Criminal investigations and the Taylor law
New York City v Uniformed Fire Officers Asso., 95 NY2d 273
With increasing frequency, procedures addressing employee rights in the course of an employer-initiated investigation are being included in Taylor Law agreements. Typically disputes involving alleged violations of such negotiated procedures are to be resolved under the relevant contract arbitration procedure.
However, an investigation of employee conduct may be conducted by an outside independent agency. If the outside agency uses a procedure that the employee organization claims violates the provisions set out collective bargaining agreement can the union treat the situation as a contract violation and invoke the contract grievance procedure? Stated another way, does the investigation provisions of a collective bargaining procedure trump the procedures adopted by an outside investigatory body?
This was the major issue addressed by the Court of Appeals in the Fire Officers Association case. The case arose after New York City’s Department of Investigation [DOI] issued subpoenas to several firefighters as part of several criminal investigations it was conducting.*
Local 854, referring to provisions in a city-wide Taylor Law contract setting out procedures to be followed in the event of an investigation of an employee, complained that the procedures used by the DOI did not comply with the procedures set out in the agreement. Alleging that DOI’s procedures violated the contract’s employee rights Article, it demanded arbitration.
The City objected but the New York City Board of Collective Bargaining [BCB] issued a determination ruling that the dispute should be submitted to arbitration under the contract. The City next sued, seeking to stay the arbitration and annul the BCB ruling. The basic arguments advanced by the City:
1. The City never agreed to arbitrate the procedures used by the DOI in conducting its criminal investigations;
2. A collective bargaining agreement cannot, as a matter of public policy, supplant or impair DOI’s investigation; and
3. The grievances challenging DOI’s procedures are not arbitrable as a matter of strong public policy.
The Court of Appeals said that the public policy issue concerned DOI’s ability to conduct criminal investigations. The court initially noted that it has recognized that “[p]ublic policy whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may restrict the freedom to arbitrate,” citing Susquehanna Valley School District v Susquehanna Valley Teachers Association, 37 NY2d 614.
In this instance the court concluded that considering the statutory and decisional law concerning the DOI and its purpose and its powers, a strong public policy bars arbitrating the grievance. In the words of the court, [t]he City (and its residents) has a significant interest in ensuring that the inner workings of the machinery of public service are honest and free of corruption. We conclude that this public policy restricts the freedom to arbitrate under the circumstances presented here.
The court’s rationale: allowing an arbitrator to grant a city employee or a union the ability to restrict the DOI’s investigatory procedures by invoking the employee rights provisions of a collective bargaining agreement would amount to an impermissible delegation of the broad authority of the City to investigate its internal affairs.
The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments and thus such the denial of tenure is not subject to grievance arbitration.”
In contrast, however, the court distinguished the granting of tenure by an arbitrator to his or her enforcing bargained-for procedural steps preliminary to the board’s final action to grant or withhold tenure. While denying tenure is not arbitrable, alleged violations of procedures to be followed in determining whether to grant or deny tenure are arbitrable.
The court also noted that there are other situations in which no arbitration remedy could be granted without violating public policy. To illustrate this point the court cited Blackburne v Governor’s Office of Employee Relations, 87 NY2d 660).
In Blackburne, an employee, who had violated the Federal Hatch Act, claimed that he was terminated in violation of the procedural guarantees found in the relevant Taylor Agreement.
The Court of Appeals decided that the arbitrator could not mandate compliance with the collective bargaining agreement’s procedural guarantees concerning employee termination without subjecting the State to the loss of Federal funds because of Blackburne’s Hatch Act violation. To do so, said the court, would constitute an impermissible delegation of the State’s sovereign authority.
The general rule set out by the court: Where a court examines an arbitration agreement or an award and concludes that the granting of any relief would violate public policy, courts may intervene and bar arbitration.
In contrast to the situation in the Susquehanna Valley School District case, where the issue concerned the compliance with procedural steps leading to a tenure determination, here, said the court, granting of any relief under the procedural protections of the Taylor Law contract would not only impinge on DOI’s ability to conduct a criminal investigation, but would add another layer of process, decision-making and potential conflict. Thus, public policy considerations preclude referring the matter to arbitration in this instance.
Declining to defer to BCB’s interpretation of the City’s collective bargaining law, the Court of Appeals ruled that the demand for arbitration must be permanently stayed.
* One such investigation, for example, concerned an alleged scam attempted by a firefighter to obtain greater pension benefits by fraudulently claiming that he sustained a disabling injury in the line of duty. The scheme allegedly involved one firefighter calling in a false alarm to afford the injured firefighter the opportunity to claim that his injury occurred in responding to the alarm. Among those firefighters interviewed were members of the Uniformed Fire Officers Association, Local 854 [Local 854].
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 21, 2010
Dec 20, 2010
Employee serving a disciplinary probationary period may be dismissed prior to the expiration of the probationary period without a hearing
Employee serving a disciplinary probationary period may be dismissed prior to the expiration of the probationary period without a hearing
Matter of Bifolco v Kelly, 2010 NY Slip Op 09335, decided on December 16, 2010, Appellate Division, First Department
New York City Police Commissioner Raymond W. Kelly terminated NYC Police Officer Michael Bifolco’s employment while Bifolco was serving a disciplinary probationary period. Bifolco sued seeking reinstatement to his former position.
The Appellate Division affirmed Supreme Court’s dismissal of Bifolco’s petition, noting that the incidents leading to Bifolco’s dismissal well within his disciplinary probationary period, during which time the Commissioner could terminate him without a hearing.
As the Appellate Division said in Witherspoon v Horn, 19 AD3d 250, “It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that his or her dismissal was [made] in bad faith, [was] for a constitutionally impermissible purpose or [was] in violation of the law.”
Further, the former employee’s carries the burden of proof that the appointing authority’s action was unlawful or made in bad faith.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09335.htm
Matter of Bifolco v Kelly, 2010 NY Slip Op 09335, decided on December 16, 2010, Appellate Division, First Department
New York City Police Commissioner Raymond W. Kelly terminated NYC Police Officer Michael Bifolco’s employment while Bifolco was serving a disciplinary probationary period. Bifolco sued seeking reinstatement to his former position.
The Appellate Division affirmed Supreme Court’s dismissal of Bifolco’s petition, noting that the incidents leading to Bifolco’s dismissal well within his disciplinary probationary period, during which time the Commissioner could terminate him without a hearing.
As the Appellate Division said in Witherspoon v Horn, 19 AD3d 250, “It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that his or her dismissal was [made] in bad faith, [was] for a constitutionally impermissible purpose or [was] in violation of the law.”
Further, the former employee’s carries the burden of proof that the appointing authority’s action was unlawful or made in bad faith.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09335.htm
Compulsory interest arbitration
Compulsory interest arbitration
Matter of White Plains and White Plains PBA, 33 PERB 4588
Section 209.4 of the Civil Service Law provides for resolving impasses in collective negotiations between a public employer and an employee organization representing police or fire personnel through arbitration. Not all matters that have gone to impasse may be resolved be referral of the Section 209.4 panel, as the White Plains determination by PERB’s Director of Public Employment Practices and Representation demonstrates.
The White Plains PBA’s collective bargaining proposals included grievance procedures that were to be followed in connection with internal investigations.
In addition to providing for the right to representation during interrogation, the individual was to be advised on the nature of the investigation prior to interrogation and allowed to make notes if he or she was the subject of a criminal investigation [Proposal 8(C)]. Proposal 8(F) provided that [i]f a Police Officer is “under arrest or if such officer is a suspect or the target of a criminal investigation, the officer shall be given MIRANDA warnings* and shall have the opportunity to decline answering any questions.”
White Plains filed an improper practice charge with PERB in which it argued that the PBA had filed a petition for compulsory interest arbitration of its grievance procedure demand and on other matters that were nonmandatory subjects of collective bargaining. In addition to its objection to negotiating the grievance item, White Plains objected to arbitrating to PBA proposals providing that:
1. No Employee shall be denied any overtime [Proposal 12].
2. ... employees on maternity leave in excess of 60 calendar days shall continue to accrue vacation time [Proposal 13].
A few weeks later the PBA filed an improper practice charge with PERB alleging that the City’s answer to its petition for compulsory interest arbitration included a proposal concerning a nonmandatory subject of negotiations.
Toomey found that Proposals 8(C) and 8(F) were nonmandatory subjects of collective bargaining as they addressed procedures to be followed when a unit member was the subject of a criminal investigation.
Although there were other elements set out in Proposal 8 that clearly were mandatory subjects of collective bargaining under the Taylor Law, they did not survive for the purposes of compulsory interest arbitration. Why not? Because, ruled Toomey, Proposal 8 was presented as a single package, it must be found to be nonmandatory in its entirety based on the nonmandatory aspect of some of its parts.
Toomey also found that Proposal 12 was not a mandatory subject of collective bargaining. Toomey explained that in contrast to constituting a demand for overtime compensation, its purpose was to allow employees to work overtime on demand.
As to Proposal 13, Toomey deemed it unlawful and thus not subject to collective bargaining as it provided a special benefit in connection with maternity not available to other employees on paid or unpaid leaves. Toomey, citing School District 6 v NYSHRB, 35 NY2d 371, said that such a personnel policy, even if the product of negotiations under [the Taylor Law] would violate the State’s Human Rights Law and is therefore a prohibited subject of negotiations.
* See Miranda v Arizona, 384 US 436
Matter of White Plains and White Plains PBA, 33 PERB 4588
Section 209.4 of the Civil Service Law provides for resolving impasses in collective negotiations between a public employer and an employee organization representing police or fire personnel through arbitration. Not all matters that have gone to impasse may be resolved be referral of the Section 209.4 panel, as the White Plains determination by PERB’s Director of Public Employment Practices and Representation demonstrates.
The White Plains PBA’s collective bargaining proposals included grievance procedures that were to be followed in connection with internal investigations.
In addition to providing for the right to representation during interrogation, the individual was to be advised on the nature of the investigation prior to interrogation and allowed to make notes if he or she was the subject of a criminal investigation [Proposal 8(C)]. Proposal 8(F) provided that [i]f a Police Officer is “under arrest or if such officer is a suspect or the target of a criminal investigation, the officer shall be given MIRANDA warnings* and shall have the opportunity to decline answering any questions.”
White Plains filed an improper practice charge with PERB in which it argued that the PBA had filed a petition for compulsory interest arbitration of its grievance procedure demand and on other matters that were nonmandatory subjects of collective bargaining. In addition to its objection to negotiating the grievance item, White Plains objected to arbitrating to PBA proposals providing that:
1. No Employee shall be denied any overtime [Proposal 12].
2. ... employees on maternity leave in excess of 60 calendar days shall continue to accrue vacation time [Proposal 13].
A few weeks later the PBA filed an improper practice charge with PERB alleging that the City’s answer to its petition for compulsory interest arbitration included a proposal concerning a nonmandatory subject of negotiations.
Toomey found that Proposals 8(C) and 8(F) were nonmandatory subjects of collective bargaining as they addressed procedures to be followed when a unit member was the subject of a criminal investigation.
Although there were other elements set out in Proposal 8 that clearly were mandatory subjects of collective bargaining under the Taylor Law, they did not survive for the purposes of compulsory interest arbitration. Why not? Because, ruled Toomey, Proposal 8 was presented as a single package, it must be found to be nonmandatory in its entirety based on the nonmandatory aspect of some of its parts.
Toomey also found that Proposal 12 was not a mandatory subject of collective bargaining. Toomey explained that in contrast to constituting a demand for overtime compensation, its purpose was to allow employees to work overtime on demand.
As to Proposal 13, Toomey deemed it unlawful and thus not subject to collective bargaining as it provided a special benefit in connection with maternity not available to other employees on paid or unpaid leaves. Toomey, citing School District 6 v NYSHRB, 35 NY2d 371, said that such a personnel policy, even if the product of negotiations under [the Taylor Law] would violate the State’s Human Rights Law and is therefore a prohibited subject of negotiations.
* See Miranda v Arizona, 384 US 436
Conflict of interest
Conflict of interest
Peterson v Corbin, 275 AD2d 35*
Gregory P. Peterson, the President of the Nassau OTB, sued Roger H. Corbin in an effort to prevent Corbin, a member of the Nassau County legislature, from voting on any appointment to the board of directors of the Nassau OTB.
The reason advanced by Peterson in support of his petition: Corbin was employed as a branch manager for the New York City Off-Track Betting Corporation (NYC-OTB) and was a member of Local 858 of the International Brotherhood of Teamsters, pointing out that Local 858 represented all of the employees of the Nassau OTB and the branch managers of NYC-OTB. This employment and union membership, alleged Peterson, constituted a conflict of interest with respect to Corbin’s performing his duties as a Nassau County Legislator.
A Supreme Court judge issued a preliminary injunction preventing Corbin from voting on OTB appointments based on a finding of the existence of an appearance of impropriety. Corbin appealed. The Appellate Division, Second Department, reversed the lower court’s determination.
Peterson, said the Appellate Division, was required to demonstrate a likelihood of success on the merits by making a prima facie showing, at least by affidavits, if not by testimony, of conflicts of interest. This, said the court, he was unable to do.
According to the Appellate Division, Corbin’s employment as a NYC-OTB branch manager and his position as a member of the Nassau County Legislature pose no conflict since there was nothing in the record indicating the existence of any dealings between NYC-OTB and the Nassau County Legislature.
As to Corbin’s membership in Local 858, the court pointed out that according to the record, he is not an officer or member of the negotiating team of that union.
The court noted that while Local 858 also represents the Nassau OTB employees, there is no connection between the contracts reached by Local 858 and the two OTBs and the record shows that there are two negotiating units within Local 858; one dealing with NYC-OTB branch managers and the other dealing with all the Nassau OTB employees.
The Appellate Division also commented that “even if we assume, without evidence, that Peterson will not be reappointed to the board of directors of the Nassau OTB as a result of Corbin’s decisive vote, this could not be considered irreparable harm [and] Peterson does not have a protected property interest in his position as a director of the Nassau OTB.”
Balancing Peterson’s failure to demonstrate any potential harm in the absence of a preliminary injunction against the right of Corbin’s constituents to be represented in the vote for OTB directors, the court concluded that the preliminary injunction had to be vacated.
* The Court of Appeals dismissed the appeal on its own motion after concluding that the Appellate Division’s order denying the preliminary injunction did not necessarily affect the final judgment of Supreme Court, as required by CPLR 5601 (d), [95 NY2d 919].
Peterson v Corbin, 275 AD2d 35*
Gregory P. Peterson, the President of the Nassau OTB, sued Roger H. Corbin in an effort to prevent Corbin, a member of the Nassau County legislature, from voting on any appointment to the board of directors of the Nassau OTB.
The reason advanced by Peterson in support of his petition: Corbin was employed as a branch manager for the New York City Off-Track Betting Corporation (NYC-OTB) and was a member of Local 858 of the International Brotherhood of Teamsters, pointing out that Local 858 represented all of the employees of the Nassau OTB and the branch managers of NYC-OTB. This employment and union membership, alleged Peterson, constituted a conflict of interest with respect to Corbin’s performing his duties as a Nassau County Legislator.
A Supreme Court judge issued a preliminary injunction preventing Corbin from voting on OTB appointments based on a finding of the existence of an appearance of impropriety. Corbin appealed. The Appellate Division, Second Department, reversed the lower court’s determination.
Peterson, said the Appellate Division, was required to demonstrate a likelihood of success on the merits by making a prima facie showing, at least by affidavits, if not by testimony, of conflicts of interest. This, said the court, he was unable to do.
According to the Appellate Division, Corbin’s employment as a NYC-OTB branch manager and his position as a member of the Nassau County Legislature pose no conflict since there was nothing in the record indicating the existence of any dealings between NYC-OTB and the Nassau County Legislature.
As to Corbin’s membership in Local 858, the court pointed out that according to the record, he is not an officer or member of the negotiating team of that union.
The court noted that while Local 858 also represents the Nassau OTB employees, there is no connection between the contracts reached by Local 858 and the two OTBs and the record shows that there are two negotiating units within Local 858; one dealing with NYC-OTB branch managers and the other dealing with all the Nassau OTB employees.
The Appellate Division also commented that “even if we assume, without evidence, that Peterson will not be reappointed to the board of directors of the Nassau OTB as a result of Corbin’s decisive vote, this could not be considered irreparable harm [and] Peterson does not have a protected property interest in his position as a director of the Nassau OTB.”
Balancing Peterson’s failure to demonstrate any potential harm in the absence of a preliminary injunction against the right of Corbin’s constituents to be represented in the vote for OTB directors, the court concluded that the preliminary injunction had to be vacated.
* The Court of Appeals dismissed the appeal on its own motion after concluding that the Appellate Division’s order denying the preliminary injunction did not necessarily affect the final judgment of Supreme Court, as required by CPLR 5601 (d), [95 NY2d 919].
Modifying a disciplinary penalty
Modifying a disciplinary penalty
Brown v Penn Yan CSD, 275 AD2d 931
Knight v BOCES, App. Div., Fourth Dept., 275 AD2d 1038
Courts are frequently requested to review disciplinary penalties imposed on employees found guilty in administrative disciplinary procedures. The Brown and Knight decisions by the Appellate Division, Fourth Department, involved just such reviews.
The Brown decision:
The Brown decision illustrates the application of the so-called Pell doctrine [Pell v Board of Education, 34 NY2D 222] which bars the imposition of a disciplinary penalty that the court determines is disproportionate to the offense or offenses for which the employee was found guilty.
Penn Yan Central School District custodian James Brown was found guilty of a number of the disciplinary charges filed against him. Specifically, Brown was found guilty of:
1. failing to clean his assigned rooms adequately;
2. sweeping orange peels from the side of the cafeteria for which he was responsible to the side for which a co-worker was responsible; and
3. leaving work 20 minutes early.
The penalty imposed by the district: termination of employment. Brown appealed, claiming that the penalty of dismissal was unlawfully harsh.
The Appellate Division agreed, commenting that while there was substantial evidence in the record to support a finding of guilt, the penalty of dismissal was so disproportionate to the offense as to shock one’s sense of fairness.
One element used by the Appellate Division in justifying its mitigating the imposition of dismissal as a penalty was that Brown was found guilty of charges involving a single occurrence on three separate dates.
Another factor, said the court, was that [e]ven considering the prior incidents of similar misconduct for which [Brown] had received warnings, terminating Brown, a 12-year employee, was an excessive penalty within the meaning of the Pell doctrine.
Although a court would usually remand such a case to the appointing authority for its determination of a lesser penalty, here the Appellate Division decided to exercise its discretion and set the penalty itself. The penalty it imposed: suspension without pay or benefits for one year -- retroactive to October 29, 1999.
The Knight decision:
The BOCES terminated Kathryn Knight, a certified occupational therapy assistant, after she was found her guilty of abusing sick and personal leave and submitting a false claim for reimbursement.
The Appellate Division sustained Knight’s dismissal, holding that [a] high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed.
As to the application of the Pell Doctrine, the court commented that it cannot be said here that the penalty of termination, when considered in light of all of the circumstances of this case, is so disproportionate to the offense as to be shocking to one’s sense of fairness.
Some other considerations: While a court may sustain the disciplinary penalty imposed, remand the case to the appointing authority to impose a new, and lesser, penalty, or impose a lesser penalty as a matter of discretion, may it provide for the imposition of a harsher penalty?
Clearly there are precedents for the appointing officer to impose a harsher penalty than the one recommended by a disciplinary hearing officer. Russo v Wantagh UFSD, App. Div., No. 98-06421, decided March 22, 1999 is an example of such an action.
Although Russo protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty, the Appellate Division ruled that under the circumstances of this case, the termination of the petitioner’s employment was not so disproportionate to the offense as to shock one’s sense of fairness, again quoting the Pell standard.
Similarly, the Commissioner of Education occasionally substituted his judgment for that of a disciplinary panel in considering appeals from disciplinary actions taken under Section 3020-a prior to its amendment in 1994.
For example, in Shurgin v Ambach, 56 NY2d 700, the Court of Appeals affirmed the authority of the Commissioner to decide that a reprimand was a disproportionately lenient penalty for a very serious offense.
The hearing panel in Shurgin had imposed a reprimand as the penalty for the teacher’s poor judgment in showing his class pornographic films. The district appealed and the Commissioner authorized the district to terminate Shurgin.
As to the authority of a court to direct the imposition of a harsher penalty, in Ford v CSEA, 94 AD2d 262, the Appellate Division decided that it could remand the case for such a purpose. Its theory: under the circumstances a lesser penalty constituted a violation of a strong public policy and thus was irrational.
The issue arose in connection with disciplinary action taken against an employee of the Department of Mental Hygiene. The charge filed against the employee: having sexual relations with a patient.
The arbitrator found the employee guilty. Although the agency had sought to have the employee dismissed, the arbitrator imposed the penalty of a two-month suspension without pay because the patient consented to the sexual act that the arbitrator characterized as minimal patient abuse.
The agency head (Ford) appealed in an effort to have the arbitrator’s award vacated and the penalty of dismissal imposed.
The Appellate Division, concluding that the arbitrator exceeded his powers and made an irrational award in violation of ‘a public policy which is beyond waiver’ (by the State), remanded the matter for adjudication by a different arbitrator.
The court noted that “mental patients are incapable of “consent” in (this) context ....” The arbitrator’s determination of physical abuse cannot be passed off lightly with an adjective such as minimal. It found such a characterization by the arbitrator making the original determination appalling and the arbitrator’s refusal to impose the penalty of termination plainly irrational.
Another basis for vacating an arbitrator’s or hearing officer’s determination is a finding that the determination is pre-empted by a court ruling. For example, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are subsequently filed based on that same incident of theft, the hearing officer or the arbitrator may not find the employee not guilty of stealing.
As the court ruled in Kelly v Levin, 440 NY2d 424, acquitting an employee in an administrative disciplinary action is a reversible error if the individual previously was found guilty of a criminal act based on the same allegations.
The Kelly case involved a school business administrator against whom Section 3020-a charges alleging larcenies of school funds and bringing discredit upon the school district. The disciplinary panel the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.
The Court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. Finding that hearing panel’s decision was based on a finding of guilt of the bringing discredit charge only, the matter was remitted to the panel for reconsideration of the appropriate penalty to be imposed in consideration of being found guilty of the larceny charges as well.
The reason: the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt; in a Section 3020-a disciplinary action the standard is preponderance of the evidence, a significantly lower threshold upon which to base a finding of guilt.
However, what happens if the criminal conviction is subsequently reversed. In Beard v Newburgh, 259 AD2d 613, the court said that since the disciplinary arbitrator gave collateral estoppel effect to Beard’s conviction in the criminal action, the disciplinary award had to be vacated. Why so? Because, the court explained, the arbitration award was based exclusively on a criminal conviction that was reversed on appeal. The Appellate Division court directed that a new disciplinary hearing be conducted by the arbitrator.
Brown v Penn Yan CSD, 275 AD2d 931
Knight v BOCES, App. Div., Fourth Dept., 275 AD2d 1038
Courts are frequently requested to review disciplinary penalties imposed on employees found guilty in administrative disciplinary procedures. The Brown and Knight decisions by the Appellate Division, Fourth Department, involved just such reviews.
The Brown decision:
The Brown decision illustrates the application of the so-called Pell doctrine [Pell v Board of Education, 34 NY2D 222] which bars the imposition of a disciplinary penalty that the court determines is disproportionate to the offense or offenses for which the employee was found guilty.
Penn Yan Central School District custodian James Brown was found guilty of a number of the disciplinary charges filed against him. Specifically, Brown was found guilty of:
1. failing to clean his assigned rooms adequately;
2. sweeping orange peels from the side of the cafeteria for which he was responsible to the side for which a co-worker was responsible; and
3. leaving work 20 minutes early.
The penalty imposed by the district: termination of employment. Brown appealed, claiming that the penalty of dismissal was unlawfully harsh.
The Appellate Division agreed, commenting that while there was substantial evidence in the record to support a finding of guilt, the penalty of dismissal was so disproportionate to the offense as to shock one’s sense of fairness.
One element used by the Appellate Division in justifying its mitigating the imposition of dismissal as a penalty was that Brown was found guilty of charges involving a single occurrence on three separate dates.
Another factor, said the court, was that [e]ven considering the prior incidents of similar misconduct for which [Brown] had received warnings, terminating Brown, a 12-year employee, was an excessive penalty within the meaning of the Pell doctrine.
Although a court would usually remand such a case to the appointing authority for its determination of a lesser penalty, here the Appellate Division decided to exercise its discretion and set the penalty itself. The penalty it imposed: suspension without pay or benefits for one year -- retroactive to October 29, 1999.
The Knight decision:
The BOCES terminated Kathryn Knight, a certified occupational therapy assistant, after she was found her guilty of abusing sick and personal leave and submitting a false claim for reimbursement.
The Appellate Division sustained Knight’s dismissal, holding that [a] high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed.
As to the application of the Pell Doctrine, the court commented that it cannot be said here that the penalty of termination, when considered in light of all of the circumstances of this case, is so disproportionate to the offense as to be shocking to one’s sense of fairness.
Some other considerations: While a court may sustain the disciplinary penalty imposed, remand the case to the appointing authority to impose a new, and lesser, penalty, or impose a lesser penalty as a matter of discretion, may it provide for the imposition of a harsher penalty?
Clearly there are precedents for the appointing officer to impose a harsher penalty than the one recommended by a disciplinary hearing officer. Russo v Wantagh UFSD, App. Div., No. 98-06421, decided March 22, 1999 is an example of such an action.
Although Russo protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty, the Appellate Division ruled that under the circumstances of this case, the termination of the petitioner’s employment was not so disproportionate to the offense as to shock one’s sense of fairness, again quoting the Pell standard.
Similarly, the Commissioner of Education occasionally substituted his judgment for that of a disciplinary panel in considering appeals from disciplinary actions taken under Section 3020-a prior to its amendment in 1994.
For example, in Shurgin v Ambach, 56 NY2d 700, the Court of Appeals affirmed the authority of the Commissioner to decide that a reprimand was a disproportionately lenient penalty for a very serious offense.
The hearing panel in Shurgin had imposed a reprimand as the penalty for the teacher’s poor judgment in showing his class pornographic films. The district appealed and the Commissioner authorized the district to terminate Shurgin.
As to the authority of a court to direct the imposition of a harsher penalty, in Ford v CSEA, 94 AD2d 262, the Appellate Division decided that it could remand the case for such a purpose. Its theory: under the circumstances a lesser penalty constituted a violation of a strong public policy and thus was irrational.
The issue arose in connection with disciplinary action taken against an employee of the Department of Mental Hygiene. The charge filed against the employee: having sexual relations with a patient.
The arbitrator found the employee guilty. Although the agency had sought to have the employee dismissed, the arbitrator imposed the penalty of a two-month suspension without pay because the patient consented to the sexual act that the arbitrator characterized as minimal patient abuse.
The agency head (Ford) appealed in an effort to have the arbitrator’s award vacated and the penalty of dismissal imposed.
The Appellate Division, concluding that the arbitrator exceeded his powers and made an irrational award in violation of ‘a public policy which is beyond waiver’ (by the State), remanded the matter for adjudication by a different arbitrator.
The court noted that “mental patients are incapable of “consent” in (this) context ....” The arbitrator’s determination of physical abuse cannot be passed off lightly with an adjective such as minimal. It found such a characterization by the arbitrator making the original determination appalling and the arbitrator’s refusal to impose the penalty of termination plainly irrational.
Another basis for vacating an arbitrator’s or hearing officer’s determination is a finding that the determination is pre-empted by a court ruling. For example, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are subsequently filed based on that same incident of theft, the hearing officer or the arbitrator may not find the employee not guilty of stealing.
As the court ruled in Kelly v Levin, 440 NY2d 424, acquitting an employee in an administrative disciplinary action is a reversible error if the individual previously was found guilty of a criminal act based on the same allegations.
The Kelly case involved a school business administrator against whom Section 3020-a charges alleging larcenies of school funds and bringing discredit upon the school district. The disciplinary panel the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.
The Court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. Finding that hearing panel’s decision was based on a finding of guilt of the bringing discredit charge only, the matter was remitted to the panel for reconsideration of the appropriate penalty to be imposed in consideration of being found guilty of the larceny charges as well.
The reason: the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt; in a Section 3020-a disciplinary action the standard is preponderance of the evidence, a significantly lower threshold upon which to base a finding of guilt.
However, what happens if the criminal conviction is subsequently reversed. In Beard v Newburgh, 259 AD2d 613, the court said that since the disciplinary arbitrator gave collateral estoppel effect to Beard’s conviction in the criminal action, the disciplinary award had to be vacated. Why so? Because, the court explained, the arbitration award was based exclusively on a criminal conviction that was reversed on appeal. The Appellate Division court directed that a new disciplinary hearing be conducted by the arbitrator.
Dec 18, 2010
Readers of NYPPL use a variety of operating systems to access its content
Readers of NYPPL use a variety of operating systems to access its content
Reported by Google
NYPER trivia for December 2010.
Google Statistics reports NYPPL readers used the following means to access this LawBlog.
Windows 47,266
Macintosh 4,133
Other Unix 3,706
iPhone 339
BlackBerry 295
Linux 250
iPad 177
iPod 69
Nokia 54
Palm 38
Reported by Google
NYPER trivia for December 2010.
Google Statistics reports NYPPL readers used the following means to access this LawBlog.
Windows 47,266
Macintosh 4,133
Other Unix 3,706
iPhone 339
BlackBerry 295
Linux 250
iPad 177
iPod 69
Nokia 54
Palm 38
Dec 17, 2010
Liquidation of employee leave credits upon separation
Liquidation of employee leave credits upon separation
Source: A question of general interest submitted by a NYPPL reader
A NYPPL reader asks: "Should an employee be separated from his or her public employment what happens to the employees leave accruals? Is the municipality allowed to keep the money? Where does the money go?”
The most common types of leave accruals or credits that may be credited to an individual at the time of his or her separation are 1. Vacation Leave accruals, 2. Sick Leave accruals, 3. Personnel Leave credits; 4. Overtime credit, and 5. Compensatory leave credit.
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The most common types of personnel transactions in which the question may arise are in the context of a resignation, retirement or death or upon termination for cause [see, generally, 4 NYCRR 23.1].
Less common are situations where the liquidation or use of leave credits is coupled with a leave of absence [see, for example, Civil Service Law §§71 and 72], a transfer [see 4 NYCRR 23.3], absence for military leave [see 4 NYCRR 23.2], a layoff, or a jurisdictional reclassification of an individual’s position [see, for example, Education Law §355.10(c).
The New York State Civil Service Commission's Rules for the Classified Service, 4 NYCRR 30.1, provides for the payment of certain leave accruals upon separation. Many local employees are subject to similar rules or regulations promulgated by a local civil service commission or set out in a collective bargaining agreement.
In addition, there may be provisions set out in an “employment contract” between a public employer and an individual that may be controlling as could be the case with respect to a contract between a school district and its school superintendent.
The State Commission's Rules basically provide that at the time of separation from State service, the employee or the employee’s estate or beneficiary, as the case may be, shall be paid in cash for unused vacation credits not in excess of 30 days. The Commission’s Rules, however, do not provide for the payment of unused sick leave* or personal leave credits [see 4 NYCRR 21.5(b)].
However, the Rules also set out two significant exceptions to such liquidation:
1. In the case of resignation, the appointing authority may require, as a condition for receiving payment for accrued but unused annual leave credit, that employee provide written notice of his or her resignation at least two weeks prior to the last day of work; and
2. No employee [subject to the Commission's Rules] who is removed from State service as a result of disciplinary action, or who resigns after being served with charges of incompetency or misconduct shall be entitled to compensation for vacation credits.
It should be noted that both these limitations apply only to "vacation accruals."
“Overtime accruals" and “compensatory time credit” are distinguished from vacation accruals, as they are provided as a result of work performed. As such accruals and credits are provided in lieu of cash compensation, they constitute "earnings" or "salary" for actual service rather than a fringe benefit such as "vacation leave credits" and up to 30 days of each may be liquidated in cash upon separation [see 4 NYCRR 23.3].
Under certain circumstances, however, it appears that the payment of vacation accruals will be madatory. For example, in Clift v City of Syracuse, 45 AD2d 596, the Appellate Division ruled that if an employee was refused permission to use his or her leave credits and was subsequently terminated, the individual was entitled to payment for his or her unused vacation accruals.
Another decision, Degnan v Constantine, 189 AD2d 423, illustrates the strict construction courts generally give to regulations involving the forfeiture of leave credits.
Degnan, a State Trooper, was eligible to retire when charges of misconduct were filed against him. In order to avoid a disciplinary hearing he "accelerated his original date of retirement."
After he retired Degnan asked for payment for the 30 days of unused vacation leave he had to his credit at the time of his retirement. State Police rejected his request, advising him that because he had resigned from service "in order to evade the charges pending" against him at the time his leave credits were, in effect, forfeited.
The Appellate Division ruled that "the clear and unambiguous language of [Division's] regulations requires that [Degnan] be compensated for up to 30 days of accrued annual leave...." as Degnan, faced with disciplinary charges, did not resign -- he retired instead.
The Appellate Division said that "it is axiomatic that an agency is bound by the language of its own regulations and cannot construe it in such a manner that the plain language on the face of the regulation is rendered meaningless."
In the words of the Appellate Division, "obviously had [the Division of State Police] intended that accrued vacation time be withheld in the case where a member retires during the pendency of disciplinary charges, the regulations would have so provided."
Another element to consider: the impact the Taylor Law. Does the relevant collective bargaining agreement set out the terms and conditions for the liquidation of leave credits upon separation? Could the liquidation of leave credits upon separation be deemed a "past practice" within the meaning of the Taylor Law? The answer is yes to both!
PERB has ruled that the liquidation of leave credits is a mandatory subject of collective bargaining and thus a unilateral changing of a past practice concerning the liquidation of leave credits in cash constituted an unfair labor practice [Center Moriches Administrators Association and Center Moriches UFSD, 28 PERB 3031].
Recent court rulings in which the payment of accrued leave credits upon separation was an issue include:
Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm;
Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm;
Hauptman v Village of Elmira Hgts., 23 Misc 3d 439
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2004/2004_24572.htm;
Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm; and
Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm .
* Employees of the State as an employer retiring with unused sick leave credits may have the actuarial value of such credits applied towards the payment of contributions otherwise required for their NYSHIP health insurance premiums upon retirement [see Civil Service Law §167.4] and, in addition, may receive additional “years of service” credit in determining their retirement allowance [see Retirement and Social Security Law §41.3.j].
Source: A question of general interest submitted by a NYPPL reader
A NYPPL reader asks: "Should an employee be separated from his or her public employment what happens to the employees leave accruals? Is the municipality allowed to keep the money? Where does the money go?”
The most common types of leave accruals or credits that may be credited to an individual at the time of his or her separation are 1. Vacation Leave accruals, 2. Sick Leave accruals, 3. Personnel Leave credits; 4. Overtime credit, and 5. Compensatory leave credit.
.
The most common types of personnel transactions in which the question may arise are in the context of a resignation, retirement or death or upon termination for cause [see, generally, 4 NYCRR 23.1].
Less common are situations where the liquidation or use of leave credits is coupled with a leave of absence [see, for example, Civil Service Law §§71 and 72], a transfer [see 4 NYCRR 23.3], absence for military leave [see 4 NYCRR 23.2], a layoff, or a jurisdictional reclassification of an individual’s position [see, for example, Education Law §355.10(c).
The New York State Civil Service Commission's Rules for the Classified Service, 4 NYCRR 30.1, provides for the payment of certain leave accruals upon separation. Many local employees are subject to similar rules or regulations promulgated by a local civil service commission or set out in a collective bargaining agreement.
In addition, there may be provisions set out in an “employment contract” between a public employer and an individual that may be controlling as could be the case with respect to a contract between a school district and its school superintendent.
The State Commission's Rules basically provide that at the time of separation from State service, the employee or the employee’s estate or beneficiary, as the case may be, shall be paid in cash for unused vacation credits not in excess of 30 days. The Commission’s Rules, however, do not provide for the payment of unused sick leave* or personal leave credits [see 4 NYCRR 21.5(b)].
However, the Rules also set out two significant exceptions to such liquidation:
1. In the case of resignation, the appointing authority may require, as a condition for receiving payment for accrued but unused annual leave credit, that employee provide written notice of his or her resignation at least two weeks prior to the last day of work; and
2. No employee [subject to the Commission's Rules] who is removed from State service as a result of disciplinary action, or who resigns after being served with charges of incompetency or misconduct shall be entitled to compensation for vacation credits.
It should be noted that both these limitations apply only to "vacation accruals."
“Overtime accruals" and “compensatory time credit” are distinguished from vacation accruals, as they are provided as a result of work performed. As such accruals and credits are provided in lieu of cash compensation, they constitute "earnings" or "salary" for actual service rather than a fringe benefit such as "vacation leave credits" and up to 30 days of each may be liquidated in cash upon separation [see 4 NYCRR 23.3].
Under certain circumstances, however, it appears that the payment of vacation accruals will be madatory. For example, in Clift v City of Syracuse, 45 AD2d 596, the Appellate Division ruled that if an employee was refused permission to use his or her leave credits and was subsequently terminated, the individual was entitled to payment for his or her unused vacation accruals.
Another decision, Degnan v Constantine, 189 AD2d 423, illustrates the strict construction courts generally give to regulations involving the forfeiture of leave credits.
Degnan, a State Trooper, was eligible to retire when charges of misconduct were filed against him. In order to avoid a disciplinary hearing he "accelerated his original date of retirement."
After he retired Degnan asked for payment for the 30 days of unused vacation leave he had to his credit at the time of his retirement. State Police rejected his request, advising him that because he had resigned from service "in order to evade the charges pending" against him at the time his leave credits were, in effect, forfeited.
The Appellate Division ruled that "the clear and unambiguous language of [Division's] regulations requires that [Degnan] be compensated for up to 30 days of accrued annual leave...." as Degnan, faced with disciplinary charges, did not resign -- he retired instead.
The Appellate Division said that "it is axiomatic that an agency is bound by the language of its own regulations and cannot construe it in such a manner that the plain language on the face of the regulation is rendered meaningless."
In the words of the Appellate Division, "obviously had [the Division of State Police] intended that accrued vacation time be withheld in the case where a member retires during the pendency of disciplinary charges, the regulations would have so provided."
Another element to consider: the impact the Taylor Law. Does the relevant collective bargaining agreement set out the terms and conditions for the liquidation of leave credits upon separation? Could the liquidation of leave credits upon separation be deemed a "past practice" within the meaning of the Taylor Law? The answer is yes to both!
PERB has ruled that the liquidation of leave credits is a mandatory subject of collective bargaining and thus a unilateral changing of a past practice concerning the liquidation of leave credits in cash constituted an unfair labor practice [Center Moriches Administrators Association and Center Moriches UFSD, 28 PERB 3031].
Recent court rulings in which the payment of accrued leave credits upon separation was an issue include:
Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm;
Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm;
Hauptman v Village of Elmira Hgts., 23 Misc 3d 439
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2004/2004_24572.htm;
Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm; and
Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm .
* Employees of the State as an employer retiring with unused sick leave credits may have the actuarial value of such credits applied towards the payment of contributions otherwise required for their NYSHIP health insurance premiums upon retirement [see Civil Service Law §167.4] and, in addition, may receive additional “years of service” credit in determining their retirement allowance [see Retirement and Social Security Law §41.3.j].
Governor Paterson signs Executive Order on Record Keeping Procedures and Policies
Governor Paterson signs Executive Order on Record Keeping Procedures and Policies
Source: Office of the Governor
On December 14, 2010 Governor David A. Paterson issued an Executive Order addressing the development and implementation of a records management policy for the Executive Chamber, including an archives retention schedule.
The Governor signed the Executive Order, 9 NYCRR 7.42, following his veto of S.6846/A.9928.
The Executive Order requires that a retention schedule be promulgated and made public. The schedule categorizes documents prepared in the Executive Chamber and sets forth a period for their retention and ultimate disposition. All records of historic and governmental significance will be preserved, published and made publicly accessible.*
A member of the Executive Chamber Counsel's Office is designated as the Records Retention Officer and will be responsible for coordinating Executive Chamber record retention activities.
The Governor vetoed S.6846/A.9928, also known as the Archives Bill. In his veto message, the Governor acknowledged the sponsors' efforts, but noted that the bill did not provide adequate protection for valued, centuries old governmental privileges that are indispensable to ensure unfettered, candid advice. The Governor also said the bill would have imposed significant and costly burdens on the Executive Chamber and would tip the balance of power between the Legislature and Executive by allowing the former immediate access to executive records, without imposing any comparable transparency requirements upon itself.
* The Counsel to the Governor will negotiate an agreement for storage of the information, and the circumstances on which it would be made available to the public. Executive Chamber records created during the Paterson Administration will be donated to Cornell University.
Source: Office of the Governor
On December 14, 2010 Governor David A. Paterson issued an Executive Order addressing the development and implementation of a records management policy for the Executive Chamber, including an archives retention schedule.
The Governor signed the Executive Order, 9 NYCRR 7.42, following his veto of S.6846/A.9928.
The Executive Order requires that a retention schedule be promulgated and made public. The schedule categorizes documents prepared in the Executive Chamber and sets forth a period for their retention and ultimate disposition. All records of historic and governmental significance will be preserved, published and made publicly accessible.*
A member of the Executive Chamber Counsel's Office is designated as the Records Retention Officer and will be responsible for coordinating Executive Chamber record retention activities.
The Governor vetoed S.6846/A.9928, also known as the Archives Bill. In his veto message, the Governor acknowledged the sponsors' efforts, but noted that the bill did not provide adequate protection for valued, centuries old governmental privileges that are indispensable to ensure unfettered, candid advice. The Governor also said the bill would have imposed significant and costly burdens on the Executive Chamber and would tip the balance of power between the Legislature and Executive by allowing the former immediate access to executive records, without imposing any comparable transparency requirements upon itself.
* The Counsel to the Governor will negotiate an agreement for storage of the information, and the circumstances on which it would be made available to the public. Executive Chamber records created during the Paterson Administration will be donated to Cornell University.
Determining on-duty status
Determining on-duty status
Cossifos v NYSERS, 275 AD2d 879
Clearly an individual who is disabled in the course of performing his or her duties may be eligible for accidental disability retirement benefits provided by a public retirement system of this state as a result of his or her being injured while on-duty. The critical issue to be determined in considering such claims, however, is whether or not the disabled employee was at work within the meaning of the statute providing for such benefits when he or she suffered the injury.
In the Cossifos case, the question to be resolved was whether an employee who was injured while eating lunch at the worksite was engaged in performing his or her duties for the purpose of eligibility for disability retirement benefits under the Retirement and Social Security Law.
Alexander Cossifos, a senior court officer, was eating his lunch in the court’s locker room when another court officer accidentally caused one of the lockers to fall on him. He applied for accidental disability retirement benefits.
The New York State Employees’ Retirement System [ERS] rejected his application for accidental disability retirement. It said that Cossifos was not working when he was injured and therefore he was ineligible for such benefits. In the words of ERS, Cossifos was on his off-duty lunch break at the time of the accident and was therefore not in service when his injuries were sustained.
Cossifos sued, only to have his appeal dismissed by the Appellate Division. The court said that there was substantial evidence in the record to support ERS’ determination. Among the facts relied upon by ERS in making its determination:
1. Cossifos’ lunch break varied from 45 minutes to two hours, at the discretion of the court.
2. Cossifos was permitted to leave the courthouse during his designated lunch period, provided that he returned to duty at the time indicated by the court.
3. There was nothing in the record to support Cossifos’ claim that he was performing his job duties during his lunch break.
4. Cossifos was not paid for the period of time he spent eating lunch and that his presence in the courthouse during his break was not required by his employment.
The Appellate Division concluded under these circumstances there was no basis to disturb ERS’ determination that Cossifos was not in service at the time of the accident and, thus he was not entitled to accidental disability retirement benefits.
The decision also notes that “[t]he fact that [Cossifos] was within the confines of the employer’s premises at the time of the injury and could have been summoned to assist in a work-related matter while he was on his lunch break does not warrant a contrary finding.”
Smith v City of Rochester, 255 AD2d 863, however, sets out one significant exception to the general rule that eating lunch is not work. Smith, decided by the Appellate Division, Fourth Department, involved a workers’ compensation claim.
Donna Smith, a city-parking monitor, challenged the denial of her claim for workers’ compensation as a result of her slipping on a wet floor while leaving a restaurant during her unpaid lunch break. The Workers’ Compensation Board ruled that Smith’s fall did not constitute an accidental injury in the course of her employment.
The Appellate Division affirmed the board’s determination, holding that lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.
In another injury at the worksite case, Crockett v Safir, 269 AD2d 227, Appellate Division, First Department, the court rejected New York City police officer Donna Crockett’s claim that she suffered a line-of-duty injury when a mirror fell and injured her while she was brushing her teeth in the ladies’ room of a police building. The court sustained the police commissioner’s ruling that Crockett was not actually employed in discharging the orders of a superior officer at the time of the accident, as required by the statute.
Cossifos v NYSERS, 275 AD2d 879
Clearly an individual who is disabled in the course of performing his or her duties may be eligible for accidental disability retirement benefits provided by a public retirement system of this state as a result of his or her being injured while on-duty. The critical issue to be determined in considering such claims, however, is whether or not the disabled employee was at work within the meaning of the statute providing for such benefits when he or she suffered the injury.
In the Cossifos case, the question to be resolved was whether an employee who was injured while eating lunch at the worksite was engaged in performing his or her duties for the purpose of eligibility for disability retirement benefits under the Retirement and Social Security Law.
Alexander Cossifos, a senior court officer, was eating his lunch in the court’s locker room when another court officer accidentally caused one of the lockers to fall on him. He applied for accidental disability retirement benefits.
The New York State Employees’ Retirement System [ERS] rejected his application for accidental disability retirement. It said that Cossifos was not working when he was injured and therefore he was ineligible for such benefits. In the words of ERS, Cossifos was on his off-duty lunch break at the time of the accident and was therefore not in service when his injuries were sustained.
Cossifos sued, only to have his appeal dismissed by the Appellate Division. The court said that there was substantial evidence in the record to support ERS’ determination. Among the facts relied upon by ERS in making its determination:
1. Cossifos’ lunch break varied from 45 minutes to two hours, at the discretion of the court.
2. Cossifos was permitted to leave the courthouse during his designated lunch period, provided that he returned to duty at the time indicated by the court.
3. There was nothing in the record to support Cossifos’ claim that he was performing his job duties during his lunch break.
4. Cossifos was not paid for the period of time he spent eating lunch and that his presence in the courthouse during his break was not required by his employment.
The Appellate Division concluded under these circumstances there was no basis to disturb ERS’ determination that Cossifos was not in service at the time of the accident and, thus he was not entitled to accidental disability retirement benefits.
The decision also notes that “[t]he fact that [Cossifos] was within the confines of the employer’s premises at the time of the injury and could have been summoned to assist in a work-related matter while he was on his lunch break does not warrant a contrary finding.”
Smith v City of Rochester, 255 AD2d 863, however, sets out one significant exception to the general rule that eating lunch is not work. Smith, decided by the Appellate Division, Fourth Department, involved a workers’ compensation claim.
Donna Smith, a city-parking monitor, challenged the denial of her claim for workers’ compensation as a result of her slipping on a wet floor while leaving a restaurant during her unpaid lunch break. The Workers’ Compensation Board ruled that Smith’s fall did not constitute an accidental injury in the course of her employment.
The Appellate Division affirmed the board’s determination, holding that lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.
In another injury at the worksite case, Crockett v Safir, 269 AD2d 227, Appellate Division, First Department, the court rejected New York City police officer Donna Crockett’s claim that she suffered a line-of-duty injury when a mirror fell and injured her while she was brushing her teeth in the ladies’ room of a police building. The court sustained the police commissioner’s ruling that Crockett was not actually employed in discharging the orders of a superior officer at the time of the accident, as required by the statute.
Discrimination complaints and discipline
Discrimination complaints and discipline
Scroggins v Univ. of Minnesota, 8th Cir., 221 F.3d 1042
An employee files a discrimination complaint pursuant to Title VII against his or her employer. A short time later the employee is brought up on disciplinary charges, found guilty, and terminated. Is the employer guilty of retaliation against the employee in violation of Title VII? Stated another way, does the fact that an individual has filed a discrimination complaint mean that he or she may not be disciplined until the discrimination complaint is resolved?
In the Scroggins case, the U.S. Circuit Court of Appeals, Eight Circuit, decided that the fact that James Scroggins, an African-American, was terminated shortly after he filed a human rights complaint against the University of Minnesota did not mean that the University automatically violated the anti-retaliation provision in Title VII.
Scroggins was employed by the University as a custodian. He was counseled and disciplined on a number of occasions. Ultimately he was fired after being found guilty of sleeping after his break time had ended. This disciplinary action occurred just two weeks after Scroggins had filed his Title VII discrimination complaint against the University.
The Circuit Court characterized the fact that Scroggins was fired just two weeks after filing a discrimination charge as mere coincidence, rejecting his allegation that the disciplinary action against him was racially motivated and that his dismissal retaliatory. According to the court, the University had demonstrated that it had a valid, nondiscriminatory reasons for firing Scroggins.
Scroggins, on the other hand, said the court, did not offer any proof that the reasons given by the University for terminating him were pretextual.
Citing Kiel v Select Artificials, 169 F.3d 1131, the court pointed out that more than a showing that the termination occurred shortly after the individual had engaged in protected conduct, i.e., filing discrimination compliant with EEOC, is required. The individual must show that there is a factual issue of retaliation if his or her cause of action is to survive a motion for summary dismissal.
The court’s rationale: anti-discrimination statutes do not serve to insulate an employee from being disciplined for violating the employer’s work rules or disrupting the workplace.
Scroggins v Univ. of Minnesota, 8th Cir., 221 F.3d 1042
An employee files a discrimination complaint pursuant to Title VII against his or her employer. A short time later the employee is brought up on disciplinary charges, found guilty, and terminated. Is the employer guilty of retaliation against the employee in violation of Title VII? Stated another way, does the fact that an individual has filed a discrimination complaint mean that he or she may not be disciplined until the discrimination complaint is resolved?
In the Scroggins case, the U.S. Circuit Court of Appeals, Eight Circuit, decided that the fact that James Scroggins, an African-American, was terminated shortly after he filed a human rights complaint against the University of Minnesota did not mean that the University automatically violated the anti-retaliation provision in Title VII.
Scroggins was employed by the University as a custodian. He was counseled and disciplined on a number of occasions. Ultimately he was fired after being found guilty of sleeping after his break time had ended. This disciplinary action occurred just two weeks after Scroggins had filed his Title VII discrimination complaint against the University.
The Circuit Court characterized the fact that Scroggins was fired just two weeks after filing a discrimination charge as mere coincidence, rejecting his allegation that the disciplinary action against him was racially motivated and that his dismissal retaliatory. According to the court, the University had demonstrated that it had a valid, nondiscriminatory reasons for firing Scroggins.
Scroggins, on the other hand, said the court, did not offer any proof that the reasons given by the University for terminating him were pretextual.
Citing Kiel v Select Artificials, 169 F.3d 1131, the court pointed out that more than a showing that the termination occurred shortly after the individual had engaged in protected conduct, i.e., filing discrimination compliant with EEOC, is required. The individual must show that there is a factual issue of retaliation if his or her cause of action is to survive a motion for summary dismissal.
The court’s rationale: anti-discrimination statutes do not serve to insulate an employee from being disciplined for violating the employer’s work rules or disrupting the workplace.
Modifying a disciplinary procedure
Modifying a disciplinary procedure
NYC Transit Auth, v PERB, 276 AD2d 702, Motion for leave to appeal denied, 96 NY2d 713
The New York City Transit Authority case demonstrates the fact that neither an employer nor an employee organization may unilaterally modify a statutory or negotiated disciplinary procedures. Where such changes are desired, they are subject to the collective bargaining process set out in the Taylor Law.*
The case started after the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority [TA] unilaterally adopted new rules setting out revised standards and penalties with respect to convictions, moving violations, and motor vehicle accidents involving TA bus drivers.
Contending that these changes imposed rules that were more stringent than those they replaced, the Amalgamated Transit Union, Divisions 726 and 1056 and Local 100, Transport Workers Union of America [Union], representing TA employees affected by the change filed an improper practice charge with PERB.
PERB’s Administrative Law Judge [ALJ] rejected TA’s argument that the revised standards and penalties were qualifications to be satisfied before becoming a bus driver and thus not terms and conditions of employment for the purposes of the Taylor Law.
The ALJ held that the changes imposed by the TA constituted terms and conditions to be satisfied to continue employment as a bus driver rather than qualifications for employment. Accordingly, concluded the ALJ, the changes made by the TA were a mandatory subject of collective bargaining under the Taylor Law.
The bottom line: the ALJ ruled that TA’s refusal to engage in negotiations prior to before imposing the revisions violated the mandates of Section 209-a.1(d). TA appealed but PERB sustained its ALJ’s decision, noting that since the revised standards carried a disciplinary component, they were mandatory items of negotiation and thus TA should have first entered into collective negotiations with the Union concerning these changes.
PERB issued its ruling that the TA had violated Section 209-a.1(d) of the Civil Service Law Section by unilaterally implementing new disciplinary work rules and penalties. Finding that PERB’s decision was neither irrational, unreasonable, nor affected by any error of law, the Appellate Division, Second Department, sustained the ruling and dismissed the TA’s appeal.
* Section 76 of the Civil Service Law and Section 3020-a of the Education Law authorize the negotiating an alternative to the disciplinary procedures set out in those law pursuant to the Taylor Law. For information about PELP's The Discipline Book, go to: http://thedisciplinebook.blogspot.com/
NYC Transit Auth, v PERB, 276 AD2d 702, Motion for leave to appeal denied, 96 NY2d 713
The New York City Transit Authority case demonstrates the fact that neither an employer nor an employee organization may unilaterally modify a statutory or negotiated disciplinary procedures. Where such changes are desired, they are subject to the collective bargaining process set out in the Taylor Law.*
The case started after the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority [TA] unilaterally adopted new rules setting out revised standards and penalties with respect to convictions, moving violations, and motor vehicle accidents involving TA bus drivers.
Contending that these changes imposed rules that were more stringent than those they replaced, the Amalgamated Transit Union, Divisions 726 and 1056 and Local 100, Transport Workers Union of America [Union], representing TA employees affected by the change filed an improper practice charge with PERB.
PERB’s Administrative Law Judge [ALJ] rejected TA’s argument that the revised standards and penalties were qualifications to be satisfied before becoming a bus driver and thus not terms and conditions of employment for the purposes of the Taylor Law.
The ALJ held that the changes imposed by the TA constituted terms and conditions to be satisfied to continue employment as a bus driver rather than qualifications for employment. Accordingly, concluded the ALJ, the changes made by the TA were a mandatory subject of collective bargaining under the Taylor Law.
The bottom line: the ALJ ruled that TA’s refusal to engage in negotiations prior to before imposing the revisions violated the mandates of Section 209-a.1(d). TA appealed but PERB sustained its ALJ’s decision, noting that since the revised standards carried a disciplinary component, they were mandatory items of negotiation and thus TA should have first entered into collective negotiations with the Union concerning these changes.
PERB issued its ruling that the TA had violated Section 209-a.1(d) of the Civil Service Law Section by unilaterally implementing new disciplinary work rules and penalties. Finding that PERB’s decision was neither irrational, unreasonable, nor affected by any error of law, the Appellate Division, Second Department, sustained the ruling and dismissed the TA’s appeal.
* Section 76 of the Civil Service Law and Section 3020-a of the Education Law authorize the negotiating an alternative to the disciplinary procedures set out in those law pursuant to the Taylor Law. For information about PELP's The Discipline Book, go to: http://thedisciplinebook.blogspot.com/
Dec 16, 2010
Arbitrators generally permitted independent recourse to third-party sources when necessary to confirm technical information
Arbitrators generally permitted independent recourse to third-party sources when necessary to confirm technical information
Matter of Watt v Roberts, 2010 NY Slip Op 09171, decided on December 14, 2010, Appellate Division, First Department
An arbitration panel selected by the Transport Workers Union of America, Local 100 and the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority granted a 3% wage increase to employees of the Authorities and capped the formula for employees' contributions toward health insurance costs.
The award was subsequently confirmed by Supreme Court, which denied the Authorities’ Article 75 motion to vacate the award. The Appellate Division affirmed the lower court’s ruling.
The Authorities had objected to the arbitration panel's references to certain matters outside the hearing record, including the MTA's 2010 Preliminary Budget and July Financial Plan and matters reported in newspaper articles. The Appellate Division, however, ruled that this did not constitute "corruption, fraud, or misconduct in procuring the award" prejudicing the rights of either party and warranting vacatur.
The court noted that arbitrators "often are chosen because of their expertise in a particular area and are generally permitted independent recourse to third-party sources when necessary to confirm technical information." In this instance, said the Appellate Division, the arbitrators did not purport to rely on matters outside the record in setting the award, but acknowledged and referred to developments known to the parties and widely reported.
In effect, the court appears to have equated the arbitration panel’s consideration of “third-party sources” equivalent to it taking “judicial notice” in a legal action. West's Encyclopedia of American Law defines “judicial notice” as “A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09171.htm
Matter of Watt v Roberts, 2010 NY Slip Op 09171, decided on December 14, 2010, Appellate Division, First Department
An arbitration panel selected by the Transport Workers Union of America, Local 100 and the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority granted a 3% wage increase to employees of the Authorities and capped the formula for employees' contributions toward health insurance costs.
The award was subsequently confirmed by Supreme Court, which denied the Authorities’ Article 75 motion to vacate the award. The Appellate Division affirmed the lower court’s ruling.
The Authorities had objected to the arbitration panel's references to certain matters outside the hearing record, including the MTA's 2010 Preliminary Budget and July Financial Plan and matters reported in newspaper articles. The Appellate Division, however, ruled that this did not constitute "corruption, fraud, or misconduct in procuring the award" prejudicing the rights of either party and warranting vacatur.
The court noted that arbitrators "often are chosen because of their expertise in a particular area and are generally permitted independent recourse to third-party sources when necessary to confirm technical information." In this instance, said the Appellate Division, the arbitrators did not purport to rely on matters outside the record in setting the award, but acknowledged and referred to developments known to the parties and widely reported.
In effect, the court appears to have equated the arbitration panel’s consideration of “third-party sources” equivalent to it taking “judicial notice” in a legal action. West's Encyclopedia of American Law defines “judicial notice” as “A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09171.htm
The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies
The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies
Kahn v New York City Dept. of Educ., 2010 NY Slip Op 09168, decided on December 14, 2010, Appellate Division, First Department
Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “denying her a Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to administrative review under the relevant collective bargaining agreement.
Kahn filed an administrative appeal. An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging the determination.
Although Kahn had not filed a “notice of claim” pursuant to Education Law §3813(1), the Appellate Division said that such an omission was not a bar to her action, which was equitable in nature. The court explained that a notice of claim is only required “when money damages are sought, citing Ruocco v Doyle, 38 AD2d 132.
Overcoming this hurdle, however, did not result in the court's considering the merits of Kahn's claim as the Appellate Division then found that her action was time-barred because she filed her Article 78 petition after the statute of limitations had expired.
The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.
Assuming that Kahn had initiated a timely Article 78 action and not filed her administrative appeal, the New York City Department of Education would probably have moved to dismiss her petition on the ground that “Kahn had failed to exhaust her administrative remedy.” Presumably the court would have agreed and dismissed her petition.
To avoid such a result, where there is an administrative remedy available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition.
Kahn also claimed that the Department’s action deprived her of certain civil rights in violation of the Federal Civil Rights Act of 1871, 42 USC §1983.
The Appellate Division said that a claim based on an alleged violations of 42 USC §1983 requires that the proponent show that he or she was deprived of a property or liberty interest without due process of law. However, said the court, a probationary teacher does not have a property right in his or her position nor did the procedure set out in the collective bargaining agreement create such a property interest.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09168.htm
Kahn v New York City Dept. of Educ., 2010 NY Slip Op 09168, decided on December 14, 2010, Appellate Division, First Department
Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “denying her a Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to administrative review under the relevant collective bargaining agreement.
Kahn filed an administrative appeal. An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging the determination.
Although Kahn had not filed a “notice of claim” pursuant to Education Law §3813(1), the Appellate Division said that such an omission was not a bar to her action, which was equitable in nature. The court explained that a notice of claim is only required “when money damages are sought, citing Ruocco v Doyle, 38 AD2d 132.
Overcoming this hurdle, however, did not result in the court's considering the merits of Kahn's claim as the Appellate Division then found that her action was time-barred because she filed her Article 78 petition after the statute of limitations had expired.
The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.
Assuming that Kahn had initiated a timely Article 78 action and not filed her administrative appeal, the New York City Department of Education would probably have moved to dismiss her petition on the ground that “Kahn had failed to exhaust her administrative remedy.” Presumably the court would have agreed and dismissed her petition.
To avoid such a result, where there is an administrative remedy available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition.
Kahn also claimed that the Department’s action deprived her of certain civil rights in violation of the Federal Civil Rights Act of 1871, 42 USC §1983.
The Appellate Division said that a claim based on an alleged violations of 42 USC §1983 requires that the proponent show that he or she was deprived of a property or liberty interest without due process of law. However, said the court, a probationary teacher does not have a property right in his or her position nor did the procedure set out in the collective bargaining agreement create such a property interest.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09168.htm
Retirement incentives
Retirement incentives
Bellanca v Grand Island CSD, 275 AD2d 944
Sometimes the retirement incentives promised by the employer are not granted to the individual. This type of situation was the genesis of the Bellanca case.
Peter Bellanca and nine other teachers sued the Grand Island Central School District in an attempt to have the court rescind their having previously decided to elect early retirement. They asked the court to direct their reinstatement to their former positions with back pay and damages.
According to the teachers, the district induced them to accept early retirement by promising them special incentives.
Their complaint: the district did not provide the incentives to them as promised because their final average salary for the purpose of calculating their retirement allowance did not include their severance payment.
Section 431 of the Retirement and Social Security Law provides that after April 1, 1972, the salary base for the computation of retirement benefits paid by a public retirement system of this state shall not include: 1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked; 2. Any form of termination pay; 3. Any additional compensation paid in anticipation of retirement: or 4. That portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum.
One of the issues concerned the district’s attempt to have the teachers’ petition dismissed on the theory that they had failed to exhaust their administrative remedies.
According to the district, the teachers should have filed a grievance as provided by collective bargaining agreement. As they had not, district argued that the teachers were barred from litigating claims alleging that the district’s action were negligent or constituted a fraudulent misrepresentation of fact or the parties’ mutual mistake of fact.
The Appellate Division said that none of the teachers failed to exhaust any available administrative remedies. Why not? Because, said the court, their complaints do not allege any violation of the collective bargaining agreement and thus does not fall within the agreement’s definition of a grievance.
Bellanca v Grand Island CSD, 275 AD2d 944
Sometimes the retirement incentives promised by the employer are not granted to the individual. This type of situation was the genesis of the Bellanca case.
Peter Bellanca and nine other teachers sued the Grand Island Central School District in an attempt to have the court rescind their having previously decided to elect early retirement. They asked the court to direct their reinstatement to their former positions with back pay and damages.
According to the teachers, the district induced them to accept early retirement by promising them special incentives.
Their complaint: the district did not provide the incentives to them as promised because their final average salary for the purpose of calculating their retirement allowance did not include their severance payment.
Section 431 of the Retirement and Social Security Law provides that after April 1, 1972, the salary base for the computation of retirement benefits paid by a public retirement system of this state shall not include: 1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked; 2. Any form of termination pay; 3. Any additional compensation paid in anticipation of retirement: or 4. That portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum.
One of the issues concerned the district’s attempt to have the teachers’ petition dismissed on the theory that they had failed to exhaust their administrative remedies.
According to the district, the teachers should have filed a grievance as provided by collective bargaining agreement. As they had not, district argued that the teachers were barred from litigating claims alleging that the district’s action were negligent or constituted a fraudulent misrepresentation of fact or the parties’ mutual mistake of fact.
The Appellate Division said that none of the teachers failed to exhaust any available administrative remedies. Why not? Because, said the court, their complaints do not allege any violation of the collective bargaining agreement and thus does not fall within the agreement’s definition of a grievance.
Section 207-c administrative hearings
Section 207-c administrative hearings
Doolittle v Broome County, 276 AD2d 863
The Doolittle case involves a relatively unique issue: a hearing officer conducting a Section 207-c hearing* deciding the duration of a workplace stress situation that the employee claimed was the cause of her work-connected disability.
Rita Doolittle, a Broome County correction officer, claimed that she had suffered a disability as a result of work-related stress. She applied for workers’ compensation benefits. One of the issues addressed by the Appellate Division, Third Department, in this round of litigation concerned the determination of the period for which Doolittle was eligible for disability benefits.
According to the decision, the Section 207-c hearing officer had determined that Doolittle was entitled to Section 207-c benefits only for a limited period of time - about eight months in all.
The hearing officer had concluded that any psychological injury suffered by [Doolittle] as a result of workplace stress was limited in time from March 1989 to November 1989 in view of the Doolittle’s expert witness’ testimony that she had subsequently suffered an adjustment disorder arising from the stress of the lawsuit and [the County’s] ... internal investigation ... for approximately six months. Doolittle appealed the hearing officer’s determination.
A comprehensive review of the history of this litigation is set out in an earlier appeal, Matter of Doolittle, 220 AD2d 864. Briefly, in 1988 Doolittle and two female co-workers filed complaints alleging gender discrimination and sexual harassment in the workplace. Broome County commenced an internal investigation of the allegations. In March 1989 Doolittle had a nervous breakdown while on the job and claimed that she was unable to return to work due to this workplace injury.
Doolittle filed an application for workers’ compensation benefits. Broome’s policy was to consider an application for workers’ compensation benefits as a claim or request for both workers’ compensation benefits and for disability benefits under Section 207-c of the General Municipal Law. It, however, controverted [opposed] both applications for benefits on the grounds that Doolittle had not suffered any injury on the job.
Doolittle was terminated due to her absence from work for a period of more than one year, presumably pursuant to Section 73 of the Civil Service Law since the County had controverted her claims.**
Following Broome County’s risk manager rejecting Doolittle’s application for Section 207-c benefits, a Section 207-c hearing was scheduled in accordance with the County’s Local Law 15.
In the course of her federal action, Doolittle claimed that she had experienced another nervous breakdown while she was testifying. A mistrial was declared after the court concluded that she was unwilling or unable to continue. Eventually the federal action was dismissed for failure to prosecute.
Doolittle also alleged that she was unable to testify at the Section 207-c hearing and asked the hearing officer to consider her deposition testimony instead. She also refused to comply with the Hearing Officer’s directive that she submit to an examination by Broome County’s forensic psychiatrist as to her ability to participate effectively in the hearing.
Ultimately the hearing officer determined that Doolittle had sustained a compensable injury on March 8, 1989 and that she was disabled as a result of that injury from that date through November 30, 1989. Accordingly, ruled the hearing officer, Doolittle was entitled to benefits from the County for that discrete time-period only.
After holding that Doolittle’s appeal from the hearing officer’s Section 209-c determination was time-barred, having been filed more than four months after the hearing officer had issued the decision, the Appellate Division elected to note that “if this matter was properly before us, we would find the determination that [Doolittle] was entitled to benefits for a discrete period of eight months to be supported by sufficient evidence in the record.” The court’s rationale:
In view of the nine years between petitioner’s last day on the job in March 1989 and the commencement of the hearing in 1998, it was reasonable for the Hearing Officer to determine the duration of any mental illness or condition that could be deemed attributable to the working conditions in the County Jail in 1989.
In addition, the court also observed that the Hearing Officer could decline to consider otherwise relevant evidence offered by Doolittle because of her refusal to undergo an examination or to provide requested documents.
Significantly, the Appellate Division said that it was not irrational for the Hearing Officer to draw a strong inference against Doolittle as the result of her failure to call her psychologist to provide psychological justification for her failure to participate in the hearing, especially in view of her refusal to cooperate with efforts to inquire into her claim that she was medically unfit to testify.
Unlike a criminal action where the accused had a constitutional right not to testify or be called as a witness, in an administrative action such as a disciplinary hearing or a Section 207-c hearing, the hearing officer may consider the fact that the individual did not testify on his or her own behalf and, moreover, may conclude that such testimony, which would be under oath, would not be helpful to his or her case.
Further, said the court, Doolittle was not prejudiced by the Hearing Officer’s reference to workers’ compensation case law because the Workers’ Compensation Law features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated under Section 207-c, citing Balcerak v County of Nassau, 94 NY2d 253.
* For information about PELP’s handbook on General Municipal Law§§ 207-a and 207-c go to: http://section207.blogspot.com/
** An employee who suffers a non-permanent work-related injury or disease is to be placed on leave without pay pursuant to Section 71 of the Civil Service Law while an individual unable to work as a result of a non-occupational injury or disease is entitled to leave without pay pursuant to Section 72 of the Civil Service Law. An employee on Section 72 leave may be terminated pursuant to Section 73 of the Civil Service Law after being absent for twelve consecutive months or longer. A person absent on Section 71 leave may be terminated after being absent for a cumulative period of one year.
Doolittle v Broome County, 276 AD2d 863
The Doolittle case involves a relatively unique issue: a hearing officer conducting a Section 207-c hearing* deciding the duration of a workplace stress situation that the employee claimed was the cause of her work-connected disability.
Rita Doolittle, a Broome County correction officer, claimed that she had suffered a disability as a result of work-related stress. She applied for workers’ compensation benefits. One of the issues addressed by the Appellate Division, Third Department, in this round of litigation concerned the determination of the period for which Doolittle was eligible for disability benefits.
According to the decision, the Section 207-c hearing officer had determined that Doolittle was entitled to Section 207-c benefits only for a limited period of time - about eight months in all.
The hearing officer had concluded that any psychological injury suffered by [Doolittle] as a result of workplace stress was limited in time from March 1989 to November 1989 in view of the Doolittle’s expert witness’ testimony that she had subsequently suffered an adjustment disorder arising from the stress of the lawsuit and [the County’s] ... internal investigation ... for approximately six months. Doolittle appealed the hearing officer’s determination.
A comprehensive review of the history of this litigation is set out in an earlier appeal, Matter of Doolittle, 220 AD2d 864. Briefly, in 1988 Doolittle and two female co-workers filed complaints alleging gender discrimination and sexual harassment in the workplace. Broome County commenced an internal investigation of the allegations. In March 1989 Doolittle had a nervous breakdown while on the job and claimed that she was unable to return to work due to this workplace injury.
Doolittle filed an application for workers’ compensation benefits. Broome’s policy was to consider an application for workers’ compensation benefits as a claim or request for both workers’ compensation benefits and for disability benefits under Section 207-c of the General Municipal Law. It, however, controverted [opposed] both applications for benefits on the grounds that Doolittle had not suffered any injury on the job.
Doolittle was terminated due to her absence from work for a period of more than one year, presumably pursuant to Section 73 of the Civil Service Law since the County had controverted her claims.**
Following Broome County’s risk manager rejecting Doolittle’s application for Section 207-c benefits, a Section 207-c hearing was scheduled in accordance with the County’s Local Law 15.
In the course of her federal action, Doolittle claimed that she had experienced another nervous breakdown while she was testifying. A mistrial was declared after the court concluded that she was unwilling or unable to continue. Eventually the federal action was dismissed for failure to prosecute.
Doolittle also alleged that she was unable to testify at the Section 207-c hearing and asked the hearing officer to consider her deposition testimony instead. She also refused to comply with the Hearing Officer’s directive that she submit to an examination by Broome County’s forensic psychiatrist as to her ability to participate effectively in the hearing.
Ultimately the hearing officer determined that Doolittle had sustained a compensable injury on March 8, 1989 and that she was disabled as a result of that injury from that date through November 30, 1989. Accordingly, ruled the hearing officer, Doolittle was entitled to benefits from the County for that discrete time-period only.
After holding that Doolittle’s appeal from the hearing officer’s Section 209-c determination was time-barred, having been filed more than four months after the hearing officer had issued the decision, the Appellate Division elected to note that “if this matter was properly before us, we would find the determination that [Doolittle] was entitled to benefits for a discrete period of eight months to be supported by sufficient evidence in the record.” The court’s rationale:
In view of the nine years between petitioner’s last day on the job in March 1989 and the commencement of the hearing in 1998, it was reasonable for the Hearing Officer to determine the duration of any mental illness or condition that could be deemed attributable to the working conditions in the County Jail in 1989.
In addition, the court also observed that the Hearing Officer could decline to consider otherwise relevant evidence offered by Doolittle because of her refusal to undergo an examination or to provide requested documents.
Significantly, the Appellate Division said that it was not irrational for the Hearing Officer to draw a strong inference against Doolittle as the result of her failure to call her psychologist to provide psychological justification for her failure to participate in the hearing, especially in view of her refusal to cooperate with efforts to inquire into her claim that she was medically unfit to testify.
Unlike a criminal action where the accused had a constitutional right not to testify or be called as a witness, in an administrative action such as a disciplinary hearing or a Section 207-c hearing, the hearing officer may consider the fact that the individual did not testify on his or her own behalf and, moreover, may conclude that such testimony, which would be under oath, would not be helpful to his or her case.
Further, said the court, Doolittle was not prejudiced by the Hearing Officer’s reference to workers’ compensation case law because the Workers’ Compensation Law features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated under Section 207-c, citing Balcerak v County of Nassau, 94 NY2d 253.
* For information about PELP’s handbook on General Municipal Law§§ 207-a and 207-c go to: http://section207.blogspot.com/
** An employee who suffers a non-permanent work-related injury or disease is to be placed on leave without pay pursuant to Section 71 of the Civil Service Law while an individual unable to work as a result of a non-occupational injury or disease is entitled to leave without pay pursuant to Section 72 of the Civil Service Law. An employee on Section 72 leave may be terminated pursuant to Section 73 of the Civil Service Law after being absent for twelve consecutive months or longer. A person absent on Section 71 leave may be terminated after being absent for a cumulative period of one year.
Union animus
Union animus
CSEA Local 860 v PERB, 276 AD2d 967, Motion for leave to appeal denied, 96 NY2d 704
Michael Holcomb, a probationary employee, was terminated from his employment as a maintenance laborer with the Westchester County Department of Environmental Facilities [DEF]. Local 860 filed charges with PERB alleged that Holcomb’s discharge violated Civil Service Law Section 209-a(1)(a) and Section 209-a(1)(c).
PERB’s Administrative Law Judge [ALJ] determined that the Holcomb’s probationary evaluation and discharge recommendation by his supervisor were tainted by union animus and therefore an improper employer practice. The ALJ noted that in the comment section of the evaluation form, Holcomb supervisor wrote that Holcomb tries to get involved with every bodies [sic] union business even if they don’t want him involved.
Because of deficiencies in the proof, however, the ALJ was unable to conclude whether Holcomb’s employment would have been continued absent union animus. DEF was directed to reinstate Holcomb with back pay and benefits and to perform a de novo evaluation of Holcomb’s job performance after a probationary period, without consideration of his union activities.
PERB affirmed the ALJ’s finding of an improper employer practice but modified the remedy. It directed that Holcomb be reinstated to his former job title in another county agency in which he was to serve a second probationary period and be evaluated as to his performance in his new position. PERB also ruled that its ALJ’s unconditional order of back pay and benefits was inappropriate and decided that Holcomb would be entitled to reimbursement for lost pay and benefits only if the de novo evaluation resulted in a recommendation that his employment be continued.
The general rule in cases alleging improper motivation based on union animus is that the employee must demonstrate a prima facie case of such motivation. Once this is done, the burden of persuasion shifts to the employer to establish that its actions were motivated by legitimate business reasons.
The Appellate Division said that if an employer’s action was motivated by anti-union animus, it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed, citing Civil Service Employees Association, Local 1000 v New York State Public Employee Relations Board, 267 AD2d 935, 937. Where, said the court, it has been established that an improper practice led to the termination of the employee, PERB has directed “make whole relief,” including reinstatement with an unconditional award of back pay and benefits.
Finding that PERB concurred with the determination of its ALJ that Holcomb’s termination was unlawful, the Appellate Division concluded that “it is evident that PERB found that [Holcomb] had met [his] burden of establishing prima facie evidence of improper motivation.”
Accordingly, the burden then shifted to DEF to show that its actions were founded on legitimate business concerns. DEF had to present evidence that Holcomb’s poor job performance justified his discharge.
As the ALJ held that the performance evaluation that precipitated the discharge was tainted by union animus, which rendered it impossible to determine whether Holcomb’s employment would have been continued absent the evaluation, DEF clearly failed to meet its burden.
The bottom line: Since DEF did not establish that Holcomb would have been discharged for reasons unrelated to union animus, it was unreasonable for PERB to have provided a remedy that penalized the employee for the employer’s failure of proof and thus Holcomb was entitled to an unconditional award of back pay and benefits.
CSEA Local 860 v PERB, 276 AD2d 967, Motion for leave to appeal denied, 96 NY2d 704
Michael Holcomb, a probationary employee, was terminated from his employment as a maintenance laborer with the Westchester County Department of Environmental Facilities [DEF]. Local 860 filed charges with PERB alleged that Holcomb’s discharge violated Civil Service Law Section 209-a(1)(a) and Section 209-a(1)(c).
PERB’s Administrative Law Judge [ALJ] determined that the Holcomb’s probationary evaluation and discharge recommendation by his supervisor were tainted by union animus and therefore an improper employer practice. The ALJ noted that in the comment section of the evaluation form, Holcomb supervisor wrote that Holcomb tries to get involved with every bodies [sic] union business even if they don’t want him involved.
Because of deficiencies in the proof, however, the ALJ was unable to conclude whether Holcomb’s employment would have been continued absent union animus. DEF was directed to reinstate Holcomb with back pay and benefits and to perform a de novo evaluation of Holcomb’s job performance after a probationary period, without consideration of his union activities.
PERB affirmed the ALJ’s finding of an improper employer practice but modified the remedy. It directed that Holcomb be reinstated to his former job title in another county agency in which he was to serve a second probationary period and be evaluated as to his performance in his new position. PERB also ruled that its ALJ’s unconditional order of back pay and benefits was inappropriate and decided that Holcomb would be entitled to reimbursement for lost pay and benefits only if the de novo evaluation resulted in a recommendation that his employment be continued.
The general rule in cases alleging improper motivation based on union animus is that the employee must demonstrate a prima facie case of such motivation. Once this is done, the burden of persuasion shifts to the employer to establish that its actions were motivated by legitimate business reasons.
The Appellate Division said that if an employer’s action was motivated by anti-union animus, it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed, citing Civil Service Employees Association, Local 1000 v New York State Public Employee Relations Board, 267 AD2d 935, 937. Where, said the court, it has been established that an improper practice led to the termination of the employee, PERB has directed “make whole relief,” including reinstatement with an unconditional award of back pay and benefits.
Finding that PERB concurred with the determination of its ALJ that Holcomb’s termination was unlawful, the Appellate Division concluded that “it is evident that PERB found that [Holcomb] had met [his] burden of establishing prima facie evidence of improper motivation.”
Accordingly, the burden then shifted to DEF to show that its actions were founded on legitimate business concerns. DEF had to present evidence that Holcomb’s poor job performance justified his discharge.
As the ALJ held that the performance evaluation that precipitated the discharge was tainted by union animus, which rendered it impossible to determine whether Holcomb’s employment would have been continued absent the evaluation, DEF clearly failed to meet its burden.
The bottom line: Since DEF did not establish that Holcomb would have been discharged for reasons unrelated to union animus, it was unreasonable for PERB to have provided a remedy that penalized the employee for the employer’s failure of proof and thus Holcomb was entitled to an unconditional award of back pay and benefits.
Dec 15, 2010
Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect
Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect
Matter of Blake v Mills, 2010 NY Slip Op 09057, Decided on December 9, 2010, Appellate Division, Third Department
Shango Blake, a principal in the New York City School District, was charged with 14 counts of misconduct. An arbitration hearing was held pursuant to a collective bargaining agreement and Education Law §3020(3), following which the arbitrator found Blake guilty of misconduct and recommended that petitioner's employment be terminated.
After the Chancellor of the New York City Department of Education implemented the penalty recommended, Blake attempted to appeal the Chancellor's decision to State’s Commissioner of Education by serving copies of the appeal papers on a clerk in the Chancellor's office and on an administrator in the community school district superintendent's office.
The Commissioner rejected Blake’s appeal, noting that he had not complied with the service requirements for appeals to the Commissioner from decisions of the Chancellor.
The Appellate Division sustained the Commissioner’s dismissal of Blake’s appeal based on his finding of “improper service.” The court observed that “In disciplinary matters governed by Education Law §3020(3), appeals to the Commissioner must be instituted by "effecting personal service of a copy of the appeal . . . upon: (1) the chancellor, or a person designated to accept service on behalf of the chancellor; and (2) the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service."*
As Blake did not “effect personal service upon the Chancellor” nor upon the New York City Law Department, "the exclusive agent designated to accept service on behalf of the Chancellor," the Appellate Division held that Blake’ failed to comply with the applicable regulation, 8 NYCRR 281.6, and thus the Commissioner's dismissal of his administrative appeal for such defective service was neither arbitrary nor capricious nor was it an error of law.
* Blake did not show that the person served in the community school district superintendent's office was specifically designated to accept service on the superintendent's behalf, thus such service was defective.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09057.htm
Matter of Blake v Mills, 2010 NY Slip Op 09057, Decided on December 9, 2010, Appellate Division, Third Department
Shango Blake, a principal in the New York City School District, was charged with 14 counts of misconduct. An arbitration hearing was held pursuant to a collective bargaining agreement and Education Law §3020(3), following which the arbitrator found Blake guilty of misconduct and recommended that petitioner's employment be terminated.
After the Chancellor of the New York City Department of Education implemented the penalty recommended, Blake attempted to appeal the Chancellor's decision to State’s Commissioner of Education by serving copies of the appeal papers on a clerk in the Chancellor's office and on an administrator in the community school district superintendent's office.
The Commissioner rejected Blake’s appeal, noting that he had not complied with the service requirements for appeals to the Commissioner from decisions of the Chancellor.
The Appellate Division sustained the Commissioner’s dismissal of Blake’s appeal based on his finding of “improper service.” The court observed that “In disciplinary matters governed by Education Law §3020(3), appeals to the Commissioner must be instituted by "effecting personal service of a copy of the appeal . . . upon: (1) the chancellor, or a person designated to accept service on behalf of the chancellor; and (2) the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service."*
As Blake did not “effect personal service upon the Chancellor” nor upon the New York City Law Department, "the exclusive agent designated to accept service on behalf of the Chancellor," the Appellate Division held that Blake’ failed to comply with the applicable regulation, 8 NYCRR 281.6, and thus the Commissioner's dismissal of his administrative appeal for such defective service was neither arbitrary nor capricious nor was it an error of law.
* Blake did not show that the person served in the community school district superintendent's office was specifically designated to accept service on the superintendent's behalf, thus such service was defective.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09057.htm
Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result
Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result
Bonomonte v City of New York, 2010 NY Slip Op 09165, Decided on December 14, 2010, Appellate Division, First Department
Dominic Bonomonte, a New York City Sanitation employee was on sick leave due to surgeries to his arm. He slipped and fell outside his home on his way to a mandated doctor's appointment at the Sanitation Department's clinic, exacerbating of his injuries.
Bonomonte sued, contending that his fall was a foreseeable consequence of the Department’s negligence in ordering him to the clinic at a time when it should have been aware that he had been directed by his physician not to travel.
Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s determination.
The Appellate Division said that “Dismissal of the complaint was warranted, since there was no duty flowing from [the Department] to [Bonomonte],” citing Matter of New York City Asbestos Litig., 5 NY3d 486.
The court explained that “Contrary to Bonomonte’s] contention, a duty was not created by the fact that [Department’s] clinical supervisor had ordered [Bonomonte] to travel to the clinic or face possible termination or suspension of employment and medical benefits.”
Further, said the court, the evidence fails to establish “proximate cause,” as the directive that Bonomonte report to the clinic merely furnished the occasion for the accident.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09165.htm
Bonomonte v City of New York, 2010 NY Slip Op 09165, Decided on December 14, 2010, Appellate Division, First Department
Dominic Bonomonte, a New York City Sanitation employee was on sick leave due to surgeries to his arm. He slipped and fell outside his home on his way to a mandated doctor's appointment at the Sanitation Department's clinic, exacerbating of his injuries.
Bonomonte sued, contending that his fall was a foreseeable consequence of the Department’s negligence in ordering him to the clinic at a time when it should have been aware that he had been directed by his physician not to travel.
Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s determination.
The Appellate Division said that “Dismissal of the complaint was warranted, since there was no duty flowing from [the Department] to [Bonomonte],” citing Matter of New York City Asbestos Litig., 5 NY3d 486.
The court explained that “Contrary to Bonomonte’s] contention, a duty was not created by the fact that [Department’s] clinical supervisor had ordered [Bonomonte] to travel to the clinic or face possible termination or suspension of employment and medical benefits.”
Further, said the court, the evidence fails to establish “proximate cause,” as the directive that Bonomonte report to the clinic merely furnished the occasion for the accident.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09165.htm
Tenure by estoppel
Tenure by estoppel
Young v Cashin, 275 AD2d 747, Motion for leave to appeal denied, 96 NY2d 706
A New York City Assistant School Principal, Joseph Young, was terminated from his position.
Contending that he had attained tenure by estoppel, Young sued, seeking a court order reinstating him to his former position. If effect, Young argued that as a tenured employee he could not be summarily terminated from his position.
The City, on the other hand, claimed that it had terminated Young while he was still a probationary employee and thus he never had attained tenure as an assistant principal. Accordingly, said the city, he was not entitled to any pretermination hearing. A State Supreme Court judge agreed with the City’s argument and dismissed Young’s petition.
The Appellate Division affirmed the lower court’s ruling, pointing out that tenure by estoppel may be acquired when a school board accepts the continued services of a probationary teacher or an administrator, and fails to take the action required by law to grant or deny tenure before the expiration of the probationary term.
The fatal omission in Young’s case, it appears, was that he failed, or was unable, to show that the City had accepted his services as an assistant principal -- i.e., he was continued in the position of assistant principal -- after his probationary term expired.
Young v Cashin, 275 AD2d 747, Motion for leave to appeal denied, 96 NY2d 706
A New York City Assistant School Principal, Joseph Young, was terminated from his position.
Contending that he had attained tenure by estoppel, Young sued, seeking a court order reinstating him to his former position. If effect, Young argued that as a tenured employee he could not be summarily terminated from his position.
The City, on the other hand, claimed that it had terminated Young while he was still a probationary employee and thus he never had attained tenure as an assistant principal. Accordingly, said the city, he was not entitled to any pretermination hearing. A State Supreme Court judge agreed with the City’s argument and dismissed Young’s petition.
The Appellate Division affirmed the lower court’s ruling, pointing out that tenure by estoppel may be acquired when a school board accepts the continued services of a probationary teacher or an administrator, and fails to take the action required by law to grant or deny tenure before the expiration of the probationary term.
The fatal omission in Young’s case, it appears, was that he failed, or was unable, to show that the City had accepted his services as an assistant principal -- i.e., he was continued in the position of assistant principal -- after his probationary term expired.
Termination during a probationary period
Termination during a probationary period
Scott v Workers’ Compensation Board, 275 AD2d 877
The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation.
Michael Scott was permanently appointed as a compensation claims referee by the Workers’ Compensation Board. His appointment was subject to a probationary period ranging from 26 to 52 weeks. Prior to the completion of his probationary period, however, Scott was terminated for unsatisfactory job performance ratings in five out of seven applicable categories on his final probationary evaluation.
Scott challenged his dismissal, contending that his termination was arbitrary, capricious and motivated by bad faith. The Appellate Division sustained the dismissal of his petition, commenting that:
Absent proof that his discharge was for a constitutionally impermissible purpose, in violation of applicable law or made in bad faith, [Scott], a probationary employee, was subject to dismissal from his employment without explanation or a hearing.
Further, in the event there is a substantial question as to whether the discharge was due to reasons unrelated to work performance sufficient to justify a court considering such a petition, the individual bears the burden of proof and must present competent proof that the dismissal was motivated by an improper purpose or bad faith.
According to the ruling, Scott’s allegation of bad faith was defeated by the Board’s showing that it complied with its obligation to periodically advise Scott of his progress after observing his conduct and to ultimately provide him with a written probation evaluation at least two weeks prior to the completion of the probationary period, as well as written notice at least one week prior to the effective date of his discharge.
Further, the court ruled, more favorable progress reports that Scott received prior to the final unfavorable evaluation were not required to be furnished to him in writing and did not raise a sufficient factual issue as to the allegations of bad faith on the part of the Board.
On the merits of Scott’s allegations, the Appellate Division found that his termination was not motivated by bad faith on the basis of (1) his final probationary evaluation and (2) the affidavits submitted by the Board to the court indicating his inadequate understanding of the Workers’ Compensation Law, (3) his failure to respond to additional training to address this deficiency, (4) his improper conduct in requesting transportation from attorneys and (4) his posing inappropriate questions to a witness.
However, there may be other factors that could affect the rights of a probationary employee.
In Gordon v Town of Queensbury, 256 AD2d 784, the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.
The court rejected Michael Gordon’s claim that his termination by the Town of Queensbury before he completed his probationary period was made in bad faith because the Town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission.
The court said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining representative, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Warren County Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.
In contrast to probationary periods flowing from appointment to a position, an individual may be given a disciplinary probation in connection with the resolution of a disciplinary action initiated pursuant to a collective bargaining agreement.
While such a probationary period may be general in nature, i.e., the individual is treated as a new employee for the purposes of probation, sometimes there are specific elements of conduct set out in the disciplinary award as to the terms and conditions of the probationary period. Such terms and conditions are controlling, as is demonstrated by in the Taylor ruling by the Appellate Division.
Taylor v Cass, 505 N.Y.S.2d 929, is an example of the impact of such terms and conditions set out in a disciplinary probation award and the limitations placed on the discretion of the appointing authority to terminated an individual serving a disciplinary probation. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.
According to the ruling, under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was adversely affected by his intoxication on the job during the next six months.
Taylor, however, was subsequently terminated without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.
Taylor sued, challenging his dismissal. He won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.
Scott v Workers’ Compensation Board, 275 AD2d 877
The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation.
Michael Scott was permanently appointed as a compensation claims referee by the Workers’ Compensation Board. His appointment was subject to a probationary period ranging from 26 to 52 weeks. Prior to the completion of his probationary period, however, Scott was terminated for unsatisfactory job performance ratings in five out of seven applicable categories on his final probationary evaluation.
Scott challenged his dismissal, contending that his termination was arbitrary, capricious and motivated by bad faith. The Appellate Division sustained the dismissal of his petition, commenting that:
Absent proof that his discharge was for a constitutionally impermissible purpose, in violation of applicable law or made in bad faith, [Scott], a probationary employee, was subject to dismissal from his employment without explanation or a hearing.
Further, in the event there is a substantial question as to whether the discharge was due to reasons unrelated to work performance sufficient to justify a court considering such a petition, the individual bears the burden of proof and must present competent proof that the dismissal was motivated by an improper purpose or bad faith.
According to the ruling, Scott’s allegation of bad faith was defeated by the Board’s showing that it complied with its obligation to periodically advise Scott of his progress after observing his conduct and to ultimately provide him with a written probation evaluation at least two weeks prior to the completion of the probationary period, as well as written notice at least one week prior to the effective date of his discharge.
Further, the court ruled, more favorable progress reports that Scott received prior to the final unfavorable evaluation were not required to be furnished to him in writing and did not raise a sufficient factual issue as to the allegations of bad faith on the part of the Board.
On the merits of Scott’s allegations, the Appellate Division found that his termination was not motivated by bad faith on the basis of (1) his final probationary evaluation and (2) the affidavits submitted by the Board to the court indicating his inadequate understanding of the Workers’ Compensation Law, (3) his failure to respond to additional training to address this deficiency, (4) his improper conduct in requesting transportation from attorneys and (4) his posing inappropriate questions to a witness.
However, there may be other factors that could affect the rights of a probationary employee.
In Gordon v Town of Queensbury, 256 AD2d 784, the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.
The court rejected Michael Gordon’s claim that his termination by the Town of Queensbury before he completed his probationary period was made in bad faith because the Town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission.
The court said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining representative, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Warren County Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.
In contrast to probationary periods flowing from appointment to a position, an individual may be given a disciplinary probation in connection with the resolution of a disciplinary action initiated pursuant to a collective bargaining agreement.
While such a probationary period may be general in nature, i.e., the individual is treated as a new employee for the purposes of probation, sometimes there are specific elements of conduct set out in the disciplinary award as to the terms and conditions of the probationary period. Such terms and conditions are controlling, as is demonstrated by in the Taylor ruling by the Appellate Division.
Taylor v Cass, 505 N.Y.S.2d 929, is an example of the impact of such terms and conditions set out in a disciplinary probation award and the limitations placed on the discretion of the appointing authority to terminated an individual serving a disciplinary probation. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.
According to the ruling, under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was adversely affected by his intoxication on the job during the next six months.
Taylor, however, was subsequently terminated without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.
Taylor sued, challenging his dismissal. He won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.
Workers’ compensation leave
Workers’ compensation leave
Sanders v NYC Human Resources Administration, 275 AD2d 873
Lavern Sanders, a probationary employee, filed an application for workers’ compensation benefits. She also asked for a leave of absence, based upon a physician’s note directing her to cease working. Eventually her leave request was approved through September 1992.
On September 8, 1992, Human Resources sent Sanders a letter advising her that her leave of absence had expired on September 8, 1992 and that any absence subsequent to that date was unauthorized. Another letter advised her that the city had decided to controvert her workers’ compensation claim. In effect, the city said that it did not believe that Sanders had been injured while performing her duties.
According to the decision, Sanders never received these letters because they had been returned to the city as unclaimed “due to the failure to specify [Sanders’] complete address on the envelopes.” Finally, on December 2, 1992, Sanders found out that she had been terminated by the city.*
However, when Sanders learned that the city had controverted her claim for workers’ compensation benefits, she appealed to the Workers’ Compensation Board. Her complaint: she had been terminated as retaliation for her having filed a workers’ compensation claim. Terminating an individual because he or she had filed a workers’ compensation claim, she argued, violated Section 120 of the Workers’ Compensation Law.
As evidence of such retaliation, Sanders alleged that her employer began fabricating disciplinary charges against her immediately following her application for [workers’ compensation] benefits.
Ultimately the Workers’ Compensation Board decided that Sanders failed to sustain her burden of demonstrating a prima facie case of discrimination and dismissed her complaint. The Appellate Division affirmed the Board’s determination.
As to approving other leave for Sanders, the decision states that a union official’s testimony indicated that the city generally does not authorize leaves of absences for probationary employees and will terminate any such employee who is on unauthorized leave so that a replacement may be hired to fill the position. Presumably, the testimony concerning the city’s not authorizing leave in such cases refers to a leave without pay such as leave pursuant to Section 72 of the Civil Service Law.
While Section 71 leave must be approved for employees injured on the job in situations where the injury or disability does not permanently incapacitate the individual from performing the duties of the position, Section 72 authorizes the approval of leaves without pay in the event the individual’s disability is not work-connected.
* Presumably Sanders was not placed [or continued] on workers’ compensation leave as mandated by Section 71 of the Civil Service Law in view of the city’s controverting her claim that she had suffered a work-related injury.
Sanders v NYC Human Resources Administration, 275 AD2d 873
Lavern Sanders, a probationary employee, filed an application for workers’ compensation benefits. She also asked for a leave of absence, based upon a physician’s note directing her to cease working. Eventually her leave request was approved through September 1992.
On September 8, 1992, Human Resources sent Sanders a letter advising her that her leave of absence had expired on September 8, 1992 and that any absence subsequent to that date was unauthorized. Another letter advised her that the city had decided to controvert her workers’ compensation claim. In effect, the city said that it did not believe that Sanders had been injured while performing her duties.
According to the decision, Sanders never received these letters because they had been returned to the city as unclaimed “due to the failure to specify [Sanders’] complete address on the envelopes.” Finally, on December 2, 1992, Sanders found out that she had been terminated by the city.*
However, when Sanders learned that the city had controverted her claim for workers’ compensation benefits, she appealed to the Workers’ Compensation Board. Her complaint: she had been terminated as retaliation for her having filed a workers’ compensation claim. Terminating an individual because he or she had filed a workers’ compensation claim, she argued, violated Section 120 of the Workers’ Compensation Law.
As evidence of such retaliation, Sanders alleged that her employer began fabricating disciplinary charges against her immediately following her application for [workers’ compensation] benefits.
Ultimately the Workers’ Compensation Board decided that Sanders failed to sustain her burden of demonstrating a prima facie case of discrimination and dismissed her complaint. The Appellate Division affirmed the Board’s determination.
As to approving other leave for Sanders, the decision states that a union official’s testimony indicated that the city generally does not authorize leaves of absences for probationary employees and will terminate any such employee who is on unauthorized leave so that a replacement may be hired to fill the position. Presumably, the testimony concerning the city’s not authorizing leave in such cases refers to a leave without pay such as leave pursuant to Section 72 of the Civil Service Law.
While Section 71 leave must be approved for employees injured on the job in situations where the injury or disability does not permanently incapacitate the individual from performing the duties of the position, Section 72 authorizes the approval of leaves without pay in the event the individual’s disability is not work-connected.
* Presumably Sanders was not placed [or continued] on workers’ compensation leave as mandated by Section 71 of the Civil Service Law in view of the city’s controverting her claim that she had suffered a work-related injury.
Dec 14, 2010
Dismissal of charges in the course of a Section 75 disciplinary hearing
Dismissal of charges in the course of a Section 75 disciplinary hearing
Source: Reader's inquiry
From time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:
"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"
NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification.*
Although the appointing authority may elect to "withdraw" a charge or specification, we know of no such authority being vested in a Section 75 hearing officer unless the appointing authority, itself, is serving as the hearing officer or body and so acts.
The authority of a hearing officer is limited in the context of a Section 75 disciplinary action. The hearing officer may either sustain some or all of the charges and specifications served on the employee or find that there was no substantial evidence to prove all or some of the charges and specifications so served.
As to the actual act of dismissing charges, as a practical matter the hearing officer would simply make findings to the effect that the appointing authority has not sustained its burden of proof and recommend that the charges be withdraw or dismissed, with or without prejudice, at the discretion of the hearing officer or find the employee "not guilty" of the charge[s].
As the doctrine of "double jeopardy" does not apply in administrative disciplinary actions, unless the appointing authority elects to dismiss the disciplinary charges "with prejudice," it may subsequently file charges based on the same event[s] on the employee.
* In contrast, an arbitrator or arbitration panel may grant a motion to dismiss charges and specifications where the final determination is to be made by the arbitrator or an arbitration panel as is the case in a disciplinary proceeding held pursuant to Education Law Section 3020-a. Any challenge to such action would be via an appeal pursuant to CPLR Article 75 by the appointing authority to vacate the award, in whole or in part.
Source: Reader's inquiry
From time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:
"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"
NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification.*
Although the appointing authority may elect to "withdraw" a charge or specification, we know of no such authority being vested in a Section 75 hearing officer unless the appointing authority, itself, is serving as the hearing officer or body and so acts.
The authority of a hearing officer is limited in the context of a Section 75 disciplinary action. The hearing officer may either sustain some or all of the charges and specifications served on the employee or find that there was no substantial evidence to prove all or some of the charges and specifications so served.
As to the actual act of dismissing charges, as a practical matter the hearing officer would simply make findings to the effect that the appointing authority has not sustained its burden of proof and recommend that the charges be withdraw or dismissed, with or without prejudice, at the discretion of the hearing officer or find the employee "not guilty" of the charge[s].
As the doctrine of "double jeopardy" does not apply in administrative disciplinary actions, unless the appointing authority elects to dismiss the disciplinary charges "with prejudice," it may subsequently file charges based on the same event[s] on the employee.
* In contrast, an arbitrator or arbitration panel may grant a motion to dismiss charges and specifications where the final determination is to be made by the arbitrator or an arbitration panel as is the case in a disciplinary proceeding held pursuant to Education Law Section 3020-a. Any challenge to such action would be via an appeal pursuant to CPLR Article 75 by the appointing authority to vacate the award, in whole or in part.
Applying for disability retirement benefits
Applying for disability retirement benefits
Miata v McCall, 277 AD2d 590
Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995.
After conducting a hearing during which conflicting expert testimony was presented, McCall denied Miata’s application for benefits. Miata appealed, contending that the hearing officer’s decision was not supported by substantial evidence.
The Appellate Division, Third Department, dismissed the appeal. It viewed the testimony by Stuart Kandel, an orthopedic surgeon, that when he examined Miata he concluded that there were no objective abnormalities inasmuch as he noted no swelling, limping, instability nor restriction of motion in comparison to his right ankle to constitute the required substantial evidence.
While Kandel diagnosed Miata as having a sprained ankle and, in his opinion, not incapacitated from the performance of his duties, Miata’s expert testified to the contrary. Situations involving conflicting expert medical opinion present a credibility issue for McCall to resolve. The fact that the record could support a contrary conclusion did not require the court to vacate McCall’s determination.
Miata v McCall, 277 AD2d 590
Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995.
After conducting a hearing during which conflicting expert testimony was presented, McCall denied Miata’s application for benefits. Miata appealed, contending that the hearing officer’s decision was not supported by substantial evidence.
The Appellate Division, Third Department, dismissed the appeal. It viewed the testimony by Stuart Kandel, an orthopedic surgeon, that when he examined Miata he concluded that there were no objective abnormalities inasmuch as he noted no swelling, limping, instability nor restriction of motion in comparison to his right ankle to constitute the required substantial evidence.
While Kandel diagnosed Miata as having a sprained ankle and, in his opinion, not incapacitated from the performance of his duties, Miata’s expert testified to the contrary. Situations involving conflicting expert medical opinion present a credibility issue for McCall to resolve. The fact that the record could support a contrary conclusion did not require the court to vacate McCall’s determination.
Absence from an assigned post
Absence from an assigned post
Gamma v City of Newburgh, 277 AD2d 236
Absence from one’s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned.
Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command. As a result, Gamma was terminated.
In response to Gamma’s appeal, the Appellate Division decided that there was substantial evidence in the record to support the hearing officer’s findings. As to the penalty imposed, termination, the court said that [t]the penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.
The court said that a police force is a quasi-military organization demanding strict discipline and in matters involving police misconduct, great deference is to be accorded to determinations regarding the appropriate discipline of its members.
Gamma v City of Newburgh, 277 AD2d 236
Absence from one’s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned.
Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command. As a result, Gamma was terminated.
In response to Gamma’s appeal, the Appellate Division decided that there was substantial evidence in the record to support the hearing officer’s findings. As to the penalty imposed, termination, the court said that [t]the penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.
The court said that a police force is a quasi-military organization demanding strict discipline and in matters involving police misconduct, great deference is to be accorded to determinations regarding the appropriate discipline of its members.
Dec 13, 2010
Seeking class action relief in arbitrations
Seeking class action relief in arbitrations
Correction Officers Benevolent Association v City of New York, 276 AD2d 394
May an arbitrator grant relief to a class of employees if but a single individual filed the grievance?
This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties’ collective bargaining agreement between the Association and the City of New York providing for military leave with pay. The City filed a cross motion seeking to have the court rescind the award.
The Appellate Division confirmed the award, holding that the arbitrator did not exceed his authority in awarding class relief.
Why was this a class action? Because, said the court, the request for arbitration, jointly submitted by the parties, expressly framed the proceeding as a Class Action grievance due to the fact that numerous employees represented by the Association were subject to call for military duty and were therefore affected by the manner in which respondents applied the clause in the case of the individual who filed the grievance.
The opinion suggests that the City could have withdrawn the request for class relief, but never did so. Although the issue framed by the parties did not refer to the class aspect of the submission, the remedy sought was expressed in open-ended terms that did not limit the arbitrator’s power to grant any specific relief. As the arbitrator’s interpretation of the clause in dispute was not totally irrational, it was properly confirmed.
Correction Officers Benevolent Association v City of New York, 276 AD2d 394
May an arbitrator grant relief to a class of employees if but a single individual filed the grievance?
This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties’ collective bargaining agreement between the Association and the City of New York providing for military leave with pay. The City filed a cross motion seeking to have the court rescind the award.
The Appellate Division confirmed the award, holding that the arbitrator did not exceed his authority in awarding class relief.
Why was this a class action? Because, said the court, the request for arbitration, jointly submitted by the parties, expressly framed the proceeding as a Class Action grievance due to the fact that numerous employees represented by the Association were subject to call for military duty and were therefore affected by the manner in which respondents applied the clause in the case of the individual who filed the grievance.
The opinion suggests that the City could have withdrawn the request for class relief, but never did so. Although the issue framed by the parties did not refer to the class aspect of the submission, the remedy sought was expressed in open-ended terms that did not limit the arbitrator’s power to grant any specific relief. As the arbitrator’s interpretation of the clause in dispute was not totally irrational, it was properly confirmed.
CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served
CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served
Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department
Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”
Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,* recommended termination as the penalty to be imposed by the appointing authority.
Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.
Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”
The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.
First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.
However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.
The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”
Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.
Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***
Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.
* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if 1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and 2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”
** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”
*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm
.
Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department
Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”
Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,* recommended termination as the penalty to be imposed by the appointing authority.
Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.
Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”
The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.
First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.
However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.
The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”
Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.
Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***
Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.
* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if 1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and 2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”
** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”
*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm
.
Eligibility for unemployment insurance
Eligibility for unemployment insurance
Geracitano v Comm. of Labor, 277 AD2d 558
Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season.
Geracitano, however, also served as an elected councilperson and received a salary together with health benefits and the was eligible to participate in the New York State and Local Employees’ Retirement system.
Her application for unemployment benefits was disapproved after the Unemployment Insurance Appeals Board ruled that she was ineligible to receive such benefits because she was not totally unemployed during the time in question.
The Appellate Division sustained the Board’s decision, holding that substantial evidence supports the Board’s ruling.... The court pointed out that in the past it had ruled that a council person was not totally unemployed where the proof showed that he or she received an annual salary for his [or her] work as a council person, performed a variety of duties in that capacity and was subject to inquiries by his [or her] constituents, citing Matter of Silverstein, 236 AD2d 757.
Geracitano v Comm. of Labor, 277 AD2d 558
Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season.
Geracitano, however, also served as an elected councilperson and received a salary together with health benefits and the was eligible to participate in the New York State and Local Employees’ Retirement system.
Her application for unemployment benefits was disapproved after the Unemployment Insurance Appeals Board ruled that she was ineligible to receive such benefits because she was not totally unemployed during the time in question.
The Appellate Division sustained the Board’s decision, holding that substantial evidence supports the Board’s ruling.... The court pointed out that in the past it had ruled that a council person was not totally unemployed where the proof showed that he or she received an annual salary for his [or her] work as a council person, performed a variety of duties in that capacity and was subject to inquiries by his [or her] constituents, citing Matter of Silverstein, 236 AD2d 757.
Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged
Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged
Source: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010
An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device. Ultimately Cunningham was terminated from his position.
New York Civil Liberties Union attorneys, claiming the use of evidence obtained using a GPS device without a warrant or the knowledge of Cunningham constituted an unlawful search, have filed a lawsuit seeking Cunningham’s reinstatement to his former position with back pay and fringe benefits.
The courts have considered a number of cases involving the use of evidence obtained through the use of global positioning system equipment.
In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.
In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.
The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis.
[See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08].
However, the decision in the Weaver case, People v Weaver, 12 NY3d 433, may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.
The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.*
The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”
Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.
Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.
The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides:
The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.
The Court of Appeals ruled that:
1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.
2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.
The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.
The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “
Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”
The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.
This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.
In another disciplinary action, Joel I. Klein, then Chancellor of the New York City Department of Education, terminated John Halpin’s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and of having submitted falsified time cards claiming that he worked on those occasions.
When Halpin challenged the Chancellor’s action, the Appellate Division said that the determination was supported by substantial evidence in the record, including global positioning software records, Halpin’s time cards, and eyewitness testimony establishing that Halpin was guilty of the disciplinary charges filed against him [Halpin v Klein, 62 AD3d 403].**
Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that under the circumstances terminating Halpin did not constitute an “excessive penalty.”
Although in Halpin's case the GPS record was generated by his Department-issued cell phone, the installation of global positioning equipment in official vehicles is becoming common as well.
* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.
** The administrative disciplinary action underlying the Chancellor's decision was heard by OATH Administrative Law Judge Tynia Richard. Richards found Halpin guilty of the charges filed against him and recommended that he be terminated from his position of Supervisor of Carpenters with the New York City Department of Education. [see New York City Department of Education v Halpin, OATH Index #818/07]. Richard's found that Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The ALJ ruled that the GPS data was accurate and reliable and that its use did not violate Halpin’s privacy rights under the United States Constitution.
Source: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010
An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device. Ultimately Cunningham was terminated from his position.
New York Civil Liberties Union attorneys, claiming the use of evidence obtained using a GPS device without a warrant or the knowledge of Cunningham constituted an unlawful search, have filed a lawsuit seeking Cunningham’s reinstatement to his former position with back pay and fringe benefits.
The courts have considered a number of cases involving the use of evidence obtained through the use of global positioning system equipment.
In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.
In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.
The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis.
[See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08].
However, the decision in the Weaver case, People v Weaver, 12 NY3d 433, may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.
The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.*
The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”
Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.
Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.
The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides:
The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.
The Court of Appeals ruled that:
1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.
2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.
The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.
The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “
Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”
The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.
This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.
In another disciplinary action, Joel I. Klein, then Chancellor of the New York City Department of Education, terminated John Halpin’s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and of having submitted falsified time cards claiming that he worked on those occasions.
When Halpin challenged the Chancellor’s action, the Appellate Division said that the determination was supported by substantial evidence in the record, including global positioning software records, Halpin’s time cards, and eyewitness testimony establishing that Halpin was guilty of the disciplinary charges filed against him [Halpin v Klein, 62 AD3d 403].**
Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that under the circumstances terminating Halpin did not constitute an “excessive penalty.”
Although in Halpin's case the GPS record was generated by his Department-issued cell phone, the installation of global positioning equipment in official vehicles is becoming common as well.
* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.
** The administrative disciplinary action underlying the Chancellor's decision was heard by OATH Administrative Law Judge Tynia Richard. Richards found Halpin guilty of the charges filed against him and recommended that he be terminated from his position of Supervisor of Carpenters with the New York City Department of Education. [see New York City Department of Education v Halpin, OATH Index #818/07]. Richard's found that Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The ALJ ruled that the GPS data was accurate and reliable and that its use did not violate Halpin’s privacy rights under the United States Constitution.
Age requirements and eligibility for taking a test
Age requirements and eligibility for taking a test
Beloten v Diamons, 276 AD2d 438
The Beloten case involves a relatively novel issue: age qualification for appointment to positions in the competitive class.
The case arose after New York City issued an announcement for an examination for firefighter allowing only emergency medical technicians and paramedics [EMTs] not more than 29 years old as of the beginning of the application period to take the examination.
Scott R. Beloten and a number of other EMTs took and passed the written test. However they were disqualified and not permitted to take the physical agility portion of the examination because of age: all were more than 29 years of age at the beginning of the application period.*
Beloten objected, contending that the upper age limit for firefighters applies only to candidates for that position taking an open competitive exam, and that to apply the age limit to candidates taking a promotional exam, as [the City] did, would violate Section 54 of the Civil Service Law and anti-discrimination statutes.
The Appellate Division said that two provisions of the Civil Service Law were relevant in resolving this case: Sections 52(1) and 54.
Section 54 allows civil service authorities to adopt reasonable age requirements with respect to open-competitive, entry level positions. Section 52(1) provides for the filling of vacancies by promotion of persons holding positions in lower grades that are in direct line of promotion or, under certain circumstances, from lower grades in related or collateral lines of promotion.
Reading Sections 52(8) and 54 together, the court concluded that age requirements for purposes of taking a promotional exam are prohibited when the promotion would be from a grade that is in direct line, and permitted when the promotion would be from a grade that is in a related or collateral line.
The Appellate Division rejected the theory that this was a promotion situation for the EMTs, ruling that because the position of firefighter is an entry-level position in that there is no direct lower position to be promoted from, the only way a person could become a firefighter was to sit for an open competitive examination.**
Deciding that EMT applicants for the position of firefighter were more akin to entry-level applicants taking an open exam for that position than to a firefighter taking a closed promotion examination for a higher level title, the court ruled that:
... notwithstanding that the exam petitioners took was not open, in that participation was limited to current Fire Department employees having certain emergency medical titles, we conclude that Civil Service Law Section 54 did not apply to prohibit an age requirement, and that Civil Service Law Section 52(8) did apply to require that petitioners satisfy the eligibility requirements for taking the entry-level exam for firefighter, including the requirement in Administrative Code Section 15-103 that they not be more than 29 years old.
* Presumably none of the plaintiffs was eligible for an adjustment to his or her chronological age pursuant to the provisions of Section 243.10-a of the Military Law.
** The EMTs conceded that the examination announcement indicated that their positions were in a collateral, not direct, line of promotion to the position of firefighter.
Beloten v Diamons, 276 AD2d 438
The Beloten case involves a relatively novel issue: age qualification for appointment to positions in the competitive class.
The case arose after New York City issued an announcement for an examination for firefighter allowing only emergency medical technicians and paramedics [EMTs] not more than 29 years old as of the beginning of the application period to take the examination.
Scott R. Beloten and a number of other EMTs took and passed the written test. However they were disqualified and not permitted to take the physical agility portion of the examination because of age: all were more than 29 years of age at the beginning of the application period.*
Beloten objected, contending that the upper age limit for firefighters applies only to candidates for that position taking an open competitive exam, and that to apply the age limit to candidates taking a promotional exam, as [the City] did, would violate Section 54 of the Civil Service Law and anti-discrimination statutes.
The Appellate Division said that two provisions of the Civil Service Law were relevant in resolving this case: Sections 52(1) and 54.
Section 54 allows civil service authorities to adopt reasonable age requirements with respect to open-competitive, entry level positions. Section 52(1) provides for the filling of vacancies by promotion of persons holding positions in lower grades that are in direct line of promotion or, under certain circumstances, from lower grades in related or collateral lines of promotion.
Reading Sections 52(8) and 54 together, the court concluded that age requirements for purposes of taking a promotional exam are prohibited when the promotion would be from a grade that is in direct line, and permitted when the promotion would be from a grade that is in a related or collateral line.
The Appellate Division rejected the theory that this was a promotion situation for the EMTs, ruling that because the position of firefighter is an entry-level position in that there is no direct lower position to be promoted from, the only way a person could become a firefighter was to sit for an open competitive examination.**
Deciding that EMT applicants for the position of firefighter were more akin to entry-level applicants taking an open exam for that position than to a firefighter taking a closed promotion examination for a higher level title, the court ruled that:
... notwithstanding that the exam petitioners took was not open, in that participation was limited to current Fire Department employees having certain emergency medical titles, we conclude that Civil Service Law Section 54 did not apply to prohibit an age requirement, and that Civil Service Law Section 52(8) did apply to require that petitioners satisfy the eligibility requirements for taking the entry-level exam for firefighter, including the requirement in Administrative Code Section 15-103 that they not be more than 29 years old.
* Presumably none of the plaintiffs was eligible for an adjustment to his or her chronological age pursuant to the provisions of Section 243.10-a of the Military Law.
** The EMTs conceded that the examination announcement indicated that their positions were in a collateral, not direct, line of promotion to the position of firefighter.
Dec 10, 2010
DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS
DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS
Source: Office of the State Comptroller
New York State Comptroller Thomas P. DiNapoli today warned of a sweepstakes scam involving fraudulent checks that appear to have been issued by New York State.
“These days many people could use some extra cash; this particular scam is especially shameful because it’s occurring during the holiday season at a time when people can be particularly vulnerable,” DiNapoli said.
“People need to remember that what sounds too good to be true all too often is. No legitimate check from the State of New York would ever be used as part of a mystery shopper program. If you receive one of these fraudulent checks, please report it to the police.”
The fraud works this way: scammers send potential victims a letter telling them that they won hundreds of thousands of dollars in a sweepstakes prize from a “USA Mega” drawing that allegedly took place in August. A company calling itself Alpha Finance Services claims to have been assigned to inform winners of their prize and to pay them off accordingly.
The company’s supposed address is located in Nova Scotia, Canada.
The letter asks individuals to contact a claims agent during daytime hours between Monday and Saturday to “activate” a phony check that has been mailed to them. The "check" included in the letter is counterfeit but looks like a New York State check.
This check allegedly would cover the recipient’s tax liability that is attached to the prize winning.
To activate the phony check, the recipient is directed to send thousands of dollars of their own money to the agent. It even “cautions” recipients of the letter not to act on the notice until they have contacted this claims agent “to avoid cases of misappropriation and mishandling of prize monies.”
Anyone with questions or concerns about this scam should contact local law enforcement officials or the New York State Comptroller’s office toll free at 1-888-OCS-4555.
Source: Office of the State Comptroller
New York State Comptroller Thomas P. DiNapoli today warned of a sweepstakes scam involving fraudulent checks that appear to have been issued by New York State.
“These days many people could use some extra cash; this particular scam is especially shameful because it’s occurring during the holiday season at a time when people can be particularly vulnerable,” DiNapoli said.
“People need to remember that what sounds too good to be true all too often is. No legitimate check from the State of New York would ever be used as part of a mystery shopper program. If you receive one of these fraudulent checks, please report it to the police.”
The fraud works this way: scammers send potential victims a letter telling them that they won hundreds of thousands of dollars in a sweepstakes prize from a “USA Mega” drawing that allegedly took place in August. A company calling itself Alpha Finance Services claims to have been assigned to inform winners of their prize and to pay them off accordingly.
The company’s supposed address is located in Nova Scotia, Canada.
The letter asks individuals to contact a claims agent during daytime hours between Monday and Saturday to “activate” a phony check that has been mailed to them. The "check" included in the letter is counterfeit but looks like a New York State check.
This check allegedly would cover the recipient’s tax liability that is attached to the prize winning.
To activate the phony check, the recipient is directed to send thousands of dollars of their own money to the agent. It even “cautions” recipients of the letter not to act on the notice until they have contacted this claims agent “to avoid cases of misappropriation and mishandling of prize monies.”
Anyone with questions or concerns about this scam should contact local law enforcement officials or the New York State Comptroller’s office toll free at 1-888-OCS-4555.
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Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard.
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