contrast, an individual may be found guilty of charges in an administrative disciplinary hearing notwithstanding the fact that he or she may have been acquitted of criminal charges involving the same allegations. The reason for this is that the standard of proof required to prove guilt in a criminal proceeding is more rigorous than that in an administrative disciplinary proceeding. In a criminal case, the standard is “proof beyond a reasonable doubt” while in an administrative disciplinary action the standard of proof is the less demanding “substantial evidence” test. In an administrative proceeding, “substantial evidence” will support a finding that the individual is guilty of the disciplinary charge or charges. In some case, however, the standard used to determine guilt applied in an administrative disciplinary action is the even less demanding “preponderance of the evidence” test [see Martin v Ambach, 67 NY2d 975].
** Criminal charges had been filed against Hernandez. The altered check, however, “was destroyed in the normal course of events” by the District Attorney after forgery charges brought against him were dismissed and thus the item could not be introduced as evidence at the disciplinary administrative hearing.
NYPPL
Local 375 v NYC Health & Hospital Corp., 257 AD2d 530
Jose Hernandez was charged with changing a “3” on his pay check into an “8,” “significantly enhancing the putative value of the check.” Hernandez explained that the change was caused by his inadvertent “doodling.”
A disciplinary arbitrator found him guilty of altering the value of the amount of the check payable to him, concluding that “Hernandez’s consistent conduct [with respect to attempting to cash the check or have it reissued in the “forged amount”] evinced an effort to benefit from an alteration concededly made by him.” Hernandez was terminated and his union, Local 375, appealed.
A State Supreme Court justice, finding some inconsistencies in the arbitrator’s findings and that criminal charges concerning the same allegations had been dismissed,* vacated the award on the grounds that the arbitrator had exceed her authority.
The Appellate Division reversed and reinstating the arbitrator’s determination. It noted that Section 7511 of the Civil Practice Law and Rules allows an arbitration award to be vacated only in situations such as “fraud, corruption or bias of the arbitrator” or a procedural violation by the arbitrator, or in the event the arbitrator exceeds his or her authority, none of which were present here.
The court said that it found no basis to set the arbitration award aside “notwithstanding the explainable absence of the check and some possible inconsistencies in the arbitrator’s findings.** It commented that the lower court’s conclusions “amount to no more than impermissible second-guessing these factual findings.”
* In Kelly v. Levin, 440 NYS2d 424, the court ruled that is reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations. In contrast, an individual may be found guilty of charges in an administrative disciplinary hearing notwithstanding the fact that he or she may have been acquitted of criminal charges involving the same allegations. The reason for this is that the standard of proof required to prove guilt in a criminal proceeding is more rigorous than that in an administrative disciplinary proceeding. In a criminal case, the standard is “proof beyond a reasonable doubt” while in an administrative disciplinary action the standard of proof is the less demanding “substantial evidence” test. In an administrative proceeding, “substantial evidence” will support a finding that the individual is guilty of the disciplinary charge or charges. In some case, however, the standard used to determine guilt applied in an administrative disciplinary action is the even less demanding “preponderance of the evidence” test [see Martin v Ambach, 67 NY2d 975].
** Criminal charges had been filed against Hernandez. The altered check, however, “was destroyed in the normal course of events” by the District Attorney after forgery charges brought against him were dismissed and thus the item could not be introduced as evidence at the disciplinary administrative hearing.
NYPPL
Changing the scheduled number of hours that employees are to work during the workweek
Changing the scheduled number of hours that employees are to work during the workweek
Mitchell v LaBarge, 257 AD2d 834
Ann M. Mitchell and other employees and former employees sued the Town of Ulster when it unilaterally changed their workweek from 30 hours to 35 hours, contending that the town’s action violated the federal Fair Labor Standards Act.
At the time the individuals were hired the normal workweek was Monday through Friday, 9:00 a.m. through 4:00 p.m. Effective January 1996 they were required to work Monday through Friday, 9:00 a.m. through 5:00 p.m. without additional compensation.
This, Mitchell contended violated the FLSA because of the town’s “refusal to bargain [the change] in good faith.” A state Supreme Court justice granted the town’s motion to dismiss the action.
The Appellate Division affirmed the lower court’s dismissal of Mitchell’s complaint. It said that the sole federal claim set out in Mitchell’s petition alleged that the Town “violated the Fair Labor Standards Act [FLSA] by their refusal to bargain in good faith.” As the Act “does not impose a duty upon the employer to negotiate in good faith,” the court concluded that Mitchell failed to state a federal cause of action and dismissal of her claim was appropriate.
The Appellate Division commented that the Fair Labor Standards Act sets out “minimum wage and maximum hour requirements” [29 USC 206, 207] while the particular section relied upon by Mitchell, 29 USC 213, provides for exceptions to those provisions.
NYPPL
Mitchell v LaBarge, 257 AD2d 834
Ann M. Mitchell and other employees and former employees sued the Town of Ulster when it unilaterally changed their workweek from 30 hours to 35 hours, contending that the town’s action violated the federal Fair Labor Standards Act.
At the time the individuals were hired the normal workweek was Monday through Friday, 9:00 a.m. through 4:00 p.m. Effective January 1996 they were required to work Monday through Friday, 9:00 a.m. through 5:00 p.m. without additional compensation.
This, Mitchell contended violated the FLSA because of the town’s “refusal to bargain [the change] in good faith.” A state Supreme Court justice granted the town’s motion to dismiss the action.
The Appellate Division affirmed the lower court’s dismissal of Mitchell’s complaint. It said that the sole federal claim set out in Mitchell’s petition alleged that the Town “violated the Fair Labor Standards Act [FLSA] by their refusal to bargain in good faith.” As the Act “does not impose a duty upon the employer to negotiate in good faith,” the court concluded that Mitchell failed to state a federal cause of action and dismissal of her claim was appropriate.
The Appellate Division commented that the Fair Labor Standards Act sets out “minimum wage and maximum hour requirements” [29 USC 206, 207] while the particular section relied upon by Mitchell, 29 USC 213, provides for exceptions to those provisions.
NYPPL
School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education
School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education
Guadagnino v Lancaster CSD, CEd 14080
The Lancaster Central School District filed disciplinary charges against Anthony P. Guadagnino pursuant to Section 75 of the Civil Service Law. The charges alleged that Guadagnino, a custodian, made false, baseless and damaging statements concerning alleged inappropriate conduct by a building principal, the president of the school board and others to various district officials and staff members.
Found guilty of all charges, Guadagnino was dismissed from his position. His appeal to the Erie County Civil Service Commission pursuant to Section 76 of the Civil Service Law was denied.
Guadagnino next filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law contending that the school district violated federal and state law protecting “whistle blowers” by terminating him in retaliation for his making and pursuing his allegations of “inappropriate conduct.”
The Commissioner dismissed the appeal for lack of subject matter jurisdiction. He said that with respect to Guadagnino’s claims concerning “whistle blowing” [Civil Service Law Section 75-b], such claims may be asserted as a defense in a Section 75 hearing. However, nothing in the Education Law authorizes an appeal to the Commissioner from disciplinary action taken under Section 75. The Commissioner noted that “it is well established ... that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law Section 310.”
As to Guadagnino’s federal claims, the Commissioner pointed out that the federal law cited, 5 USC 1213, is generally applicable to federal employees and those in federally related employment.
NYPPL
Guadagnino v Lancaster CSD, CEd 14080
The Lancaster Central School District filed disciplinary charges against Anthony P. Guadagnino pursuant to Section 75 of the Civil Service Law. The charges alleged that Guadagnino, a custodian, made false, baseless and damaging statements concerning alleged inappropriate conduct by a building principal, the president of the school board and others to various district officials and staff members.
Found guilty of all charges, Guadagnino was dismissed from his position. His appeal to the Erie County Civil Service Commission pursuant to Section 76 of the Civil Service Law was denied.
Guadagnino next filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law contending that the school district violated federal and state law protecting “whistle blowers” by terminating him in retaliation for his making and pursuing his allegations of “inappropriate conduct.”
The Commissioner dismissed the appeal for lack of subject matter jurisdiction. He said that with respect to Guadagnino’s claims concerning “whistle blowing” [Civil Service Law Section 75-b], such claims may be asserted as a defense in a Section 75 hearing. However, nothing in the Education Law authorizes an appeal to the Commissioner from disciplinary action taken under Section 75. The Commissioner noted that “it is well established ... that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law Section 310.”
As to Guadagnino’s federal claims, the Commissioner pointed out that the federal law cited, 5 USC 1213, is generally applicable to federal employees and those in federally related employment.
NYPPL
Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement
Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement
Burns v NY State and Local Police and Fire Retirement Systems, 258 AD2d 692
Town of Clarkstown police officer Robert Burns was granted Section 207-c benefits after suffering a work-related injury in May 1993. In 1996, the department filed an application for disability retirement with the State and Local Police and Fire Retirement Systems [PFRS] seeking Burns “involuntary retirement from the police force.”*
When PFRS asked Burns to sign a consent form for the release of his medical records for its review, he refused. The Comptroller then issued subpoenas for the production of his medical records to a hospital and to two physicians. Burns attempted to quash the subpoenas on the grounds that the release of his medical records would “violate the physician-patient privilege” of Section 4505 of the Civil Practice Law and Rules. The Appellate Division affirmed a lower court’s ruling that Section 4504 did not protect Burns’ medical records since the Comptroller had the authority to determine applications for retirement benefits and had statutory authority to issue subpoenas.
The Appellate Division said that Burns “affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege” by applying for Section 207-c benefits.
The Court said that “to exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of [Section 363-c(c)(2) of the Retirement and Social Security Law], expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.”
* Both Section 207-a and Section 207-c of the General Municipal Law authorize the employer to file an application for disability retirement on behalf of an individual receiving benefits pursuant to these sections.
NYPPL
Burns v NY State and Local Police and Fire Retirement Systems, 258 AD2d 692
Town of Clarkstown police officer Robert Burns was granted Section 207-c benefits after suffering a work-related injury in May 1993. In 1996, the department filed an application for disability retirement with the State and Local Police and Fire Retirement Systems [PFRS] seeking Burns “involuntary retirement from the police force.”*
When PFRS asked Burns to sign a consent form for the release of his medical records for its review, he refused. The Comptroller then issued subpoenas for the production of his medical records to a hospital and to two physicians. Burns attempted to quash the subpoenas on the grounds that the release of his medical records would “violate the physician-patient privilege” of Section 4505 of the Civil Practice Law and Rules. The Appellate Division affirmed a lower court’s ruling that Section 4504 did not protect Burns’ medical records since the Comptroller had the authority to determine applications for retirement benefits and had statutory authority to issue subpoenas.
The Appellate Division said that Burns “affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege” by applying for Section 207-c benefits.
The Court said that “to exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of [Section 363-c(c)(2) of the Retirement and Social Security Law], expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.”
* Both Section 207-a and Section 207-c of the General Municipal Law authorize the employer to file an application for disability retirement on behalf of an individual receiving benefits pursuant to these sections.
NYPPL
Employee may be disciplined for excessive absence from work
Employee may be disciplined for excessive absence from work
Gradel v Sullivan Co. Public Works, 257 AD2d 972
May an individual who has been authorized to take time off from work be disciplined for “excessive absence” based on an accumulation of “authorized” absences?
The Gradel case involved Section 75 disciplinary charges that were filed against Len Gradel, a Sullivan County sanitation worker. The charges alleged misconduct in the form of excessive absences, as well as poor job performance and insubordination, notwithstanding Gradel’s claim that he was authorized to take the time off.
“[T]he fact that [Gradel] was authorized to take the days off does not preclude a finding of guilt, especially where, as here, [Gradel] was repeatedly informed by memoranda that his pattern of absences was disruptive and burdensome to his employer and co-workers,” the Appellate Division ruled, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934.
Another issue involved the penalty imposed. Finding Gradel guilty of all of the charges filed against him, a hearing officer recommended that Gradel be suspended without pay for four days and placed on probation for one year.
The county, while agreeing with the hearing officer’s determination as to guilt, imposed the penalty of termination instead of the penalty recommended by the hearing officer. Gradel contended that the penalty imposed was excessive.
The Appellate Division rejected his arguments, holding that there was ample evidence in the record to support the hearing officer’s findings and confirm the county’s decision as to the penalty imposed. The court said that it was “unpersuaded by [Gradel’s] contention that the penalty of termination, which exceed that recommended by the Hearing Officer, was disproportionate to the offenses committed as to shock one’s sense of fairness.”
NYPPL
Gradel v Sullivan Co. Public Works, 257 AD2d 972
May an individual who has been authorized to take time off from work be disciplined for “excessive absence” based on an accumulation of “authorized” absences?
The Gradel case involved Section 75 disciplinary charges that were filed against Len Gradel, a Sullivan County sanitation worker. The charges alleged misconduct in the form of excessive absences, as well as poor job performance and insubordination, notwithstanding Gradel’s claim that he was authorized to take the time off.
“[T]he fact that [Gradel] was authorized to take the days off does not preclude a finding of guilt, especially where, as here, [Gradel] was repeatedly informed by memoranda that his pattern of absences was disruptive and burdensome to his employer and co-workers,” the Appellate Division ruled, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934.
Another issue involved the penalty imposed. Finding Gradel guilty of all of the charges filed against him, a hearing officer recommended that Gradel be suspended without pay for four days and placed on probation for one year.
The county, while agreeing with the hearing officer’s determination as to guilt, imposed the penalty of termination instead of the penalty recommended by the hearing officer. Gradel contended that the penalty imposed was excessive.
The Appellate Division rejected his arguments, holding that there was ample evidence in the record to support the hearing officer’s findings and confirm the county’s decision as to the penalty imposed. The court said that it was “unpersuaded by [Gradel’s] contention that the penalty of termination, which exceed that recommended by the Hearing Officer, was disproportionate to the offenses committed as to shock one’s sense of fairness.”
NYPPL
Nov 17, 2010
Website established for those interested in joining the Cuomo-Duffy administration
Website established for those interested in joining the Cuomo-Duffy administration
Source: Cuomo-Duffy Transition Committee
Interested in joining the Cuomo-Duffy administration?
There is a website where those interested in positions in the Cuomo-Duffy administration may submit their resumes for consideration electronically.
The several transition focus committees will review these resumes and subsequently submit their recommendations to Governor-elect Cuomo and Lieutenant Governor-elect Robert Duffy with respect to staffing key positions with the new administration.
Resumes for all administration positions may be filed at http://www.worksforny.com/.
NYPPL
Source: Cuomo-Duffy Transition Committee
Interested in joining the Cuomo-Duffy administration?
There is a website where those interested in positions in the Cuomo-Duffy administration may submit their resumes for consideration electronically.
The several transition focus committees will review these resumes and subsequently submit their recommendations to Governor-elect Cuomo and Lieutenant Governor-elect Robert Duffy with respect to staffing key positions with the new administration.
Resumes for all administration positions may be filed at http://www.worksforny.com/.
NYPPL
Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”
Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”
Matter of Swindell v Antonelli, 2010 NY Slip Op 08346, Decided on November 16, 2010, Appellate Division, First Department
Tajiri Swindell, an employee of the NYC Department of Corrections, was on the promotion list for Captain. When Swindell not appointed as Captain, she initiated an Article 78 action alleging that the decision not to promote her to captain was made in bad faith.
Supreme Court temporarily restrained Department of Correction from making appointments from the new list pending a court hearing.
The Appellate Division vacated the lower court’s order and dismissed Swindell’s petition.
The court said that the Department’s decision, in the light of “the open confidential investigation,” not to promote Swindell was “rational, reasonable, and made in good faith.”
Swindell’s claims of bad faith, said the court, were conclusory and speculative and thus she was not entitled to a judicial review of her claims.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08346.htm
NYPPL
Matter of Swindell v Antonelli, 2010 NY Slip Op 08346, Decided on November 16, 2010, Appellate Division, First Department
Tajiri Swindell, an employee of the NYC Department of Corrections, was on the promotion list for Captain. When Swindell not appointed as Captain, she initiated an Article 78 action alleging that the decision not to promote her to captain was made in bad faith.
Supreme Court temporarily restrained Department of Correction from making appointments from the new list pending a court hearing.
The Appellate Division vacated the lower court’s order and dismissed Swindell’s petition.
The court said that the Department’s decision, in the light of “the open confidential investigation,” not to promote Swindell was “rational, reasonable, and made in good faith.”
Swindell’s claims of bad faith, said the court, were conclusory and speculative and thus she was not entitled to a judicial review of her claims.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08346.htm
NYPPL
Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position
Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position
Bethel v McGrath-McKechnie, 258 AD2d 316, Reversed, 95 NY2d 7
If an employee is promoted to a position in which he or she is required to serve a probationary period, the individual is given a leave of absence from his or her former position and is to be restored to that position if he or she fails the probationary period (Section 63.1, Civil Service Law). Section 63.1 does not define the term “promotion”, however.
In the Bethel case, the Appellate Division said it is incorrect to assume that a “promotion” is restricted to a direct promotion in the chain of command. It ruled that an appointment to a position from an open competitive examination list having higher pay, more responsibility and more prestige qualified as a promotion. The Court of Appeals disagreed and reversed the Appellate Division’s determination.
Earlene Bethel was a New York City Contract Specialist Level II with the city’s Community Development Agency (CDA). In July 1994, she accepted a provisional appointment as a Staff Analyst, another position in CDA, and she was placed on leave from her Contract Specialist position. Nine months later she was permanently appointed to the title of Staff Analyst from on open competitive examination eligible list. She, accordingly, was required to serve a probationary period. At the same time, Bethel was told that “her leave from the title of Contract Specialist II was canceled.” CDA’s reason for discontinuing her leave of absence: Bethel had not been “promoted” and thus Section 63.1 did not apply in her situation.*
On January 11, 1996, while still a probationer, Bethel was summarily dismissed from her Staff Analyst position. CDA rejected her request to be restored to her former position on the grounds that she was not on leave from the position and therefore had no legal claim to it.
Although the Appellate Division decided that “under the unique circumstances presented, “cancellation of [Bethel’s] leave from her former position prior to the expiration of her probationary period was an abuse of discretion,” the Court of Appeal disagreed and reversed the Appellate Division’s ruling. The court said that although after passing the examination for Staff Analyst and being appointed to the title as a provisional employee and given a leave of absence from her permanent position as Contract Specialist II:
1. Bethel was appointed to the position of Staff Analyst from an open competitive examination.**
2. Civil Service Law § 63 and the corresponding rules "furnish job security [i.e., a leave of absence] to a permanent employee who is transferred or promoted to a position in which he or she is required to serve,” a probationary period for his or her probationary term" citing Matter of Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied, 77 NY2d 805.***
3. Bethel conceded that she was not "transferred," nor was she "promoted," to Staff Analyst and her argument that her appointment to Staff Analyst through an open examination rather than a promotional examination “is without consequence” is not persuasive.
4. The Civil Service Law and implementing rules and regulations do not mandate an agency place a permanent appointee on leave of absence from his or her former position while he or she is serving a probationary period in an effort to qualify for continuation in a position to which he or she has been neither promoted nor transferred.
Further, the Court of Appeals said that CDA's determination denying Bethel’s application for reinstatement to her former position of Contract Specialist was not an abuse of discretion and as Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.
Accordingly, said the court, Civil Service Law §75(1)(a) is inapplicable under the facts in this case. Accordingly, Bethel was not entitled to a hearing prior to her employer’s cancellation of her leave of absence from her former Contract Specialist position.
* CSL Section 63.1 applies to New York City personnel. Moreover, the city’s administrative code is consistent with Section 63.1 of the Civil Service Law. [See Rule 5.2.3 of the City’s Personnel Rules].
** In July 1994, after passing the examination, Bethel received a provisional appointment to Staff Analyst pending certification of the civil service list for the position to the Human Resources Administration.
*** An individual holding a position by permanent appointment who is place on a leave of absence upon promotion or transfer to another position may elect to return to his or her “permanent title” at any time during the probationary period.
NYPPL
Bethel v McGrath-McKechnie, 258 AD2d 316, Reversed, 95 NY2d 7
If an employee is promoted to a position in which he or she is required to serve a probationary period, the individual is given a leave of absence from his or her former position and is to be restored to that position if he or she fails the probationary period (Section 63.1, Civil Service Law). Section 63.1 does not define the term “promotion”, however.
In the Bethel case, the Appellate Division said it is incorrect to assume that a “promotion” is restricted to a direct promotion in the chain of command. It ruled that an appointment to a position from an open competitive examination list having higher pay, more responsibility and more prestige qualified as a promotion. The Court of Appeals disagreed and reversed the Appellate Division’s determination.
Earlene Bethel was a New York City Contract Specialist Level II with the city’s Community Development Agency (CDA). In July 1994, she accepted a provisional appointment as a Staff Analyst, another position in CDA, and she was placed on leave from her Contract Specialist position. Nine months later she was permanently appointed to the title of Staff Analyst from on open competitive examination eligible list. She, accordingly, was required to serve a probationary period. At the same time, Bethel was told that “her leave from the title of Contract Specialist II was canceled.” CDA’s reason for discontinuing her leave of absence: Bethel had not been “promoted” and thus Section 63.1 did not apply in her situation.*
On January 11, 1996, while still a probationer, Bethel was summarily dismissed from her Staff Analyst position. CDA rejected her request to be restored to her former position on the grounds that she was not on leave from the position and therefore had no legal claim to it.
Although the Appellate Division decided that “under the unique circumstances presented, “cancellation of [Bethel’s] leave from her former position prior to the expiration of her probationary period was an abuse of discretion,” the Court of Appeal disagreed and reversed the Appellate Division’s ruling. The court said that although after passing the examination for Staff Analyst and being appointed to the title as a provisional employee and given a leave of absence from her permanent position as Contract Specialist II:
1. Bethel was appointed to the position of Staff Analyst from an open competitive examination.**
2. Civil Service Law § 63 and the corresponding rules "furnish job security [i.e., a leave of absence] to a permanent employee who is transferred or promoted to a position in which he or she is required to serve,” a probationary period for his or her probationary term" citing Matter of Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied, 77 NY2d 805.***
3. Bethel conceded that she was not "transferred," nor was she "promoted," to Staff Analyst and her argument that her appointment to Staff Analyst through an open examination rather than a promotional examination “is without consequence” is not persuasive.
4. The Civil Service Law and implementing rules and regulations do not mandate an agency place a permanent appointee on leave of absence from his or her former position while he or she is serving a probationary period in an effort to qualify for continuation in a position to which he or she has been neither promoted nor transferred.
Further, the Court of Appeals said that CDA's determination denying Bethel’s application for reinstatement to her former position of Contract Specialist was not an abuse of discretion and as Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.
Accordingly, said the court, Civil Service Law §75(1)(a) is inapplicable under the facts in this case. Accordingly, Bethel was not entitled to a hearing prior to her employer’s cancellation of her leave of absence from her former Contract Specialist position.
* CSL Section 63.1 applies to New York City personnel. Moreover, the city’s administrative code is consistent with Section 63.1 of the Civil Service Law. [See Rule 5.2.3 of the City’s Personnel Rules].
** In July 1994, after passing the examination, Bethel received a provisional appointment to Staff Analyst pending certification of the civil service list for the position to the Human Resources Administration.
*** An individual holding a position by permanent appointment who is place on a leave of absence upon promotion or transfer to another position may elect to return to his or her “permanent title” at any time during the probationary period.
NYPPL
Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing
Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing
Gary Grippo v John P. Martin, 257 AD2d 952
After negotiations with union representatives, the Town of Glenville adopted a drug and alcohol policy in December 1995. The policy included a provision for the random testing of employees for drug and alcohol use. The policy also specified various disciplinary actions to be taken following positive test results. In particular, the policy provided that two positive tests within a 10-year period would result in the employee’s immediate termination.
Gary Grippo, a town employee since 1986, tested positive for drug and alcohol use in August 1996. In accordance with the policy, Grippo was suspended from his employment without pay for 30 days. Grippo tested positive a second time on May 15, 1997. He was informed of the test result and the penalty of termination was imposed.
Grippo challenged his dismissal, contending that by creating an “irrebuttable presumption of [Grippo’s] guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law Section 75[1].”
The Appellate Division disagreed and sustained a lower court’s ruling dismissing Grippo’s petition.
The Appellate Division commented that “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law”.
Accordingly, an employee organization may, pursuant to the provisions of a collective bargaining agreement, waive the employee’s Section 75 and 76 rights.
The decision points out that “both by statute and case law, such a waiver in a collective bargaining agreement of public employee statutory rights in disciplinary matters is not against public policy, and members of the bargaining unit are bound thereby.”
The court found that: (1) Glenville had negotiated with Grippo’s union to enact the drug and alcohol policy, and (2) Grippo was provided with a copy of the policy and expressly agreed to its terms by signing it.
NYPPL
Gary Grippo v John P. Martin, 257 AD2d 952
After negotiations with union representatives, the Town of Glenville adopted a drug and alcohol policy in December 1995. The policy included a provision for the random testing of employees for drug and alcohol use. The policy also specified various disciplinary actions to be taken following positive test results. In particular, the policy provided that two positive tests within a 10-year period would result in the employee’s immediate termination.
Gary Grippo, a town employee since 1986, tested positive for drug and alcohol use in August 1996. In accordance with the policy, Grippo was suspended from his employment without pay for 30 days. Grippo tested positive a second time on May 15, 1997. He was informed of the test result and the penalty of termination was imposed.
Grippo challenged his dismissal, contending that by creating an “irrebuttable presumption of [Grippo’s] guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law Section 75[1].”
The Appellate Division disagreed and sustained a lower court’s ruling dismissing Grippo’s petition.
The Appellate Division commented that “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law”.
Accordingly, an employee organization may, pursuant to the provisions of a collective bargaining agreement, waive the employee’s Section 75 and 76 rights.
The decision points out that “both by statute and case law, such a waiver in a collective bargaining agreement of public employee statutory rights in disciplinary matters is not against public policy, and members of the bargaining unit are bound thereby.”
The court found that: (1) Glenville had negotiated with Grippo’s union to enact the drug and alcohol policy, and (2) Grippo was provided with a copy of the policy and expressly agreed to its terms by signing it.
NYPPL
Negotiations during decertification action
Negotiations during decertification action
Advisory Opinion of Counsel 32 PERB 5002*
Sometimes the time becomes ripe for collective bargaining while a decertification petition is pending final determination. May the employer commence negotiations with a representative of a unit of public employees while the representation challenge concerning that unit is still pending?
PERB’s Counsel noted that in Matter of Rockland County, 10 PERB 3098, PERB held that “a public employer is not compelled to, and may not, negotiate with the incumbent employee organization while a bona fide question concerning representation is pending.”
However, Counsel noted that in earlier opinions it was indicate that such negotiations may be conducted in the face of a pending representation petition with the consent of all parties affected by the petition, citing 23 PERB 5001; 5002 and 5003.
Finally, the opinion notes that while the then recognized or certified bargaining agent for the unit may be barred from negotiating a successor agreement because of the pending representation petition, it has the “continuing right and duty to represent the at-issue unit” for the purposes of preserving the status quo and to respond to changes “through negotiations.”
* An Advisory Opinion of Counsel is not binding on PERB
NYPPL
Advisory Opinion of Counsel 32 PERB 5002*
Sometimes the time becomes ripe for collective bargaining while a decertification petition is pending final determination. May the employer commence negotiations with a representative of a unit of public employees while the representation challenge concerning that unit is still pending?
PERB’s Counsel noted that in Matter of Rockland County, 10 PERB 3098, PERB held that “a public employer is not compelled to, and may not, negotiate with the incumbent employee organization while a bona fide question concerning representation is pending.”
However, Counsel noted that in earlier opinions it was indicate that such negotiations may be conducted in the face of a pending representation petition with the consent of all parties affected by the petition, citing 23 PERB 5001; 5002 and 5003.
Finally, the opinion notes that while the then recognized or certified bargaining agent for the unit may be barred from negotiating a successor agreement because of the pending representation petition, it has the “continuing right and duty to represent the at-issue unit” for the purposes of preserving the status quo and to respond to changes “through negotiations.”
* An Advisory Opinion of Counsel is not binding on PERB
NYPPL
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Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard.
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