Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed
Source: State Register, January 5, 2011
The NYS Register dated January 5, 2011 reports that “Pursuant to section 207 of the State Administrative Procedure Act (SAPA), notice is hereby provided of rules adopted by the New York State Civil Service Commission and President of the Commission during calendar years 2001 and 2006.”
Below is a brief description of each rule to be reviewed, the statutory authority underlying its promulgation, and a statement setting forth the justification for the ongoing need for each rule and its proposed continuation without further modification.
Rules adopted by the New York State Civil Service Commission during the Calendar Year 2001
Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service) Statutory Authority: Civil Service Law section 64(4)
Description of the Rule: The rule repealed sections 4.11 and 4.12 of the Rules for the Classified Service and added a new section 4.11 to such Rules.
The rule describes the rights and limitations of ‘‘contingent permanent’’ appointments to positions in the competitive, non-competitive and labor classes, which are defined as permanent appointments to positions that have been temporarily left vacant due to a leave of absence of the permanent incumbent of the position.
Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.
Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions) Statutory Authority: Civil Service Law section 6
Description of the Rules: The rules amended sections 28-1.3(b), 28-2.1(c) and 28-3.7(a) and (c) of the Attendance Rules for managerial/confidential employees in New York State Departments and Institutions.
Sections 28-1.3(b) and 28-2.1(c) were amended upon the request of the Governor's Office of Employee Relations (GOER) to provide that qualified managerial/confidential employees may utilize up to 200 days of accrued sick leave credits to pay for health insurance premiums during retirement.
The amendments to sections 28-3.7(a) and (c) provide that the rules governing donations of leave credits for managerial/confidential employees shall be consistent with such leave donation policies granted represented employees through collective bargaining agreements.
Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.
Rules adopted by the New York State Civil Service Commission or Regulations adopted by the President of the Civil Service Commission during the Calendar Year 2006
Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified
Service) Statutory Authority: Civil Service law section 63
Description of the Rule: The rule revised section 4.5 of the Rules for the Classified Service to provide for probationary terms for positions of University Police Officer 1 and University Police Officer 1 (Spanish Language) of not less than 52 nor more than 78 weeks.
Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.
Amendment to Chapter V of the Title 4 of NYCRR (Regulations of the Department of Civil Service [President's regulations]) Statutory Authority: Public Officers Law sections 87, 89
Description of the Rule: Public Officers Law Article 6 (Freedom of Information Law; ‘‘FOIL’’) requires subject agencies to adopt regulations regarding public access to records.
The regulation amended Part 80 of the President's Regulations, ‘‘Public Access to Records,’’ to conform the language of such Part with provisions of FOIL by replacing references to ‘‘applications’’ for records with ‘‘requests ‘‘for records.
In accordance with FOIL, the regulation specifies how requests shall be acknowledged and addresses when the Department is unable to grant or deny a request for records within the initial twenty day period from when the request is received.
Proposed Action: The rule is required by the Public Officers Law and shall be continued without modification.
Various amendments to the Appendices to the Rules for the Classified Service
Appendix 1 (Exempt Class)
Appendix 2 (Non-competitive Class)
Statutory Authority:
Appendix 1: Civil Service Law, sections 6 and 41; 4 NYCRR 2.1
Appendix 2: Civil Service Law, sections 6 and 42; 4 NYCRR 2.2
N.B. Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from compliance with Executive Order No. 20 review requirements by the Governor's Office of Regulatory Reform (GORR), upon a finding by GORR that such review lacked substantial benefit.
Based upon this determination by GORR, and pursuant to subdivision (5) of SAPA section 207, a full recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted by the Civil Service Commission during calendar years and 2001 and 2006 is hereby omitted.
Public Comments:
There is a forty-five (45) day public comment period following publication of this notice in the State Register on January 5, 2011.
Requests for information and public comments should be addressed to Judith I. Ratner, Esq., Deputy Commissioner and Counsel, Department of Civil Service, Alfred E. Smith Bldg., Albany, NY, 12239, (518) 473-2624, or by e-mail to judith.ratner@cs.state.ny.us
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.
Jan 6, 2011
Equal pay for equal work
Equal pay for equal work
Bertoldi v State of New York, 275 AD2d 227; Motion to appeal denied, 96 NY2d 706; Motion to appeal on constitutional grounds denied, 95 NY2d 958
Section 115 of the Civil Service Law provides that State employees are entitled to equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.
While Section 115 applies only to employees of the State of New York, in Evans v Newman, 71 AD2d 240, the Appellate Division ruled that nonjudicial court employees were to be treated consistent with the provisions of Civil Service Law Article 8, Classification and Compensation of State Employees.
The Appellate Division, First Department’s interpretation of Section 115 proved critical in resolving Bertoldi’s claim that certain trial court clerks were entitled to back salary because their positions had been improperly allocated to a lower salary grade.
The New York State Court Clerks Association and other clerks employed by the State’s Unified Court System complained that appellate court level clerk positions had been allocated to higher salary grades than trial court clerk positions. The Classification Review Board found that trial clerks and appellate clerks were essentially performing the same type of work with equivalent difficulty, and that they were therefore entitled to equal pay.
The trial clerks then sued to recover the salary differential for the approximately 14 years the appellate clerks received a higher salary. The Appellate Division rejected the trial clerks’ theory that Section 115 mandated that they be awarded such retroactive pay. The court said that:
1. The principle of equal pay for equal work need not be applied in all cases under any and all circumstances; and
2. Section 115 enunciates a policy and confers no jurisdiction on a court to enforce such policy.
The court characterized the discrepancy in pay as due to oversight or error and therefore insufficient to establish that [the trial clerks] were not provided equal pay for equal work.
Also rejected was the trial clerks’ contention that they were denied equal protection under the New York State and United States Constitutions as a result of the allocation of the two titles to different salary grades.
The court’s rationale: the decision not to award the trial clerk’s the pay differential had a rational relationship to a legitimate state interest in view of the high costs involved and the limited ability of the court system to absorb such costs within its existing budget.
Bertoldi v State of New York, 275 AD2d 227; Motion to appeal denied, 96 NY2d 706; Motion to appeal on constitutional grounds denied, 95 NY2d 958
Section 115 of the Civil Service Law provides that State employees are entitled to equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.
While Section 115 applies only to employees of the State of New York, in Evans v Newman, 71 AD2d 240, the Appellate Division ruled that nonjudicial court employees were to be treated consistent with the provisions of Civil Service Law Article 8, Classification and Compensation of State Employees.
The Appellate Division, First Department’s interpretation of Section 115 proved critical in resolving Bertoldi’s claim that certain trial court clerks were entitled to back salary because their positions had been improperly allocated to a lower salary grade.
The New York State Court Clerks Association and other clerks employed by the State’s Unified Court System complained that appellate court level clerk positions had been allocated to higher salary grades than trial court clerk positions. The Classification Review Board found that trial clerks and appellate clerks were essentially performing the same type of work with equivalent difficulty, and that they were therefore entitled to equal pay.
The trial clerks then sued to recover the salary differential for the approximately 14 years the appellate clerks received a higher salary. The Appellate Division rejected the trial clerks’ theory that Section 115 mandated that they be awarded such retroactive pay. The court said that:
1. The principle of equal pay for equal work need not be applied in all cases under any and all circumstances; and
2. Section 115 enunciates a policy and confers no jurisdiction on a court to enforce such policy.
The court characterized the discrepancy in pay as due to oversight or error and therefore insufficient to establish that [the trial clerks] were not provided equal pay for equal work.
Also rejected was the trial clerks’ contention that they were denied equal protection under the New York State and United States Constitutions as a result of the allocation of the two titles to different salary grades.
The court’s rationale: the decision not to award the trial clerk’s the pay differential had a rational relationship to a legitimate state interest in view of the high costs involved and the limited ability of the court system to absorb such costs within its existing budget.
Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits
Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits
Greenway v NYS Employees’ Retirement System, 274 AD2d 662; Motion to appeal dismissed as untimely, 95 NY2d 917
Corrections Officer Gary Greenway’s appeal of a determination by the New York State Employees’ Retirement System rejecting his application for performance of duty disability retirement appeared to present a familiar scenario: the System’s physician concluded that Greenway was not permanently disabled; Greenway’s physician came to the opposite conclusion.
However, there was a significant difference between the two opinions. The System’s medical expert’s opinion was based on his physical examination of Greenway and his review of Greenway’s medical records and diagnostic test results. In contrast, although Greenway’s medical expert concluded that he was permanently incapacitated, the court pointed out that his opinion was not based upon Greenway’s present condition but upon the possibility that Greenway might sustain a serious permanent injury in the event that he was assaulted by an inmate in the future.
The court said that in order to demonstrate his entitlement to accidental and performance of duty disability retirement benefits, Greenway was required to demonstrate that he currently was permanently incapacitated from the performance of his duties. This he failed to do considering the statement of his medical expert that he could be permanently disabled as the result of an assault by an inmate in the future.
Given the nature of conflicting medical opinions offered in this case, the Appellate Division concluded that it was within the Comptroller’s discretion to weigh the expert testimony in the record and to accept the opinion of one medical expert as more credible than that of the other. The court then dismissed Greenway’s appeal.
Greenway v NYS Employees’ Retirement System, 274 AD2d 662; Motion to appeal dismissed as untimely, 95 NY2d 917
Corrections Officer Gary Greenway’s appeal of a determination by the New York State Employees’ Retirement System rejecting his application for performance of duty disability retirement appeared to present a familiar scenario: the System’s physician concluded that Greenway was not permanently disabled; Greenway’s physician came to the opposite conclusion.
However, there was a significant difference between the two opinions. The System’s medical expert’s opinion was based on his physical examination of Greenway and his review of Greenway’s medical records and diagnostic test results. In contrast, although Greenway’s medical expert concluded that he was permanently incapacitated, the court pointed out that his opinion was not based upon Greenway’s present condition but upon the possibility that Greenway might sustain a serious permanent injury in the event that he was assaulted by an inmate in the future.
The court said that in order to demonstrate his entitlement to accidental and performance of duty disability retirement benefits, Greenway was required to demonstrate that he currently was permanently incapacitated from the performance of his duties. This he failed to do considering the statement of his medical expert that he could be permanently disabled as the result of an assault by an inmate in the future.
Given the nature of conflicting medical opinions offered in this case, the Appellate Division concluded that it was within the Comptroller’s discretion to weigh the expert testimony in the record and to accept the opinion of one medical expert as more credible than that of the other. The court then dismissed Greenway’s appeal.
Jan 5, 2011
Union’s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action
Union’s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action
Arkport Staff United v Arkport Cent. School Dist., 2010 NY Slip Op 09745, Appellate Division, Fourth Department
The Arkport Staff United claimed that members were entitled to longevity increases under Article 27 of a collective bargaining agreement between it and the Arkport Central School District.
Claiming that the union’s lawsuit was untimely, the School District asked Supreme Court to dismiss the union’s petition court in view of the four-month statute of limitations applicable to CPLR article 78 proceedings.
Supreme Court denied Arkport’s motion.
The Appellate Division sustained the Supreme Court’s determination, holding that the union’s action was subject to the six-year statute of limitations applicable to "breach of contract" actions rather than the four-month statute of limitations controlling filing an Article 78 action.
As the union’s “underlying claim” is an action on the contract – in this instance a collective bargaining agreement -- the Appellate Division said that its lawsuit was timely as it had been commenced “within six years of the alleged breach” of the agreement.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09745.htm
Arkport Staff United v Arkport Cent. School Dist., 2010 NY Slip Op 09745, Appellate Division, Fourth Department
The Arkport Staff United claimed that members were entitled to longevity increases under Article 27 of a collective bargaining agreement between it and the Arkport Central School District.
Claiming that the union’s lawsuit was untimely, the School District asked Supreme Court to dismiss the union’s petition court in view of the four-month statute of limitations applicable to CPLR article 78 proceedings.
Supreme Court denied Arkport’s motion.
The Appellate Division sustained the Supreme Court’s determination, holding that the union’s action was subject to the six-year statute of limitations applicable to "breach of contract" actions rather than the four-month statute of limitations controlling filing an Article 78 action.
As the union’s “underlying claim” is an action on the contract – in this instance a collective bargaining agreement -- the Appellate Division said that its lawsuit was timely as it had been commenced “within six years of the alleged breach” of the agreement.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09745.htm
Arbitrator cannot add “implied contract terms” based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms
Arbitrator cannot add “implied contract terms” based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms
Matter of Monroe County Sheriff's Off. v Monroe County Deputy Sheriffs' Assn., Inc., 2010 NY Slip Op 09797, Appellate Division, Fourth Department
In a CPLR Article 75 proceeding seeking to vacate an arbitration award Supreme Court held that the arbitrator had exceeded his authority by adding an implied contract term to the collective bargaining agreement (CBA) based on the Sheriff Department’s past practice.
The Appellate Division agreed, explaining that while "[p]ast practices may be considered by an arbitrator . . . when interpreting a specific contractual provision . . .[, a]n arbitrator may not rewrite a contract by adding a new clause based upon past practices," citing Hunsinger v Minns, 197 AD2d 871.
On the other hand, said the court, it agreed with the Deputy Sheriff’s Association that Supreme Court was incorrect in concluding that the arbitrator exceeded his authority by determining that Sheriff’s Office’s denial of paid release time requests submitted by members of Association t to prepare for upcoming contract negotiations with the Office was unreasonable.
The court noted that the CBA provided that requests for "[r]elease time for union business shall not be unreasonably denied" by the Sheriff’s Office.
Accordingly, it ruled that the arbitrator determination that that the denial of the Association’s requests “to keep overtime costs down” was unreasonable absent evidence of some "financial exigency."
In addition, the Appellate Division said that it deemed that the arbitrator's reasonableness determination was not irrational inasmuch as "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09797.htm
Matter of Monroe County Sheriff's Off. v Monroe County Deputy Sheriffs' Assn., Inc., 2010 NY Slip Op 09797, Appellate Division, Fourth Department
In a CPLR Article 75 proceeding seeking to vacate an arbitration award Supreme Court held that the arbitrator had exceeded his authority by adding an implied contract term to the collective bargaining agreement (CBA) based on the Sheriff Department’s past practice.
The Appellate Division agreed, explaining that while "[p]ast practices may be considered by an arbitrator . . . when interpreting a specific contractual provision . . .[, a]n arbitrator may not rewrite a contract by adding a new clause based upon past practices," citing Hunsinger v Minns, 197 AD2d 871.
On the other hand, said the court, it agreed with the Deputy Sheriff’s Association that Supreme Court was incorrect in concluding that the arbitrator exceeded his authority by determining that Sheriff’s Office’s denial of paid release time requests submitted by members of Association t to prepare for upcoming contract negotiations with the Office was unreasonable.
The court noted that the CBA provided that requests for "[r]elease time for union business shall not be unreasonably denied" by the Sheriff’s Office.
Accordingly, it ruled that the arbitrator determination that that the denial of the Association’s requests “to keep overtime costs down” was unreasonable absent evidence of some "financial exigency."
In addition, the Appellate Division said that it deemed that the arbitrator's reasonableness determination was not irrational inasmuch as "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09797.htm
Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step
Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step
Matter of Meegan v Brown, 63 AD3d 1673
In response to a State Comptroller's report concerning a fiscal crisis in the City of Buffalo, the State Legislature passed the Buffalo Fiscal Stability Authority Act on July 3, 2003. The Act, Public Authorities Law §3850 et seq, created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.
On April 21, 2004, the BFSA imposed a wage freeze on all employees of the City. The BFSA subsequently lifted the wage freeze effective July 1, 2007.
One of the issues considered in this case was the impact of the wage freeze on the eligibility of employees to “earn increments” under their respective “salary plan” as set out in various collective bargaining agreements. These agreements between the City and the unions representing various negotiating units contain salary plans or schedules for career advancement or promotion. Essentially the plans provided that as an employee acquires service credit or years of employment, he or she is to receive additional salary within his or her salary grade – i.e., a salary increment -- as a result of their being placed in a higher step in the salary grade.
Upon the lifting of the wage freeze, the employees were told would be entitled only to a one "step" increase in salary, in effect providing a “one-step” advancement in their salary grade from the step that they were at when the salary freeze was imposed in 2004.
In contrast, the unions contended that, although the employees could not be paid salary grade increases to which they otherwise would have been entitled during the wage freeze period, they nevertheless were entitled upon the lifting of the wage freeze to be moved ahead four salary "steps" in their salary grade rather then provided with a "one-step" increase. In other words, the employees should be “credited” for their service notwithstanding the fact that they had not actually received salary increments during the period when the salary plan had been frozen by the BFSA.
In the litigation that followed, Supreme Court concluded that the employees were entitled to their previously negotiated “wage increase benefits” – i.e., the negotiated step advancements -- immediately, thereby allowing them to be placed at the step that they would have otherwise enjoyed but for the “wage freeze imposed” by the BFSA.
The Appellate Division agreed, holding that under the plain meaning of the relevant provisions of Public Authorities Law §3858, the negotiated provision providing for the employees' ongoing advancement on the salary schedules as a result of continued accrual of service credit was not cancelled, annulled or eliminated.
Rather, said the court, “the City's obligation to make payment of the type of wage increases in question was suspended until the wage freeze was terminated” [emphasis supplied by the court].
The Appellate Division explained that although employee wage increases were frozen during the period of fiscal crisis, “The City cannot ignore the fact that the employees have continued to accrue service credit and have climbed the ladder of salary and career increments set forth in the collective bargaining agreements.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04805.htm
Matter of Meegan v Brown, 63 AD3d 1673
In response to a State Comptroller's report concerning a fiscal crisis in the City of Buffalo, the State Legislature passed the Buffalo Fiscal Stability Authority Act on July 3, 2003. The Act, Public Authorities Law §3850 et seq, created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.
On April 21, 2004, the BFSA imposed a wage freeze on all employees of the City. The BFSA subsequently lifted the wage freeze effective July 1, 2007.
One of the issues considered in this case was the impact of the wage freeze on the eligibility of employees to “earn increments” under their respective “salary plan” as set out in various collective bargaining agreements. These agreements between the City and the unions representing various negotiating units contain salary plans or schedules for career advancement or promotion. Essentially the plans provided that as an employee acquires service credit or years of employment, he or she is to receive additional salary within his or her salary grade – i.e., a salary increment -- as a result of their being placed in a higher step in the salary grade.
Upon the lifting of the wage freeze, the employees were told would be entitled only to a one "step" increase in salary, in effect providing a “one-step” advancement in their salary grade from the step that they were at when the salary freeze was imposed in 2004.
In contrast, the unions contended that, although the employees could not be paid salary grade increases to which they otherwise would have been entitled during the wage freeze period, they nevertheless were entitled upon the lifting of the wage freeze to be moved ahead four salary "steps" in their salary grade rather then provided with a "one-step" increase. In other words, the employees should be “credited” for their service notwithstanding the fact that they had not actually received salary increments during the period when the salary plan had been frozen by the BFSA.
In the litigation that followed, Supreme Court concluded that the employees were entitled to their previously negotiated “wage increase benefits” – i.e., the negotiated step advancements -- immediately, thereby allowing them to be placed at the step that they would have otherwise enjoyed but for the “wage freeze imposed” by the BFSA.
The Appellate Division agreed, holding that under the plain meaning of the relevant provisions of Public Authorities Law §3858, the negotiated provision providing for the employees' ongoing advancement on the salary schedules as a result of continued accrual of service credit was not cancelled, annulled or eliminated.
Rather, said the court, “the City's obligation to make payment of the type of wage increases in question was suspended until the wage freeze was terminated” [emphasis supplied by the court].
The Appellate Division explained that although employee wage increases were frozen during the period of fiscal crisis, “The City cannot ignore the fact that the employees have continued to accrue service credit and have climbed the ladder of salary and career increments set forth in the collective bargaining agreements.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04805.htm
Free speech does not protect employee making a racist statement
Free speech does not protect employee making a racist statementPereira v Commissioner of Social Services (SJC-08218), the Supreme Judicial Court, Mass., 432 Mass. 251
The First Amendment’s guarantee of free speech did not shield a twelve-year public employee from dismissal for telling a racist joke at a political gathering.
Linda M. Pereira, a social worker, was terminated after making remarks that she, herself, described as a stupid, racist, and unthinking joke.
While citing a line of cases that included Pickering v Board of Education, 31 U.S. 563, and Connick v Meyers, 461 U.S. 138, 1983, the Massachusetts high court said that although a public employee’s speech may be entitled to constitutional protection if the employee speaks out on a matter of public concern, and his or her interests as a citizen are not outweighed by the state’s interest in performing a public service, Pereira’s speech was not so protected.
Why not? Because, the court explained, while Pereira spoke at a political event, she conceded that her off-the-cuff ‘joke’ was not intended to convey any message and therefore did not address any matter of public concern. Further, the court noted that although the political affair was not a public gathering, Pereira’s remark was widely reported in the press.
Jan 4, 2011
Executive Order #3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity
Executive Order 8-3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity
Among his first acts as Governor, Governor Andrew M. Cuomo signed an Executive Order, Executive Order 8-3, requiring all Executive Chamber staff and other top state officials to participate in ethics training offered by the Commission on Public Integrity. Individuals covered by EO 8-3 includes agency commissioners and their respective counsels and ethics officers.
The training, which will focus on the rules about serving in government. will be available beginning no later than January 31st and must be completed within sixty days.
"Honor and integrity will be a hallmark of this administration, and I am confident that we have assembled a team that reflects that commitment," Governor Cuomo said. "Nonetheless, it is imperative that Chamber staff and other high ranking government officials be versed in the ethics rules and regulations that apply to them. Top government employees should have no questions, no gray areas, and no possibility of confusion regarding what is proper and what is not."
The Executive Order also requires officials to participate in this ethics training every two years.
The text of the Executive Order follows:
EXECUTIVE ORDER -- No. 3 ETHICS TRAINING
WHEREAS, all New York State taxpayers and residents and all those who depend on New York State government services have the right to expect that government programs will be administered and managed with the highest degree of professionalism;
WHEREAS, it is the obligation of every New York State officer and employee to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust;
WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies are subject to certain ethical statutes and rules, including but not limited to the New York State Code of Ethics, statutory restrictions on business and professional activities and opinions issued by the New York State Commission on Public Integrity;
WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies play an important role in ensuring ethics compliance by all State officers and employees;
WHEREAS, New York State has a responsibility to ensure that its officers and employees are versed in the ethical statutes and rules that apply to them; and
WHEREAS, it is appropriate to take steps to ensure that employees and officers maintain the highest ethical and professional standards;
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the laws of the State of New York, do hereby order as follows:
A. Definitions
1. “Agency” shall mean any state agency, department, office, board, bureau, division, committee, council or office.
2. “Covered Employees” shall mean all officers and employees working in the Executive Chamber in the office of the Governor, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies.
3. “Officers and employees” shall have the meaning given to “state officer or employee” in Section 73 of the Public Officers Law.
B. Ethics Training
1. Every Covered Employee shall participate in an ethics training within sixty days of when such training is prepared and available. The ethics training program will be prepared and available no later than January 31, 2011.
2. New Covered Employees shall participate in such ethics training within sixty days of the later of commencing their employment or when such training is prepared and available.
3. Such training shall include a discussion of the provisions of Sections 73, 73-A, 74 and 78 of the Public Officers Law and Sections 75-b and 107 of the Civil Service Law.
4. Every Covered Employee shall participate in an ethics training every two years following his or her initial training session pursuant to this order.
5. Covered Employees shall submit a signed statement certifying their participation in each training session pursuant to this order, which statements shall be placed in their personnel files.
6. The Executive Chamber shall coordinate with the ethics officers of state agencies, and with the Commission on Public Integrity, to establish regular training sessions sufficient to allow affected individuals to comply with this order.
C. Penalties
Any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing officer of the individual committing such violation.
Among his first acts as Governor, Governor Andrew M. Cuomo signed an Executive Order, Executive Order 8-3, requiring all Executive Chamber staff and other top state officials to participate in ethics training offered by the Commission on Public Integrity. Individuals covered by EO 8-3 includes agency commissioners and their respective counsels and ethics officers.
The training, which will focus on the rules about serving in government. will be available beginning no later than January 31st and must be completed within sixty days.
"Honor and integrity will be a hallmark of this administration, and I am confident that we have assembled a team that reflects that commitment," Governor Cuomo said. "Nonetheless, it is imperative that Chamber staff and other high ranking government officials be versed in the ethics rules and regulations that apply to them. Top government employees should have no questions, no gray areas, and no possibility of confusion regarding what is proper and what is not."
The Executive Order also requires officials to participate in this ethics training every two years.
The text of the Executive Order follows:
EXECUTIVE ORDER -- No. 3 ETHICS TRAINING
WHEREAS, all New York State taxpayers and residents and all those who depend on New York State government services have the right to expect that government programs will be administered and managed with the highest degree of professionalism;
WHEREAS, it is the obligation of every New York State officer and employee to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust;
WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies are subject to certain ethical statutes and rules, including but not limited to the New York State Code of Ethics, statutory restrictions on business and professional activities and opinions issued by the New York State Commission on Public Integrity;
WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies play an important role in ensuring ethics compliance by all State officers and employees;
WHEREAS, New York State has a responsibility to ensure that its officers and employees are versed in the ethical statutes and rules that apply to them; and
WHEREAS, it is appropriate to take steps to ensure that employees and officers maintain the highest ethical and professional standards;
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the laws of the State of New York, do hereby order as follows:
A. Definitions
1. “Agency” shall mean any state agency, department, office, board, bureau, division, committee, council or office.
2. “Covered Employees” shall mean all officers and employees working in the Executive Chamber in the office of the Governor, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies.
3. “Officers and employees” shall have the meaning given to “state officer or employee” in Section 73 of the Public Officers Law.
B. Ethics Training
1. Every Covered Employee shall participate in an ethics training within sixty days of when such training is prepared and available. The ethics training program will be prepared and available no later than January 31, 2011.
2. New Covered Employees shall participate in such ethics training within sixty days of the later of commencing their employment or when such training is prepared and available.
3. Such training shall include a discussion of the provisions of Sections 73, 73-A, 74 and 78 of the Public Officers Law and Sections 75-b and 107 of the Civil Service Law.
4. Every Covered Employee shall participate in an ethics training every two years following his or her initial training session pursuant to this order.
5. Covered Employees shall submit a signed statement certifying their participation in each training session pursuant to this order, which statements shall be placed in their personnel files.
6. The Executive Chamber shall coordinate with the ethics officers of state agencies, and with the Commission on Public Integrity, to establish regular training sessions sufficient to allow affected individuals to comply with this order.
C. Penalties
Any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing officer of the individual committing such violation.
Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled
Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled
Matter of Neeley v Town of Colonie, 2010 NY Slip Op 09606, Appellate Division, Third Department
William Neeley was appointed to the position of Public Works Operation Supervisor in 1998, while Thomas Romano was appointed to the position of Highway Maintenance Supervisor in 2005.
Both Neeley and Romano worked for the Town of Colonie Department of Public Works and both were suspended from their respective positions in July 2008 pending the resolution of certain disciplinary charges that had been filed against them.
Found guilty of misconduct, the penalty imposed on both Neeley and Romano was demotion in title and grade.
Neeley and Romano appealed to the Town's personnel officer and ultimately their respective demotions were rescinded and a new penalty - suspension without pay for 30 days - was imposed on each.
Although Neeley and Romano were reinstated to their titles, grades and salaries, they appealed contending that certain of their former duties had been curtailed and, therefore, they had been subject to a de facto demotion.
Supreme Court dismissed their Article 78 petition as moot and the Appellate Division affirmed the lower court’s action.
The Appellate Division said that as it was “undisputed” that both Neeley and Romano had been restored to their original titles, grades and salaries in compliance with the decision issued by the Town's personnel officer, they had received “all the relief to which they were entitled.”
Accordingly, said the court, Supreme Court’s dismissal of their petition as moot was correct.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09606.htm
Matter of Neeley v Town of Colonie, 2010 NY Slip Op 09606, Appellate Division, Third Department
William Neeley was appointed to the position of Public Works Operation Supervisor in 1998, while Thomas Romano was appointed to the position of Highway Maintenance Supervisor in 2005.
Both Neeley and Romano worked for the Town of Colonie Department of Public Works and both were suspended from their respective positions in July 2008 pending the resolution of certain disciplinary charges that had been filed against them.
Found guilty of misconduct, the penalty imposed on both Neeley and Romano was demotion in title and grade.
Neeley and Romano appealed to the Town's personnel officer and ultimately their respective demotions were rescinded and a new penalty - suspension without pay for 30 days - was imposed on each.
Although Neeley and Romano were reinstated to their titles, grades and salaries, they appealed contending that certain of their former duties had been curtailed and, therefore, they had been subject to a de facto demotion.
Supreme Court dismissed their Article 78 petition as moot and the Appellate Division affirmed the lower court’s action.
The Appellate Division said that as it was “undisputed” that both Neeley and Romano had been restored to their original titles, grades and salaries in compliance with the decision issued by the Town's personnel officer, they had received “all the relief to which they were entitled.”
Accordingly, said the court, Supreme Court’s dismissal of their petition as moot was correct.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09606.htm
A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years
A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years
Matter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third Department
It is “black letter law” that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.
Chand Sultana, a per diem substitute teacher employed by the New York City Department of Education, worked a total of 138 days during the school year. At the end of the school year Sultana received a letter from the Department “assuring her of continued employment” during the upcoming school year. The letter indicated the amount of work available and that the economic terms and conditions of employment were to be substantially the same as in the school year then ending.
Sultana applied for unemployment insurance benefits for the intervening summer but Unemployment Insurance Appeal Board determined that she was ineligible to receive them because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).
The Appellate Division rejected Sultana’s appeal challenging the Board’s determination.
The court explained that the record indicated that a Department of Education representative testified that Sultana would have as many opportunities to work during the succeeding school year as she had the prior year inasmuch as more schools were to be opened, resulting in greater demand for substitute teachers and there had been no reduction in the budget. Such testimony, together with the letter sent to Sultana by the Department, constituted substantial evidence supporting the Unemployment Insurance Board's determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09598.htm
Matter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third Department
It is “black letter law” that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.
Chand Sultana, a per diem substitute teacher employed by the New York City Department of Education, worked a total of 138 days during the school year. At the end of the school year Sultana received a letter from the Department “assuring her of continued employment” during the upcoming school year. The letter indicated the amount of work available and that the economic terms and conditions of employment were to be substantially the same as in the school year then ending.
Sultana applied for unemployment insurance benefits for the intervening summer but Unemployment Insurance Appeal Board determined that she was ineligible to receive them because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).
The Appellate Division rejected Sultana’s appeal challenging the Board’s determination.
The court explained that the record indicated that a Department of Education representative testified that Sultana would have as many opportunities to work during the succeeding school year as she had the prior year inasmuch as more schools were to be opened, resulting in greater demand for substitute teachers and there had been no reduction in the budget. Such testimony, together with the letter sent to Sultana by the Department, constituted substantial evidence supporting the Unemployment Insurance Board's determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09598.htm
Health insurance for retirees
Health insurance for retirees
Erie County Retirees Assn. v County of Erie [PA], 220 F.3d 193 (3d Cir. 2000), Certiorari denied, 121 S.Ct. 1247
Many public employers provide health insurance to retired public employees. Some employers may have elected to provide a different type or level of health insurance coverage to retirees eligible for Medicare than it provides to retirees not eligible for Medicare. This, as the Erie County case demonstrates, could prove dangerous.
According to the ruling in Erie County Retirees, a public employer may be sued for alleged age discrimination within the meaning of the Age Discrimination in Employment Act if it modifies its health insurance plan to provide retirees who are 65 or older (and therefore eligible for Medicare) with less generous benefits than its retirees under age 65.*
The decision indicates that initially Erie classified employees and retirees into three main health insurance coverage groups:
1. Current employees;
2. Medicare-eligible retirees; and
3. Retirees not eligible for Medicare. Each group had separate but similar traditional indemnity health insurance coverage.
When the county subsequently initiated changes in carriers in response to increases in health insurance costs, the retirees age 65 or older were enrolled in a health insurance plan called the SecurityBlue Plan.
Claiming that SecurityBlue provided inferior coverage compared to other plans and to the traditional indemnity coverage previously available to age 65+ retirees, the Association sued. Its basic argument: the county’s action violated the ADEA by placing retired employee into SecurityBlue on the basis of their having attained age 65.
The County, on the other hand, argued that it based its decision to place Medicare-eligible retirees in SecurityBlue not because of their age but for three age-neutral factors: (1) active versus inactive employment status, (2) cost, and (3) availability of plans. Its theory: ADEA allows an employer to take any action otherwise prohibited ... where the differentiation is based on reasonable factors other than age.
The relevant provisions of the ADEA make it unlawful for an employer to:
1. Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s age; [or]
2. Limit, segregate, or classify his employees in any way, which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s age.
The district court dismissed the Association’s petition, holding that while eligibility for Medicare is an age-based factor ... the ADEA clearly was not intended to apply to retirees....
The Circuit Court, however, disagreed and said the issue should go to trial to determine if the County violated the ADEA by treating age 65+ retirees less favorably than retirees under age 65 with respect to health insurance.
As to the applicability of ADEA to retirees, the Circuit Court observed that the ordinary meaning of the term employee benefit should be understood to encompass health coverage and other benefits, which a retired person receives from his or her former employer.
The court said that:
It is clear that the ADEA covers discrimination in a post-employment benefit where the facially discriminatory policy is instituted while an individual is still an active employee, even if the event occurred one day prior to his or her retirement. Thus, it was inconceivable to the Third Circuit that Congress intended to allow an individual to challenge the employer’s action that occurred while still an employee but bar such action if the policy were adopted two days later, one day after the date of retirement....
The court decided that Congress did not intended to expressly prohibit discrimination in employee benefits for active workers, yet allow employers to discriminatorily deny or limit post-employment benefits to former employees at or after their retirement, although they had earned those employee benefits through years of service with the employer.
Agreeing with the position taken by EEOC, the Third Circuit ruled that the ADEA applies even if the retirees’ benefits are structured discriminatorily after retirement. The court said that the age 65+ retirees are individuals who have been treated differently by their employer with respect to [their] compensation, terms, conditions, or privileges of employment.
The court said that the fact that the county’s action was the result neither of some malevolent motive nor due to some hostile age-based stereotypes was irrelevant.
Also of some significance is the Court’s rejection of the County’s argument that “... the underwriting criteria adopted by another of its carriers, Highmark Blue Cross/Blue Shield, disqualified Medicare-eligible retirees from enrollment ....” Why? Because, said the court, the Supreme Court has indicated that an employer cannot avoid responsibility for a facially discriminatory benefit plan simply because the discrimination arises from the criteria imposed by outside entities with whom the employer has contracted to participate in providing the benefit.
The court’s conclusion: the County has treated age 65+ retirees differently than other retirees with respect to their compensation, terms, conditions, or privileges of employment, because of ... age. Accordingly, such retirees were found to have established a claim of age discrimination under the ADEA, 29 USC 623(a)(1).
Presumably, the Association will prevail unless the county can prove that one of the ADEA’s safe harbors is found applicable -- i.e., there were some qualified, non-discriminatory reasons for its action.
What would satisfy this standard? The Circuit Court said that that the safe harbor provided [by the ADEA] is applicable if the County can meet the equal benefit or equal cost standard.
* The Association withdrew its claim alleging differences in benefits for retirees and active County employees violated the ADEA and proceeded only on its ADEA claim that the differences in benefits between the age 65 and older retirees and retirees under age 65 violate the ADEA.
Erie County Retirees Assn. v County of Erie [PA], 220 F.3d 193 (3d Cir. 2000), Certiorari denied, 121 S.Ct. 1247
Many public employers provide health insurance to retired public employees. Some employers may have elected to provide a different type or level of health insurance coverage to retirees eligible for Medicare than it provides to retirees not eligible for Medicare. This, as the Erie County case demonstrates, could prove dangerous.
According to the ruling in Erie County Retirees, a public employer may be sued for alleged age discrimination within the meaning of the Age Discrimination in Employment Act if it modifies its health insurance plan to provide retirees who are 65 or older (and therefore eligible for Medicare) with less generous benefits than its retirees under age 65.*
The decision indicates that initially Erie classified employees and retirees into three main health insurance coverage groups:
1. Current employees;
2. Medicare-eligible retirees; and
3. Retirees not eligible for Medicare. Each group had separate but similar traditional indemnity health insurance coverage.
When the county subsequently initiated changes in carriers in response to increases in health insurance costs, the retirees age 65 or older were enrolled in a health insurance plan called the SecurityBlue Plan.
Claiming that SecurityBlue provided inferior coverage compared to other plans and to the traditional indemnity coverage previously available to age 65+ retirees, the Association sued. Its basic argument: the county’s action violated the ADEA by placing retired employee into SecurityBlue on the basis of their having attained age 65.
The County, on the other hand, argued that it based its decision to place Medicare-eligible retirees in SecurityBlue not because of their age but for three age-neutral factors: (1) active versus inactive employment status, (2) cost, and (3) availability of plans. Its theory: ADEA allows an employer to take any action otherwise prohibited ... where the differentiation is based on reasonable factors other than age.
The relevant provisions of the ADEA make it unlawful for an employer to:
1. Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s age; [or]
2. Limit, segregate, or classify his employees in any way, which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s age.
The district court dismissed the Association’s petition, holding that while eligibility for Medicare is an age-based factor ... the ADEA clearly was not intended to apply to retirees....
The Circuit Court, however, disagreed and said the issue should go to trial to determine if the County violated the ADEA by treating age 65+ retirees less favorably than retirees under age 65 with respect to health insurance.
As to the applicability of ADEA to retirees, the Circuit Court observed that the ordinary meaning of the term employee benefit should be understood to encompass health coverage and other benefits, which a retired person receives from his or her former employer.
The court said that:
It is clear that the ADEA covers discrimination in a post-employment benefit where the facially discriminatory policy is instituted while an individual is still an active employee, even if the event occurred one day prior to his or her retirement. Thus, it was inconceivable to the Third Circuit that Congress intended to allow an individual to challenge the employer’s action that occurred while still an employee but bar such action if the policy were adopted two days later, one day after the date of retirement....
The court decided that Congress did not intended to expressly prohibit discrimination in employee benefits for active workers, yet allow employers to discriminatorily deny or limit post-employment benefits to former employees at or after their retirement, although they had earned those employee benefits through years of service with the employer.
Agreeing with the position taken by EEOC, the Third Circuit ruled that the ADEA applies even if the retirees’ benefits are structured discriminatorily after retirement. The court said that the age 65+ retirees are individuals who have been treated differently by their employer with respect to [their] compensation, terms, conditions, or privileges of employment.
The court said that the fact that the county’s action was the result neither of some malevolent motive nor due to some hostile age-based stereotypes was irrelevant.
Also of some significance is the Court’s rejection of the County’s argument that “... the underwriting criteria adopted by another of its carriers, Highmark Blue Cross/Blue Shield, disqualified Medicare-eligible retirees from enrollment ....” Why? Because, said the court, the Supreme Court has indicated that an employer cannot avoid responsibility for a facially discriminatory benefit plan simply because the discrimination arises from the criteria imposed by outside entities with whom the employer has contracted to participate in providing the benefit.
The court’s conclusion: the County has treated age 65+ retirees differently than other retirees with respect to their compensation, terms, conditions, or privileges of employment, because of ... age. Accordingly, such retirees were found to have established a claim of age discrimination under the ADEA, 29 USC 623(a)(1).
Presumably, the Association will prevail unless the county can prove that one of the ADEA’s safe harbors is found applicable -- i.e., there were some qualified, non-discriminatory reasons for its action.
What would satisfy this standard? The Circuit Court said that that the safe harbor provided [by the ADEA] is applicable if the County can meet the equal benefit or equal cost standard.
* The Association withdrew its claim alleging differences in benefits for retirees and active County employees violated the ADEA and proceeded only on its ADEA claim that the differences in benefits between the age 65 and older retirees and retirees under age 65 violate the ADEA.
Judicial review of a disciplinary action
Judicial review of a disciplinary action
Horgan v Safir, 273 AD2d 135; Motion for leave to appeal denied, 95 NY2d 765
A court’s review of an administrative decision following a hearing is significantly more limited than would be the case when a higher court considers an appeal from a trial court’s ruling. This limitation proved critical in the Appellate Division, First Department’s consideration of the Horgan case.
New York City police officer John Horgan was found guilty of using discourteous and disrespectful remarks concerning race following an administrative disciplinary hearing. The penalty imposed: forfeiture of 20 days of vacation. Horgan appealed the Police Commissioner’s determination.
The Appellate Division dismissed Horgan’s appeal. The court, however, specifically commented that it had to dismiss the appeal despite the fact that if the Commissioner’s determination was reviewed under the standards applicable to a trial court decision, it would have been disposed to annul it as against the weight of the credible evidence.
The Appellate Division said that courts have very limited review powers over administrative agency determinations. Accordingly, it said that it was constrained to confirm [the Commissioner’s] findings in the disciplinary hearing, citing Berenhaus v Ward, 70 NY2d 436.
Horgan v Safir, 273 AD2d 135; Motion for leave to appeal denied, 95 NY2d 765
A court’s review of an administrative decision following a hearing is significantly more limited than would be the case when a higher court considers an appeal from a trial court’s ruling. This limitation proved critical in the Appellate Division, First Department’s consideration of the Horgan case.
New York City police officer John Horgan was found guilty of using discourteous and disrespectful remarks concerning race following an administrative disciplinary hearing. The penalty imposed: forfeiture of 20 days of vacation. Horgan appealed the Police Commissioner’s determination.
The Appellate Division dismissed Horgan’s appeal. The court, however, specifically commented that it had to dismiss the appeal despite the fact that if the Commissioner’s determination was reviewed under the standards applicable to a trial court decision, it would have been disposed to annul it as against the weight of the credible evidence.
The Appellate Division said that courts have very limited review powers over administrative agency determinations. Accordingly, it said that it was constrained to confirm [the Commissioner’s] findings in the disciplinary hearing, citing Berenhaus v Ward, 70 NY2d 436.
Jan 3, 2011
Leading by example, Governor Andrew M. Cuomo will return five percent of his statutory compensation of $179,000 to the State
Leading by example, Governor Andrew M. Cuomo will return five percent of his statutory compensation of $179,000 to the State
Source: Office of the Governor
Governor Andrew M. Cuomo today announced that he will reduce his salary by five percent. The salary for the Governor, $179,000, is set by state law and has not changed since 1999. The Governor said that he will return to the State the amount his salary reduction.
In addition, Lt. Governor Robert J. Duffy and newly hired senior members of the Cuomo Administration who are filling existing positions in the Executive Chamber are also taking salary reductions and have agreed to take a pay cut of 5 percent from their predecessors' salaries. This includes the Governor's Secretary, Counsel, Director of State Operations, Counselor and the Chief of Staff.
Governor Cuomo also directed that the budget for the Executive Chamber be reduced by five percent.
"Change starts at the top and we will lead by example," Governor Cuomo said. "Families and business owners in every corner of the state have learned to do more with less in order to live within their means and government must do the same."
The Secretary to the Governor has initiated a review of all Executive Chamber expenses to determine where the reductions will be made.
Source: Office of the Governor
Governor Andrew M. Cuomo today announced that he will reduce his salary by five percent. The salary for the Governor, $179,000, is set by state law and has not changed since 1999. The Governor said that he will return to the State the amount his salary reduction.
In addition, Lt. Governor Robert J. Duffy and newly hired senior members of the Cuomo Administration who are filling existing positions in the Executive Chamber are also taking salary reductions and have agreed to take a pay cut of 5 percent from their predecessors' salaries. This includes the Governor's Secretary, Counsel, Director of State Operations, Counselor and the Chief of Staff.
Governor Cuomo also directed that the budget for the Executive Chamber be reduced by five percent.
"Change starts at the top and we will lead by example," Governor Cuomo said. "Families and business owners in every corner of the state have learned to do more with less in order to live within their means and government must do the same."
The Secretary to the Governor has initiated a review of all Executive Chamber expenses to determine where the reductions will be made.
Political tests for appointment to the public service in New York State
Political tests for appointment to the public service in New York State
NYPPL trivia – January 2011
Subdivision 1 of §107 of the Civil Service Law essentially prohibits “Recommendations based on political affiliations.” Subdivision 1, in pertinent part, provides that “No recommendation or question under the authority of [the Civil Service Law] shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of [the Civil Service Law] or the rules established thereunder, shall be in any manner affected or influenced by such opinions or affiliations.
Subdivision 2 of §107 prohibits “Inquiry concerning political affiliations.” Subdivision 2, in pertinent part, provides that “No person shall directly or indirectly ask, indicate or transmit orally or in writing the political affiliations of any employee in the civil service of the state or of any civil division thereof or of any person dependent upon or related to such an employee, as a test of fitness for holding office.”
However, in some instances an individual’s political affiliation determines his or her eligibility for appointment to a position in public service in New York State as a matter of law. Name one such position.
E-mail your answer to NYPPL at publications@nycap.rr.com with the word “Trivia - 2011” in the subject line on or before January 31, 2011. Only the first entry submitted by an individual will be considered. The correctness of the answer submitted by an individual shall be determined by solely by NYPPL.
The individual submitting the "first correct entry" will receive a free copy of the 2011 edition of The Discipline Book, [regular price $195] upon its publication later this year. In the event more than one correct entry is received, the “first correct entry” will be determined by NYPPL’s making a selection at random from among the “correct e-mails” received on or before January 31, 2011.
Your submission of an entry constitutes your agreement to above terms and conditions.
.
NYPPL trivia – January 2011
Subdivision 1 of §107 of the Civil Service Law essentially prohibits “Recommendations based on political affiliations.” Subdivision 1, in pertinent part, provides that “No recommendation or question under the authority of [the Civil Service Law] shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of [the Civil Service Law] or the rules established thereunder, shall be in any manner affected or influenced by such opinions or affiliations.
Subdivision 2 of §107 prohibits “Inquiry concerning political affiliations.” Subdivision 2, in pertinent part, provides that “No person shall directly or indirectly ask, indicate or transmit orally or in writing the political affiliations of any employee in the civil service of the state or of any civil division thereof or of any person dependent upon or related to such an employee, as a test of fitness for holding office.”
However, in some instances an individual’s political affiliation determines his or her eligibility for appointment to a position in public service in New York State as a matter of law. Name one such position.
E-mail your answer to NYPPL at publications@nycap.rr.com with the word “Trivia - 2011” in the subject line on or before January 31, 2011. Only the first entry submitted by an individual will be considered. The correctness of the answer submitted by an individual shall be determined by solely by NYPPL.
The individual submitting the "first correct entry" will receive a free copy of the 2011 edition of The Discipline Book, [regular price $195] upon its publication later this year. In the event more than one correct entry is received, the “first correct entry” will be determined by NYPPL’s making a selection at random from among the “correct e-mails” received on or before January 31, 2011.
Your submission of an entry constitutes your agreement to above terms and conditions.
.
Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect
Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect
Appeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,184
Greg Johnston alleged that Assistant to the Superintendent William Shine threatened physical violence against him during a meeting of the School Board and asked School Superintendent Charles Cardillo to take disciplinary action against Shine. When Cardillo advised Johnston that no disciplinary action would be taken against Shine, Johnston appealed to the Commissioner.*
The Commissioner dismissed Johnston’s appeal for a number of technical reasons, including Johnston's failure "to join necessary parties” – i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.
Here, said the Commissioner, both Cardillo and Shine would clearly be affected if should the relief sought by Johnston be granted. However, there was nothing in the record to indicate that either Cardillo or Shine had been served with a copy of the notice of petition and petition filed by Johnston.
Further, said the Commissioner, Cardillo was not named in the caption of the petition or in the notice of petition. Accordingly, the Commissioner ruled that Johnston’s claims against both Cardillo and Shine must be dismissed.
Similarly, Johnston’s petition seeking Shine’s removal was also dismissed because the notice of Johnston's petition was defective.
Clearly any one of these omissions standing alone would consitute a fatal defect if it could not be timely cured.
In any event, the Commissioner said that even had Johnston been properly filed and served on the necessary parties, it would have been dismissed as it “fails to state a claim upon which relief may be granted.”
Although Johnston cited Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine, the Commissioner pointed out that “such reliance is misplaced,” as that provision pertains only to official acts of a district superintendent of schools rather than a superintendent of a school district [emphasis supplied].
Further, Education Law §306 authorizes the Commissioner to remove a trustee, a member of a board of education, a clerk, a collector, a treasurer, a district superintendent, a superintendent of schools or other school officers. An assistant to the superintendent is a district employee and not a school officer subject to removal by the Commissioner pursuant to §306 of the Education Law.
As to Johnston’s asking the Commissioner to initiate disciplinary action against Shine, the Commissioner lacks authority to do so as it is the board of education, rather than the Commissioner of Education, in which the authority to take disciplinary action against a school district employee is vested.
* The decision to discipline an employee of a school district is a matter involving the exercise of discretion by the appointing authority. Two decisions by the Commissioner of Education, Gaul, Decisions of the Commissioner #14432 and Matter of Middleton, Decisions of the Commissioner #14431, address challenges to the exercise of discretion with respect to filing disciplinary charges against an employee of a school district or BOCES.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16184.htm
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Appeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,184
Greg Johnston alleged that Assistant to the Superintendent William Shine threatened physical violence against him during a meeting of the School Board and asked School Superintendent Charles Cardillo to take disciplinary action against Shine. When Cardillo advised Johnston that no disciplinary action would be taken against Shine, Johnston appealed to the Commissioner.*
The Commissioner dismissed Johnston’s appeal for a number of technical reasons, including Johnston's failure "to join necessary parties” – i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.
Here, said the Commissioner, both Cardillo and Shine would clearly be affected if should the relief sought by Johnston be granted. However, there was nothing in the record to indicate that either Cardillo or Shine had been served with a copy of the notice of petition and petition filed by Johnston.
Further, said the Commissioner, Cardillo was not named in the caption of the petition or in the notice of petition. Accordingly, the Commissioner ruled that Johnston’s claims against both Cardillo and Shine must be dismissed.
Similarly, Johnston’s petition seeking Shine’s removal was also dismissed because the notice of Johnston's petition was defective.
Clearly any one of these omissions standing alone would consitute a fatal defect if it could not be timely cured.
In any event, the Commissioner said that even had Johnston been properly filed and served on the necessary parties, it would have been dismissed as it “fails to state a claim upon which relief may be granted.”
Although Johnston cited Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine, the Commissioner pointed out that “such reliance is misplaced,” as that provision pertains only to official acts of a district superintendent of schools rather than a superintendent of a school district [emphasis supplied].
Further, Education Law §306 authorizes the Commissioner to remove a trustee, a member of a board of education, a clerk, a collector, a treasurer, a district superintendent, a superintendent of schools or other school officers. An assistant to the superintendent is a district employee and not a school officer subject to removal by the Commissioner pursuant to §306 of the Education Law.
As to Johnston’s asking the Commissioner to initiate disciplinary action against Shine, the Commissioner lacks authority to do so as it is the board of education, rather than the Commissioner of Education, in which the authority to take disciplinary action against a school district employee is vested.
* The decision to discipline an employee of a school district is a matter involving the exercise of discretion by the appointing authority. Two decisions by the Commissioner of Education, Gaul, Decisions of the Commissioner #14432 and Matter of Middleton, Decisions of the Commissioner #14431, address challenges to the exercise of discretion with respect to filing disciplinary charges against an employee of a school district or BOCES.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16184.htm
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State government policy makers not covered by Age Discrimination in Employment Act [ADEA]
State government policy makers not covered by Age Discrimination in Employment Act [ADEA]
Source: Findlaw.Com Weekly Labor & Employment Law Newsletter, December 27-31, 2010
Opp v. Office of the State's Attorney of Cook County, No. 09-3714 - United States Seventh Circuit, 12/29/2010
”In former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA), district court's grant of defendants' motions to dismiss in ruling that the plaintiffs were excluded from the ADEA's coverage because they held policymaking positions as a matter of law, is affirmed where:
1) district court's determination as a matter of law of the policymaking status of the plaintiffs' positions was proper because the plaintiffs' positions as assistant state's attorneys gave them inherent policymaking authority, and the plaintiffs' roles as assistant state attorneys were clearly defined by statute; and
2) plaintiffs' argument that they were not appointed by the state's attorney and thus cannot be considered "appointees" on the policymaking level is without merit."
Click here to Read more...”
Source: Findlaw.Com Weekly Labor & Employment Law Newsletter, December 27-31, 2010
Opp v. Office of the State's Attorney of Cook County, No. 09-3714 - United States Seventh Circuit, 12/29/2010
”In former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA), district court's grant of defendants' motions to dismiss in ruling that the plaintiffs were excluded from the ADEA's coverage because they held policymaking positions as a matter of law, is affirmed where:
1) district court's determination as a matter of law of the policymaking status of the plaintiffs' positions was proper because the plaintiffs' positions as assistant state's attorneys gave them inherent policymaking authority, and the plaintiffs' roles as assistant state attorneys were clearly defined by statute; and
2) plaintiffs' argument that they were not appointed by the state's attorney and thus cannot be considered "appointees" on the policymaking level is without merit."
Click here to Read more...”
Evaluating the credibility of a witness in a disciplinary action
Evaluating the credibility of a witness in a disciplinary action
Jackson v McMahon, 275 AD2d 546
The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning.
The troopers had stopped the two patrol cars in which they were riding to set up radar surveillance during the early morning and were found asleep during a random check by their supervisor. The Disciplinary Board found them guilty of charges of misconduct and neglect of duty and recommended penalties ranging from suspension without pay for ten days and censure to suspension for twenty days and censure for this misconduct. The Superintendent adopted the Board’s findings and recommendations.
The troopers appealed their being found guilty of the charges and the penalties imposed, alleging that Disciplinary Board’s determinations were not supported by substantial evidence.
The Appellate Division rejected their claims, holding that its review of the record indicated that the supervisor gave detailed testimony concerning his observations of troopers that indicated that the four were asleep while performing his supervisory check.
True, said the court, the troopers denied that they were sleeping when approached by the supervisor. True, said the court, the troopers submitted testimony casting doubt on the accuracy of the supervisor’s observations. This, however, presented a question of credibility, which the Board was free to resolve against troopers and the court declined to substitute its judgment for that of the Board and the Superintendent.
The Appellate Division said that the test applied [i]n assessing whether an administrative decision is supported by substantial evidence is whether the finding is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached, citing Doolittle v McMahon, 245 AD2d 736. Under these standards, the court said that it could not say that the supervisor’s testimony did not support the findings of guilt and declined to disturb the Board’s determinations.
As to the penalties imposed, the court said that much deference is to be afforded to an agency’s determination regarding a sanction, especially in situations where, as here, matters of internal discipline in a law enforcement organization are concerned, quoting from Santos v Chesworth, 133 AD2d 1001. Considering the particular circumstances presented in this case, the court said that it did not find the penalties imposed upon troopers so disproportionate to the offense as to shock one’s sense of fairness.
Jackson v McMahon, 275 AD2d 546
The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning.
The troopers had stopped the two patrol cars in which they were riding to set up radar surveillance during the early morning and were found asleep during a random check by their supervisor. The Disciplinary Board found them guilty of charges of misconduct and neglect of duty and recommended penalties ranging from suspension without pay for ten days and censure to suspension for twenty days and censure for this misconduct. The Superintendent adopted the Board’s findings and recommendations.
The troopers appealed their being found guilty of the charges and the penalties imposed, alleging that Disciplinary Board’s determinations were not supported by substantial evidence.
The Appellate Division rejected their claims, holding that its review of the record indicated that the supervisor gave detailed testimony concerning his observations of troopers that indicated that the four were asleep while performing his supervisory check.
True, said the court, the troopers denied that they were sleeping when approached by the supervisor. True, said the court, the troopers submitted testimony casting doubt on the accuracy of the supervisor’s observations. This, however, presented a question of credibility, which the Board was free to resolve against troopers and the court declined to substitute its judgment for that of the Board and the Superintendent.
The Appellate Division said that the test applied [i]n assessing whether an administrative decision is supported by substantial evidence is whether the finding is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached, citing Doolittle v McMahon, 245 AD2d 736. Under these standards, the court said that it could not say that the supervisor’s testimony did not support the findings of guilt and declined to disturb the Board’s determinations.
As to the penalties imposed, the court said that much deference is to be afforded to an agency’s determination regarding a sanction, especially in situations where, as here, matters of internal discipline in a law enforcement organization are concerned, quoting from Santos v Chesworth, 133 AD2d 1001. Considering the particular circumstances presented in this case, the court said that it did not find the penalties imposed upon troopers so disproportionate to the offense as to shock one’s sense of fairness.
Decertification of a union sought by dissatisfied unit member
Decertification of a union sought by dissatisfied unit member
Matter of Seneca Fall Support Staff Association, 33 PERB 3028.
A number of unit members dissatisfied with the representation provided by the existing collective bargaining agent, CSEA, formed the Seneca Falls Support Staff Organization [SFSSO].
SFSSO ultimately filed a petition seeking (1) decertification of CSEA as the collective bargaining agent for the support staff and (2) certification as the collective bargaining agent for support staff then represented by CSEA.
Finding that the CFC was acting independently and not as a shell organization for another union seeking representation rights as CSEA contended, PERB affirmed the ruling by its administrative law judge that a representation election be scheduled.
Matter of Seneca Fall Support Staff Association, 33 PERB 3028.
A number of unit members dissatisfied with the representation provided by the existing collective bargaining agent, CSEA, formed the Seneca Falls Support Staff Organization [SFSSO].
SFSSO ultimately filed a petition seeking (1) decertification of CSEA as the collective bargaining agent for the support staff and (2) certification as the collective bargaining agent for support staff then represented by CSEA.
Finding that the CFC was acting independently and not as a shell organization for another union seeking representation rights as CSEA contended, PERB affirmed the ruling by its administrative law judge that a representation election be scheduled.
Dec 31, 2010
Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review
Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Professor Perry A. Zirkel, University Professor of Education and Law, Lehigh University, wrote an excellent article summarizing special education cases for 2010 as well as related A.D.A. Section 504 and other cases.
The article is a must for school administrators and attorneys practicing in this area and is available here.
Mitchell H. Rubinstein
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Professor Perry A. Zirkel, University Professor of Education and Law, Lehigh University, wrote an excellent article summarizing special education cases for 2010 as well as related A.D.A. Section 504 and other cases.
The article is a must for school administrators and attorneys practicing in this area and is available here.
Mitchell H. Rubinstein
Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer’s rules
Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer’s rules
OATH Administrative Law Judge Alessandra Zorgniotti recommended that Sheron Dixon, a New York City probation officer charged and found guilty of being arrested in violation of Department rules, using profanity towards police officers, resisting arrest, spitting upon a police officer, and failing to notify the Department of her arrest and conviction of disorderly conduct, be terminated.
Although the incident occurred while the probation officer was off-duty, Judge Zorgniotti found that Dixon was subject to disciplinary action because there was a nexus between the misconduct and her official duties.
Further, the ALJ found that the Department had proved that Dixon had been AWOL from her position.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-156.pdf
OATH Administrative Law Judge Alessandra Zorgniotti recommended that Sheron Dixon, a New York City probation officer charged and found guilty of being arrested in violation of Department rules, using profanity towards police officers, resisting arrest, spitting upon a police officer, and failing to notify the Department of her arrest and conviction of disorderly conduct, be terminated.
Although the incident occurred while the probation officer was off-duty, Judge Zorgniotti found that Dixon was subject to disciplinary action because there was a nexus between the misconduct and her official duties.
Further, the ALJ found that the Department had proved that Dixon had been AWOL from her position.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-156.pdf
Unilateral changes in health insurance
Unilateral changes in health insurance
Civil Service Employees Association v PERB, 274 AD2d 930
Since 1990, Dutchess County employees represented by CSEA were offered a prescription drug plan for negotiating unit members enrolled in the Mohawk Valley Physicians’ Health Plan [MVP] that provided for employee co-payments of $3 for generic prescriptions and $5 for brand name drugs.*
Effective January 1998 MVP discontinued its $3/$5 co-payment rates. Employees were then provided with the lowest co-payments available from MVP: $4 for generic prescriptions and $7 for brand name drugs.
CSEA filed an improper practice charge with PERB, contending that by unilaterally increasing the co-payment to be paid by unit members enrolled in the MVP plan, the County breached its duty to negotiate with CSEA in violation of Civil Service Law Section 209-a(1)(d). PERB dismissed petitioner’s improper employer practice charge, finding that:
1. The record did not establish a past practice of providing prescription drug coverage with a co-payment at a fixed cost to employees of no more than $3 for generic prescriptions and $5 for brand name drugs; and
2. The record was equally supportive of the County’s argument that the past practice was to provide unit employees with a prescription drug plan with the lowest co-payment amounts available from MVP.
The Appellate Division sustained PERB’s determination, pointing out that CSEA had burden of proof with respect to the preliminary factual issue -- the existence of the past practice it relied upon in its improper practice claim.
Citing Essex County Local 816 v County of Essex, 31 PERB 3026, the court said that:
Where the record is susceptible to two or more equally reasonable conclusions, one of which is inconsistent with the proposition asserted, the party bearing the burden of proof on the proposition asserted cannot prevail.
In other words, if the record could be read as either supporting the existence of a past practice or supporting the absence of such a past practice, CSEA could not win on the basis of its claim that there was a past practice concerning the amount of the co-payment for prescriptions that the county was required to support.
* CSEA and the County stipulated that [f]rom its initiation in 1990 until January 1, 1998, the co-pay amounts for CSEA bargaining unit members under the MVP prescription rider were $3 and $5, the lowest available from MVP.
Civil Service Employees Association v PERB, 274 AD2d 930
Since 1990, Dutchess County employees represented by CSEA were offered a prescription drug plan for negotiating unit members enrolled in the Mohawk Valley Physicians’ Health Plan [MVP] that provided for employee co-payments of $3 for generic prescriptions and $5 for brand name drugs.*
Effective January 1998 MVP discontinued its $3/$5 co-payment rates. Employees were then provided with the lowest co-payments available from MVP: $4 for generic prescriptions and $7 for brand name drugs.
CSEA filed an improper practice charge with PERB, contending that by unilaterally increasing the co-payment to be paid by unit members enrolled in the MVP plan, the County breached its duty to negotiate with CSEA in violation of Civil Service Law Section 209-a(1)(d). PERB dismissed petitioner’s improper employer practice charge, finding that:
1. The record did not establish a past practice of providing prescription drug coverage with a co-payment at a fixed cost to employees of no more than $3 for generic prescriptions and $5 for brand name drugs; and
2. The record was equally supportive of the County’s argument that the past practice was to provide unit employees with a prescription drug plan with the lowest co-payment amounts available from MVP.
The Appellate Division sustained PERB’s determination, pointing out that CSEA had burden of proof with respect to the preliminary factual issue -- the existence of the past practice it relied upon in its improper practice claim.
Citing Essex County Local 816 v County of Essex, 31 PERB 3026, the court said that:
Where the record is susceptible to two or more equally reasonable conclusions, one of which is inconsistent with the proposition asserted, the party bearing the burden of proof on the proposition asserted cannot prevail.
In other words, if the record could be read as either supporting the existence of a past practice or supporting the absence of such a past practice, CSEA could not win on the basis of its claim that there was a past practice concerning the amount of the co-payment for prescriptions that the county was required to support.
* CSEA and the County stipulated that [f]rom its initiation in 1990 until January 1, 1998, the co-pay amounts for CSEA bargaining unit members under the MVP prescription rider were $3 and $5, the lowest available from MVP.
Failure to exhaust administrative remedy bars appeal to the courts
Failure to exhaust administrative remedy bars appeal to the courts
Matter of Sands v City of Rochester, 38 A.D.3d 1174
Sands filed an application for medical and disability benefits. When his application was rejected, Sands filed an administrative appeal from that determination. However, without determining the merits of Sands’ administrative appeal, the City of Rochester Fire Chief reconsidered Sands’ application. As a result of this reconsideration, Sands was approved for medical benefits but his application for disability benefits was disapproved.
Later Sands again applied for medical and disability benefits related to his original injury and again his application was approved only with respect to medical benefits.
Sands next filed a petition seeking a court order compelling the City to hold a hearing to determine if he was eligible for medical and disability benefits. The Appellate Division dismissed his petition, noting that Sands did not file an administrative appeal from this second determination and thus failed to exhaust his administrative remedies.
Matter of Sands v City of Rochester, 38 A.D.3d 1174
Sands filed an application for medical and disability benefits. When his application was rejected, Sands filed an administrative appeal from that determination. However, without determining the merits of Sands’ administrative appeal, the City of Rochester Fire Chief reconsidered Sands’ application. As a result of this reconsideration, Sands was approved for medical benefits but his application for disability benefits was disapproved.
Later Sands again applied for medical and disability benefits related to his original injury and again his application was approved only with respect to medical benefits.
Sands next filed a petition seeking a court order compelling the City to hold a hearing to determine if he was eligible for medical and disability benefits. The Appellate Division dismissed his petition, noting that Sands did not file an administrative appeal from this second determination and thus failed to exhaust his administrative remedies.
Arbitrator’s award must be confirmed if not completely irrational
Arbitrator’s award must be confirmed if not completely irrational
Matter of Rochester City School Dist. v Rochester Teachers Assn., 38 AD3d 1152
Supreme Court, Monroe County, Judge William P. Polito, confirmed an arbitration award in favor of the Rochester Teachers Association, rejecting the School District’s motion to vacate the award. The arbitrator had ruled that teachers who had attained their Masters Degree while in service would be advanced two steps on the salary scale.
The District contended that the arbitrator had exceed her authority when she concluded that under the terms of collective bargaining agreement, teachers would advance two steps on the salary scale upon obtaining their Masters Degrees.
According to the Appellate Division, the parties had stipulated the follow question in submitting the matter to arbitration:
Did the School District breach the collective bargaining agreement between it and the Association when if failed to advance incumbent teachers two steps on the salary scale after they obtained their Masters?
The Appellate Division rejected the District’s claim that the arbitrator had exceeded her authority, ruling, “the arbitrator merely resolved the stipulated issue before her.”
Accordingly, the issue before the Appellate Division was not whether the court agreed with the arbitrator’s determination. The court, citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NYPD 471, said, "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.” Rather, said the court, the issue to be resolved was whether the decision was rationale.
In addition, the court noted that in Matter of Lackawanna City School Dist. v Lackawanna Teachers Federation, 237 AD2d 945, it was held that where an arbitrator’s interpretation of the agreement is not completely irrational, the award is beyond the court’s power to review.
The Appellate Division dismissed the School District’s petition.
However, Presiding Justice Henry Scudder dissented, stating that in his view “the arbitrator exceeded her authority in disregarding the provision of the CBA requiring that any amendment to it be duly executed by both parties, and in modifying the CBA by providing that teachers obtaining a Masters Degree during the course of their employment would receive a two-step increase on the salary scale” because although the CBA “provided that teachers who obtained a Masters Degree during the course of their employment would be entitled to tuition reimbursement … the CBA, however, did not provide a two-step increase on the salary scale for teachers who obtained a Masters Degree during the course of their employment.”
Matter of Rochester City School Dist. v Rochester Teachers Assn., 38 AD3d 1152
Supreme Court, Monroe County, Judge William P. Polito, confirmed an arbitration award in favor of the Rochester Teachers Association, rejecting the School District’s motion to vacate the award. The arbitrator had ruled that teachers who had attained their Masters Degree while in service would be advanced two steps on the salary scale.
The District contended that the arbitrator had exceed her authority when she concluded that under the terms of collective bargaining agreement, teachers would advance two steps on the salary scale upon obtaining their Masters Degrees.
According to the Appellate Division, the parties had stipulated the follow question in submitting the matter to arbitration:
Did the School District breach the collective bargaining agreement between it and the Association when if failed to advance incumbent teachers two steps on the salary scale after they obtained their Masters?
The Appellate Division rejected the District’s claim that the arbitrator had exceeded her authority, ruling, “the arbitrator merely resolved the stipulated issue before her.”
Accordingly, the issue before the Appellate Division was not whether the court agreed with the arbitrator’s determination. The court, citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NYPD 471, said, "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.” Rather, said the court, the issue to be resolved was whether the decision was rationale.
In addition, the court noted that in Matter of Lackawanna City School Dist. v Lackawanna Teachers Federation, 237 AD2d 945, it was held that where an arbitrator’s interpretation of the agreement is not completely irrational, the award is beyond the court’s power to review.
The Appellate Division dismissed the School District’s petition.
However, Presiding Justice Henry Scudder dissented, stating that in his view “the arbitrator exceeded her authority in disregarding the provision of the CBA requiring that any amendment to it be duly executed by both parties, and in modifying the CBA by providing that teachers obtaining a Masters Degree during the course of their employment would receive a two-step increase on the salary scale” because although the CBA “provided that teachers who obtained a Masters Degree during the course of their employment would be entitled to tuition reimbursement … the CBA, however, did not provide a two-step increase on the salary scale for teachers who obtained a Masters Degree during the course of their employment.”
Police officer’s September 11 line of duty injury claim rejected
Police officer’s September 11 line of duty injury claim rejected
Matter of Teran v Kelly, 2007 NY Slip Op 30009(U), March 1, 2007, Supreme Court, New York County, Docket Number: 0109358, Judge: Marcy S. Friedman [Not selected for inclusion in the Official Reports]
Teran, a New York City police officer, was performing routine police duties while the City was undergoing a citywide emergency as a result of the September 11, 2001 attacks on the World Trade Center. She applied for accidental disability retirement benefits claiming that she had suffered a “line-of-duty accident.”
Although Teran’s psychotherapist, Robert Driscoll, submitted a letter in which he stated that Teran was suffering symptoms of Post Traumatic Stress Disorder brought on by her duties in connection with the events of September 11, 2001, the Police Department’s expert said that “there was no [sic] evidence to support the claim of [Teran’s] psychotherapist that [Teran’s] injuries were the result of her work in connection with the events of September 11, 2001.”*
Supreme Court Justice Marcy S. Friedman concluded that Teran’s claim of entitlement to accident disability retirement was supported neither by the facts nor by any legal authority.
Further, said the court, contrary to Teran’s claim, Administrative Code 3 13-252.1, which sets out a presumption of accidental disability for police officers injured during their participation in World Trade Center rescue, recovery or clean-up efforts, does not apply to Teran, as she was not involved in any of the World Trade Center rescue, recovery or clean-up efforts at the time.
* The decision states that Teran “was sent home just after the attacks because she was pregnant. [Teran] did not witness the attacks on the World Trade Center or the collapse of the buildings, and she did not participate in any rescue or recovery work at the World Trade Center site after September 11.”
Matter of Teran v Kelly, 2007 NY Slip Op 30009(U), March 1, 2007, Supreme Court, New York County, Docket Number: 0109358, Judge: Marcy S. Friedman [Not selected for inclusion in the Official Reports]
Teran, a New York City police officer, was performing routine police duties while the City was undergoing a citywide emergency as a result of the September 11, 2001 attacks on the World Trade Center. She applied for accidental disability retirement benefits claiming that she had suffered a “line-of-duty accident.”
Although Teran’s psychotherapist, Robert Driscoll, submitted a letter in which he stated that Teran was suffering symptoms of Post Traumatic Stress Disorder brought on by her duties in connection with the events of September 11, 2001, the Police Department’s expert said that “there was no [sic] evidence to support the claim of [Teran’s] psychotherapist that [Teran’s] injuries were the result of her work in connection with the events of September 11, 2001.”*
Supreme Court Justice Marcy S. Friedman concluded that Teran’s claim of entitlement to accident disability retirement was supported neither by the facts nor by any legal authority.
Further, said the court, contrary to Teran’s claim, Administrative Code 3 13-252.1, which sets out a presumption of accidental disability for police officers injured during their participation in World Trade Center rescue, recovery or clean-up efforts, does not apply to Teran, as she was not involved in any of the World Trade Center rescue, recovery or clean-up efforts at the time.
* The decision states that Teran “was sent home just after the attacks because she was pregnant. [Teran] did not witness the attacks on the World Trade Center or the collapse of the buildings, and she did not participate in any rescue or recovery work at the World Trade Center site after September 11.”
Compulsory arbitration demand
Compulsory arbitration demand
Matter of City of Poughkeepsie, 33 PERB 3029
In the course of collective bargaining the Poughkeepsie Professional Firefighters Association demanded de novo binding arbitration pursuant to PERB’s Voluntary Dispute Resolution Procedure [VDR] to resolve disagreements involving the granting and terminating benefits provided by the City of Poughkeepsie pursuant to Section 207-a of the General Municipal Law.
PERB said that demanding that the matter be submitted to VDR for such a de novo review was fatal to its being found to be a mandatory subject of collective bargaining.
PERB pointed to its ruling in the Watertown case [30 PERB 3072] in which it said that a collective bargaining demand seeking arbitration as an alternative to bring an Article 78 action to determining Section 207-a disputes was a mandatory subject of collective negotiations.
Matter of City of Poughkeepsie, 33 PERB 3029
In the course of collective bargaining the Poughkeepsie Professional Firefighters Association demanded de novo binding arbitration pursuant to PERB’s Voluntary Dispute Resolution Procedure [VDR] to resolve disagreements involving the granting and terminating benefits provided by the City of Poughkeepsie pursuant to Section 207-a of the General Municipal Law.
PERB said that demanding that the matter be submitted to VDR for such a de novo review was fatal to its being found to be a mandatory subject of collective bargaining.
PERB pointed to its ruling in the Watertown case [30 PERB 3072] in which it said that a collective bargaining demand seeking arbitration as an alternative to bring an Article 78 action to determining Section 207-a disputes was a mandatory subject of collective negotiations.
Dec 30, 2010
A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed
A court's review of a disciplinary arbitration award is limited and does not encompass consideration of the merits of the award or the penalty imposed
Matter of State of New York v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 09330, Appellate Division, Third Department
David H. Jackson, a Youth Division Aide at Tryon Residential Center for Boys, was served with a notice of discipline as a result of an incident in which it was alleged that he punched a juvenile resident and pushed a coworker into a wall.
The charges filed against Jackson were presented to an arbitrator in accordance with the disciplinary arbitration procedure set out in the controlling collective bargaining agreement [CBA]. The arbitrator found Jackson guilty of the charged misconduct but, after reviewing Jackson's entire employment record, found the proposed penalty – dismissal - to be inappropriate.
Pursuant to his authority under the CBA to set an appropriate remedy, the arbitrator imposed a penalty of suspension without pay for eight months, six hours of anger management therapy and a three-month disciplinary probationary period upon Jackson's return to work.
The Division for Youth filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitrator’s award with respect to the penalty imposed. Essentially, Youth argued that continuing Jackson’s employment as a Youth Division Aide violated the public policy of protecting the safety and welfare of the children placed in its facilities and the arbitrator should have imposed the penalty of dismissal.
Supreme Court, rather than grant Youth’s petition, granted the Civil Service Employees Association’s motion to confirm the award and Youth appealed.
Noting that a court's role in reviewing arbitration awards is limited and involves neither consideration of the merits of an arbitration award nor the substitution of the court’s judgment for that of the arbitrator simply because it believes its interpretation would be the better one, the Appellate Division sustained the lower court’s disposition of the matter.
As to Youth’s argument that the “public policy exception” should control in this instance as the protection of children in residential facilities and programs operated or certified by the Division is involved, the court said the exception would apply only in "'cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator.” The court explained that although there is undoubtedly a strong public policy to protect children and prevent the abuse of them, particularly by those entrusted with their care, for a court to vacate an arbitration award on public policy grounds, "more than a general societal concern must be at issue."
Further, the Appellate Division said that "Judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement.”
In this instance the CBA specifically granted the arbitrator "full authority, if the remedy proposed by [the Division] is found to be inappropriate, to devise an appropriate remedy and, in doing so, the arbitrator may consider the employee's entire employment record.”
In fashioning what he deemed an appropriate penalty, the arbitrator acknowledged it was the duty of employees in Jackson's position to keep the children in Youth’s care safe from harm and to refrain from inflicting any harm upon them. However, the court said that the arbitrator had credited Jackson's testimony that he had "accepted responsibility for his actions, understood them to be wrong and had volunteered to attend anger management therapy and to be placed on probation upon his return to work."
The Appellate Division, acknowledging Youth’s reluctance to continue Jackson’s employment was understandable, ruled that “the public policy cited simply does not prohibit [Jackson] from remaining employed in his position and it is not within this Court's power to ‘second-guess’ the factual or legal determinations of the arbitrator.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09330.htm
.
Matter of State of New York v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 09330, Appellate Division, Third Department
David H. Jackson, a Youth Division Aide at Tryon Residential Center for Boys, was served with a notice of discipline as a result of an incident in which it was alleged that he punched a juvenile resident and pushed a coworker into a wall.
The charges filed against Jackson were presented to an arbitrator in accordance with the disciplinary arbitration procedure set out in the controlling collective bargaining agreement [CBA]. The arbitrator found Jackson guilty of the charged misconduct but, after reviewing Jackson's entire employment record, found the proposed penalty – dismissal - to be inappropriate.
Pursuant to his authority under the CBA to set an appropriate remedy, the arbitrator imposed a penalty of suspension without pay for eight months, six hours of anger management therapy and a three-month disciplinary probationary period upon Jackson's return to work.
The Division for Youth filed a petition pursuant to Article 75 of the CPLR seeking to vacate the arbitrator’s award with respect to the penalty imposed. Essentially, Youth argued that continuing Jackson’s employment as a Youth Division Aide violated the public policy of protecting the safety and welfare of the children placed in its facilities and the arbitrator should have imposed the penalty of dismissal.
Supreme Court, rather than grant Youth’s petition, granted the Civil Service Employees Association’s motion to confirm the award and Youth appealed.
Noting that a court's role in reviewing arbitration awards is limited and involves neither consideration of the merits of an arbitration award nor the substitution of the court’s judgment for that of the arbitrator simply because it believes its interpretation would be the better one, the Appellate Division sustained the lower court’s disposition of the matter.
As to Youth’s argument that the “public policy exception” should control in this instance as the protection of children in residential facilities and programs operated or certified by the Division is involved, the court said the exception would apply only in "'cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator.” The court explained that although there is undoubtedly a strong public policy to protect children and prevent the abuse of them, particularly by those entrusted with their care, for a court to vacate an arbitration award on public policy grounds, "more than a general societal concern must be at issue."
Further, the Appellate Division said that "Judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement.”
In this instance the CBA specifically granted the arbitrator "full authority, if the remedy proposed by [the Division] is found to be inappropriate, to devise an appropriate remedy and, in doing so, the arbitrator may consider the employee's entire employment record.”
In fashioning what he deemed an appropriate penalty, the arbitrator acknowledged it was the duty of employees in Jackson's position to keep the children in Youth’s care safe from harm and to refrain from inflicting any harm upon them. However, the court said that the arbitrator had credited Jackson's testimony that he had "accepted responsibility for his actions, understood them to be wrong and had volunteered to attend anger management therapy and to be placed on probation upon his return to work."
The Appellate Division, acknowledging Youth’s reluctance to continue Jackson’s employment was understandable, ruled that “the public policy cited simply does not prohibit [Jackson] from remaining employed in his position and it is not within this Court's power to ‘second-guess’ the factual or legal determinations of the arbitrator.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09330.htm
.
Seniority in a tenure area and the “40% rule”
Seniority in a tenure area and the “40% rule”
Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177
Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.
After noting a number of procedural difficulties that required the dismissal of Gimbrone’s appeal, the Commissioner of Education elected to note had Gimbrone’s appeal been considered on its merit, he would have dismissed.
The Commissioner said in situations such as presented by Gimbrone’s being excessed following the abolishment of her position, “Section 30-1.13(c) of the Commissioner’s regulations [8 NYCRR §30-1.13(c)] provides that, in cases involving the abolition of a position,
if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.”
Further, said the Commissioner, 8 NYCRR §30-1.1(f) defines seniority as follows:
Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.
and as used in Part 30 of the Commissioner’s regulations, substantial portion means:
40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (see 8 NYCRR §30.1[g] [emphasis in the original]).
The principal issue in this appeal is whether or not 40% or more of the total time spent by Gimbrone in the performance of her duties in the relevant school years was spent in the elementary tenure area. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.
The Commissioner said that an examination of these provisions and the record supports the conclusion that Gimbrone failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.
Accordingly, had be matter been considered on its merits, the Commissioner said that “In view of the foregoing, I cannot conclude that [the Randolph Central School] board was arbitrary or capricious in terminating Gimbrone’s employment.”
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16177.htm
.
Appeal Of Kathi Gimbrone and the Board Of Education, Randolph Central School District, decisions of the Commissioner of Education, Decision No. 16,177
Kathi Gimbrone challenged various actions of the Board of Education of the Randolph Central School District to terminate her employment after being notified that her reading teacher position was abolished that she would be placed on a preferred eligibility list for reappointment to a position in the reading tenure area.
After noting a number of procedural difficulties that required the dismissal of Gimbrone’s appeal, the Commissioner of Education elected to note had Gimbrone’s appeal been considered on its merit, he would have dismissed.
The Commissioner said in situations such as presented by Gimbrone’s being excessed following the abolishment of her position, “Section 30-1.13(c) of the Commissioner’s regulations [8 NYCRR §30-1.13(c)] provides that, in cases involving the abolition of a position,
if the teacher identified as having the least seniority in the tenure area affected by the abolition has tenure or is in a probationary status in additional tenure areas, the teacher shall be transferred to that tenure area in which he or she has the greatest seniority and shall be retained in such area if there is another teacher having less seniority than he or she in such other tenure area.”
Further, said the Commissioner, 8 NYCRR §30-1.1(f) defines seniority as follows:
Seniority means length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.
and as used in Part 30 of the Commissioner’s regulations, substantial portion means:
40% or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (see 8 NYCRR §30.1[g] [emphasis in the original]).
The principal issue in this appeal is whether or not 40% or more of the total time spent by Gimbrone in the performance of her duties in the relevant school years was spent in the elementary tenure area. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.
The Commissioner said that an examination of these provisions and the record supports the conclusion that Gimbrone failed to meet her burden of proving that she spent more than 40% of her duties in the elementary tenure area.
Accordingly, had be matter been considered on its merits, the Commissioner said that “In view of the foregoing, I cannot conclude that [the Randolph Central School] board was arbitrary or capricious in terminating Gimbrone’s employment.”
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16177.htm
.
An employee organization's duty of fair representation
An employee organization's duty of fair representation
Agosto v Correctional Services Benevolent Association, USDC SDNY, 107 F.Supp.2d 294
Blaca Agosto, a New York City corrections officer, filed a complaint with the deputy warden of the facility alleging that another guard had shown her sexually explicit photographs of another female corrections officer and then asked her to pose with him as well. When the deputy warden responded that he did not consider photographs offensive, she filed a complaint with the agency’s equal employment office.
After she was reprimanded by the deputy warden as a result of her filing her complaint, Agosto asked her local union representative for assistance. When her request was ignored, she asked other union officials for help.
Eventually Agosto filed a Title VII complaint against the department alleging sexual harassment. She also sued the union, contending that it violated Title VII because she was told by union officials that the union did not pursue grievances on behalf of unit employees who raised sexual harassment complaints.
US District Court Judge Denise Cote refused to dismiss Agosto’s complaint against the union, ruling that she could sue the union for breaching its duty of fair representation because it refused to assist her when she filed a sexual harassment grievance against the department.
Agosto v Correctional Services Benevolent Association, USDC SDNY, 107 F.Supp.2d 294
Blaca Agosto, a New York City corrections officer, filed a complaint with the deputy warden of the facility alleging that another guard had shown her sexually explicit photographs of another female corrections officer and then asked her to pose with him as well. When the deputy warden responded that he did not consider photographs offensive, she filed a complaint with the agency’s equal employment office.
After she was reprimanded by the deputy warden as a result of her filing her complaint, Agosto asked her local union representative for assistance. When her request was ignored, she asked other union officials for help.
Eventually Agosto filed a Title VII complaint against the department alleging sexual harassment. She also sued the union, contending that it violated Title VII because she was told by union officials that the union did not pursue grievances on behalf of unit employees who raised sexual harassment complaints.
US District Court Judge Denise Cote refused to dismiss Agosto’s complaint against the union, ruling that she could sue the union for breaching its duty of fair representation because it refused to assist her when she filed a sexual harassment grievance against the department.
Confidentiality of e-mail
Confidentiality of e-mail
Footnotes on E-mails
In recent years numerous requests and warnings have been included at the foot of e-mails such as “Please let us know if you are not the intended receiver of this e-mail” or “CONFIDENTIAL – this is privileged correspondence – please destroy if you are not the individual for whom it is intended,” etc.
The latest in what is fast becoming an avalanche of warnings is the following caution appearing at the bottom of an e-mail received from a North Carolina governmental agency:
All email correspondence to and from this address is subject to the North Carolina Public Records Law, which may result in monitoring and disclosure to third parties, including law enforcement.
The Circuit Court of Appeals, Second Circuit, has considered one aspect of disclosing electronic records such as e-mail.
In Pritchard, et al v County of Erie and others, 546 F.3d 222, the Second Circuit considered the question of the ability of a litigant to demand discover of a public employer’s electronic records in the course of federal litigation. In this instance, the Circuit Court held that e-mails between a government attorney and Erie County officials were protected by attorney-client privilege.
Footnotes on E-mails
In recent years numerous requests and warnings have been included at the foot of e-mails such as “Please let us know if you are not the intended receiver of this e-mail” or “CONFIDENTIAL – this is privileged correspondence – please destroy if you are not the individual for whom it is intended,” etc.
The latest in what is fast becoming an avalanche of warnings is the following caution appearing at the bottom of an e-mail received from a North Carolina governmental agency:
All email correspondence to and from this address is subject to the North Carolina Public Records Law, which may result in monitoring and disclosure to third parties, including law enforcement.
The Circuit Court of Appeals, Second Circuit, has considered one aspect of disclosing electronic records such as e-mail.
In Pritchard, et al v County of Erie and others, 546 F.3d 222, the Second Circuit considered the question of the ability of a litigant to demand discover of a public employer’s electronic records in the course of federal litigation. In this instance, the Circuit Court held that e-mails between a government attorney and Erie County officials were protected by attorney-client privilege.
Vacating an arbitrator’s award
Vacating an arbitrator’s award
State Nurses Association v Mount Sinai Hospital, 275 AD2d 538
The Appellate Division, Third Department’s ruling in the State Nurses Association case provides a reminder of the guidelines used by the courts when considering a motion to vacate an arbitration award.
The Association attempted to confirm a disciplinary arbitration award involving one of its members.
The arbitrator ruled that although Mount Sinai had just cause to suspend Barbara Tomasino, a registered nurse, dismissal was too harsh a penalty. The arbitrator reasoned that given Tomasino’s long and distinguished employment at Mount Sinai, the lengthy suspension -- 2 1/2 years -- constituted sufficient and appropriate discipline.
The arbitrator directed the hospital to reinstate Tomasino without back pay or benefits and the 2 1/2 years she was out of service was to be deemed a suspension without pay. The hospital, however, refused to allow Tomasino to return to work and the Association brought an Article 75 action seeking to confirm the arbitrator’s award.
Mount Sinai objected and asked the court to vacate the arbitration award on the grounds that it was against public policy, irrational and in excess of the arbitrator’s authority under the CBA. After a State Supreme Court judge confirmed the arbitration award and directed Tomasino’s immediate reinstatement, with back pay and benefits from the date her suspension ended to the date of reinstatement, Mount Sinai appealed.
The Appellate Division affirmed the lower court’s ruling, noting that the limited role courts have in disposing of disputes submitted to binding arbitration pursuant to a collective bargaining agreement. Citing NYS Correctional Officers v State of New York, 94 NY2d 321, the court said:
“Courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies.”
Although a court may vacate an award when it determines that it is in violation of a strong public policy, is irrational or exceeds a specific limitation on the arbitrator’s power, the Appellate Division said that it did not find that any of these elements applicable in this case.
On the specific issue of the claim that the penalty imposed violates public policy, the Appellate Division ruled:
“Under the particular circumstances of this case, we find that the arbitrator’s imposition of a 2 and 1/2-year suspension was not in contravention of public policy since [Mount Sinai] has not identified any statute or regulation which requires termination of employment rather than a lengthy suspension in connection with such conduct.”
Also rejected was Mount Sinai’s argument that the arbitrator’s award was irrational, particularly in view of the parties’ explicit direction that the arbitrator determine the remedy due Tomasino if it found a lack of just cause for her dismissal. The court’s conclusion with respect to the penalty imposed by the arbitrator: the remedy of reinstatement without back pay and benefits was well within the arbitrator ‘s authority.
On a related point, in Greenberg v Bear, Stearns & Co. Inc., 220 F.3d 22, the court said that “where a petitioner complains ... in good faith that an arbitration award was rendered in manifest disregard of federal law, the federal courts have jurisdiction to entertain the petition.”
State Nurses Association v Mount Sinai Hospital, 275 AD2d 538
The Appellate Division, Third Department’s ruling in the State Nurses Association case provides a reminder of the guidelines used by the courts when considering a motion to vacate an arbitration award.
The Association attempted to confirm a disciplinary arbitration award involving one of its members.
The arbitrator ruled that although Mount Sinai had just cause to suspend Barbara Tomasino, a registered nurse, dismissal was too harsh a penalty. The arbitrator reasoned that given Tomasino’s long and distinguished employment at Mount Sinai, the lengthy suspension -- 2 1/2 years -- constituted sufficient and appropriate discipline.
The arbitrator directed the hospital to reinstate Tomasino without back pay or benefits and the 2 1/2 years she was out of service was to be deemed a suspension without pay. The hospital, however, refused to allow Tomasino to return to work and the Association brought an Article 75 action seeking to confirm the arbitrator’s award.
Mount Sinai objected and asked the court to vacate the arbitration award on the grounds that it was against public policy, irrational and in excess of the arbitrator’s authority under the CBA. After a State Supreme Court judge confirmed the arbitration award and directed Tomasino’s immediate reinstatement, with back pay and benefits from the date her suspension ended to the date of reinstatement, Mount Sinai appealed.
The Appellate Division affirmed the lower court’s ruling, noting that the limited role courts have in disposing of disputes submitted to binding arbitration pursuant to a collective bargaining agreement. Citing NYS Correctional Officers v State of New York, 94 NY2d 321, the court said:
“Courts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies.”
Although a court may vacate an award when it determines that it is in violation of a strong public policy, is irrational or exceeds a specific limitation on the arbitrator’s power, the Appellate Division said that it did not find that any of these elements applicable in this case.
On the specific issue of the claim that the penalty imposed violates public policy, the Appellate Division ruled:
“Under the particular circumstances of this case, we find that the arbitrator’s imposition of a 2 and 1/2-year suspension was not in contravention of public policy since [Mount Sinai] has not identified any statute or regulation which requires termination of employment rather than a lengthy suspension in connection with such conduct.”
Also rejected was Mount Sinai’s argument that the arbitrator’s award was irrational, particularly in view of the parties’ explicit direction that the arbitrator determine the remedy due Tomasino if it found a lack of just cause for her dismissal. The court’s conclusion with respect to the penalty imposed by the arbitrator: the remedy of reinstatement without back pay and benefits was well within the arbitrator ‘s authority.
On a related point, in Greenberg v Bear, Stearns & Co. Inc., 220 F.3d 22, the court said that “where a petitioner complains ... in good faith that an arbitration award was rendered in manifest disregard of federal law, the federal courts have jurisdiction to entertain the petition.”
Dec 29, 2010
Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title
Employees alleging that they were required to perform out-of-title work must show they perform the minimum baseline requirements of the title
Matter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 09329, Appellate Division, Third Department
Kenneth Brynien, as President of the New York State Public Employees Federation, filed out-of-title grievances with Office of Mental Health (hereinafter OMH), challenging the full-time assignments of the employees to perform duties at two OMH facilities where they were employed.
The employees hold civil service positions classified in other than “Treatment Team Leader.”
The out-of-title grievances alleged that the employees had been improperly assigned to perform and had been performing the duties of a Treatment Team Leader [TTL], Salary Grade M-1, a title designated “managerial” for the purposes of collective bargaining in violation of the relevant collective bargaining agreement.
After unsuccessful administrative appeals, Brynien initiated two CPLR Article 78 proceedings challenging the administrative determinations.
Supreme Court dismissed both petitions and the Appellate Division affirmed the lower courts “well-reasoned written decision”
The Appellate Division said "Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2)" and, in this instance, by Article 17 of the governing collective bargaining agreement.
As to the merits of the Article 78 petitions, the court said that its review of out-of-title work grievances focuses on “whether the new duties are appropriate to [the affected employees' job] titles and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [their respective] job specifications." Further, said the court, "Judicial review of [the Governor’s Office of Employee Relations’*] determination in this context is limited to whether it is arbitrary, capricious or without any rational basis."
The Appellate Division explained that although an employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work, here the dispositive inquiry is whether the Governor’s Office of Employee Relations rationally concluded that the affected employees did not meet the minimum baseline requirements of TTLs such that the grieved duties are appropriate to their job titles and are similar in nature to, or a reasonable outgrowth of, the duties listed in their job specifications.
Holding that in its view GOER did so, the Appellate Division dismissed Brynien’s appeal.
* The Governor’s Office of Employee Relations was the ultimate administrative appellate body in this instance.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09329.htm
Matter of Brynien v Governor's Off. of Empl. Relations, 2010 NY Slip Op 09329, Appellate Division, Third Department
Kenneth Brynien, as President of the New York State Public Employees Federation, filed out-of-title grievances with Office of Mental Health (hereinafter OMH), challenging the full-time assignments of the employees to perform duties at two OMH facilities where they were employed.
The employees hold civil service positions classified in other than “Treatment Team Leader.”
The out-of-title grievances alleged that the employees had been improperly assigned to perform and had been performing the duties of a Treatment Team Leader [TTL], Salary Grade M-1, a title designated “managerial” for the purposes of collective bargaining in violation of the relevant collective bargaining agreement.
After unsuccessful administrative appeals, Brynien initiated two CPLR Article 78 proceedings challenging the administrative determinations.
Supreme Court dismissed both petitions and the Appellate Division affirmed the lower courts “well-reasoned written decision”
The Appellate Division said "Out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law §61(2)" and, in this instance, by Article 17 of the governing collective bargaining agreement.
As to the merits of the Article 78 petitions, the court said that its review of out-of-title work grievances focuses on “whether the new duties are appropriate to [the affected employees' job] titles and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [their respective] job specifications." Further, said the court, "Judicial review of [the Governor’s Office of Employee Relations’*] determination in this context is limited to whether it is arbitrary, capricious or without any rational basis."
The Appellate Division explained that although an employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work, here the dispositive inquiry is whether the Governor’s Office of Employee Relations rationally concluded that the affected employees did not meet the minimum baseline requirements of TTLs such that the grieved duties are appropriate to their job titles and are similar in nature to, or a reasonable outgrowth of, the duties listed in their job specifications.
Holding that in its view GOER did so, the Appellate Division dismissed Brynien’s appeal.
* The Governor’s Office of Employee Relations was the ultimate administrative appellate body in this instance.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09329.htm
Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test
Failure of employee to provide a urine sample within the time limits set by federal regulations deemed a refusal to submit to the drug test
NYC Department of Sanitation v C.L.*, OATH Index #760/11
The New York City Department of Sanitation requires employees who are holders of commercial drivers' licenses to submit to random drug testing.
A sanitation worker, C.L. was charged with refusing to submit to a random test as a result of his failing to provide a sufficient urine sample within the time frame allotted by federal regulations.
C.L. then had five days from the date of the test to submit documentation to the Medical Review Officer (MRO) to show why he was unable to provide the required sample within the time period set by the federal regulation.
OATH Administrative Law Judge Ingrid Addison found that the Department had proved the refusal charge. Although Judge Addison indicated that she “was not entirely convinced by the MRO's rationale for rejecting the medical reports submitted by C.L., C.L. failed to present any expert testimony to controvert it.
Thus, the ALJ concluded, C.L.’s failure to produce sufficient urine within the time allotted constituted a refusal as charged.
In addition, Judge Addison found that the immediate follow-up steps taken by C.L. whereupon he sought an independent urine test, rebutted the inference that his urine sample would have tested positive. Accordingly she recommended that C.L. be suspended for 25 days without pay.
* C.L. held a commercial driver’s license and was subject to both Sanitation Department and federal regulations that require random drug testing. Pursuant to such federal regulations, C.L.’s name was been withheld from publication in Judge Addison's determination.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-760.pdf
NYC Department of Sanitation v C.L.*, OATH Index #760/11
The New York City Department of Sanitation requires employees who are holders of commercial drivers' licenses to submit to random drug testing.
A sanitation worker, C.L. was charged with refusing to submit to a random test as a result of his failing to provide a sufficient urine sample within the time frame allotted by federal regulations.
C.L. then had five days from the date of the test to submit documentation to the Medical Review Officer (MRO) to show why he was unable to provide the required sample within the time period set by the federal regulation.
OATH Administrative Law Judge Ingrid Addison found that the Department had proved the refusal charge. Although Judge Addison indicated that she “was not entirely convinced by the MRO's rationale for rejecting the medical reports submitted by C.L., C.L. failed to present any expert testimony to controvert it.
Thus, the ALJ concluded, C.L.’s failure to produce sufficient urine within the time allotted constituted a refusal as charged.
In addition, Judge Addison found that the immediate follow-up steps taken by C.L. whereupon he sought an independent urine test, rebutted the inference that his urine sample would have tested positive. Accordingly she recommended that C.L. be suspended for 25 days without pay.
* C.L. held a commercial driver’s license and was subject to both Sanitation Department and federal regulations that require random drug testing. Pursuant to such federal regulations, C.L.’s name was been withheld from publication in Judge Addison's determination.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-760.pdf
Criticism of employee performance serving pursuant to a contract with a private entity
Criticism of employee performance serving pursuant to a contract with a private entity
Brackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]
If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer. At best, such an individual may demand, and receive, a name clearing hearing if there has been publication of the alleged disparaging remarks concerning his or her work performance.
Being successful in clearing one’s name via a name-clearing clearing hearing, however, does not entitle the individual to reinstatement to his or her former position.
The Brackman case involved a novel variation of this type of situation -- the rights of a terminated employee of an independent contractor performing work for a public entity.
The contractor, Data Industries, was to perform certain data processing related services for the City of New York. City officials were extremely critical of the work being done under the contract by Brackman, one of Data Industries’ employees.
City officials complained that Brackman was not performing satisfactorily and did not provided the services the City expected. This criticism resulted in Brackman’s dismissal from the project and from Data Industries.
Brackman sued for damages for the alleged defamation arising in the context of his work as a computer consultant for New York City’s Department of Employment. The court granted the City motion to dismiss Brackman’s petition for two reasons:
1. Brackman had signed a release in exchange for a sum of money when he was terminated by Data Industries covering “all actions, causes of action [and] suits [...] by reason of any matter, cause or thing whatsoever against Data Industries, the City of New York, the Department of Employment and its Management Information System Division;” and
2. The allegedly defamatory remarks are “quintessential expressions of opinion,” which are fully protected by the state and federal constitutions.
Justice Stallman said that all of the statements concerning Brackman’s abilities and his performance on the project use loose, figurative language, and none of the statements are objectively capable of being characterized as true or false.
Citing Williams v Varig Brazilian Airlines, 169 AD2d 434, the court said that “Disparaging remarks concerning a person’s job performance are routinely held to be constitutionally protected opinion.”
Dismissing Brackman’s petition, Justice Stallman said that as an at-will employee in the private sector there was no tort liability for wrongful or abusive discharge.
The lesson gleaned from Brackman is that as an at-will employee -- the private sector equivalent of a provisional or temporary public employee -- Brackman did not even have a right to a name clearing hearing, much less the right to sue the City or it officials for damages after being fired by the Data Industries.
Brackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]
If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer. At best, such an individual may demand, and receive, a name clearing hearing if there has been publication of the alleged disparaging remarks concerning his or her work performance.
Being successful in clearing one’s name via a name-clearing clearing hearing, however, does not entitle the individual to reinstatement to his or her former position.
The Brackman case involved a novel variation of this type of situation -- the rights of a terminated employee of an independent contractor performing work for a public entity.
The contractor, Data Industries, was to perform certain data processing related services for the City of New York. City officials were extremely critical of the work being done under the contract by Brackman, one of Data Industries’ employees.
City officials complained that Brackman was not performing satisfactorily and did not provided the services the City expected. This criticism resulted in Brackman’s dismissal from the project and from Data Industries.
Brackman sued for damages for the alleged defamation arising in the context of his work as a computer consultant for New York City’s Department of Employment. The court granted the City motion to dismiss Brackman’s petition for two reasons:
1. Brackman had signed a release in exchange for a sum of money when he was terminated by Data Industries covering “all actions, causes of action [and] suits [...] by reason of any matter, cause or thing whatsoever against Data Industries, the City of New York, the Department of Employment and its Management Information System Division;” and
2. The allegedly defamatory remarks are “quintessential expressions of opinion,” which are fully protected by the state and federal constitutions.
Justice Stallman said that all of the statements concerning Brackman’s abilities and his performance on the project use loose, figurative language, and none of the statements are objectively capable of being characterized as true or false.
Citing Williams v Varig Brazilian Airlines, 169 AD2d 434, the court said that “Disparaging remarks concerning a person’s job performance are routinely held to be constitutionally protected opinion.”
Dismissing Brackman’s petition, Justice Stallman said that as an at-will employee in the private sector there was no tort liability for wrongful or abusive discharge.
The lesson gleaned from Brackman is that as an at-will employee -- the private sector equivalent of a provisional or temporary public employee -- Brackman did not even have a right to a name clearing hearing, much less the right to sue the City or it officials for damages after being fired by the Data Industries.
Determining membership in a negotiating unit for the purposes of collective bargaining
Determining membership in a negotiating unit for the purposes of collective bargaining
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413
Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.
Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?
This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.
Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.
According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.
Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.
Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.
The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.
The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.
In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.
This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.
In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.
* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413
Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.
Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?
This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.
Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.
According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.
Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.
Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.
The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.
The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.
In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.
This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.
In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.
* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.
New York City Civil Service Commission’s ruling applicant qualified controls
New York City Civil Service Commission’s ruling applicant qualified controls
City of New York v Civil Service Commission, Supreme Court, New York County, Docket Number: 0401706 [Not selected for publication in the Official Reports]
The New York Policy Department (NYPD) challenged a determination by the New York City Civil Service Commission holding that Hope Mahoney was qualified for appointment to the position of police officer with the Department.
Having passed the written test, Mahoney was also required to submit to a psychological examination to determine her fitness for duty as a police officer. After conducting an evaluation, the Police Department’s psychologist concluded that Mahoney was “psychologically unsuited for police work.”
Mahoney then saw her own her medical expert, Dr. Richard E. Ovens. Ovens conducted his own psychological evaluation of Mahoney. Dr. Ovens’ evaluation described Mahoney as “possess[ing] the requisite intellectual abilities, emotional resources and coping skills to meet the demands and stresses associated with the unique duties of a . . . police officer.”
In response to this, the Police Department’s expert, Dr. Arko, reviewed Dr. Ovens’ evaluation. Dr. Arko’s conclusion: Mahoney should be rejected for appointment to the position of police officer based on “poor judgment and impulse control” as evidenced by her two job terminations, and her driving record. NYPD forwarded Dr. Arko’s report to the New York City Civil Service Commission (CSC).
After reviewing all the records submitted to it, the CSC decided that a hearing was appropriate in order to resolve the factual issues related to Mahoney’s disqualification. Ultimately the CSC issued a decision reversing the NYPD’s disqualification of Mahoney, and advised NYPD that
“having reviewed the entire record and considering the arguments and testimony presented at the hearing, we conclude as follows. . . Having heard from both experts, we find that Dr. Ovens [sic] evaluation and assessment of the appellant was accurate and therefore more credible.”
NYPD filed an Article 78 petition challenged the decision of the CSC, contending that CSC’s determination was irrational in crediting the testimony of Dr. Oven’s over the testimony of Dr. Chiu-Palmer, and the other medical experts employed by NYPD.
According to the decision, “Dr. Ovens conducted a more comprehensive evaluation of Mahoney than Chiu-Palmer,” and that CSC rationally credited Dr. Ovens’ testimony over that of Chiu Palmer’s “based on his stronger educational background in psychology and his thirty years experience as a police officer.”
The court pointed out that the CSC is empowered by Section 813(d)* of the New York City Charter “to hear and decide appeals of petitioners’ determinations as to employment eligibility.” However, said the court, although CSC’s determinations of such appeals are subject to judicial review under Article 78, in such instances review by the court “is limited to the question of whether the decision of the administrative agency was arbitrary or capricious or irrational.”
In addition, citing Smith v. City of New York, 228 AD2d 381, leave to appeal denied, 89 NY2d 806, the court commented that “it has been held that “wide discretion is afforded to civil service commissions in determining fitness of candidates. The exercise of that discretion is to be sustained unless it has been clearly abused.”
Accordingly, said the court, “Under this standard, there is no basis for overturning the CSC determination that Mahoney is qualified to be a police officer. Specifically, it cannot be said that the CSC’s decision to credit the opinion of Dr. Ovens over that of Chiu-Palmer was irrational in light of Ovens’ substantial qualifications, including his doctorate in clinical psychology, his thirty years of experience as a police officer, and his practice which involves the treatment of traumatized police officers.”
NYPD’s appeal was dismissed and the Civil Service Commission’s determination upheld.
* The NY City Charter provides that: the civil service commission shall have the power to hear and determine appeals by any person aggrieved by any action or determination of the commissioner. . . and may affirm, modify or reverse such action or determination when there exists a rational basis in the record to support the decision.
City of New York v Civil Service Commission, Supreme Court, New York County, Docket Number: 0401706 [Not selected for publication in the Official Reports]
The New York Policy Department (NYPD) challenged a determination by the New York City Civil Service Commission holding that Hope Mahoney was qualified for appointment to the position of police officer with the Department.
Having passed the written test, Mahoney was also required to submit to a psychological examination to determine her fitness for duty as a police officer. After conducting an evaluation, the Police Department’s psychologist concluded that Mahoney was “psychologically unsuited for police work.”
Mahoney then saw her own her medical expert, Dr. Richard E. Ovens. Ovens conducted his own psychological evaluation of Mahoney. Dr. Ovens’ evaluation described Mahoney as “possess[ing] the requisite intellectual abilities, emotional resources and coping skills to meet the demands and stresses associated with the unique duties of a . . . police officer.”
In response to this, the Police Department’s expert, Dr. Arko, reviewed Dr. Ovens’ evaluation. Dr. Arko’s conclusion: Mahoney should be rejected for appointment to the position of police officer based on “poor judgment and impulse control” as evidenced by her two job terminations, and her driving record. NYPD forwarded Dr. Arko’s report to the New York City Civil Service Commission (CSC).
After reviewing all the records submitted to it, the CSC decided that a hearing was appropriate in order to resolve the factual issues related to Mahoney’s disqualification. Ultimately the CSC issued a decision reversing the NYPD’s disqualification of Mahoney, and advised NYPD that
“having reviewed the entire record and considering the arguments and testimony presented at the hearing, we conclude as follows. . . Having heard from both experts, we find that Dr. Ovens [sic] evaluation and assessment of the appellant was accurate and therefore more credible.”
NYPD filed an Article 78 petition challenged the decision of the CSC, contending that CSC’s determination was irrational in crediting the testimony of Dr. Oven’s over the testimony of Dr. Chiu-Palmer, and the other medical experts employed by NYPD.
According to the decision, “Dr. Ovens conducted a more comprehensive evaluation of Mahoney than Chiu-Palmer,” and that CSC rationally credited Dr. Ovens’ testimony over that of Chiu Palmer’s “based on his stronger educational background in psychology and his thirty years experience as a police officer.”
The court pointed out that the CSC is empowered by Section 813(d)* of the New York City Charter “to hear and decide appeals of petitioners’ determinations as to employment eligibility.” However, said the court, although CSC’s determinations of such appeals are subject to judicial review under Article 78, in such instances review by the court “is limited to the question of whether the decision of the administrative agency was arbitrary or capricious or irrational.”
In addition, citing Smith v. City of New York, 228 AD2d 381, leave to appeal denied, 89 NY2d 806, the court commented that “it has been held that “wide discretion is afforded to civil service commissions in determining fitness of candidates. The exercise of that discretion is to be sustained unless it has been clearly abused.”
Accordingly, said the court, “Under this standard, there is no basis for overturning the CSC determination that Mahoney is qualified to be a police officer. Specifically, it cannot be said that the CSC’s decision to credit the opinion of Dr. Ovens over that of Chiu-Palmer was irrational in light of Ovens’ substantial qualifications, including his doctorate in clinical psychology, his thirty years of experience as a police officer, and his practice which involves the treatment of traumatized police officers.”
NYPD’s appeal was dismissed and the Civil Service Commission’s determination upheld.
* The NY City Charter provides that: the civil service commission shall have the power to hear and determine appeals by any person aggrieved by any action or determination of the commissioner. . . and may affirm, modify or reverse such action or determination when there exists a rational basis in the record to support the decision.
Dec 28, 2010
Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas
Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas
Personnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group.
The initial PPA posting is at: http://www.izoca.com/groups/public-personnel-administrators/discussions/33670
iZoca allows members to connect with both their communities and their groups. The platform provides members an opportuntiy to share information and exchange ideas.
In addition, iZoca provides powerful group features that help keep you informed and engaged with all your group activities. Once your free account is created, you will be able to join Public Personnel Administrators and other groups, or even start your own membership group in addition to those already available.
To become a member of the Public Personnel Administrators group, go to:
http://www.izoca.com/join/groups/public-personnel-administrators
* The name iZoca is derived from the Spanish word “zocalo” which is referred to as a square or plaza in Mexico where people congregate. iZoca was founded in 2007 and is located in New York's Tech Valley Region.
Personnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group.
The initial PPA posting is at: http://www.izoca.com/groups/public-personnel-administrators/discussions/33670
iZoca allows members to connect with both their communities and their groups. The platform provides members an opportuntiy to share information and exchange ideas.
In addition, iZoca provides powerful group features that help keep you informed and engaged with all your group activities. Once your free account is created, you will be able to join Public Personnel Administrators and other groups, or even start your own membership group in addition to those already available.
To become a member of the Public Personnel Administrators group, go to:
http://www.izoca.com/join/groups/public-personnel-administrators
* The name iZoca is derived from the Spanish word “zocalo” which is referred to as a square or plaza in Mexico where people congregate. iZoca was founded in 2007 and is located in New York's Tech Valley Region.
Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department
Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.
The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.
Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.
The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**
According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”
The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”
Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.
The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.
* Interim Commissioner of Education Carole F. Huxley
** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department
Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.
The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.
Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.
The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**
According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”
The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”
Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.
The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.
* Interim Commissioner of Education Carole F. Huxley
** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm
Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy
Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy
Matter of O'Connor v New York State Civ. Serv. Commn., 2010 NY Slip Op 09324, Appellate Division, Third Department,
After posting a vacancy for the position of Supervising Hearing Officer [SHO], the Office of Temporary Disability and Assistance [OTDA] elected to reinstate Frank Gottlieb, a recently retired former SHO at OTDA. Gottlieb had submitted a request to be reinstated to the position of SHO.
Vincent J. O'Connor, a hearing officer, was one of about a dozen applicants, including Gottlieb, being considered for the position. After Gottlieb was reinstated to the position, O’Connor asked the Department of Civil Service to revoke Gottlieb's appointment. The Department denied O’Connor’s application.
O’Connor then appealed the Department’s decision to the State Civil Service Commission. The Commission affirmed the Department's determination and O’Connor filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Commission’s decision.
Supreme Court dismissed O’Connor’s petition, which action the Appellate Division affirmed.
The court said that O’Connor contended that “OTDA has acted improperly for many years because, instead of using competitive examinations, individuals are placed in SHO positions by the transfer method authorized in Civil Service Law §52(6).”*
However, the Appellate Division observed, that issue was not properly before us in this appeal as the appointment to which O’Connor had objected was not the result of a “transfer” but rather the reinstatement of a former, albeit, retired former SHO.** The decision points out that 4 NYCRR 5.4 permits the "[r]einstatement within one year, without examination” of a former employee.
After finding that the Commission did not act in an arbitrary or capricious manner in rejecting O’Connor’s request to have Gottlieb's reinstatement revoked, the court noted that the issue, in fact, was moot as Gottlieb “reportedly left the SHO position during the time this appeal was pending.”
* The terms "transfer," “reassignment” and “reinstatement” are unique personnel transaction in the public service. The term “transfer” is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel changes by the appointing authority within the same department or agency or within the jurisdiction of the same appointing authority. Except where there is a "transfer of function," transfers required the approval of both appointing authorities and the consent of the individual to be transferred [see 70.1, Civil Service Law] while a "reassignment" may be made without the agreement or consent of the employee concerned absent a provision in a collective bargaining agreement to the contrary. “Reinstatement” involves the reemployment of an individual who, after leaving public service, seeks to return to his or her former, or similar, position with his or her seniority as otherwise provided by law for such purposes layoff and eligibly for fringe certain benefits in his or her new position.
** Although of significant relevance, the decision does not address the impact of Civil Service Law §150 nor Retirement and Social Security Law §210 et seq. insofar as the compensation to be paid Gottlieb upon his reinstatement is concerned.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09324.htm
Matter of O'Connor v New York State Civ. Serv. Commn., 2010 NY Slip Op 09324, Appellate Division, Third Department,
After posting a vacancy for the position of Supervising Hearing Officer [SHO], the Office of Temporary Disability and Assistance [OTDA] elected to reinstate Frank Gottlieb, a recently retired former SHO at OTDA. Gottlieb had submitted a request to be reinstated to the position of SHO.
Vincent J. O'Connor, a hearing officer, was one of about a dozen applicants, including Gottlieb, being considered for the position. After Gottlieb was reinstated to the position, O’Connor asked the Department of Civil Service to revoke Gottlieb's appointment. The Department denied O’Connor’s application.
O’Connor then appealed the Department’s decision to the State Civil Service Commission. The Commission affirmed the Department's determination and O’Connor filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Commission’s decision.
Supreme Court dismissed O’Connor’s petition, which action the Appellate Division affirmed.
The court said that O’Connor contended that “OTDA has acted improperly for many years because, instead of using competitive examinations, individuals are placed in SHO positions by the transfer method authorized in Civil Service Law §52(6).”*
However, the Appellate Division observed, that issue was not properly before us in this appeal as the appointment to which O’Connor had objected was not the result of a “transfer” but rather the reinstatement of a former, albeit, retired former SHO.** The decision points out that 4 NYCRR 5.4 permits the "[r]einstatement within one year, without examination” of a former employee.
After finding that the Commission did not act in an arbitrary or capricious manner in rejecting O’Connor’s request to have Gottlieb's reinstatement revoked, the court noted that the issue, in fact, was moot as Gottlieb “reportedly left the SHO position during the time this appeal was pending.”
* The terms "transfer," “reassignment” and “reinstatement” are unique personnel transaction in the public service. The term “transfer” is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel changes by the appointing authority within the same department or agency or within the jurisdiction of the same appointing authority. Except where there is a "transfer of function," transfers required the approval of both appointing authorities and the consent of the individual to be transferred [see 70.1, Civil Service Law] while a "reassignment" may be made without the agreement or consent of the employee concerned absent a provision in a collective bargaining agreement to the contrary. “Reinstatement” involves the reemployment of an individual who, after leaving public service, seeks to return to his or her former, or similar, position with his or her seniority as otherwise provided by law for such purposes layoff and eligibly for fringe certain benefits in his or her new position.
** Although of significant relevance, the decision does not address the impact of Civil Service Law §150 nor Retirement and Social Security Law §210 et seq. insofar as the compensation to be paid Gottlieb upon his reinstatement is concerned.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09324.htm
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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.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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