In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested
Appeal of Wornum seeking the removal of the Superintendent of the Westbury Union Free School District, Decisions of the Commissioner of Education, Decision #16,166
Larry D. Wornum, than a member of the School Board, asked the Commissioner of Education to remove Constance R. Clark-Snead from her position of Superintendent of the Westbury Union Free School. The Commissioner denied Wornum’s application.
Wornum alleged that that Clark-Snead had engaged in a pattern of “bad acts” including misleading the School Board on a number of occasions, authorizing School District expenditures without board approval; filing an appeal with the Commissioner of Education without School Board approval; and violating the State's Freedom of Information Law and its Open Meetings Law.
As to Wornum's "application in chief," a member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.
However, in an appeal to the Commissioner, the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief is placed on the petitioner.
The Commissioner initially addressed a number of procedural issue and determined that:
[1] certain documents submitted by Wornum were not verified as required by 8 NYCRR §275.5(a);
[2] there was no “proof of service’ which precluded his considering such submissions;
[3] he lacked jurisdiction to consider FOIL matters as Public Officers Law §§89 and 107 vest exclusive jurisdiction over complaints alleging violations of FOIL and the Open Meetings Law in State Supreme Court; and
[4] that Wornum’s appeal to the Commissioner was untimely filed with respect to a number of his allegations.
As to Wornum’s surviving allegation – Clark-Snead misled him as to her efforts to secure space for district pre-kindergarten classes – the Commissioner determined that Wornum's allegations "were conclusory" and that Wornum did not provide any documentary evidence to support his charge. Thus, said the Commissioner, Wornum “failed to meet his burden of proof and his claims must be dismissed.”
The Commissioner then addressed Clark-Snead’s request for a Certificate of Good Faith* pursuant to Education Law §3811(1)(c).
Noting that “it is appropriate to issue such Certification unless it is established on the record that [Clark-Snead] had acted in bad faith,” The Commissioner said that as there had been no such finding, Clark-Sneed was entitled to a certificate of good faith.
* A Certificate of Good Faith permit certain school districts or BOCES to reimburse individuals for legal fees and expenses, and where appropriate, damages for which the individual was held liable, incurred in the course of his or her participating in, or resulting from, the individual's appearing in a judicial or quasi-judicial proceeding, including those incurred in, or resulting from, a proceeding before the Commissioner of Education, pursuant to being instructed by a resolution adopted "at a district meeting to defend any action brought against them."
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16166.htm
Other recent decisions of the Commissioner of Education:
Appeal of ARK COMMUNITY CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Troy regarding nursing services. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16169.htm
Appeal of SUSAN ROTH from action of the Board of Education of the South Country Central School District, Montauk Bus Transportation, LLC and Coastal Charter Service Corp. regarding transportation contracts. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16171.htm
Appeal of N.C., on behalf of her daughter V.C., from action of the New York City Department of Education regarding immunization. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16172.htm
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Dec 10, 2010
Exhausting of Taylor Law contract remedies
Exhausting of Taylor Law contract remedies
Kaufmann v Rochester CSD, App. Div., Fourth Dept., 275 AD2d 890
The Rochester Board of Education attempted to have Susan K. Kaufmann’s lawsuit dismissed on the theory that Kaufmann had not exhausted her administrative remedies because she did not file a contract grievance concerning her complaint.
The Appellate Division, Fourth Department, quickly disposed of the district’s argument by pointing out that Kaufmann did not allege that the district had violated her rights under the collective bargaining agreement but rather she alleged that the district had violated her rights under Section 2585(2) of the Education Law.
Accordingly, said the court, Kaufmann was not required to file a grievance under the collective bargaining agreement concerning her complaint.
Education Law Section 2585(2) addresses situations involving the abolishment of one position and the creation of another position having similar duties and provides that the individual encumbering the abolished position shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been of faithful, competent service in the office or position he has filled.
NYPPL
Kaufmann v Rochester CSD, App. Div., Fourth Dept., 275 AD2d 890
The Rochester Board of Education attempted to have Susan K. Kaufmann’s lawsuit dismissed on the theory that Kaufmann had not exhausted her administrative remedies because she did not file a contract grievance concerning her complaint.
The Appellate Division, Fourth Department, quickly disposed of the district’s argument by pointing out that Kaufmann did not allege that the district had violated her rights under the collective bargaining agreement but rather she alleged that the district had violated her rights under Section 2585(2) of the Education Law.
Accordingly, said the court, Kaufmann was not required to file a grievance under the collective bargaining agreement concerning her complaint.
Education Law Section 2585(2) addresses situations involving the abolishment of one position and the creation of another position having similar duties and provides that the individual encumbering the abolished position shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been of faithful, competent service in the office or position he has filled.
NYPPL
Responding to Freedom of Information requests
Responding to Freedom of Information requests
McKethan v NY-NJ Port Authority, Appellate Division, First Dept., 277 AD2d 15
William McKethan obtained a court order pursuant to the Freedom of Information Law directing the New York-New Jersey Port Authority [New York Branch] to provide him with certain information. In a subsequent proceeding, State Supreme Court Judge Paula Omansky determined that the Authority had adequately respond[ed] to the court’s prior order. Not satisfied with the court’s determination, McKethan appealed.
The Appellate Division sustained Judge Omansky’s decision, holding that the Authority adequately established the nonexistence of additional records requested by [McKethan].
The reasoning of the court:
Once the Authority’s records access officer certified that respondent had provided McKethan with all responsive documents in its possession, McKethan was required to articulate a demonstrable factual basis to support his contention that the [further] requested documents existed and were within the [Authority’s] control.
Citing Gould v New York City Police Department, 89 NY2d 267, in support of its position, the Appellate Division ruled that McKethan has not met that burden.
NYPPL
McKethan v NY-NJ Port Authority, Appellate Division, First Dept., 277 AD2d 15
William McKethan obtained a court order pursuant to the Freedom of Information Law directing the New York-New Jersey Port Authority [New York Branch] to provide him with certain information. In a subsequent proceeding, State Supreme Court Judge Paula Omansky determined that the Authority had adequately respond[ed] to the court’s prior order. Not satisfied with the court’s determination, McKethan appealed.
The Appellate Division sustained Judge Omansky’s decision, holding that the Authority adequately established the nonexistence of additional records requested by [McKethan].
The reasoning of the court:
Once the Authority’s records access officer certified that respondent had provided McKethan with all responsive documents in its possession, McKethan was required to articulate a demonstrable factual basis to support his contention that the [further] requested documents existed and were within the [Authority’s] control.
Citing Gould v New York City Police Department, 89 NY2d 267, in support of its position, the Appellate Division ruled that McKethan has not met that burden.
NYPPL
Loss of a required license or certification bars the incumbent from performing the duties of the position
Loss of a required license or certification bars the incumbent from performing the duties of the position
Agriculture and Markets v Public Employees Federation, App. Div., Third Dept., 277 AD2d 564
Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?
This was the issue when Sahedou Ousman, an assistant farm products inspector assigned to inspect eggs pursuant to an agreement with the US Department of Agriculture [USDA] lost his Federal egg product inspection license.
According to the decision, Ousman’s license was revoked by the USDA because of his failure to consistently follow instructions, adhere to established procedures and repeated instances of tardiness and unauthorized absences from his place of employment during his normal tour of duty.
Agriculture and Markets [A&M] terminated Ousman’s employment on the grounds that his loss of his license resulted in his being unqualified to perform the duties of an assistant farm products inspector.
A&M, pursuant to an agreement with the Public Employees Federation, Ousman’s collective bargaining representative, subsequently reinstated him. It then placed Ousman on administrative leave and initiated disciplinary action against him under the contract disciplinary procedure set out in a Taylor Law agreement.
The charge: incompetence in that he failed to maintain his Federal egg product inspection license that was required for his continued employment as an egg inspector.
Ultimately an arbitrator ruled that the Federal egg product inspection license was not a prerequisite for the position of an assistant farm products inspector and there were employment opportunities within that title to which Ousman could have been assigned that did not require Federal licensure at that time. The arbitrator’s conclusion: Ousman should not have been terminated.
The arbitrator’s ruling is consistent with the court’s ruling in the Lekkas case [Martin ex rel Lekkas, 86 AD2d 712]. Here the issue concerned Lekkas’ lack of license to practice medicine in New York State although he had been appointed to the position of Assistant Clinical Physician with a State agency. In Lekkas the Appellate Division ruled that although an employee who does not possess a valid license required to perform the duties of the position may be summarily discharged without notice and hearing, it determined that Lekkas was performing administrative duties rather than practicing medicine. Thus, said the court, Lekkas was not required by law to hold a license to practice medicine even though he held the title Assistant Clinical Physician. Accordingly, he could not be summarily removed from the position merely because he was not a licensed physician.
The arbitrator directed A&M to restore Ousman to pay status with all rights and benefits effective July 1, 1997, back pay to be adjusted to reflect any income or unemployment compensation benefits received since that time.
The decision also directed A&M to offer Ousman the next available position within title or, in the alternative, continue him on paid administrative leave and file charges against him based upon his unsatisfactory performance of his duties as a State employee prior to April 15, 1997.
The Appellate Division rejected A&M’s attempt to annul the arbitration award on the grounds that the award was wholly irrational and violated a fundamental public policy regarding civil service appointment requirements and the State’s compelling interest in ensuring a safe food supply to the public.
Noting that the notice of discipline filed by A&M limited the arbitrator’s inquiry to whether Ousman’s loss of his Federal license rendered him unqualified to perform the duties of an assistant farm products inspector warranting his dismissal, the Appellate Division ruled that the arbitrator’s determination did not require A&M to reinstate Ousman to another food inspection position since it allowed it the alternative of continuing Ousman on administrative leave and filing the appropriate disciplinary charge reflecting his general incompetence and lack of qualifications for any position within his title of employment.
The Appellate Division’s conclusion: the arbitration award simply extends to Ousman the protection of the collective bargaining agreement that A&M agrees is applicable and cannot be said to be violative of any strong public policy or the State constitutional mandate that civil service appointments be based on merit.
It is well settled that where a statute requires an individual to have a valid license or certification or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or certification or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.
For example, the courts have little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.
Although such a person may continue to be qualified to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183. The rationale in such cases: it is unlawful to continue a tenured but unlicensed teacher on the payroll as he or she is barred from performing his or her teaching duties and to retain such a person on the payroll as a teacher would constitute an unconstitutional gift of public monies.
There is nothing, however, that would prevent the appointing authority from placing such an individual in another position for which he or she is qualified and for which a license is not required as an alternative to dismissal or removal from the payroll.
Another common situations that result in a bar to continued employment in a position: the expiration, suspension or revocation of a driver’s license when the duties of the position require the incumbent of the position to drive a motor vehicle.
NYPPL
Agriculture and Markets v Public Employees Federation, App. Div., Third Dept., 277 AD2d 564
Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?
This was the issue when Sahedou Ousman, an assistant farm products inspector assigned to inspect eggs pursuant to an agreement with the US Department of Agriculture [USDA] lost his Federal egg product inspection license.
According to the decision, Ousman’s license was revoked by the USDA because of his failure to consistently follow instructions, adhere to established procedures and repeated instances of tardiness and unauthorized absences from his place of employment during his normal tour of duty.
Agriculture and Markets [A&M] terminated Ousman’s employment on the grounds that his loss of his license resulted in his being unqualified to perform the duties of an assistant farm products inspector.
A&M, pursuant to an agreement with the Public Employees Federation, Ousman’s collective bargaining representative, subsequently reinstated him. It then placed Ousman on administrative leave and initiated disciplinary action against him under the contract disciplinary procedure set out in a Taylor Law agreement.
The charge: incompetence in that he failed to maintain his Federal egg product inspection license that was required for his continued employment as an egg inspector.
Ultimately an arbitrator ruled that the Federal egg product inspection license was not a prerequisite for the position of an assistant farm products inspector and there were employment opportunities within that title to which Ousman could have been assigned that did not require Federal licensure at that time. The arbitrator’s conclusion: Ousman should not have been terminated.
The arbitrator’s ruling is consistent with the court’s ruling in the Lekkas case [Martin ex rel Lekkas, 86 AD2d 712]. Here the issue concerned Lekkas’ lack of license to practice medicine in New York State although he had been appointed to the position of Assistant Clinical Physician with a State agency. In Lekkas the Appellate Division ruled that although an employee who does not possess a valid license required to perform the duties of the position may be summarily discharged without notice and hearing, it determined that Lekkas was performing administrative duties rather than practicing medicine. Thus, said the court, Lekkas was not required by law to hold a license to practice medicine even though he held the title Assistant Clinical Physician. Accordingly, he could not be summarily removed from the position merely because he was not a licensed physician.
The arbitrator directed A&M to restore Ousman to pay status with all rights and benefits effective July 1, 1997, back pay to be adjusted to reflect any income or unemployment compensation benefits received since that time.
The decision also directed A&M to offer Ousman the next available position within title or, in the alternative, continue him on paid administrative leave and file charges against him based upon his unsatisfactory performance of his duties as a State employee prior to April 15, 1997.
The Appellate Division rejected A&M’s attempt to annul the arbitration award on the grounds that the award was wholly irrational and violated a fundamental public policy regarding civil service appointment requirements and the State’s compelling interest in ensuring a safe food supply to the public.
Noting that the notice of discipline filed by A&M limited the arbitrator’s inquiry to whether Ousman’s loss of his Federal license rendered him unqualified to perform the duties of an assistant farm products inspector warranting his dismissal, the Appellate Division ruled that the arbitrator’s determination did not require A&M to reinstate Ousman to another food inspection position since it allowed it the alternative of continuing Ousman on administrative leave and filing the appropriate disciplinary charge reflecting his general incompetence and lack of qualifications for any position within his title of employment.
The Appellate Division’s conclusion: the arbitration award simply extends to Ousman the protection of the collective bargaining agreement that A&M agrees is applicable and cannot be said to be violative of any strong public policy or the State constitutional mandate that civil service appointments be based on merit.
It is well settled that where a statute requires an individual to have a valid license or certification or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or certification or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.
For example, the courts have little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.
Although such a person may continue to be qualified to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183. The rationale in such cases: it is unlawful to continue a tenured but unlicensed teacher on the payroll as he or she is barred from performing his or her teaching duties and to retain such a person on the payroll as a teacher would constitute an unconstitutional gift of public monies.
There is nothing, however, that would prevent the appointing authority from placing such an individual in another position for which he or she is qualified and for which a license is not required as an alternative to dismissal or removal from the payroll.
Another common situations that result in a bar to continued employment in a position: the expiration, suspension or revocation of a driver’s license when the duties of the position require the incumbent of the position to drive a motor vehicle.
NYPPL
Dec 9, 2010
Collective bargaining after the Taylor Law Agreement expires
Collective bargaining after the Taylor Law Agreement expires
Local 2562 v PERB, App. Div., Third Dept., 276 AD2d 184, Motion for leave to appeal denied, 96 NY2d 711
In the Local 2562 case, the Appellate Division sustained a Public Employment Relations Board [PERB] ruling that held that a nonmandatory subject of collective bargaining, if continued after the expiration of a collective bargaining agreement [CBA] under the Triboro Doctrine [Civil Service Law Section 209-a(1)(e)], is converted into a mandatory subject of collective bargaining.
The Triboro Doctrine essentially requires a public employer to continue all terms of an expired collective bargaining agreement -- whether mandatory or nonmandatory subjects -- until the parties reach a new agreement.
Uniform Firefighters Local 2562 [City of Cohoes] appealed a PERB decision holding that certain otherwise nonmandatory proposals made by the City in the course of negotiating a successor to an expired CBA are mandatory subjects of collective bargaining.
Local 2562 sued, contending that PERB’s determinations departed from its prior precedent and redefined what may constitute a mandatory subject of negotiation upon the expiration of a collective bargaining agreement between police officers and firefighters and their municipal employers.
In particular, Local 2562 objected to PERB’s rulings concerning the City’s proposal to delete or alter certain terms in the expired CBA relating to staffing composition and job assignment and the City’s proposal affecting General Municipal Law Section 207-a disability benefits.
Agreeing to the Section 207-a proposal, said the union, would require its members to give up certain statutory rights and privileges. In addition, Local 2562 complained that the City’s staffing proposals concerned officer replacement procedures and the obligation of firefighters to engage in snow removal and were previously viewed as managerial prerogatives deemed nonmandatory subjects of negotiation prior to their inclusion in the parties’ previous CBA.
According to the decision, PERB’s overruling its long-standing precedent meant that once nonmandatory subjects have been incorporated into a CBA involving police officers and firefighters, such items become mandatory subjects of negotiation for the purposes of negotiating a subsequent agreement in a Triboro Doctrine situation.
PERB also ruled that proposals concerning the terms and conditions of employment that would require an employee organization or its members to waive or modify statutory rights and privileges are also mandatorily negotiable, unless bargaining as to those matters is foreclosed by clear legislative intent or public policy.
PERB’s explanation: its new interpretation corrects an imbalance resulting from the enactment of Section 209-a(1)(e) of the Taylor Law which codified the so-called Triboro Doctrine.
The Appellate Division said that PERB provided “a detailed explanation for its decision to depart from its previous analysis on the ground that it intended to create a more equal bargaining posture between the parties in order to foster productive negotiation....”
Accordingly, said the court, recognizing the deference to which PERB’s determinations are entitled in the realm of improper labor practices, it found that its action was neither arbitrary nor irrational.
As to PERB’s determining the negotiability of proposals alleged to flow from a statutory right or benefit, in the past PERB automatically categorized such proposals as nonmandatory without analysis of whether negotiations concerning particular proposals would be consistent with the applicable statute’s legislative intent, public policy, or the furtherance of the objectives of the Taylor Law. Under its new policy, PERB would consider such demands on a case-by-case basis.
The Appellate Division said that PERB’s approach -- reviewing each such proposal case-by-case -- appears to be substantially the same as the method used to determine whether proposals of employee organizations that implicate the rights of public employers are mandatorily negotiable.
The court rejected Local 2562’s argument that by requiring that proposals relating to the waiver of statutory rights be subject to negotiation, PERB is effectuating the involuntary waiver of those rights. It said that although the Taylor Law clearly provides that the obligation to negotiate concerning terms and conditions of employment it does not compel either party to agree to a proposal or require the making of a concession.
The bottom line: the court affirmed the Supreme Court’s dismissal of Local 2562’s challenge to PERB’s determinations, indicating that they were neither arbitrary, capricious, an abuse of discretion nor affected by an error of law.
NYPPL
Local 2562 v PERB, App. Div., Third Dept., 276 AD2d 184, Motion for leave to appeal denied, 96 NY2d 711
In the Local 2562 case, the Appellate Division sustained a Public Employment Relations Board [PERB] ruling that held that a nonmandatory subject of collective bargaining, if continued after the expiration of a collective bargaining agreement [CBA] under the Triboro Doctrine [Civil Service Law Section 209-a(1)(e)], is converted into a mandatory subject of collective bargaining.
The Triboro Doctrine essentially requires a public employer to continue all terms of an expired collective bargaining agreement -- whether mandatory or nonmandatory subjects -- until the parties reach a new agreement.
Uniform Firefighters Local 2562 [City of Cohoes] appealed a PERB decision holding that certain otherwise nonmandatory proposals made by the City in the course of negotiating a successor to an expired CBA are mandatory subjects of collective bargaining.
Local 2562 sued, contending that PERB’s determinations departed from its prior precedent and redefined what may constitute a mandatory subject of negotiation upon the expiration of a collective bargaining agreement between police officers and firefighters and their municipal employers.
In particular, Local 2562 objected to PERB’s rulings concerning the City’s proposal to delete or alter certain terms in the expired CBA relating to staffing composition and job assignment and the City’s proposal affecting General Municipal Law Section 207-a disability benefits.
Agreeing to the Section 207-a proposal, said the union, would require its members to give up certain statutory rights and privileges. In addition, Local 2562 complained that the City’s staffing proposals concerned officer replacement procedures and the obligation of firefighters to engage in snow removal and were previously viewed as managerial prerogatives deemed nonmandatory subjects of negotiation prior to their inclusion in the parties’ previous CBA.
According to the decision, PERB’s overruling its long-standing precedent meant that once nonmandatory subjects have been incorporated into a CBA involving police officers and firefighters, such items become mandatory subjects of negotiation for the purposes of negotiating a subsequent agreement in a Triboro Doctrine situation.
PERB also ruled that proposals concerning the terms and conditions of employment that would require an employee organization or its members to waive or modify statutory rights and privileges are also mandatorily negotiable, unless bargaining as to those matters is foreclosed by clear legislative intent or public policy.
PERB’s explanation: its new interpretation corrects an imbalance resulting from the enactment of Section 209-a(1)(e) of the Taylor Law which codified the so-called Triboro Doctrine.
The Appellate Division said that PERB provided “a detailed explanation for its decision to depart from its previous analysis on the ground that it intended to create a more equal bargaining posture between the parties in order to foster productive negotiation....”
Accordingly, said the court, recognizing the deference to which PERB’s determinations are entitled in the realm of improper labor practices, it found that its action was neither arbitrary nor irrational.
As to PERB’s determining the negotiability of proposals alleged to flow from a statutory right or benefit, in the past PERB automatically categorized such proposals as nonmandatory without analysis of whether negotiations concerning particular proposals would be consistent with the applicable statute’s legislative intent, public policy, or the furtherance of the objectives of the Taylor Law. Under its new policy, PERB would consider such demands on a case-by-case basis.
The Appellate Division said that PERB’s approach -- reviewing each such proposal case-by-case -- appears to be substantially the same as the method used to determine whether proposals of employee organizations that implicate the rights of public employers are mandatorily negotiable.
The court rejected Local 2562’s argument that by requiring that proposals relating to the waiver of statutory rights be subject to negotiation, PERB is effectuating the involuntary waiver of those rights. It said that although the Taylor Law clearly provides that the obligation to negotiate concerning terms and conditions of employment it does not compel either party to agree to a proposal or require the making of a concession.
The bottom line: the court affirmed the Supreme Court’s dismissal of Local 2562’s challenge to PERB’s determinations, indicating that they were neither arbitrary, capricious, an abuse of discretion nor affected by an error of law.
NYPPL
Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district
Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district
Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602
As a general rule, Section 3813 of the Education Law requires that in order to sue a school district the plaintiff must file a timely notice of claim if he or she plans or expects to sue the district. Such notices are usually required with respect to claims related to or involving personnel decisions.
The Mennella case, for example, concerned the termination of a probationary employee and turned on whether the court should excuse a late filing of such a claim pursuant to Section 3813(2-a) of the Education Law.
As a condition precedent to commencement of an action against a school district, Education Law §3813(1) requires that a written verified claim be delivered to the school district within three months of accrual of the claim. The Section 3813 notice must set out the nature of the claim, and the “essential facts underlying the claim.” Citing Matter of Board of Educ. v Ambach, 81 AD2d 691, the Appellate Division noted that “a petition to the Commissioner of Education can constitute the functional equivalent of a notice of claim.”
In this instance, Mennella filed a petition with the Commissioner of Education challenging the school district’s decision terminating him from employment within a week of the district’s action. The petition included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were "baseless."
Accordingly, the Appellate Division concluded that Mennella’s petition to the Commissioner of Education constituted the functional equivalent of a notice of claim for the purposes of Education Law Section 3813 insofar as his going forward with litigation regarding his allegations of racial discrimination is concerned.
NYPPL
Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602
As a general rule, Section 3813 of the Education Law requires that in order to sue a school district the plaintiff must file a timely notice of claim if he or she plans or expects to sue the district. Such notices are usually required with respect to claims related to or involving personnel decisions.
The Mennella case, for example, concerned the termination of a probationary employee and turned on whether the court should excuse a late filing of such a claim pursuant to Section 3813(2-a) of the Education Law.
As a condition precedent to commencement of an action against a school district, Education Law §3813(1) requires that a written verified claim be delivered to the school district within three months of accrual of the claim. The Section 3813 notice must set out the nature of the claim, and the “essential facts underlying the claim.” Citing Matter of Board of Educ. v Ambach, 81 AD2d 691, the Appellate Division noted that “a petition to the Commissioner of Education can constitute the functional equivalent of a notice of claim.”
In this instance, Mennella filed a petition with the Commissioner of Education challenging the school district’s decision terminating him from employment within a week of the district’s action. The petition included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were "baseless."
Accordingly, the Appellate Division concluded that Mennella’s petition to the Commissioner of Education constituted the functional equivalent of a notice of claim for the purposes of Education Law Section 3813 insofar as his going forward with litigation regarding his allegations of racial discrimination is concerned.
NYPPL
Medical experts and conflicting medical opinions
Medical experts and conflicting medical opinions
Harper v McCall, App. Div., Third Dept., 277 AD2d 589
Pauline Harper challenged the rejection of her applications for ordinary and accidental disability retirement benefits by the New York State Employees’ Retirement System, contending that the Comptroller should have considered the expert medical opinion of her physician in making his determination.
Harper, a school bus driver, claimed that she was permanently disabled due to a neck condition. Her personal physician said that Harper was permanently incapacitated from performing the duties of a school bus driver as a result of a degenerative arthritic condition in her neck that was asymptomatic prior to a 1994 work-related accident that aggravated the condition.
The retirement system’s expert testified that, while Harper exhibited pain and discomfort when he examined her in 1997, he could find no objective evidence of neurological disease or injury that would cause her subjective symptoms, and he concluded that petitioner could perform the duties of a school bus driver.
The Appellate Division rejected Harper’s appeal, commenting that “[i]t is well settled that [the Comptroller] has the authority to resolve conflicts in medical opinion and to credit the testimony of one expert over that of another and may rely on an expert opinion based on a review of medical records and a physical examination is generally credible evidence.”
NYPPL
Harper v McCall, App. Div., Third Dept., 277 AD2d 589
Pauline Harper challenged the rejection of her applications for ordinary and accidental disability retirement benefits by the New York State Employees’ Retirement System, contending that the Comptroller should have considered the expert medical opinion of her physician in making his determination.
Harper, a school bus driver, claimed that she was permanently disabled due to a neck condition. Her personal physician said that Harper was permanently incapacitated from performing the duties of a school bus driver as a result of a degenerative arthritic condition in her neck that was asymptomatic prior to a 1994 work-related accident that aggravated the condition.
The retirement system’s expert testified that, while Harper exhibited pain and discomfort when he examined her in 1997, he could find no objective evidence of neurological disease or injury that would cause her subjective symptoms, and he concluded that petitioner could perform the duties of a school bus driver.
The Appellate Division rejected Harper’s appeal, commenting that “[i]t is well settled that [the Comptroller] has the authority to resolve conflicts in medical opinion and to credit the testimony of one expert over that of another and may rely on an expert opinion based on a review of medical records and a physical examination is generally credible evidence.”
NYPPL
Dec 8, 2010
Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"
Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"
Source: Virtual LegalTech
A one-hour webinar entitled, "Addressing and Assessing the Risks of Moving to the Cloud," will offered by Virtual LegalTech on December 14, 2010 from 1:30 – 2:30 PM ET.
The webinar will discuss the merits and pitfalls of the cloud, examining the issues surrounding chain of custody, legal hold and review capabilities in the event of an e-discovery request and how well will privacy be maintained.
Participants in the webinar are eligible for CLE in certain jurisdictions.*
Registration is complimentary. Follow this link to register.
The full schedule for these CLE accredited sessions* at Virtual LegalTech on December 14, 2010 follows:
9:00 – 10:00 am ET – Information Governance: Managing your Information to Reduce the Costs of Discovery
9:30 – 10:30 am ET – Ethical and Privilege Issues for Pharmaceutical Whistleblowers Counsel
10:00 – 11:00 am ET – Facing the Legal Dangers of Social Media1
2:15 – 1:15 pm ET – Frontiers of E-Discovery: What you Need to Know about Predictive Coding
1:30 – 2:30 pm ET – Addressing and Assessing the Risks of Moving to the Cloud
3:00 - 4:00 pm ET – Ethical Considerations in the New Era of Whistleblower Claims Under Dodd-Frank and Other Statutes
3:45 – 4:45 pm ET – Back to the Future: The Most Important 2020 E-Discovery Cases, and a Look Ahead to 2011
If you have additional CLE questions, please contact Virtual LegalTech at 212.457.7912 or via e-mail at ljackson@alm.com .
* Complimentary CLE is approved by the responsible authorizing agencies in New York, California and Illinois. Approval of CLE credit is pending in Florida.
Source: Virtual LegalTech
A one-hour webinar entitled, "Addressing and Assessing the Risks of Moving to the Cloud," will offered by Virtual LegalTech on December 14, 2010 from 1:30 – 2:30 PM ET.
The webinar will discuss the merits and pitfalls of the cloud, examining the issues surrounding chain of custody, legal hold and review capabilities in the event of an e-discovery request and how well will privacy be maintained.
Participants in the webinar are eligible for CLE in certain jurisdictions.*
Registration is complimentary. Follow this link to register.
The full schedule for these CLE accredited sessions* at Virtual LegalTech on December 14, 2010 follows:
9:00 – 10:00 am ET – Information Governance: Managing your Information to Reduce the Costs of Discovery
9:30 – 10:30 am ET – Ethical and Privilege Issues for Pharmaceutical Whistleblowers Counsel
10:00 – 11:00 am ET – Facing the Legal Dangers of Social Media1
2:15 – 1:15 pm ET – Frontiers of E-Discovery: What you Need to Know about Predictive Coding
1:30 – 2:30 pm ET – Addressing and Assessing the Risks of Moving to the Cloud
3:00 - 4:00 pm ET – Ethical Considerations in the New Era of Whistleblower Claims Under Dodd-Frank and Other Statutes
3:45 – 4:45 pm ET – Back to the Future: The Most Important 2020 E-Discovery Cases, and a Look Ahead to 2011
If you have additional CLE questions, please contact Virtual LegalTech at 212.457.7912 or via e-mail at ljackson@alm.com .
* Complimentary CLE is approved by the responsible authorizing agencies in New York, California and Illinois. Approval of CLE credit is pending in Florida.
Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense
Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense
Wolfe v Kelly, 2010 NY Slip Op 08847, decided on December 2, 2010, Appellate Division, First Department
Eric Wolfe, a New York City Police Department detective, was served with disciplinary charges alleging that He was guilty of perjury and the confiscation of drugs and money for personal gain involving Wolfe’s “stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999.”
Terminated from his position, Wolfe contended that he was denied due process of law, and that the lack of specificity in the charges prevented him from preparing any type of defense other than offering a general denial of any wrongdoing.
The Appellate Division, noting that Wolfe’s disciplinary hearing was held some six to eight years after the alleged acts of misconduct occurred, agreed.
Specification 1 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals who were traveling in cabs and confiscated, without affecting [sic] an arrest and for personal monetary gain, a quantity of heroin from one, and a quantity of prescription drugs from the other."
Specification 2 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals and confiscated, for personal monetary gain, a quantity of United States currency."
Specification 3 alleged that on or about and between April 23, 1998, and December 17, 1998, Wolfe testified falsely while under oath during an official court proceeding, in violation of Penal Law §210.15.
The Appellate Division explained that “It is well settled that the principles of due process applicable to criminal trials apply to government administrative proceedings, citing Matter of Murray v Murphy, 24 NY2d 150” and that the requirements of due process of law applied here because Wolfe has a constitutionally protected property interest in continued public employment.
Further, said the court, due process requires that the accused employee be provided with the notice of the charges that are "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense," citing Matter of Block v Ambach, 73 NY2d 323.
While the specificity of the notice of charges required varies from case to case, but it must be specific enough to give actual notice to the party being charged.
The Appellate Division agreed with Wolfe that indicating a general time frame that spanned two entire years was not reasonably specific so as to satisfy due process requirements.*
The Appellate Division characterized the Department’s rebuttal of Wolfe’s claims to the effect that Wolfe could have offered an alibi defense by testifying about "any times during those two years when . . . he was not partners with [New York City police officers Julio] Vasquez or [Thomas] Rachko"** as “an incomprehensible — and inane — argument, and one that impermissibly shifts the burden of proof” to Wolfe.
In addition, the court commented that:
Equally incomprehensible is that, in denying petitioner's motion to dismiss for violation of due process, the ADC stated that "the unique nature of events alleged, the places where the misconduct occurred and the witnesses present, provided the defense with ample opportunity to prepare." The alleged incidents could only be assumed as "unique" if [Wolfe] was, indeed, guilty as charged. Otherwise, as the record reflects, there was nothing at all unusual or "unique" about any of the circumstances surrounding the alleged misconduct.
Annulling the Commissioner’s determination as to Specifications 1 and 2, the Appellate Division then rejected Wolfe’s arguments with respect to Specification 3 “given the low threshold in a substantial evidence analysis” and affirmed the Commissioner's determination that Wolfe was guilty of Specification 3.
As the penalty imposed on Wolfe, termination from his position, the court remanded the matter to the Department for its reconsideration based the court's annulling Specifications 1 and 2.
* The Appellate Division said that Wolfe’s alleged misconduct in specifications one and two applied to three or four discrete incidents and was therefore “not an offense of an ongoing/continuing nature.”
** In November 2003, Vasquez and Rachko were arrested for the theft of $169,000 from a narcotics merchant who was under federal surveillance. Both subsequently entered into cooperation agreements with federal authorities, the terms of which required them "to testify at any proceeding in the Eastern District of New York or elsewhere as requested by the [U.S. Attorney's] Office." They were required to testify at Wolfe’s hearing. The decision notes that “In exchange for their testimony, Vasquez and Rachko were given the possibility of lighter sentences, and the Manhattan District Attorney's office agreed not to prosecute them for any crimes they may have committed in New York County. Both former officers were facing terms of life imprisonment at the time of petitioner's administrative hearing but had not been sentenced.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08847.htm
Wolfe v Kelly, 2010 NY Slip Op 08847, decided on December 2, 2010, Appellate Division, First Department
Eric Wolfe, a New York City Police Department detective, was served with disciplinary charges alleging that He was guilty of perjury and the confiscation of drugs and money for personal gain involving Wolfe’s “stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999.”
Terminated from his position, Wolfe contended that he was denied due process of law, and that the lack of specificity in the charges prevented him from preparing any type of defense other than offering a general denial of any wrongdoing.
The Appellate Division, noting that Wolfe’s disciplinary hearing was held some six to eight years after the alleged acts of misconduct occurred, agreed.
Specification 1 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals who were traveling in cabs and confiscated, without affecting [sic] an arrest and for personal monetary gain, a quantity of heroin from one, and a quantity of prescription drugs from the other."
Specification 2 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals and confiscated, for personal monetary gain, a quantity of United States currency."
Specification 3 alleged that on or about and between April 23, 1998, and December 17, 1998, Wolfe testified falsely while under oath during an official court proceeding, in violation of Penal Law §210.15.
The Appellate Division explained that “It is well settled that the principles of due process applicable to criminal trials apply to government administrative proceedings, citing Matter of Murray v Murphy, 24 NY2d 150” and that the requirements of due process of law applied here because Wolfe has a constitutionally protected property interest in continued public employment.
Further, said the court, due process requires that the accused employee be provided with the notice of the charges that are "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense," citing Matter of Block v Ambach, 73 NY2d 323.
While the specificity of the notice of charges required varies from case to case, but it must be specific enough to give actual notice to the party being charged.
The Appellate Division agreed with Wolfe that indicating a general time frame that spanned two entire years was not reasonably specific so as to satisfy due process requirements.*
The Appellate Division characterized the Department’s rebuttal of Wolfe’s claims to the effect that Wolfe could have offered an alibi defense by testifying about "any times during those two years when . . . he was not partners with [New York City police officers Julio] Vasquez or [Thomas] Rachko"** as “an incomprehensible — and inane — argument, and one that impermissibly shifts the burden of proof” to Wolfe.
In addition, the court commented that:
Equally incomprehensible is that, in denying petitioner's motion to dismiss for violation of due process, the ADC stated that "the unique nature of events alleged, the places where the misconduct occurred and the witnesses present, provided the defense with ample opportunity to prepare." The alleged incidents could only be assumed as "unique" if [Wolfe] was, indeed, guilty as charged. Otherwise, as the record reflects, there was nothing at all unusual or "unique" about any of the circumstances surrounding the alleged misconduct.
Annulling the Commissioner’s determination as to Specifications 1 and 2, the Appellate Division then rejected Wolfe’s arguments with respect to Specification 3 “given the low threshold in a substantial evidence analysis” and affirmed the Commissioner's determination that Wolfe was guilty of Specification 3.
As the penalty imposed on Wolfe, termination from his position, the court remanded the matter to the Department for its reconsideration based the court's annulling Specifications 1 and 2.
* The Appellate Division said that Wolfe’s alleged misconduct in specifications one and two applied to three or four discrete incidents and was therefore “not an offense of an ongoing/continuing nature.”
** In November 2003, Vasquez and Rachko were arrested for the theft of $169,000 from a narcotics merchant who was under federal surveillance. Both subsequently entered into cooperation agreements with federal authorities, the terms of which required them "to testify at any proceeding in the Eastern District of New York or elsewhere as requested by the [U.S. Attorney's] Office." They were required to testify at Wolfe’s hearing. The decision notes that “In exchange for their testimony, Vasquez and Rachko were given the possibility of lighter sentences, and the Manhattan District Attorney's office agreed not to prosecute them for any crimes they may have committed in New York County. Both former officers were facing terms of life imprisonment at the time of petitioner's administrative hearing but had not been sentenced.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08847.htm
Placement on a preferred list
Placement on a preferred list
Bratge v Stockbridge Valley CSD, Decision of the Commissioner of Education #14454
The Bratge case demonstrates the importance of complying with all statutory and contractual procedures relevant to personnel actions.
The Stockbridge Valley Central School District appointed Katrina Bratge as an Assistant Building Principal/Guidance Counselor [K-12]. Bratge’s appointment was subject to a three-year probationary period.
In March 1999 School Superintendent Charles Stratton met with Bratge. According to Bratge, the superintendent told her that the district intended to eliminate her position in favor of creating a new full-time guidance counselor position and converting a part-time business administrator position to a full-time position.
Stratton, on the other hand, said that he had told Bratge that he intended to terminate her probationary employment but that she would be allowed to resign rather than be terminated.
In August 1999 Bratge wrote to the school board indicating that she did not intend to resign her position and requested it place her name on the preferred eligibility list for appointment as a guidance or administrative position should one become available in accordance with Sections 2510(3) and 3013(3) of the Education Law.
In response, the district wrote to Bratge advising her that because she had voluntarily resigned from her position and had returned to a position with the Rome City School District ... she had no recall rights. Bratge wrote the district to clarify the events that had led to her asking to be placed on a preferred list and repeated her request. When the district failed to act, Bratge asked the Commissioner to order it to place her on a preferred list.
Although the Commissioner ruled that Bratge’s appeal had to be dismissed because it was untimely, he elected to comment on the merits of her appeal.
The Commissioner pointed out that the problem resulted because the district did not provide Bratge with a clear and unambiguous notice of its intentions. Although the district claims that Bratge agreed to resign and asked for her letter of resignation, it never actually received a written resignation from her.
Despite not having received Bratge’s written resignation, the Commissioner noted, the district did not take the procedural steps required to terminate her probationary employment.* This, according to the Commissioner, left Bratge unsure of her exact status and the district believing that the position was vacant as of the beginning of the 1999-2000 school year.
The Commissioner also took the opportunity to point out that personnel decisions must comply with all applicable legal and contractual requirements. In the event the district provides an employee with an option of resigning in lieu of termination, it must comply with all statutory and contractual notification requirements if it then wishes to terminate an employee who does not voluntarily submit his or her written resignation.
One issue not addressed by the Commissioner: assuming that Bratge had a right to have her name place on a preferred list, would her returning to a position with the Rome City School District have any impact on her status on such a list?
Here are some points to keep in mind regarding preferred lists:
1. Typically the most senior individual on the list may be passed over or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.
2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.
3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.
4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of preferred lists such as a special military list.)
5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example, Jones is laid off from Position A and subsequently accepts a position to a lower rank position for which the preferred list was certified. If Position A is reestablished and Jones is eligible for certification from the preferred list and is the most senior person on the list, Jones must be certified for appointed to the newly created position.
* The fact that the district did not take the procedural steps required to terminate Bratge’s probationary employment suggests that had Bratge filed a timely appeal the Commissioner might have found that she had attained tenure by estoppel.
____________________________________
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
Bratge v Stockbridge Valley CSD, Decision of the Commissioner of Education #14454
The Bratge case demonstrates the importance of complying with all statutory and contractual procedures relevant to personnel actions.
The Stockbridge Valley Central School District appointed Katrina Bratge as an Assistant Building Principal/Guidance Counselor [K-12]. Bratge’s appointment was subject to a three-year probationary period.
In March 1999 School Superintendent Charles Stratton met with Bratge. According to Bratge, the superintendent told her that the district intended to eliminate her position in favor of creating a new full-time guidance counselor position and converting a part-time business administrator position to a full-time position.
Stratton, on the other hand, said that he had told Bratge that he intended to terminate her probationary employment but that she would be allowed to resign rather than be terminated.
In August 1999 Bratge wrote to the school board indicating that she did not intend to resign her position and requested it place her name on the preferred eligibility list for appointment as a guidance or administrative position should one become available in accordance with Sections 2510(3) and 3013(3) of the Education Law.
In response, the district wrote to Bratge advising her that because she had voluntarily resigned from her position and had returned to a position with the Rome City School District ... she had no recall rights. Bratge wrote the district to clarify the events that had led to her asking to be placed on a preferred list and repeated her request. When the district failed to act, Bratge asked the Commissioner to order it to place her on a preferred list.
Although the Commissioner ruled that Bratge’s appeal had to be dismissed because it was untimely, he elected to comment on the merits of her appeal.
The Commissioner pointed out that the problem resulted because the district did not provide Bratge with a clear and unambiguous notice of its intentions. Although the district claims that Bratge agreed to resign and asked for her letter of resignation, it never actually received a written resignation from her.
Despite not having received Bratge’s written resignation, the Commissioner noted, the district did not take the procedural steps required to terminate her probationary employment.* This, according to the Commissioner, left Bratge unsure of her exact status and the district believing that the position was vacant as of the beginning of the 1999-2000 school year.
The Commissioner also took the opportunity to point out that personnel decisions must comply with all applicable legal and contractual requirements. In the event the district provides an employee with an option of resigning in lieu of termination, it must comply with all statutory and contractual notification requirements if it then wishes to terminate an employee who does not voluntarily submit his or her written resignation.
One issue not addressed by the Commissioner: assuming that Bratge had a right to have her name place on a preferred list, would her returning to a position with the Rome City School District have any impact on her status on such a list?
Here are some points to keep in mind regarding preferred lists:
1. Typically the most senior individual on the list may be passed over or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.
2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.
3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.
4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of preferred lists such as a special military list.)
5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example, Jones is laid off from Position A and subsequently accepts a position to a lower rank position for which the preferred list was certified. If Position A is reestablished and Jones is eligible for certification from the preferred list and is the most senior person on the list, Jones must be certified for appointed to the newly created position.
* The fact that the district did not take the procedural steps required to terminate Bratge’s probationary employment suggests that had Bratge filed a timely appeal the Commissioner might have found that she had attained tenure by estoppel.
____________________________________
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
Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”
Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”
Massaro v Mercado, 276 AD2d 445
After being rejected for appointment as a police officer, Louis Massaro filed a complaint with the Division of Human Rights. Massaro contended that the New York Police Department had unlawfully discriminated against him because of his disability. According to the decision, Massaro was rejected for appointment as a police officer of the grounds of psychological unsuitability for the position.
After initially finding probable cause, the State Division of Human Rights [DHR] dismissed Massaro’s compliant without conducting an administrative hearing. Massaro sued in an effort to compel DHR to conduct a hearing, only to have his petition dismissed by State Supreme Court Judge Lottie Watkins.
The Appellate Division affirmed Judge Watkins’ action, holding that DHR “was not required to conduct a hearing simply because it had previously made a probable cause determination in [Massaro’s] favor.”
There was no question that Massaro was rejected after a finding of psychological unsuitability. However, said the court, this is neither a disability within the meaning of the Human Rights Law nor was it perceived as a disability by the Police Department.
As the Division of Human Rights cannot disturb a hiring decision absent a showing that the decision was influenced by unlawful discrimination, the Appellate Division agreed that it should not be required to hold a hearing when it is clear that such a showing cannot be made.
NYPPL
Massaro v Mercado, 276 AD2d 445
After being rejected for appointment as a police officer, Louis Massaro filed a complaint with the Division of Human Rights. Massaro contended that the New York Police Department had unlawfully discriminated against him because of his disability. According to the decision, Massaro was rejected for appointment as a police officer of the grounds of psychological unsuitability for the position.
After initially finding probable cause, the State Division of Human Rights [DHR] dismissed Massaro’s compliant without conducting an administrative hearing. Massaro sued in an effort to compel DHR to conduct a hearing, only to have his petition dismissed by State Supreme Court Judge Lottie Watkins.
The Appellate Division affirmed Judge Watkins’ action, holding that DHR “was not required to conduct a hearing simply because it had previously made a probable cause determination in [Massaro’s] favor.”
There was no question that Massaro was rejected after a finding of psychological unsuitability. However, said the court, this is neither a disability within the meaning of the Human Rights Law nor was it perceived as a disability by the Police Department.
As the Division of Human Rights cannot disturb a hiring decision absent a showing that the decision was influenced by unlawful discrimination, the Appellate Division agreed that it should not be required to hold a hearing when it is clear that such a showing cannot be made.
NYPPL
Determining if assigned duties constitute out-of-title work
Determining if assigned duties constitute out-of-title work
CSEA v Angello, App. Div., Third Dept.,
CSEA, representing 128 employees of the Central New York Developmental Disabilities Service Organization serving as Developmental Aide - In Residence [DA-IR9] filed a grievance claiming that such employees were routinely assigned supervisory duties of a SG-12 Developmental Assistant I - In Residence [DAI-IR12] and that such tasks constituted out-of-title work under the relevant Taylor Law contract.
The SG-12 duties allegedly assigned to the SG-9 workers: submit budget reports, purchase requests, maintenance logs, time and attendance sheets, vehicle reports, formulate menus, supervise client recreational activities, provide for subordinate staff training and make decisions concerning the operation of the sleepover residences on a regular basis.
The grievance was denied at all steps of the contract grievance procedure and CSEA appealed. A state supreme court dismissed CSEA’s petition after finding that the duties complained of were not beyond the contemplation of the job description for DA-IR9 nor excessively complex or difficult, that CSEA failed to show that class members spent a significant amount of time at the objectionable tasks. Supreme Court concluded that there was a rational basis for denial of the grievance.
Pointing out that although [o]ut-of-title work, other than on an emergency basis, is prohibited by Section 61.2 of the Civil Service Law, the performance of duties by a grievant which are substantially similar to those set forth in that person’s job description does not constitute out-of-title work, nor does some overlap of the duties of a DA-IR9 employee and the higher grade DAI-IR12 employee.
The Appellate Division affirmed the lower court’s dismissal of CSEA’s petition. Its rationale: CSEA’s main argument that DA-IR9s were routinely assigned supervisory duties of DA1-IR12s is tempered by CSEA’s concession that “... DA-IR9s do not supervise other employees and the tasks of preparing and submitting budget reports, purchase requests and other documents performed by DA-IR9s in their residential settings ... were rationally determined not to be out-of-title work or [constituted a] permissive overlap of the duties of DAI-IR12s who supervise those residences.”
NYPPL
CSEA v Angello, App. Div., Third Dept.,
CSEA, representing 128 employees of the Central New York Developmental Disabilities Service Organization serving as Developmental Aide - In Residence [DA-IR9] filed a grievance claiming that such employees were routinely assigned supervisory duties of a SG-12 Developmental Assistant I - In Residence [DAI-IR12] and that such tasks constituted out-of-title work under the relevant Taylor Law contract.
The SG-12 duties allegedly assigned to the SG-9 workers: submit budget reports, purchase requests, maintenance logs, time and attendance sheets, vehicle reports, formulate menus, supervise client recreational activities, provide for subordinate staff training and make decisions concerning the operation of the sleepover residences on a regular basis.
The grievance was denied at all steps of the contract grievance procedure and CSEA appealed. A state supreme court dismissed CSEA’s petition after finding that the duties complained of were not beyond the contemplation of the job description for DA-IR9 nor excessively complex or difficult, that CSEA failed to show that class members spent a significant amount of time at the objectionable tasks. Supreme Court concluded that there was a rational basis for denial of the grievance.
Pointing out that although [o]ut-of-title work, other than on an emergency basis, is prohibited by Section 61.2 of the Civil Service Law, the performance of duties by a grievant which are substantially similar to those set forth in that person’s job description does not constitute out-of-title work, nor does some overlap of the duties of a DA-IR9 employee and the higher grade DAI-IR12 employee.
The Appellate Division affirmed the lower court’s dismissal of CSEA’s petition. Its rationale: CSEA’s main argument that DA-IR9s were routinely assigned supervisory duties of DA1-IR12s is tempered by CSEA’s concession that “... DA-IR9s do not supervise other employees and the tasks of preparing and submitting budget reports, purchase requests and other documents performed by DA-IR9s in their residential settings ... were rationally determined not to be out-of-title work or [constituted a] permissive overlap of the duties of DAI-IR12s who supervise those residences.”
NYPPL
Dec 7, 2010
Administrative Law Judge examination scheduled
Administrative Law Judge examination scheduled
Source: New York State Department of Civil Service
The New York State Department of Civil Service will hold an examination for Administrative Law Judge, NYS Workers Compensation Board, on February 5, 2011. This is an “SG-28 position, with a starting salary of $86,168.
Appointees working in the five boroughs of New York City or in Nassau, Suffolk, Rockland, or Westchester Counties will receive an additional $3,026 annual “downstate salary adjustment.” Appointees working in Dutchess, Orange, or Putnam Counties will receive an additional $1,513 annual “mid-Hudson salary adjustment.”
A $45 application fee is required.
N.B. The deadline for filing applications is January 3, 2011.
This examination open to all individuals meeting the minimum qualifications set out in the Examination Announcement.
There is an "ONLINE APPLICATION PROCESS" available at http://www.cs.state.ny.us/exams
For additional information, including a description of the duties of the position, and the minimum qualifications for this examination, go to: http://www.cs.state.ny.us/examannouncements/announcements/pdf/25-438.pdf
.
Source: New York State Department of Civil Service
The New York State Department of Civil Service will hold an examination for Administrative Law Judge, NYS Workers Compensation Board, on February 5, 2011. This is an “SG-28 position, with a starting salary of $86,168.
Appointees working in the five boroughs of New York City or in Nassau, Suffolk, Rockland, or Westchester Counties will receive an additional $3,026 annual “downstate salary adjustment.” Appointees working in Dutchess, Orange, or Putnam Counties will receive an additional $1,513 annual “mid-Hudson salary adjustment.”
A $45 application fee is required.
N.B. The deadline for filing applications is January 3, 2011.
This examination open to all individuals meeting the minimum qualifications set out in the Examination Announcement.
There is an "ONLINE APPLICATION PROCESS" available at http://www.cs.state.ny.us/exams
For additional information, including a description of the duties of the position, and the minimum qualifications for this examination, go to: http://www.cs.state.ny.us/examannouncements/announcements/pdf/25-438.pdf
.
Fruits of an undercover investigation used as a basis for disciplinary charges
Fruits of an undercover investigation used as a basis for disciplinary charges
DiGiovanni v Safir277 AD2d 36
May the appointing authority bring disciplinary action against an employee based on information obtained from undercover police officers. As the DiGiovanni decision indicates, such information can serve as a basis for filing disciplinary charges against an individual.
In this instance an undercover police officer and her supervisor testified that George DiGiovanni approached a police decoy and proposed oral sex for a fee.
DiGiovanni, as it turned out, was a New York City police officer. As a result of this episode, he was served with administrative disciplinary charges. The hearing officer found him guilty of soliciting sex and imposed the penalty of dismissal. DiGiovanni appealed only to have the Appellate Division unanimously affirm both the administrative determination that he was guilty of the charges filed against him and penalty imposed.
The Appellate Division decided that the evidence presented at the disciplinary hearing supported the finding that DiGiovanni was guilty of soliciting sex for money from a person believed by him to be a prostitute.
Turning to DiGiovanni’s objection to his being dismissed from his position, the court said that "[g]iven the gravity of the offense and [DiGiovanni’s] prior disciplinary history, the penalty imposed does not shock our conscience."
The court’s reference to DiGiovanni’s prior disciplinary history suggests that the department asked the hearing officer to consider DiGiovanni’s personnel history in determining the penalty to be imposed.
An employee’s personnel records may be considered by a hearing officer when the setting a disciplinary penalty provided the appointing authority has complied with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur, 63 NY2d 470. The procedures to be followed in order to satisfy the Bigelow test:
1. The employee must be advised that his or her prior disciplinary record will be considered in setting the penalty to be imposed; and
2. The employee must be given an opportunity to submit a written response to any adverse material contained in the record or offer mitigating circumstances.
NYPPL
DiGiovanni v Safir277 AD2d 36
May the appointing authority bring disciplinary action against an employee based on information obtained from undercover police officers. As the DiGiovanni decision indicates, such information can serve as a basis for filing disciplinary charges against an individual.
In this instance an undercover police officer and her supervisor testified that George DiGiovanni approached a police decoy and proposed oral sex for a fee.
DiGiovanni, as it turned out, was a New York City police officer. As a result of this episode, he was served with administrative disciplinary charges. The hearing officer found him guilty of soliciting sex and imposed the penalty of dismissal. DiGiovanni appealed only to have the Appellate Division unanimously affirm both the administrative determination that he was guilty of the charges filed against him and penalty imposed.
The Appellate Division decided that the evidence presented at the disciplinary hearing supported the finding that DiGiovanni was guilty of soliciting sex for money from a person believed by him to be a prostitute.
Turning to DiGiovanni’s objection to his being dismissed from his position, the court said that "[g]iven the gravity of the offense and [DiGiovanni’s] prior disciplinary history, the penalty imposed does not shock our conscience."
The court’s reference to DiGiovanni’s prior disciplinary history suggests that the department asked the hearing officer to consider DiGiovanni’s personnel history in determining the penalty to be imposed.
An employee’s personnel records may be considered by a hearing officer when the setting a disciplinary penalty provided the appointing authority has complied with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur, 63 NY2d 470. The procedures to be followed in order to satisfy the Bigelow test:
1. The employee must be advised that his or her prior disciplinary record will be considered in setting the penalty to be imposed; and
2. The employee must be given an opportunity to submit a written response to any adverse material contained in the record or offer mitigating circumstances.
NYPPL
Modifying employee work schedules
Modifying employee work schedules
Maineri v Syosset CSD, 276 AD2d 793
Contract grievances involving changing an individual’s work schedule generally are resolved by interpreting the language set out in the collective bargaining agreement. Of equal importance in such situations is whether the contract is silent or sets out exclusions with respect to such changes as the Maineri case demonstrates.
David Maineri sued the Syosset Central School District after the district denied his grievance challenging a change in his working hours. A State Supreme Court justice dismissed his petition and Maineri appealed.
The Appellate Division, Second Department, affirmed the lower court’s ruling. The court said that dispute, which centered on Maineri’s working hours, was covered by the terms and conditions of the parties’ collective bargaining agreement and, therefore there is no further statutory duty to bargain collectively with respect to the matter.
On the merits, the court ruled that “the district did not violate the parties’ collective bargaining agreement by altering [Maineri’s] working hours since the agreement did not establish the his right and entitlement to specific hours of work.” In the words of the court, “in the absence of such entitlement there can be no violation of the contract by the alteration of those hours.”
In addition, the court said that “the school district, as a municipal entity, may not be estopped from changing the [Maineri’s] working hours to correct errors in those hours, since the challenged alteration concerns the performance of a governmental function.”
In another change of work schedule case, In the Arbitration between Sullivan County and Teamsters Local 445, 276 AD2d 861, Appellate Division, Third Department, [Motion for leave to appeal denied, 96 NY2d 703 ], the court overturned an arbitrator’s ruling that Sullivan County had violated the collective bargaining agreement when it unilaterally changed the work schedule of certain employees.
The individuals involved worked 35 hours per week as aides for the County’s Division of Health and Family Services. Their work schedule: Monday through Friday, between the hours of 9:00 A.M. and 5:00 P.M.
In response to a decline in the demand for home health aide services, the County changed all full-time aide positions to part-time positions. The aides filed a contract grievance and the arbitrator ruled that the change from full-time to part-time constituted a violation of the collective bargaining agreement. The arbitrator ordered the County to restore the aides to full-time status [i.e., 35-hours per week] with back pay.
A State Supreme Court judge vacated the award on the grounds that the arbitrator had misread the Taylor Law agreement. The Appellate Division affirmed the lower court’s ruling.
First the Appellate Division noted that judicial review of an arbitration decision is limited and such a decision will not be disturbed unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power, citing Matter of the Town of Callicoon, 70 NY2d 907. Here, however, the court concluded that the arbitrator erroneously applied Section 408 of the agreement to the aides’ positions and, therefore, his decision was irrational.
The agreement did, in fact, set out the workday, workweek and overtime for certain workers. The decision notes that Section 401 of the agreement defined the normal work week and indicates that [e]xcept as hereinafter provided, the work week of all employees shall be five (5) days, Monday through Friday, seven (7) hours per day, thirty-five (35) hours per week [and] [t]he hours of employment shall be 9:00 A.M. to 5:00 P.M.
The agreement also sets a 40-hour work week for certain of workers, and further provides that [n]otwithstanding anything to the contrary contained in this Article, employees who work a five (5) day, forty (40) hour week, excluding time off for lunch, Monday through Friday, shall continue [Section 408 of the agreement].
The court said that the aides worked a 35-hour workweek prior to the reduction of their hours. It agreed with the Supreme Court’s conclusion that Section 408 relates only to employees who work 40 hours per week and cannot reasonably be interpreted as applicable to the aides’ positions.
Since there was not other provision in the agreement preventing the County from unilaterally reducing the hours of the aides due to business necessity, the Appellate Division concluded that the arbitrator’s award was properly vacated.
The Appellate Division also commented that:
"Indeed, Section 2502(d) [of the contract] expressly vests [the county] with the authority [t]o relieve employees from duties because of lack of work or other legitimate reason. Taking the above into consideration and applying Section 2103 of the agreement that specifically prohibits modification of its provisions by arbitration, we conclude that Supreme Court properly vacated the award."
NYPPL
Maineri v Syosset CSD, 276 AD2d 793
Contract grievances involving changing an individual’s work schedule generally are resolved by interpreting the language set out in the collective bargaining agreement. Of equal importance in such situations is whether the contract is silent or sets out exclusions with respect to such changes as the Maineri case demonstrates.
David Maineri sued the Syosset Central School District after the district denied his grievance challenging a change in his working hours. A State Supreme Court justice dismissed his petition and Maineri appealed.
The Appellate Division, Second Department, affirmed the lower court’s ruling. The court said that dispute, which centered on Maineri’s working hours, was covered by the terms and conditions of the parties’ collective bargaining agreement and, therefore there is no further statutory duty to bargain collectively with respect to the matter.
On the merits, the court ruled that “the district did not violate the parties’ collective bargaining agreement by altering [Maineri’s] working hours since the agreement did not establish the his right and entitlement to specific hours of work.” In the words of the court, “in the absence of such entitlement there can be no violation of the contract by the alteration of those hours.”
In addition, the court said that “the school district, as a municipal entity, may not be estopped from changing the [Maineri’s] working hours to correct errors in those hours, since the challenged alteration concerns the performance of a governmental function.”
In another change of work schedule case, In the Arbitration between Sullivan County and Teamsters Local 445, 276 AD2d 861, Appellate Division, Third Department, [Motion for leave to appeal denied, 96 NY2d 703 ], the court overturned an arbitrator’s ruling that Sullivan County had violated the collective bargaining agreement when it unilaterally changed the work schedule of certain employees.
The individuals involved worked 35 hours per week as aides for the County’s Division of Health and Family Services. Their work schedule: Monday through Friday, between the hours of 9:00 A.M. and 5:00 P.M.
In response to a decline in the demand for home health aide services, the County changed all full-time aide positions to part-time positions. The aides filed a contract grievance and the arbitrator ruled that the change from full-time to part-time constituted a violation of the collective bargaining agreement. The arbitrator ordered the County to restore the aides to full-time status [i.e., 35-hours per week] with back pay.
A State Supreme Court judge vacated the award on the grounds that the arbitrator had misread the Taylor Law agreement. The Appellate Division affirmed the lower court’s ruling.
First the Appellate Division noted that judicial review of an arbitration decision is limited and such a decision will not be disturbed unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power, citing Matter of the Town of Callicoon, 70 NY2d 907. Here, however, the court concluded that the arbitrator erroneously applied Section 408 of the agreement to the aides’ positions and, therefore, his decision was irrational.
The agreement did, in fact, set out the workday, workweek and overtime for certain workers. The decision notes that Section 401 of the agreement defined the normal work week and indicates that [e]xcept as hereinafter provided, the work week of all employees shall be five (5) days, Monday through Friday, seven (7) hours per day, thirty-five (35) hours per week [and] [t]he hours of employment shall be 9:00 A.M. to 5:00 P.M.
The agreement also sets a 40-hour work week for certain of workers, and further provides that [n]otwithstanding anything to the contrary contained in this Article, employees who work a five (5) day, forty (40) hour week, excluding time off for lunch, Monday through Friday, shall continue [Section 408 of the agreement].
The court said that the aides worked a 35-hour workweek prior to the reduction of their hours. It agreed with the Supreme Court’s conclusion that Section 408 relates only to employees who work 40 hours per week and cannot reasonably be interpreted as applicable to the aides’ positions.
Since there was not other provision in the agreement preventing the County from unilaterally reducing the hours of the aides due to business necessity, the Appellate Division concluded that the arbitrator’s award was properly vacated.
The Appellate Division also commented that:
"Indeed, Section 2502(d) [of the contract] expressly vests [the county] with the authority [t]o relieve employees from duties because of lack of work or other legitimate reason. Taking the above into consideration and applying Section 2103 of the agreement that specifically prohibits modification of its provisions by arbitration, we conclude that Supreme Court properly vacated the award."
NYPPL
Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability
Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability
Robinson v NYS Division of Human Rights, 277 AD2d 76
The appointing authority orders an employee who is exhibiting disruptive behavior to report for a drug test or for a physiological evaluation. Does such a directive constitute unlawful discrimination on the grounds that the employer has a perception that the employee has a disability? Such directives were the basis for New York City corrections officer Michael Robinson filing discrimination complaints against the New York City Department of Corrections.
According to the decision by the Appellate Division, First Department, Michael Robinson had a number of disciplinary problems over a period of time. In 1984 he accepted a command discipline penalty of two pass days for being absent without leave. This disciplinary action was followed by a pattern of lateness, unexcused absences and volatile behavior, including use of excessive force against inmates and verbal abuse of superiors and fellow officers.
Robinson was ordered to submit to urinalysis and to undergo psychiatric evaluation in connection with charges of attendance and conduct deficiencies during 1984 and 1985, as well as the investigation of an automobile accident on December 19, 1984.
As a result, Robinson filed a complaint with the New York State Division of Human Rights [DHR] contending that DOC had discriminated against him on the basis of perceived disabilities. Robinson subsequently filed additional allegations of unlawful discrimination, claiming that DOC had retaliated against him in response to Dorr’s finding of probable cause by first suspending and then terminating him.
The New York State Division of Human Rights found that DOC had unlawfully discriminated against Robinson by creating a hostile work environment based upon a belief that Robinson was mentally unstable or under the influence of drugs. It awarded Robinson $75,000 in compensatory damages and directed DOC to reinstate him to his former position.
Although the Appellate Division vacated Dorr’s decision for technical reasons based on timeliness, it commented that were it to have to decide on the case on its merits, it would find Robinson’s allegations of harassment to be baseless.
The Appellate Division explained that “[t]here is ample evidence of [Robinson’s] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.”
The fact the test results were negative were apparently not considered relevant as the court commented that it noted that Robinson’s behavior continued to be erratic.
The court concluded that “considering DOC’s responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory.”
NYPPL
Robinson v NYS Division of Human Rights, 277 AD2d 76
The appointing authority orders an employee who is exhibiting disruptive behavior to report for a drug test or for a physiological evaluation. Does such a directive constitute unlawful discrimination on the grounds that the employer has a perception that the employee has a disability? Such directives were the basis for New York City corrections officer Michael Robinson filing discrimination complaints against the New York City Department of Corrections.
According to the decision by the Appellate Division, First Department, Michael Robinson had a number of disciplinary problems over a period of time. In 1984 he accepted a command discipline penalty of two pass days for being absent without leave. This disciplinary action was followed by a pattern of lateness, unexcused absences and volatile behavior, including use of excessive force against inmates and verbal abuse of superiors and fellow officers.
Robinson was ordered to submit to urinalysis and to undergo psychiatric evaluation in connection with charges of attendance and conduct deficiencies during 1984 and 1985, as well as the investigation of an automobile accident on December 19, 1984.
As a result, Robinson filed a complaint with the New York State Division of Human Rights [DHR] contending that DOC had discriminated against him on the basis of perceived disabilities. Robinson subsequently filed additional allegations of unlawful discrimination, claiming that DOC had retaliated against him in response to Dorr’s finding of probable cause by first suspending and then terminating him.
The New York State Division of Human Rights found that DOC had unlawfully discriminated against Robinson by creating a hostile work environment based upon a belief that Robinson was mentally unstable or under the influence of drugs. It awarded Robinson $75,000 in compensatory damages and directed DOC to reinstate him to his former position.
Although the Appellate Division vacated Dorr’s decision for technical reasons based on timeliness, it commented that were it to have to decide on the case on its merits, it would find Robinson’s allegations of harassment to be baseless.
The Appellate Division explained that “[t]here is ample evidence of [Robinson’s] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.”
The fact the test results were negative were apparently not considered relevant as the court commented that it noted that Robinson’s behavior continued to be erratic.
The court concluded that “considering DOC’s responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory.”
NYPPL
Dec 6, 2010
New York State Register
New York State Register
Source: New York State Department of State
The New York State Register provides notice of proposed new administrative rules and amendments to existing administrative rules. It also posts emergency rules and other information.
Also available is the revised Rule Making in New York manual. The manual outlines the procedures for preparation of SAPA notices for the New York State Register and for Filing adopted rules for publication in the official NYCRR. You may download PDF version of the manual by clicking here (218kb 74 pages).
To access the New York State Register on the Internet, go to: http://www.dos.state.ny.us/info/register.htm
The Department of State’s site also provides a fully searchable "rule making" database starting with postings from 2007. Postings are provided in a PDF format.
You may subscribe to a free weekly State Register email alert using a link provided on the site. that will notify subscribers when new postings are available.
Source: New York State Department of State
The New York State Register provides notice of proposed new administrative rules and amendments to existing administrative rules. It also posts emergency rules and other information.
Also available is the revised Rule Making in New York manual. The manual outlines the procedures for preparation of SAPA notices for the New York State Register and for Filing adopted rules for publication in the official NYCRR. You may download PDF version of the manual by clicking here (218kb 74 pages).
To access the New York State Register on the Internet, go to: http://www.dos.state.ny.us/info/register.htm
The Department of State’s site also provides a fully searchable "rule making" database starting with postings from 2007. Postings are provided in a PDF format.
You may subscribe to a free weekly State Register email alert using a link provided on the site. that will notify subscribers when new postings are available.
An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision
An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision
Matter of Hasberry v New York City Dept. of Educ., 2010 NY Slip Op 08792, decided on November 30, 2010, Appellate Division, First Department
The Department of Education (DOE) rejected applications for certification as New York City school bus drivers or bus escorts filed by a number of individuals on the basis of “criminal convictions that purportedly rendered them unsuitable to perform the duties associated with the transportation of school age children.”
While Supreme Court dismissed the petitions challenging this action, the Appellate Division reinstated the petitions with respect to DOE and remitted the matter to DOE for further proceedings.
Although the applicants were all denied certification on the basis of criminal convictions, the Appellate Division noted that the New York City Chancellor's Regulation C-105 provides that "If, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."
In this instance, said the court, DOE did not provide the applicants with such an opportunity prior to making its determinations.
Conceding DOE’s concerns and “the need to protect the safety of children to be transported,” the Appellate Division said that DOE is bound by its own rules and regulations, including its procedural rules. Here the applicants were not given an opportunity to review the information that DOE relied upon in making its determination prior to its making its decision.
The court directed DOE to provide the applicants with an opportunity to review the information upon which DOE's determinations were based and to submit such statements and documents they wish in explanation or rebuttal of such information as required by Chancellor’s Regulation C-105.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08792.htm
NYPPL
Matter of Hasberry v New York City Dept. of Educ., 2010 NY Slip Op 08792, decided on November 30, 2010, Appellate Division, First Department
The Department of Education (DOE) rejected applications for certification as New York City school bus drivers or bus escorts filed by a number of individuals on the basis of “criminal convictions that purportedly rendered them unsuitable to perform the duties associated with the transportation of school age children.”
While Supreme Court dismissed the petitions challenging this action, the Appellate Division reinstated the petitions with respect to DOE and remitted the matter to DOE for further proceedings.
Although the applicants were all denied certification on the basis of criminal convictions, the Appellate Division noted that the New York City Chancellor's Regulation C-105 provides that "If, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."
In this instance, said the court, DOE did not provide the applicants with such an opportunity prior to making its determinations.
Conceding DOE’s concerns and “the need to protect the safety of children to be transported,” the Appellate Division said that DOE is bound by its own rules and regulations, including its procedural rules. Here the applicants were not given an opportunity to review the information that DOE relied upon in making its determination prior to its making its decision.
The court directed DOE to provide the applicants with an opportunity to review the information upon which DOE's determinations were based and to submit such statements and documents they wish in explanation or rebuttal of such information as required by Chancellor’s Regulation C-105.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08792.htm
NYPPL
Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress
Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress
Matter of Buric v Kelly, 2010 NY Slip Op 08786, Decided on November 30, 2010, Appellate Division, First Department
John Buric challenged the Police Commissioner’s determination that he be retired with ordinary disability retirement benefits.
Essentially Buric complained that his decision to file for a service retirement was involuntary and the result of fraud, duress, coercion, or other misconduct by New York City Police Commissioner Raymond Kelly.
Supreme Court rejected Buric’s claim that he was told that “he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election.”
In affirming the lower court’s decision the Appellate Division observed that Supreme Court’s “findings of fact, based in large measure on its assessment of the credibility of the witnesses,” were supported by a fair interpretation of the record evidence.
Addressing Buric allegations that “he was given two unpalatable choices,* or that he chose the service retirement due to financial considerations,” the Appellate Division said that neither constituted duress, citing two decisions; Wolfe v Jurczynski, 241 AD2d 88, and Matter of Donato v Mills, 6 AD3d 966.
* In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals ruled that an appointing authority’s threat to undertake certain action that it otherwise had the legal right to take did not constitute duress.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08786.htm
NYPPL
Matter of Buric v Kelly, 2010 NY Slip Op 08786, Decided on November 30, 2010, Appellate Division, First Department
John Buric challenged the Police Commissioner’s determination that he be retired with ordinary disability retirement benefits.
Essentially Buric complained that his decision to file for a service retirement was involuntary and the result of fraud, duress, coercion, or other misconduct by New York City Police Commissioner Raymond Kelly.
Supreme Court rejected Buric’s claim that he was told that “he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election.”
In affirming the lower court’s decision the Appellate Division observed that Supreme Court’s “findings of fact, based in large measure on its assessment of the credibility of the witnesses,” were supported by a fair interpretation of the record evidence.
Addressing Buric allegations that “he was given two unpalatable choices,* or that he chose the service retirement due to financial considerations,” the Appellate Division said that neither constituted duress, citing two decisions; Wolfe v Jurczynski, 241 AD2d 88, and Matter of Donato v Mills, 6 AD3d 966.
* In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals ruled that an appointing authority’s threat to undertake certain action that it otherwise had the legal right to take did not constitute duress.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08786.htm
NYPPL
Assumption of risk in a work-related activity
Assumption of risk in a work-related activity
Rios v Town of Colonie, 256 AD2d 900
Public safety agencies often sponsor athletic events or authorize members to participate in them. The Rios case involved Ramon Rios, a Town of Colonie corrections officer, who was injured while participating in “Department Olympics.”
Rios alleged that he was injured when he entered an obstacle course, which included a three-foot diameter black plastic culvert pipe and grazed his head on the “sharp and jagged edge of the pipe.” The cut to the top of his head required 21 sutures to close. He sued the town for his injuries.
Colonie objected and asked a Supreme Court judge to dismiss Rios’ complaint, contending that the doctrine of assumption of risk applied in this case.*
When the court dismissed the town’s motion, it appealed. The Appellate Division sustained the lower court’s ruling, indicating that Rios’ allegations had raised “genuine factual issues” as to whether the “sharp, razor-like and serrated edge” of the culvert pipe posed an open and obvious risk to him, or whether it constituted an “unassumed, concealed or unreasonably increased risk” to Rios.
Noting that Rios’ time to inspect the course was limited to a brief “walk-through” prior to the race, the Appellate Division returned the matter to the lower court for further action.
* The doctrine of assumption of risk holds that a participant in an athletic event of this type “assumed the risks that are generally inherent and flow from his [or her] participation” in these events. The participant in such events, however, does not assume risks that are unique and resulted from dangerous conditions.
NYPPL
Rios v Town of Colonie, 256 AD2d 900
Public safety agencies often sponsor athletic events or authorize members to participate in them. The Rios case involved Ramon Rios, a Town of Colonie corrections officer, who was injured while participating in “Department Olympics.”
Rios alleged that he was injured when he entered an obstacle course, which included a three-foot diameter black plastic culvert pipe and grazed his head on the “sharp and jagged edge of the pipe.” The cut to the top of his head required 21 sutures to close. He sued the town for his injuries.
Colonie objected and asked a Supreme Court judge to dismiss Rios’ complaint, contending that the doctrine of assumption of risk applied in this case.*
When the court dismissed the town’s motion, it appealed. The Appellate Division sustained the lower court’s ruling, indicating that Rios’ allegations had raised “genuine factual issues” as to whether the “sharp, razor-like and serrated edge” of the culvert pipe posed an open and obvious risk to him, or whether it constituted an “unassumed, concealed or unreasonably increased risk” to Rios.
Noting that Rios’ time to inspect the course was limited to a brief “walk-through” prior to the race, the Appellate Division returned the matter to the lower court for further action.
* The doctrine of assumption of risk holds that a participant in an athletic event of this type “assumed the risks that are generally inherent and flow from his [or her] participation” in these events. The participant in such events, however, does not assume risks that are unique and resulted from dangerous conditions.
NYPPL
Challenging a disciplinary penalty
Challenging a disciplinary penalty
Mantione v Levin, 277 AD2d 952
Ever wonder why some disciplinary action appeals are transferred to the Appellate Division by a State Supreme Court Judge? The Mantione decision sets out guidelines followed by the Appellate Division courts in determining whether a petition seeking to vacate or modify the penalty imposed in a disciplinary proceeding should be transferred to it.
Essentially, cases filed in Supreme Court that turn on whether or not the determination of guilt is supported by substantial evidence are to be transferred to the Appellate Division.
Salvatore S. Mantione was disciplined by the Commissioner of Insurance. Mantione admitted that he committed the acts alleged in the charges. Although neither party raised the issue whether the determination of guilt is supported by substantial evidence, a State Supreme Court judge decided that it was necessary to independently analyze the case to decide whether the substantial evidence test is properly applicable.
As any issue concerning substantial evidence is to be determined by an Appellate Division tribunal, the Supreme Court Judge sua sponte [on its own motion] determined that transfer was mandated by Civil Practice Law and Rules Sections 7803(4) and 7804(g) and sent it to the Fourth Department.
The Fourth Department said that the lower court was incorrect as a matter of law in finding an issue of substantial evidence and that the proceeding should not have been transferred.
It vacated the order transferring the action and returned the case to Supreme Court to review the penalty imposed. In other words, questions involving whether or not an administrative determination is supported by substantial evidence are to be resolved by the Appellate Division.
In contrast, questions concerning the reasonableness of the penalty imposed by an administrative tribunal after it finds a party guilty are to be initially considered by a State Supreme Court Judge.
As then State Supreme Court Judge Walter J. Relihan, Jr. stated in Eckstrom v City of Ithaca, [not officially reported], since the issue before him was not whether the administrative decision was supported by substantial evidence but rather whether the resolution violated Eckstrom’s rights as a matter of law, it should not be transferred to the Appellate Division.
Mantione v Levin, 277 AD2d 952
Ever wonder why some disciplinary action appeals are transferred to the Appellate Division by a State Supreme Court Judge? The Mantione decision sets out guidelines followed by the Appellate Division courts in determining whether a petition seeking to vacate or modify the penalty imposed in a disciplinary proceeding should be transferred to it.
Essentially, cases filed in Supreme Court that turn on whether or not the determination of guilt is supported by substantial evidence are to be transferred to the Appellate Division.
Salvatore S. Mantione was disciplined by the Commissioner of Insurance. Mantione admitted that he committed the acts alleged in the charges. Although neither party raised the issue whether the determination of guilt is supported by substantial evidence, a State Supreme Court judge decided that it was necessary to independently analyze the case to decide whether the substantial evidence test is properly applicable.
As any issue concerning substantial evidence is to be determined by an Appellate Division tribunal, the Supreme Court Judge sua sponte [on its own motion] determined that transfer was mandated by Civil Practice Law and Rules Sections 7803(4) and 7804(g) and sent it to the Fourth Department.
The Fourth Department said that the lower court was incorrect as a matter of law in finding an issue of substantial evidence and that the proceeding should not have been transferred.
It vacated the order transferring the action and returned the case to Supreme Court to review the penalty imposed. In other words, questions involving whether or not an administrative determination is supported by substantial evidence are to be resolved by the Appellate Division.
In contrast, questions concerning the reasonableness of the penalty imposed by an administrative tribunal after it finds a party guilty are to be initially considered by a State Supreme Court Judge.
As then State Supreme Court Judge Walter J. Relihan, Jr. stated in Eckstrom v City of Ithaca, [not officially reported], since the issue before him was not whether the administrative decision was supported by substantial evidence but rather whether the resolution violated Eckstrom’s rights as a matter of law, it should not be transferred to the Appellate Division.
Employee claims termination was in retaliation and that her employer defamed her
Employee claims termination was in retaliation and that her employer defamed her
Employee claims termination was in retaliation and that her employer defamed her
Gilligan v Town of Moreau, CA2, 2000 U.S. App. LEXIS 27198
In the Gilligan case the major issues involved allegations by a former employee of the Town of Moreau (a) that she was dismissed from her position with the Town in retaliation for her testifying before a grand jury and (b) that she had been defamed by Town officials.
Among the events that resulted in this litigation was a New York State Police investigation of the activities of the Town Supervisor, Michael Sullivan, and Frank Burt, a contractor hired to haul sand to the town’s landfill. Danielle Gilligan, an equipment operator at the landfill, and the other landfill employees, together with other Town employees, testified before the grand jury impaneled to consider criminal charges leveled against Burt and Sullivan.
During the summer and fall of 1995, Sullivan reportedly made vulgar, derogatory comments about Gilligan and told Board members of a rumor that Gilligan had been caught having sex on town property, even though he believed the rumor nonsensical. Gilligan was terminated from her position in February, 1996.
Gilligan sued, alleging that her terminations, and other adverse employment actions taken against her, were in retaliation for her grand jury testimony and that she had been defamed by Town officials.
Concerning retaliation
The Second Circuit, noting that [i]t is well settled that a public employer cannot discharge or retaliate against employees for the exercise of their First Amendment right to free speech, indicated that Gilligan’s grand jury testimony is such a protected activity. Further, said the court, it is well settled that discharge is an adverse employment decision.
In order to win a retaliatory discharge claim, however, the employee must, by a preponderance of the evidence, prove:
1. he or she engaged in a protected activity;
2. suffered an adverse employment decision; and
3. there was a causal link between her protected activity and the adverse employment decision.
The test to be met in order to demonstrate a causal connection between the protected activity and the retaliatory discharge: sufficient evidence to support an inference that the protected speech was a substantial motivating factor in the adverse employment action. Stated another way: the adverse employment action would not have been taken absent the employee’s protected speech.
The employee may prove such a casual connection by showing (a) the retaliatory action occurred close in time to the protected activities; (b) disparate treatment compared to similarly situated employees or (c) direct proof of retaliatory animus against the individual.
Here the Circuit Court concluded that Gilligan failed to show a causal connection between her grand jury testimony and her eventual discharge. Why? Because, said the court, Gilligan did not prove that the Town and the other defendants were aware of the substance of her protected speech before discharging her.*
Further, the Circuit Court decided that the defendants offered several legitimate, non-retaliatory reasons for its dismissing Gilligan which she failed to rebut -- there was not enough work at the landfill to justify employing three people; Gilligan was laid off because she lacked seniority; and she did not have the commercial driving license necessary to perform an essential job.
While Gilligan established a prima facie case, raising a presumption of retaliatory discharge, the Town overcame this presumption by offering legitimate, non-retaliatory reasons for her termination. Gilligan was then required to rebut this by demonstrating that the Town’s explanation was pretextual.
In the opinion of the court, Gilligan failed to produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false.... Accordingly, it affirmed the district court’s granting the Town’s motion for summary judgment in its favor.
Concerning defamation
Another aspect of the case involved Gilligan’s complaint that she had been defamed. Here the court ruled that “an employee may have a protectable liberty interest [w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”
Such an interest is implicated if [he or] she is dismissed based on charges that impose a stigma, or other disability, that prevent her from taking advantage of other employment opportunities. Such a stigma may be shown by proving that the statements will result in public opprobrium and damage to the employee’s reputation.
The circuit decided that the district court correctly found statements and rumors underlying Gilligan’s complaint did not satisfy the “stigma plus standard” followed in the Second Circuit. This standard requires a concurrent temporal link between the defamation and the dismissal.
In dismissing this element of Gilligan’s appeal, the court said that the statements were required to have been made close proximity to Gilligan’s separation and Gilligan failed to establish the statements were made concurrent with her layoff or the failure to rehire her.
While apparently not an issue in this appeal, if there was publication of the statements Gilligan alleged were stigmatizing by the Town, she probably could have demanded a name-clearing hearing.
A name-clearing hearing is available to a person, typically a temporary, provisional or probationary employee, who although lawfully terminated from his or her public employment, claims that the action disparaged his or her reputation in the community or adversely affected his or her ability to secure alternative employment.
In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
Prevailing at a name-clearing hearing, however, would not have resulted in the employee’s having any claim to reinstatement or damages.
* Gilligan testified she told no one of the substance of her grand jury testimony prior to her testifying in open court at the Burt trial in April 1996. Gilligan was discharged in February 1996, two months before her in-court testimony.
NYPPL
Employee claims termination was in retaliation and that her employer defamed her
Gilligan v Town of Moreau, CA2, 2000 U.S. App. LEXIS 27198
In the Gilligan case the major issues involved allegations by a former employee of the Town of Moreau (a) that she was dismissed from her position with the Town in retaliation for her testifying before a grand jury and (b) that she had been defamed by Town officials.
Among the events that resulted in this litigation was a New York State Police investigation of the activities of the Town Supervisor, Michael Sullivan, and Frank Burt, a contractor hired to haul sand to the town’s landfill. Danielle Gilligan, an equipment operator at the landfill, and the other landfill employees, together with other Town employees, testified before the grand jury impaneled to consider criminal charges leveled against Burt and Sullivan.
During the summer and fall of 1995, Sullivan reportedly made vulgar, derogatory comments about Gilligan and told Board members of a rumor that Gilligan had been caught having sex on town property, even though he believed the rumor nonsensical. Gilligan was terminated from her position in February, 1996.
Gilligan sued, alleging that her terminations, and other adverse employment actions taken against her, were in retaliation for her grand jury testimony and that she had been defamed by Town officials.
Concerning retaliation
The Second Circuit, noting that [i]t is well settled that a public employer cannot discharge or retaliate against employees for the exercise of their First Amendment right to free speech, indicated that Gilligan’s grand jury testimony is such a protected activity. Further, said the court, it is well settled that discharge is an adverse employment decision.
In order to win a retaliatory discharge claim, however, the employee must, by a preponderance of the evidence, prove:
1. he or she engaged in a protected activity;
2. suffered an adverse employment decision; and
3. there was a causal link between her protected activity and the adverse employment decision.
The test to be met in order to demonstrate a causal connection between the protected activity and the retaliatory discharge: sufficient evidence to support an inference that the protected speech was a substantial motivating factor in the adverse employment action. Stated another way: the adverse employment action would not have been taken absent the employee’s protected speech.
The employee may prove such a casual connection by showing (a) the retaliatory action occurred close in time to the protected activities; (b) disparate treatment compared to similarly situated employees or (c) direct proof of retaliatory animus against the individual.
Here the Circuit Court concluded that Gilligan failed to show a causal connection between her grand jury testimony and her eventual discharge. Why? Because, said the court, Gilligan did not prove that the Town and the other defendants were aware of the substance of her protected speech before discharging her.*
Further, the Circuit Court decided that the defendants offered several legitimate, non-retaliatory reasons for its dismissing Gilligan which she failed to rebut -- there was not enough work at the landfill to justify employing three people; Gilligan was laid off because she lacked seniority; and she did not have the commercial driving license necessary to perform an essential job.
While Gilligan established a prima facie case, raising a presumption of retaliatory discharge, the Town overcame this presumption by offering legitimate, non-retaliatory reasons for her termination. Gilligan was then required to rebut this by demonstrating that the Town’s explanation was pretextual.
In the opinion of the court, Gilligan failed to produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false.... Accordingly, it affirmed the district court’s granting the Town’s motion for summary judgment in its favor.
Concerning defamation
Another aspect of the case involved Gilligan’s complaint that she had been defamed. Here the court ruled that “an employee may have a protectable liberty interest [w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”
Such an interest is implicated if [he or] she is dismissed based on charges that impose a stigma, or other disability, that prevent her from taking advantage of other employment opportunities. Such a stigma may be shown by proving that the statements will result in public opprobrium and damage to the employee’s reputation.
The circuit decided that the district court correctly found statements and rumors underlying Gilligan’s complaint did not satisfy the “stigma plus standard” followed in the Second Circuit. This standard requires a concurrent temporal link between the defamation and the dismissal.
In dismissing this element of Gilligan’s appeal, the court said that the statements were required to have been made close proximity to Gilligan’s separation and Gilligan failed to establish the statements were made concurrent with her layoff or the failure to rehire her.
While apparently not an issue in this appeal, if there was publication of the statements Gilligan alleged were stigmatizing by the Town, she probably could have demanded a name-clearing hearing.
A name-clearing hearing is available to a person, typically a temporary, provisional or probationary employee, who although lawfully terminated from his or her public employment, claims that the action disparaged his or her reputation in the community or adversely affected his or her ability to secure alternative employment.
In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
Prevailing at a name-clearing hearing, however, would not have resulted in the employee’s having any claim to reinstatement or damages.
* Gilligan testified she told no one of the substance of her grand jury testimony prior to her testifying in open court at the Burt trial in April 1996. Gilligan was discharged in February 1996, two months before her in-court testimony.
NYPPL
Dec 4, 2010
Attorneys, Arbitrators, Consultants, Expert Witnesses
Attorneys, Arbitrators, Consultants, Expert Witnesses
.
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you or your firm is interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
.
.
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you or your firm is interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
.
The law of defamation in New York
The law of defamation in New York
Source: New York State Bar Journal
Mitchell H. Rubinstein, Adjunct Professor at the New York Law School and St. John's University - School of Law and a frequent contributor to NYPPL, has written an article entitled A Peek at New York Defamation Law that has been published by the New York State Bar Journal [82 N.Y.S. Bar J. 58 (Nov./Dec. 2010)],
This article is a primer on the law of defamation in New York. The author discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth and opinion as well as the different types of privileges that may be applicable.
You can download the article from Professor Rubinstein's SSRN page [Publication #18] at no charge, here.
Source: New York State Bar Journal
Mitchell H. Rubinstein, Adjunct Professor at the New York Law School and St. John's University - School of Law and a frequent contributor to NYPPL, has written an article entitled A Peek at New York Defamation Law that has been published by the New York State Bar Journal [82 N.Y.S. Bar J. 58 (Nov./Dec. 2010)],
This article is a primer on the law of defamation in New York. The author discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth and opinion as well as the different types of privileges that may be applicable.
You can download the article from Professor Rubinstein's SSRN page [Publication #18] at no charge, here.
Dec 3, 2010
Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award
Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award
Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department
The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”
N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.
In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.
Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.
In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”
Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL
Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department
The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”
N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.
In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.
Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.
In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”
Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL
Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Gordon v Town of Queensbury, App. Div., 256 AD2d 784
Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”
Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”
Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:
1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.
2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”
3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”
But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”
The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.
Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.
Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.
NYPPL
Gordon v Town of Queensbury, App. Div., 256 AD2d 784
Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”
Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”
Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:
1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.
2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”
3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”
But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”
The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.
Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.
Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.
NYPPL
Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances
Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances
Renna v Safir, App. Div., 256 AD2d 219
In Renna v Safir the Appellate Division again applied the Pell standard – did the penalty imposed shock the conscience of the court.
Mary Renna was dismissed from her position as a New York City police officer after being found guilty of stealing money seized at an illegal gambling location during a police raid.
The court said that Renna’s guilt was supported by substantial evidence, including:
1. The images on a “videotape surveillance of the location,"
2. Renna's failure to report the allegations of corruption made against her in integrity tests conducted by Internal Affairs, and
3. Renna's admittedly false statements concerning the integrity test given in the departmental interview.”
NYPPL
Renna v Safir, App. Div., 256 AD2d 219
In Renna v Safir the Appellate Division again applied the Pell standard – did the penalty imposed shock the conscience of the court.
Mary Renna was dismissed from her position as a New York City police officer after being found guilty of stealing money seized at an illegal gambling location during a police raid.
The court said that Renna’s guilt was supported by substantial evidence, including:
1. The images on a “videotape surveillance of the location,"
2. Renna's failure to report the allegations of corruption made against her in integrity tests conducted by Internal Affairs, and
3. Renna's admittedly false statements concerning the integrity test given in the departmental interview.”
NYPPL
Inability to perform essential duties trumps violation of American with Disabilities Act claims
Inability to perform essential duties trumps violation of American with Disabilities Act claims
Kees v Wallenstein, CA 9, 161 F.3d 1196
A number of correction officers in the State of Washington had been placed on light duty as a result of injuries sustained in the line of duty or as the result of non-work related illness. Their respective physicians had indicated that they should not have direct contact with prison inmates to avoid the possibility of further injury.
When the officers were removed from their positions they sued the Kings County Department of Adult Detention [Arthur Wallenstein, director], contending that their termination violated the Americans with Disabilities Act [ADA], 42 USC. Sections 12101-12213. The State of Washington, representing the county, argued that the officers involved were not “qualified individuals under the ADA” because their inability to have direct inmate contact prevented them from performing the essential functions of the corrections officer job.
The correction officers had informed Wallenstein that their conditions were permanent, and that no reasonable accommodation would allow them to have direct contact with inmates. After determining that direct inmate contact is an essential function of the corrections officer position, OHRM and Wallenstein separated plaintiffs from their jobs as corrections officers. The county had made a settlement offer -- each officer was offered a DAD non-commissioned, support position such as office technician, jail receptionist, or jail aide, at the full corrections officer salary. These employment offers were rejected because the positions required direct inmate contact.
The Circuit Court of Appeals said that in order to prevail on their claim, plaintiffs must establish that:
1. They are disabled within the meaning of the ADA;
2. They are qualified, with or without reasonable accommodation, to perform the essential functions of the job; and
3. The county terminated them because of their disability.
The Ninth U.S. Circuit Court of Appeals in San Francisco sustained the district court’s finding that the officers “are not qualified individuals with disabilities under the ADA.” It said that “no accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position” as “their ability to restrain inmates during an emergency is critical to jail security.”
Another factor considered by the Circuit Court: the controlling collective bargaining agreement indicated that corrections officers are expected to rotate among several positions, most of which involve inmate contact.
NYPPL
Kees v Wallenstein, CA 9, 161 F.3d 1196
A number of correction officers in the State of Washington had been placed on light duty as a result of injuries sustained in the line of duty or as the result of non-work related illness. Their respective physicians had indicated that they should not have direct contact with prison inmates to avoid the possibility of further injury.
When the officers were removed from their positions they sued the Kings County Department of Adult Detention [Arthur Wallenstein, director], contending that their termination violated the Americans with Disabilities Act [ADA], 42 USC. Sections 12101-12213. The State of Washington, representing the county, argued that the officers involved were not “qualified individuals under the ADA” because their inability to have direct inmate contact prevented them from performing the essential functions of the corrections officer job.
The correction officers had informed Wallenstein that their conditions were permanent, and that no reasonable accommodation would allow them to have direct contact with inmates. After determining that direct inmate contact is an essential function of the corrections officer position, OHRM and Wallenstein separated plaintiffs from their jobs as corrections officers. The county had made a settlement offer -- each officer was offered a DAD non-commissioned, support position such as office technician, jail receptionist, or jail aide, at the full corrections officer salary. These employment offers were rejected because the positions required direct inmate contact.
The Circuit Court of Appeals said that in order to prevail on their claim, plaintiffs must establish that:
1. They are disabled within the meaning of the ADA;
2. They are qualified, with or without reasonable accommodation, to perform the essential functions of the job; and
3. The county terminated them because of their disability.
The Ninth U.S. Circuit Court of Appeals in San Francisco sustained the district court’s finding that the officers “are not qualified individuals with disabilities under the ADA.” It said that “no accommodation would allow them to have direct inmate contact, an essential function of the corrections officer position” as “their ability to restrain inmates during an emergency is critical to jail security.”
Another factor considered by the Circuit Court: the controlling collective bargaining agreement indicated that corrections officers are expected to rotate among several positions, most of which involve inmate contact.
NYPPL
Assurance of continued employment disqualifies educator for unemployment insurance benefits
Assurance of continued employment disqualifies educator for unemployment insurance benefits
Romano v Buffalo Bd. of Ed., App. Div., 256 AD2d 845
Cannizzaro v Buffalo Bd. of Ed., App. Div., 256 AD2d 846, Motion to appeal denied, 93 NY2d 815
Aljandari v Buffalo Bd. of Ed., App. Div., 245 AD2d 647
Dixon v Buffalo Bd. of Ed., App. Div., 256 AD2d 1046
A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.
The following cases consider a number of different procedural and substantive issues involving claims for such benefits filed by temporary teachers. The basic lesson: employers will be required to provide substantial evidence of such assurances of continued employment to survive administrative and judicial scrutiny of objections to the payment of such benefits.
The Romano Case
Belmaries Romano and a number of other temporary teachers employed by the Buffalo Board of Education during academic 1994-95 were each sent a form letter dated June 9, 1995 indicating that they would be reemployed by the school board during the 1995-96 academic year.
Although initially unemployment insurance claims were denied on the basis of the form letter, an administrative law judge [ALJ] overturned that determination. The Unemployment Insurance Board [Board] affirmed the ALJ’s decision and then denied the school district’s application seeking to reopen the matter.
Although the Appellate Division recognized that “the decision to grant an application to reopen lies within the sound discretion of the Board,” it decided that the Board had abused its discretion when it rejected the school district’s application.
The court said that the school district’s motion for reopening and reconsideration of the issue of whether Romano and the other teachers “received a reasonable assurance of continued employment” as a result of the school district’s sending them a form letter should have been granted by the Board. The matter was remanded to the Board for further action.
The Cannizzaro and Aljandari cases
Both Eva Cannizzaro and Abdulla Aljandari were temporary teachers employed by the Buffalo City School District during the 1994-95 academic year. In June 1995, the school district sent each of them a letter “advising them that they would be reemployed during the then-upcoming 1995-1996 academic year.”
Both were denied unemployment insurance benefits on the grounds that they had received a reasonable notice of continued employment within the meaning of Section 590.10 at the end of the 1994-95 academic year. The Unemployment Insurance Appeals Board granted their applications to reopen and reconsider these denials of benefits.
The Board granted their applications and after reconsidering the matter, adhered to its prior rulings that both Cannizzaro and Aljandari had received reasonable assurances of continued employment.
The Appellate Division rejected their appeals, holding that the record indicated that the Board’s determinations regarding both teachers were supported by substantial evidence.
The Dixon decision
Amber Dixon and 19 other Buffalo City School District temporary teachers applied for unemployment insurance benefits at the end of the 1994-95 academic year. The Board ruled that the 20 teachers had not been provided with “a reasonable assurance of continued employment” for the 1995-96 academic year and approved their applications for unemployment insurance benefits.
The school district appealed, only to have the Appellate Division affirm the Board’s determinations. The court said that with respect to one teacher, Maria Orta, the district “admittedly failed to offer any proof [of such assurance] at the administrative hearing.”
As to the remaining 19 claimants, the Appellate Division set out the following guideline with respect to its considering Board determinations:
It is well settled that the issue of whether a claimant received a reasonable assurance of employment is a factual question for the Board to resolve and such determination, if supported by substantial evidence, will not be disturbed, even if other evidence in the record would support a contrary conclusion.
The Appellate Division said that although the teachers had been sent letters in June 1995 advising them that their services would be continued for the 1995-96 academic year “the Board concluded, in light of the proof adduced at the administrative hearings regarding the respective claimant’s particular employment situations, that the employer did not in fact provide claimants with a reasonable assurance of continued employment.”
The decision notes that 10 claimants worked in mathematics programs and the Board’s findings were supported by “extensive testimony regarding ... planned staff cuts for these departments.” As to the remaining teachers, the court said “it could not say that the Board erred in concluding that the employer failed to provide competent testimony regarding hiring lists and practices for those [other] areas [and thus] failed to demonstrate that it had provided these claimants with a reasonable assurance of employment for the 1995-1996 academic year.”
NYPPL
Romano v Buffalo Bd. of Ed., App. Div., 256 AD2d 845
Cannizzaro v Buffalo Bd. of Ed., App. Div., 256 AD2d 846, Motion to appeal denied, 93 NY2d 815
Aljandari v Buffalo Bd. of Ed., App. Div., 245 AD2d 647
Dixon v Buffalo Bd. of Ed., App. Div., 256 AD2d 1046
A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.
The following cases consider a number of different procedural and substantive issues involving claims for such benefits filed by temporary teachers. The basic lesson: employers will be required to provide substantial evidence of such assurances of continued employment to survive administrative and judicial scrutiny of objections to the payment of such benefits.
The Romano Case
Belmaries Romano and a number of other temporary teachers employed by the Buffalo Board of Education during academic 1994-95 were each sent a form letter dated June 9, 1995 indicating that they would be reemployed by the school board during the 1995-96 academic year.
Although initially unemployment insurance claims were denied on the basis of the form letter, an administrative law judge [ALJ] overturned that determination. The Unemployment Insurance Board [Board] affirmed the ALJ’s decision and then denied the school district’s application seeking to reopen the matter.
Although the Appellate Division recognized that “the decision to grant an application to reopen lies within the sound discretion of the Board,” it decided that the Board had abused its discretion when it rejected the school district’s application.
The court said that the school district’s motion for reopening and reconsideration of the issue of whether Romano and the other teachers “received a reasonable assurance of continued employment” as a result of the school district’s sending them a form letter should have been granted by the Board. The matter was remanded to the Board for further action.
The Cannizzaro and Aljandari cases
Both Eva Cannizzaro and Abdulla Aljandari were temporary teachers employed by the Buffalo City School District during the 1994-95 academic year. In June 1995, the school district sent each of them a letter “advising them that they would be reemployed during the then-upcoming 1995-1996 academic year.”
Both were denied unemployment insurance benefits on the grounds that they had received a reasonable notice of continued employment within the meaning of Section 590.10 at the end of the 1994-95 academic year. The Unemployment Insurance Appeals Board granted their applications to reopen and reconsider these denials of benefits.
The Board granted their applications and after reconsidering the matter, adhered to its prior rulings that both Cannizzaro and Aljandari had received reasonable assurances of continued employment.
The Appellate Division rejected their appeals, holding that the record indicated that the Board’s determinations regarding both teachers were supported by substantial evidence.
The Dixon decision
Amber Dixon and 19 other Buffalo City School District temporary teachers applied for unemployment insurance benefits at the end of the 1994-95 academic year. The Board ruled that the 20 teachers had not been provided with “a reasonable assurance of continued employment” for the 1995-96 academic year and approved their applications for unemployment insurance benefits.
The school district appealed, only to have the Appellate Division affirm the Board’s determinations. The court said that with respect to one teacher, Maria Orta, the district “admittedly failed to offer any proof [of such assurance] at the administrative hearing.”
As to the remaining 19 claimants, the Appellate Division set out the following guideline with respect to its considering Board determinations:
It is well settled that the issue of whether a claimant received a reasonable assurance of employment is a factual question for the Board to resolve and such determination, if supported by substantial evidence, will not be disturbed, even if other evidence in the record would support a contrary conclusion.
The Appellate Division said that although the teachers had been sent letters in June 1995 advising them that their services would be continued for the 1995-96 academic year “the Board concluded, in light of the proof adduced at the administrative hearings regarding the respective claimant’s particular employment situations, that the employer did not in fact provide claimants with a reasonable assurance of continued employment.”
The decision notes that 10 claimants worked in mathematics programs and the Board’s findings were supported by “extensive testimony regarding ... planned staff cuts for these departments.” As to the remaining teachers, the court said “it could not say that the Board erred in concluding that the employer failed to provide competent testimony regarding hiring lists and practices for those [other] areas [and thus] failed to demonstrate that it had provided these claimants with a reasonable assurance of employment for the 1995-1996 academic year.”
NYPPL
Dec 2, 2010
Designation of a beneficiary to receive retirement system death benefits
Designation of a beneficiary to receive retirement system death benefits
Estate of Kraut v City of New York, NYS Supreme Court, [not officially reported]
The Kraut case demonstrates the critical importance of a member actually filing a designation of beneficiary form with a public retirement system.
Although the New York City Employees’ Retirement System’s [NYCERS] records indicated that Kraut’s son Steven was his beneficiary, Gloria A. Djaha contended that NYCERS should have paid Kraut’s $268,000 [after taxes] death benefit to her.
Her argument: because Kraut had written “[t]he beneficiary whom I would nominate to receive the benefit payable after my death ... is my Financee [sic] ... is Gloria Anne Djaha on his retirement application form.”
But since Kraut never filed a formal Designation of Beneficiary form naming Djaha as his beneficiary, the court ruled that the son was Kraut’s lawful beneficiary.
Estate of Kraut v City of New York, NYS Supreme Court, [not officially reported]
The Kraut case demonstrates the critical importance of a member actually filing a designation of beneficiary form with a public retirement system.
Although the New York City Employees’ Retirement System’s [NYCERS] records indicated that Kraut’s son Steven was his beneficiary, Gloria A. Djaha contended that NYCERS should have paid Kraut’s $268,000 [after taxes] death benefit to her.
Her argument: because Kraut had written “[t]he beneficiary whom I would nominate to receive the benefit payable after my death ... is my Financee [sic] ... is Gloria Anne Djaha on his retirement application form.”
But since Kraut never filed a formal Designation of Beneficiary form naming Djaha as his beneficiary, the court ruled that the son was Kraut’s lawful beneficiary.
Verizon FMLA settlement may exceed $6 million
Verizon FMLA settlement may exceed $6 million
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Verizon Communications, Inc. settled a class action lawsuit with the California Department of Fair Employment and Housing for up to $6,011,190.00. The suit alleged that between 2007 and 2010 Verizon denied or failed to timely approve class members' requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a child.
The suit was brought under California's version of the FMLA, which is very similar to the federal Family and Medical Leave Act.
Verizon also agreed to review and revise its leave policies and procedures, and to train all California managers, supervisors and human resource personnel on legally compliant CFMLA procedures. Verizon did not admit to any wrongdoing in the settlement.
http://www.centralvalleybusinesstimes.com/templates/print.cfm?ID=16984
Mr. Bosland Comments: The settlement undoubtedly does not include Verizon's time and expense in defending the suit, which likely added another million dollars to the total tab.
Like the California FMLA, the federal FMLA allows aggrieved employees to file class action lawsuits for violation of their FMLA rights. Employers would be well-advised to continually monitor their leave policies to ensure they remain in compliance with ever-changing FMLA laws. As evidenced by Verizon, failure to do so may result in very expensive and time consuming litigation.
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Verizon Communications, Inc. settled a class action lawsuit with the California Department of Fair Employment and Housing for up to $6,011,190.00. The suit alleged that between 2007 and 2010 Verizon denied or failed to timely approve class members' requests for leave for their own serious health condition, to care for a family member with a serious health condition, or to bond with a child.
The suit was brought under California's version of the FMLA, which is very similar to the federal Family and Medical Leave Act.
Verizon also agreed to review and revise its leave policies and procedures, and to train all California managers, supervisors and human resource personnel on legally compliant CFMLA procedures. Verizon did not admit to any wrongdoing in the settlement.
http://www.centralvalleybusinesstimes.com/templates/print.cfm?ID=16984
Mr. Bosland Comments: The settlement undoubtedly does not include Verizon's time and expense in defending the suit, which likely added another million dollars to the total tab.
Like the California FMLA, the federal FMLA allows aggrieved employees to file class action lawsuits for violation of their FMLA rights. Employers would be well-advised to continually monitor their leave policies to ensure they remain in compliance with ever-changing FMLA laws. As evidenced by Verizon, failure to do so may result in very expensive and time consuming litigation.
Collective bargaining agreement requires village to reimburse its retirees participating in its health insurance plan their Medicare premiums
Collective bargaining agreement requires village to reimburse its retirees participating in its health insurance plan their Medicare premiums
Millington v Village of S. Glens Falls, 30 Misc 3d 405
Marvin Millington and the class he represents are retired employees of Village of South Glens Falls and prior to their respective retirements, were members of a collective bargaining unit represented by the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO.
Effective April 1, 2007 the Village terminated its practice of reimbursing all qualifying Village retirees the cost of their Medicaid Part B premium. Millington, contending that the Village’s action violated the collective bargaining agreements between the Village and CSEA, sued seeking a court order directing the Village reimburse all eligible retirees for such premiums in full.
The Village, on the other hand, contended that it is required to pay either a retiree's medical health insurance premium or Medicare Part B premium, but not both and that it neither violated the law nor the collective bargaining agreement when it terminated its prior practice of paying both premiums.
The Village's private medical insurance plan, Empire Blue Cross, requires every participant in the plan at age 65 to sign up for Medicare Part B as a condition to continued coverage. The Village directly paid the Empire Blue Cross premium while the Medicare Part B premium was deducted from the retiree's Social Security benefit and then the Village reimbursed the employee for that premium.*
Although the Village, said the court, was not required to provide health insurance benefits to a retired employee absent an enforceable contractual obligation to do so, here Judge Nolan said “the salient issue is whether the word "or" in the collective bargaining agreements supports, as a matter of law, the Village's interpretation.” He found that it did not, noting that “While the efforts of the Village to reduce costs are praiseworthy, its interpretation of the word "or" in its disjunctive sense does not square with the rest of the language of the most recent contract in force since 1995.”
The court found that when the medical insurance provisions in the agreements are read as a whole, the retirees were contractually entitled to receive continued coverage under the Village's medical insurance plan with the Village to pay 100% of the qualifying retiree's medical insurance premiums. Accordingly, said Judge Nolan, the Village was responsible to pay 100% of the cost of health insurance for any and all retired Village employees hired before June 1, 1995 including such retirees' Medicare Part B premium.
Further, said the court, Millington and all members of the class he represents were to be reimbursed by the Village “for any and all Medicare Part B premiums which they have individually paid since April 1, 2007, with statutory interest….”
* See Civil Service Law §167-a, reimbursement for Medicare premium charges, with respect to political subdivisions of the State that are “participating employers” in the New York State Health Insurance Program [NYSHIP].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20470.htm
NYPPL
Millington v Village of S. Glens Falls, 30 Misc 3d 405
Marvin Millington and the class he represents are retired employees of Village of South Glens Falls and prior to their respective retirements, were members of a collective bargaining unit represented by the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO.
Effective April 1, 2007 the Village terminated its practice of reimbursing all qualifying Village retirees the cost of their Medicaid Part B premium. Millington, contending that the Village’s action violated the collective bargaining agreements between the Village and CSEA, sued seeking a court order directing the Village reimburse all eligible retirees for such premiums in full.
The Village, on the other hand, contended that it is required to pay either a retiree's medical health insurance premium or Medicare Part B premium, but not both and that it neither violated the law nor the collective bargaining agreement when it terminated its prior practice of paying both premiums.
The Village's private medical insurance plan, Empire Blue Cross, requires every participant in the plan at age 65 to sign up for Medicare Part B as a condition to continued coverage. The Village directly paid the Empire Blue Cross premium while the Medicare Part B premium was deducted from the retiree's Social Security benefit and then the Village reimbursed the employee for that premium.*
Although the Village, said the court, was not required to provide health insurance benefits to a retired employee absent an enforceable contractual obligation to do so, here Judge Nolan said “the salient issue is whether the word "or" in the collective bargaining agreements supports, as a matter of law, the Village's interpretation.” He found that it did not, noting that “While the efforts of the Village to reduce costs are praiseworthy, its interpretation of the word "or" in its disjunctive sense does not square with the rest of the language of the most recent contract in force since 1995.”
The court found that when the medical insurance provisions in the agreements are read as a whole, the retirees were contractually entitled to receive continued coverage under the Village's medical insurance plan with the Village to pay 100% of the qualifying retiree's medical insurance premiums. Accordingly, said Judge Nolan, the Village was responsible to pay 100% of the cost of health insurance for any and all retired Village employees hired before June 1, 1995 including such retirees' Medicare Part B premium.
Further, said the court, Millington and all members of the class he represents were to be reimbursed by the Village “for any and all Medicare Part B premiums which they have individually paid since April 1, 2007, with statutory interest….”
* See Civil Service Law §167-a, reimbursement for Medicare premium charges, with respect to political subdivisions of the State that are “participating employers” in the New York State Health Insurance Program [NYSHIP].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20470.htm
NYPPL
Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary
Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary
Matter of Thompson v New York State Teachers' Retirement Sys., 2010 NY Slip Op 08670, November 24, 2010, Appellate Division, Third Department
James R. Thompson was employed as a principal in the LeRoy Central School District. In accordance with the relevant collective bargaining agreement between the school district and the LeRoy Administrators' Association, Thompson was to receive 3.5% annual pay increases through the 2005-2006 school year.
The CBA also offered a retirement incentive wherein an administrator who retired immediately after becoming eligible to do so without penalty would receive a lump-sum payment of $20,750.
Although Thompson would have qualified for the incentive had he retired during the 2004-2005 school year, continued in his position. However, the school district and association executed a memorandum of understanding in 2005 that granted large annual raises to Thompson and another administrator nearing retirement age in the 2005-2006 and 2006-2007 school years.
When Thompson retired in 2007 retirement, the New York State Teachers’ Retirement System excluded his 2005-2006 and 2006-2007 salary increases when calculating his retirement benefit. Thompson sued but Supreme Court dismissed his petition.
The Appellate Division affirmed Supreme Court’s ruling, holding that NYSTRS had “appropriately calculated his final average salary using ‘the average regular compensation earned . . . during the three years of actual service immediately preceding his date of retirement.’”
The court explained that in order to prevent the artificial inflation of a member’s final average salary in determining the individual’s retirement allowance, Education Law §501 [11] [b], (see also 21 NYCRR 5001.1 [d]; 5003.1 [a]) requires NYSTRS to exclude any form of termination pay or compensation otherwise paid in anticipation of retirement.
As the 2005 memorandum of understanding stated that it was intended to "provide administrators with an incentive to continue [working] beyond retirement eligibility," and granted exceptional salary increases to Thompson [and other school administrators], the Appellate Division held that NYSTRS “rationally concluded from the above evidence that the disproportionate increases in his salary were made in anticipation of retirement.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08670.htm
NYPPL
Matter of Thompson v New York State Teachers' Retirement Sys., 2010 NY Slip Op 08670, November 24, 2010, Appellate Division, Third Department
James R. Thompson was employed as a principal in the LeRoy Central School District. In accordance with the relevant collective bargaining agreement between the school district and the LeRoy Administrators' Association, Thompson was to receive 3.5% annual pay increases through the 2005-2006 school year.
The CBA also offered a retirement incentive wherein an administrator who retired immediately after becoming eligible to do so without penalty would receive a lump-sum payment of $20,750.
Although Thompson would have qualified for the incentive had he retired during the 2004-2005 school year, continued in his position. However, the school district and association executed a memorandum of understanding in 2005 that granted large annual raises to Thompson and another administrator nearing retirement age in the 2005-2006 and 2006-2007 school years.
When Thompson retired in 2007 retirement, the New York State Teachers’ Retirement System excluded his 2005-2006 and 2006-2007 salary increases when calculating his retirement benefit. Thompson sued but Supreme Court dismissed his petition.
The Appellate Division affirmed Supreme Court’s ruling, holding that NYSTRS had “appropriately calculated his final average salary using ‘the average regular compensation earned . . . during the three years of actual service immediately preceding his date of retirement.’”
The court explained that in order to prevent the artificial inflation of a member’s final average salary in determining the individual’s retirement allowance, Education Law §501 [11] [b], (see also 21 NYCRR 5001.1 [d]; 5003.1 [a]) requires NYSTRS to exclude any form of termination pay or compensation otherwise paid in anticipation of retirement.
As the 2005 memorandum of understanding stated that it was intended to "provide administrators with an incentive to continue [working] beyond retirement eligibility," and granted exceptional salary increases to Thompson [and other school administrators], the Appellate Division held that NYSTRS “rationally concluded from the above evidence that the disproportionate increases in his salary were made in anticipation of retirement.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08670.htm
NYPPL
Employee terminated after failing random drug test
Employee terminated after failing random drug test
Danese v NYC Transit Authority, App. Div., 256 AD2d 464, Motion for leave to appeal denied, 93 NY2d 811
In this appeal from administrative discipline cases involving a police officer’s failing a random drug test, the Appellate Division panels ruled that dismissal was not too harsh a penalty to impose after being found guilty of the offense.
New York City Transit Police Officer Salvatore Danese, tested positive for cocaine in a random drug test.
An administrative law judge found Danese guilty of “certain enumerated charges.” The penalty imposed by the Authority: termination.
Danese appealed, challenging the Authority’s determination and the penalty imposed. The Appellate Division said that dismissal under the circumstances “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2D 222].
NYPPL
Danese v NYC Transit Authority, App. Div., 256 AD2d 464, Motion for leave to appeal denied, 93 NY2d 811
In this appeal from administrative discipline cases involving a police officer’s failing a random drug test, the Appellate Division panels ruled that dismissal was not too harsh a penalty to impose after being found guilty of the offense.
New York City Transit Police Officer Salvatore Danese, tested positive for cocaine in a random drug test.
An administrative law judge found Danese guilty of “certain enumerated charges.” The penalty imposed by the Authority: termination.
Danese appealed, challenging the Authority’s determination and the penalty imposed. The Appellate Division said that dismissal under the circumstances “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2D 222].
NYPPL
Employment status as an employee determines an employer liability
Employment status as an employee determines an employer liability
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” Steiner unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float. [Eagan v Von Essen, 260 AD2d 479].*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” Steiner unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float. [Eagan v Von Essen, 260 AD2d 479].*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
NYPPL
Subscribe to:
Posts (Atom)
Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law.
Email: publications@nycap.rr.com