The legal distinction between domicile and residence
Maksym v Board of Election Commissioners, appeal from 2010 COEL 020, #1-1-0033
Rahm Emanuel’s claim that he is eligible to run for the office of Mayor for the City of Chicago will be considered by the Illinois State Supreme Court shortly. Essentially the case will decide if the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code means “domicile” or something other than "domicile."
In the words of the Appellate Court of Illinois, First Division:
As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster’s Third New International Dictionary 1931 (1993).
This suggests that Webster's Third may have created some confusion insofar as the traditional legal distinctions between “domicile” and “residence” are concerned.
Perhaps the provisions set out in Illinois Title 86: Revenue, Chapter I: Department of Revenue, Part 100 Income Tax, Section 100.3020 Resident (IITA Section 301) may be illuminating in this regard.
Section 100.3020 Resident (IITA Section 301) states that the term "resident" means an individual who is in Illinois for other than a temporary or transitory purpose during the taxable year or who is domiciled in Illinois but is absent from Illinois for a temporary or transitory purpose during the taxable year. The Title also states that “If an individual is domiciled in Illinois, he remains a resident unless he is outside Illinois for other than temporary or transitory purposes.”
The term “domicile,” states the statute, “has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, the place to which he intends to return whenever he is absent. It is the place in which an individual has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home.
Examples provided by the Illinois Department of Revenue distinguishing between residence and domicile include the following:
1. Another definition of "domicile" consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.
2. An individual can at any one time have but one domicile. If an individual has acquired a domicile at one place, he retains that domicile until he acquires another elsewhere.
3. Thus, if an individual, who has acquired a domicile in California, for example, comes to Illinois for a rest or vacation or on business or for some other purpose, but intends either to return to California or to go elsewhere as soon as his purpose in Illinois is achieved, he retains his domicile in California and does not acquire a domicile in Illinois. Likewise, an individual who is domiciled in Illinois and who leaves the state retains his Illinois domicile as long as he has the definite intention of returning to Illinois.
4. On the other hand, an individual, domiciled in California, who comes to Illinois with the intention of remaining indefinitely and with no fixed intention of returning to California loses his California domicile and acquires an Illinois domicile the moment he enters the state. Similarly, an individual domiciled in Illinois loses his Illinois domicile: 1) by locating elsewhere with the intention of establishing the new location as his domicile, and 2) by abandoning any intention of returning to Illinois.”
A similar issue was considered by New York State's Court of Appeals in Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385.*
In Longwood the court said that:
On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law §3202 (4) (a), and the outcome turns on where the children "resided" within the meaning of the statute.
Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as "residence," and therefore conclude that the Springs Union Free School District—the children's last permanent residence—is responsible for their instructional costs. "
The court explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."
An early decision by the Illinois State Supreme Court is expected.
The Maksym decision by the Illinois Appellate Court is posted on the Internet at:
http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/January/1110033.pdf
* The Longwood decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2004/2004_00962.htm
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Jan 26, 2011
Civil Service Commission’s disqualification of candidate for failure to cooperate in a background investigation for appointment sustained
Civil Service Commission’s disqualification of candidate for failure to cooperate in a background investigation for appointment sustained
Matter of Rodriguez v County of Nassau, 2011 NY Slip Op 00384, Appellate Division, Second Department
The Nassau County Civil Service Commission wrote to Sebastian E. Rodriguez a candidate for appointment as a Nassau County Correction Officer, advising him that he had been "disqualified for . . . failure to cooperate with [his] background investigation." The Commission also told Rodriguez that he had the right to "make explanation and to submit facts in opposition to such disqualification."*
The Commission’s action followed Rodriguez’s failing to contact the Nassau County Police Department after he was told that the Department was investigating his character and background to determine his eligibility for the position of Correction Officer.
Rodriguez was told to call the Department to receive further information and schedule an appointment. The letter also stated “If you fail to contact [the Correction Department’s official] by May 5, 2008, your application may be discontinued." In addition, a Department official left four voice messages on Rodriguez’s cell telephone’s voicemail in an attempt to contact him.
Rodriguez responded to the Commission’s letter claiming that [1] he never received the Department’s letter and [2] that because he did not regularly use his cellular telephone, he was unaware of the voice messages until the week of June 2, 2008. The Commission, after reviewing the matter, advised Rodriguez that it had decided to uphold the original disqualification notification.
Rodriguez filed a petition pursuant to CPLR Article 78 arguing that the Commission’s decision to disqualify him as a candidate for appointment as a correction officer was "arbitrary and capricious and without just cause or good sound reason."
The Supreme Court granted Rodriguez’s petition, explaining that there was no "rational reason" why the Nassau County Police Department did not attempt to contact Rodriguez either through his previously provided home or work telephone numbers, and that the County officials had failed to explain how the his delay "adversely affected the application process."
The Appellate Division reversed the Supreme Court’s decision, explaining that "[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious.”
Further, said the Appellate Division, “the Commission's determination to disqualify [Rodriguez] based upon [his] failure to timely schedule the background interview was neither irrational nor arbitrary.”
* §50.4 of the Civil Service Law sets out the reasons for which the state civil service department or a municipal commission may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position being sought, and the due process procedures available to the disappointed applicant wishing to object to the department's or a municipal commission's determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00384.htm
Matter of Rodriguez v County of Nassau, 2011 NY Slip Op 00384, Appellate Division, Second Department
The Nassau County Civil Service Commission wrote to Sebastian E. Rodriguez a candidate for appointment as a Nassau County Correction Officer, advising him that he had been "disqualified for . . . failure to cooperate with [his] background investigation." The Commission also told Rodriguez that he had the right to "make explanation and to submit facts in opposition to such disqualification."*
The Commission’s action followed Rodriguez’s failing to contact the Nassau County Police Department after he was told that the Department was investigating his character and background to determine his eligibility for the position of Correction Officer.
Rodriguez was told to call the Department to receive further information and schedule an appointment. The letter also stated “If you fail to contact [the Correction Department’s official] by May 5, 2008, your application may be discontinued." In addition, a Department official left four voice messages on Rodriguez’s cell telephone’s voicemail in an attempt to contact him.
Rodriguez responded to the Commission’s letter claiming that [1] he never received the Department’s letter and [2] that because he did not regularly use his cellular telephone, he was unaware of the voice messages until the week of June 2, 2008. The Commission, after reviewing the matter, advised Rodriguez that it had decided to uphold the original disqualification notification.
Rodriguez filed a petition pursuant to CPLR Article 78 arguing that the Commission’s decision to disqualify him as a candidate for appointment as a correction officer was "arbitrary and capricious and without just cause or good sound reason."
The Supreme Court granted Rodriguez’s petition, explaining that there was no "rational reason" why the Nassau County Police Department did not attempt to contact Rodriguez either through his previously provided home or work telephone numbers, and that the County officials had failed to explain how the his delay "adversely affected the application process."
The Appellate Division reversed the Supreme Court’s decision, explaining that "[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious.”
Further, said the Appellate Division, “the Commission's determination to disqualify [Rodriguez] based upon [his] failure to timely schedule the background interview was neither irrational nor arbitrary.”
* §50.4 of the Civil Service Law sets out the reasons for which the state civil service department or a municipal commission may refuse to examine an applicant, or after examination to certify an eligible for appointment to the position being sought, and the due process procedures available to the disappointed applicant wishing to object to the department's or a municipal commission's determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00384.htm
Employee’s being on medical leave and continuing to receive employee benefits defeats the employee’s claim of constructive termination
Employee’s being on medical leave and continuing to receive employee benefits defeats the employee’s claim of constructive termination
Keehle v Diocese of Syracuse, 2011 NY Slip Op 00145, Appellate Division, Third Department
Minnie Keehle was employed by the Diocese of Syracuse and assigned to teach at a school in St. Joseph's Parish in the Village of Endicott, Broome County.
Claiming that the school principal made her working conditions so intolerable that she could no longer teach and was forced to give up her position, Keehle sued the Diocese for “breach of contract," contending that the school principal made it impossible for her to "continue her employment,” and she had been "effectively terminated."
The Diocese, in rebuttal, argued that Keehle was still its employee and that she had neither resigned nor been terminated.
Supreme Court granted the Diocese’s motion dismissing Keehle’s petition and the Appellate Division affirmed the lower court’s decision.
The Appellate Division said that accepting all of Keehle’s allegations as true and gibing her the benefit of “every possible favorable inference” Keehle failed to demonstrate that she was constructively discharged from her position because of the conditions that existed in the work place.
The court said that the evidence introduced by the Diocese demonstrated that Keehle had not resigned from her position and it had not terminated her. Rather, said the Appellate Division, Keehle continued to receive employee benefits, including disability and sick pay, as well as health insurance and the record “conclusively established” that she was still in the employ of the Diocese of Syracuse. “albeit on medical leave.”
Accordingly, the Appellate Division said that Keehle’s complaint was properly dismissed by Supreme Court.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00145.htm
Keehle v Diocese of Syracuse, 2011 NY Slip Op 00145, Appellate Division, Third Department
Minnie Keehle was employed by the Diocese of Syracuse and assigned to teach at a school in St. Joseph's Parish in the Village of Endicott, Broome County.
Claiming that the school principal made her working conditions so intolerable that she could no longer teach and was forced to give up her position, Keehle sued the Diocese for “breach of contract," contending that the school principal made it impossible for her to "continue her employment,” and she had been "effectively terminated."
The Diocese, in rebuttal, argued that Keehle was still its employee and that she had neither resigned nor been terminated.
Supreme Court granted the Diocese’s motion dismissing Keehle’s petition and the Appellate Division affirmed the lower court’s decision.
The Appellate Division said that accepting all of Keehle’s allegations as true and gibing her the benefit of “every possible favorable inference” Keehle failed to demonstrate that she was constructively discharged from her position because of the conditions that existed in the work place.
The court said that the evidence introduced by the Diocese demonstrated that Keehle had not resigned from her position and it had not terminated her. Rather, said the Appellate Division, Keehle continued to receive employee benefits, including disability and sick pay, as well as health insurance and the record “conclusively established” that she was still in the employ of the Diocese of Syracuse. “albeit on medical leave.”
Accordingly, the Appellate Division said that Keehle’s complaint was properly dismissed by Supreme Court.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00145.htm
Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2
Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2
MacRae v Dolce, 273 AD2d 389; motion for leave to appeal denied: 95 NY2d 765
Duncan MacRae, in his capacity as president of the City of White Plains firefighters union, challenged the Fire Department’s policy of routinely ... assigning ... fire fighters to perform the duties of an ‘Officer/Designated Fire Fighter’ as described in the [Fire Department’s] Manpower Accountability Standard Operating Procedure [MASOP] as constituting out-of-title work.
Essentially, MacRae complained that the City of White Plains was assigning its firefighters to perform the duties of a Fire Lieutenant in non-emergency situations.
A State Supreme Court justice dismissed complaint, ruling that the department’s policy was proper and does not violate Article V, Section of the New York Constitution or Section 61.2 of the Civil Service Law. The ruling did not pass muster when the Appellate Division considered MacRae’s appeal.*
The Appellate Division reversed the lower court’s ruling and barred White Plains from routinely assigning its firefighters to perform the duties of fire lieutenant on a non-emergency basis.... The Appellate Division, agreeing with MacRae, held that the City’s policy of routinely assigning firefighters to perform the duties of fire lieutenant on a non-emergency basis violates Civil Service Law Section 61.2.
The court said that the policy provided for the routine, non-emergency imposition upon firefighters of supervisory duties not in their job description and required firefighters to routinely perform supervisory functions clearly within the ambit of the job description applicable to fire lieutenants.**
The court rejected the department’s argument that the MASOP merely codified a long-standing practice of requiring motor and pump operators to perform certain of the duties of fire lieutenants, commenting that the routine temporary assignments improperly harden to a pattern for permanently filling the positions of fire lieutenant.
* Section 61.2 provides as follows: Prohibition against out-of-title work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.
** In contrast, the designation of an individual to serve as the “temporary supervisor” when the supervisor is temporarily absent when on vacation or ill is not considered “out-of-title” work within the meaning of Section 61.2.
MacRae v Dolce, 273 AD2d 389; motion for leave to appeal denied: 95 NY2d 765
Duncan MacRae, in his capacity as president of the City of White Plains firefighters union, challenged the Fire Department’s policy of routinely ... assigning ... fire fighters to perform the duties of an ‘Officer/Designated Fire Fighter’ as described in the [Fire Department’s] Manpower Accountability Standard Operating Procedure [MASOP] as constituting out-of-title work.
Essentially, MacRae complained that the City of White Plains was assigning its firefighters to perform the duties of a Fire Lieutenant in non-emergency situations.
A State Supreme Court justice dismissed complaint, ruling that the department’s policy was proper and does not violate Article V, Section of the New York Constitution or Section 61.2 of the Civil Service Law. The ruling did not pass muster when the Appellate Division considered MacRae’s appeal.*
The Appellate Division reversed the lower court’s ruling and barred White Plains from routinely assigning its firefighters to perform the duties of fire lieutenant on a non-emergency basis.... The Appellate Division, agreeing with MacRae, held that the City’s policy of routinely assigning firefighters to perform the duties of fire lieutenant on a non-emergency basis violates Civil Service Law Section 61.2.
The court said that the policy provided for the routine, non-emergency imposition upon firefighters of supervisory duties not in their job description and required firefighters to routinely perform supervisory functions clearly within the ambit of the job description applicable to fire lieutenants.**
The court rejected the department’s argument that the MASOP merely codified a long-standing practice of requiring motor and pump operators to perform certain of the duties of fire lieutenants, commenting that the routine temporary assignments improperly harden to a pattern for permanently filling the positions of fire lieutenant.
* Section 61.2 provides as follows: Prohibition against out-of-title work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.
** In contrast, the designation of an individual to serve as the “temporary supervisor” when the supervisor is temporarily absent when on vacation or ill is not considered “out-of-title” work within the meaning of Section 61.2.
Petitioner has the burden of proving that his or her probationary termination was made in bad faith
Petitioner has the burden of proving that his or her probationary termination was made in bad faith
Negron v Jackson, 273 AD2d 241
The New York State Department of Motor Vehicles terminated Pedro Negron during his probationary period. Negro objected but his appeal was rejected by the Appellate Division, Second Department.
The court pointed out that A probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a showing that the termination was for a constitutionally impermissible purpose, made in bad faith, or in violation of statutory or decisional law, citing Iannuzzi v Town of Brookhaven, 258 AD2d 651.
Further, the discharged employee has the burden of demonstrating bad faith by competent evidence, not speculation. This, apparently, was the defect in Negron’s appeal. The court said that his petition failed to allege facts that supported his conclusory claim of discrimination or to otherwise demonstrate bad faith. Ruling that this constituted a fatal defect, the court said that his petition was properly dismissed by the lower court.
Negron v Jackson, 273 AD2d 241
The New York State Department of Motor Vehicles terminated Pedro Negron during his probationary period. Negro objected but his appeal was rejected by the Appellate Division, Second Department.
The court pointed out that A probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a showing that the termination was for a constitutionally impermissible purpose, made in bad faith, or in violation of statutory or decisional law, citing Iannuzzi v Town of Brookhaven, 258 AD2d 651.
Further, the discharged employee has the burden of demonstrating bad faith by competent evidence, not speculation. This, apparently, was the defect in Negron’s appeal. The court said that his petition failed to allege facts that supported his conclusory claim of discrimination or to otherwise demonstrate bad faith. Ruling that this constituted a fatal defect, the court said that his petition was properly dismissed by the lower court.
Ability to perform “light duty” defeats accidental disability retirement claim
Ability to perform “light duty” defeats accidental disability retirement claim
Matter of Roache v Hevesi, 38 AD3d 1036
Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.
Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.
Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.
The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.
The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."
Matter of Roache v Hevesi, 38 AD3d 1036
Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.
Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.
Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.
The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.
The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."
Jan 25, 2011
Members of the NYSERS experiencing "discontinued service” [layoff] may be eligible for certain retirement benefits
Members of the NYSERS experiencing "discontinued service” [layoff] may be eligible for certain retirement benefits
Retirement and Social Security Law §73.b
Considering the various statements suggesting a potential for a significant number of State an municipal employees being laid off appearing in the press, it may be timely to consider the benefits available to members of the New York State Employees' Retirement System pursuant to §73.b of the Retirement and Social Security Law.
This section, captioned “Discontinued Service,” authorizes certain retirement benefits for individuals who became members of the New York State Employees’ Retirement System on or after April 8, 1943* who are laid off if they have 20 or more years of service.
§73.b, in pertinent part, provides that:
“1. A person who last became a member on or after April eighth, nineteen hundred forty-three, and who is discontinued from service while a member, through no fault or delinquency on his [or her] part, may elect to receive his [or her] accumulated contributions or a retirement allowance pursuant to the provisions of paragraph two of this subdivision b if:
“(a) He [or she] shall have completed twenty years of total service, and
“(b) During the six months immediately preceding such discontinuance, he [or she] shall have been in paid service continuously, regularly and without interruption.”**
The benefits payable to those eligible and electing to retire upon being laid off are set out in the statute as follows:
2. A retirement allowance granted pursuant to the provisions of this subdivision b shall consist of:
(a) An annuity of equivalent actuarial value to the member's accumulated contributions, and
(b) A pension which is the actuarial equivalent of the reserve-for-increased-take-home-pay to which he may be entitled, if any, and
(c) A pension, to begin immediately, which shall be composed of one or more of the following parts:
(1) One which is the actuarial equivalent, at his age at the time of such discontinuance, of a pension, beginning at age sixty, of one-seventieth of his final average salary multiplied by the number of years for which he has prior service credit and credit for service in war after world war I, if any, plus
(2) One which is the actuarial equivalent, at his age at the time of such discontinuance, of one-one hundred fortieth of his final average salary multiplied by the number of years for which he has member service credit, plus
(3) If the member shall have attained age fifty, one which equals fifty per centum of the difference between the pension payable to him pursuant to items one and two of this subparagraph (c) and the pension that would be allowable to him were he age sixty.
3. Application shall be made for a discontinued service retirement allowance pursuant to this subdivision b in the same manner and subject to the same conditions, which govern applications and elections for superannuation retirement allowances.
* Section 73.1.a. applies to individuals who last became members of the Retirement System before April 8, 1943.
** N.B. §73.b provides that “The provisions of subparagraph (b) of this paragraph one shall not apply to legislative employees or laborers who have served as such for at least parts of each of the two years immediately preceding such discontinuance.”
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For additional information concerning Layoff, Preferred Lists and Reinstatement, click on http://nylayoff.blogspot.com/
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Retirement and Social Security Law §73.b
Considering the various statements suggesting a potential for a significant number of State an municipal employees being laid off appearing in the press, it may be timely to consider the benefits available to members of the New York State Employees' Retirement System pursuant to §73.b of the Retirement and Social Security Law.
This section, captioned “Discontinued Service,” authorizes certain retirement benefits for individuals who became members of the New York State Employees’ Retirement System on or after April 8, 1943* who are laid off if they have 20 or more years of service.
§73.b, in pertinent part, provides that:
“1. A person who last became a member on or after April eighth, nineteen hundred forty-three, and who is discontinued from service while a member, through no fault or delinquency on his [or her] part, may elect to receive his [or her] accumulated contributions or a retirement allowance pursuant to the provisions of paragraph two of this subdivision b if:
“(a) He [or she] shall have completed twenty years of total service, and
“(b) During the six months immediately preceding such discontinuance, he [or she] shall have been in paid service continuously, regularly and without interruption.”**
The benefits payable to those eligible and electing to retire upon being laid off are set out in the statute as follows:
2. A retirement allowance granted pursuant to the provisions of this subdivision b shall consist of:
(a) An annuity of equivalent actuarial value to the member's accumulated contributions, and
(b) A pension which is the actuarial equivalent of the reserve-for-increased-take-home-pay to which he may be entitled, if any, and
(c) A pension, to begin immediately, which shall be composed of one or more of the following parts:
(1) One which is the actuarial equivalent, at his age at the time of such discontinuance, of a pension, beginning at age sixty, of one-seventieth of his final average salary multiplied by the number of years for which he has prior service credit and credit for service in war after world war I, if any, plus
(2) One which is the actuarial equivalent, at his age at the time of such discontinuance, of one-one hundred fortieth of his final average salary multiplied by the number of years for which he has member service credit, plus
(3) If the member shall have attained age fifty, one which equals fifty per centum of the difference between the pension payable to him pursuant to items one and two of this subparagraph (c) and the pension that would be allowable to him were he age sixty.
3. Application shall be made for a discontinued service retirement allowance pursuant to this subdivision b in the same manner and subject to the same conditions, which govern applications and elections for superannuation retirement allowances.
* Section 73.1.a. applies to individuals who last became members of the Retirement System before April 8, 1943.
** N.B. §73.b provides that “The provisions of subparagraph (b) of this paragraph one shall not apply to legislative employees or laborers who have served as such for at least parts of each of the two years immediately preceding such discontinuance.”
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For additional information concerning Layoff, Preferred Lists and Reinstatement, click on http://nylayoff.blogspot.com/
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Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected
Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected
Michael P. Thomas and the New York City Department of Education, Decision No. 16,193
Michael P. Thomas, a tenured teacher employed by the New York City Department of Education, objected to the placement of certain documents in his personnel file.
Noting that an appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown, the Commissioner noted that Cardozo had commenced his appeal more than six months after the date of the most recent document he objected to having been placed in his personnel file.
Conceding that his appeal was not filed in a timely manner, Thomas argued that the placement of these letters and documents in his personnel file constitutes a continuing wrong.
The Commissioner rejected Thomas’ theory, noting that the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual, unlawful appointments to a district’s shared decision-making team, an improperly constituted professional development team, certain expenditures under an austerity budget that did not comply with the law.
In contrast, the Commissioner said that the doctrine did apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful.
Although the parties disagreed as to the nature of each letter and document, the Commissioner ruled that placement of letters and grievance documents in a personnel file is not an inherently unlawful action, ruling that the continuing wrong doctrine does not apply and dismissed Thomas’ appeal as untimely.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16193.htm
Michael P. Thomas and the New York City Department of Education, Decision No. 16,193
Michael P. Thomas, a tenured teacher employed by the New York City Department of Education, objected to the placement of certain documents in his personnel file.
Noting that an appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown, the Commissioner noted that Cardozo had commenced his appeal more than six months after the date of the most recent document he objected to having been placed in his personnel file.
Conceding that his appeal was not filed in a timely manner, Thomas argued that the placement of these letters and documents in his personnel file constitutes a continuing wrong.
The Commissioner rejected Thomas’ theory, noting that the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual, unlawful appointments to a district’s shared decision-making team, an improperly constituted professional development team, certain expenditures under an austerity budget that did not comply with the law.
In contrast, the Commissioner said that the doctrine did apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful.
Although the parties disagreed as to the nature of each letter and document, the Commissioner ruled that placement of letters and grievance documents in a personnel file is not an inherently unlawful action, ruling that the continuing wrong doctrine does not apply and dismissed Thomas’ appeal as untimely.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16193.htm
Providing legal representation to public officers and employees being sued
Providing legal representation to public officers and employees being sued
Vitucci v City of New York, 272 AD2d 620
A New York City employee, Jacqueline Vitucci, was named as a defendant in a federal lawsuit. He asked Corporation Counsel to defend him in accordance with Section 50-k of the General Municipal Law.
Like similar representation provisions, Section 50-k(2) requires the Corporation Counsel to defend municipal employees in civil actions which the corporation counsel finds occurred while the employee was acting within the scope of his [or her] public employment and in the discharge of his duties and was not in violation of any rule or regulation of his [or her] agency at the time the alleged act or omission occurred.
When Vitucci’s request was denied, he filed a petition seeking a court order requiring the Corporation Counsel to defend him. The Appellate Division sustained a lower court ruling dismissing his petition.
The court’s rationale: Whether an employee was acting within the scope of his or her employment and is entitled to legal representation must be determined in the first instance by the Corporation Counsel, whose determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious.
The court said that the report prepared by the Special Commissioner for Investigation for the New York City School District provided the Corporation Counsel with a sufficient factual basis to determine that the acts allegedly committed by Vitucci were not within the scope of his employment.
Vitucci v City of New York, 272 AD2d 620
A New York City employee, Jacqueline Vitucci, was named as a defendant in a federal lawsuit. He asked Corporation Counsel to defend him in accordance with Section 50-k of the General Municipal Law.
Like similar representation provisions, Section 50-k(2) requires the Corporation Counsel to defend municipal employees in civil actions which the corporation counsel finds occurred while the employee was acting within the scope of his [or her] public employment and in the discharge of his duties and was not in violation of any rule or regulation of his [or her] agency at the time the alleged act or omission occurred.
When Vitucci’s request was denied, he filed a petition seeking a court order requiring the Corporation Counsel to defend him. The Appellate Division sustained a lower court ruling dismissing his petition.
The court’s rationale: Whether an employee was acting within the scope of his or her employment and is entitled to legal representation must be determined in the first instance by the Corporation Counsel, whose determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious.
The court said that the report prepared by the Special Commissioner for Investigation for the New York City School District provided the Corporation Counsel with a sufficient factual basis to determine that the acts allegedly committed by Vitucci were not within the scope of his employment.
Retirees claim they were mislead by union concerning accepting a retirement incentive
Retirees claim they were mislead by union concerning accepting a retirement incentive
Dolce v Bayport-Blue Point UFSD, 286 AD2d 316
A number of school districts have negotiated retirement incentive provisions in the course of collective bargaining. Sometimes hindsight causes an individual to regret his or her decision to accept or reject the opportunity. The Dolce case concerns a number of teachers who had accepted a retirement incentive only to later regret their decision.
Essentially the retired teachers complained they were misled by their union when they decided to accept the incentive and retire.
According to the decision, Bayport-Blue Point Union Free School District and the teachers’ union negotiated a retirement incentive providing for a one-time payment of $34,000 to eligible teachers who retired by a specified date. Teachers electing the incentive were required to submit irrevocable resignations on or before April 28, 1997.
Dolce alleged that a number of teachers decided to take advantage of the incentive and retire because the Union’s chief negotiator advised them that this was the best offer they would get and that it would never be offered again.
As things turned out, the chief negotiator may have been somewhat pessimistic. In December 1998, the district and the union negotiated a second retirement incentive that provided for the same one-time payment to teachers who elected to retire by June 30, 1999. The second agreement specifically provided that it would not apply to teachers who had previously submitted their resignations.
Dolce and the other teachers sued, complaining that they lost substantial salary and pension benefits in reliance upon the Union’s representation that the 1997 one-time retirement incentive would not be offered again. They also objected to the district’s refusal to allow them to rescind or recant their resignations in order to take advantage of the second retirement incentive. Justice Emerson dismissed the petition, holding that it was untimely.
State Supreme Court Justice Emerson said that while Dolce’s petition concerning the union is based on allegations of breach of contract and fraud, Dolce’s remedy against the Union is an action for breach of the duty of fair representation.
The Appellate Division agreed, holding that:
Supreme Court correctly determined that the plaintiffs' claims against the Teachers' Association were time-barred, citing Bitterman v Herricks Teachers' Association, 220 AD2d 473. Further, as the claims against the superintendent of schools and other school officials, such claims are “inextricably intertwined with the claims against the Teachers' Association for breach of duty of fair representation.” Accordingly, said the court, they are governed by the four-month Statute of Limitations in CPLR 217 (2) (b), and thus, they are also time-barred [with respect to suing the district officials].
Another critical element in pursuing this lawsuit: Dolce had neglected to file a timely notice of claim as mandated by Section 3813(l) of the Education Law, a condition precedent to suing a school district concerning a “personal matter.”
Dolce v Bayport-Blue Point UFSD, 286 AD2d 316
A number of school districts have negotiated retirement incentive provisions in the course of collective bargaining. Sometimes hindsight causes an individual to regret his or her decision to accept or reject the opportunity. The Dolce case concerns a number of teachers who had accepted a retirement incentive only to later regret their decision.
Essentially the retired teachers complained they were misled by their union when they decided to accept the incentive and retire.
According to the decision, Bayport-Blue Point Union Free School District and the teachers’ union negotiated a retirement incentive providing for a one-time payment of $34,000 to eligible teachers who retired by a specified date. Teachers electing the incentive were required to submit irrevocable resignations on or before April 28, 1997.
Dolce alleged that a number of teachers decided to take advantage of the incentive and retire because the Union’s chief negotiator advised them that this was the best offer they would get and that it would never be offered again.
As things turned out, the chief negotiator may have been somewhat pessimistic. In December 1998, the district and the union negotiated a second retirement incentive that provided for the same one-time payment to teachers who elected to retire by June 30, 1999. The second agreement specifically provided that it would not apply to teachers who had previously submitted their resignations.
Dolce and the other teachers sued, complaining that they lost substantial salary and pension benefits in reliance upon the Union’s representation that the 1997 one-time retirement incentive would not be offered again. They also objected to the district’s refusal to allow them to rescind or recant their resignations in order to take advantage of the second retirement incentive. Justice Emerson dismissed the petition, holding that it was untimely.
State Supreme Court Justice Emerson said that while Dolce’s petition concerning the union is based on allegations of breach of contract and fraud, Dolce’s remedy against the Union is an action for breach of the duty of fair representation.
The Appellate Division agreed, holding that:
Supreme Court correctly determined that the plaintiffs' claims against the Teachers' Association were time-barred, citing Bitterman v Herricks Teachers' Association, 220 AD2d 473. Further, as the claims against the superintendent of schools and other school officials, such claims are “inextricably intertwined with the claims against the Teachers' Association for breach of duty of fair representation.” Accordingly, said the court, they are governed by the four-month Statute of Limitations in CPLR 217 (2) (b), and thus, they are also time-barred [with respect to suing the district officials].
Another critical element in pursuing this lawsuit: Dolce had neglected to file a timely notice of claim as mandated by Section 3813(l) of the Education Law, a condition precedent to suing a school district concerning a “personal matter.”
Jan 24, 2011
Designation of a representative in writing found critical to making a lawful determination
Designation of a representative in writing found critical to making a lawful determination
Matter of Richards v City of Binghamton, 2011 NY Slip Op 00306, Appellate Division, Third Department
James Richards, a City of Binghamton firefighter, was receiving benefits pursuant to General Municipal Law §207-a as a result of his suffering a job-related disability.
Binghamton’s independent medical examiner subsequently determined that Richards was capable of returning to modified duty with specific restrictions and Fire Chief Daniel Thomas sent Richards a letter directing him to complete certain medical procedures and tests “within 30 days and report to work for light duty on a date six days from the date of the letter.” Richards was also advised that he had 10 days to appeal the determination by submitting a written request for appeal, accompanied by medical documentation that he was unable to perform light duty tasks.
Richards “was away on vacation” when Chief Thomas sent him the letter. The letter, however, was not received until after the deadlines for Richards to report to work or appeal had passed. Ultimately the city terminated Richards’ §207-a benefits following a number of communications and Richards sued, complaining that Binghamton failed to “comply with proper procedures.” Supreme Court agreed and directed the city to “continue paying benefits,” ruling that Richards was entitled to a hearing.
The Appellate Division agreed, holding that “Because [Binghamton] did not comply with its own procedures prior to terminating [Richards’] benefits, Supreme Court properly annulled the determination.”
The court noted that “A municipality is entitled to order medical examinations of a firefighter who is receiving benefits and direct the employee to return to light duty work if medically able (see General Municipal Law § 207-a [1], [3]).” Further, said the court, a municipality may terminate benefits if a firefighter refuses to report for such work, citing General Municipal Law §207-a[3].
Although §207-a does set out a procedural framework that must be followed for such determinations, it does permit "each municipality to formulate its own procedure consistent with the demands of due process” and such procedures may be established through collective bargaining.
In this instance, said the Appellate Division, the collective bargaining agreement [CBA] between Richards’ union and Binghamton provides that disagreements concerning determinations, other than initial determinations, — including whether a firefighter is able to perform light duty work — "will be resolved in accordance with the current City procedure using an impartial hearing officer."
The CBA, however, did not define what constituted the "current City procedure" and the parties did not agree on the meaning of that term. This did not create any insurmountable obstacle for the court, however, as the Appellate Division held that “Even if we accept [the city’s] contention that the CBA incorporates an undated document entitled Firefighter's and Police Officer's Disability Procedure (FPODP) as the current procedure, [the city] cannot prevail because it failed to comply with the FPODP.
The FPODP provided, in pertinent part, that "the Commissioner shall order the individual to report for such available modified duty.” Further, the parties agreed that Binghamton’s mayor is the "Commissioner," although that term is defined to also include "an agent appointed by" the Commissioner and so designated in writing by the Mayor.*
The Appellate Division found that because the record did not contain any written designation by the mayor granting “an agent” authority to perform the functions of the Commissioner, Chief Thomas did not qualify as the Commissioner's agent.
Accordingly, said the court, Thomas's letter does not constitute an order by the Commissioner, so Richards’ “noncompliance with that letter” cannot serve as a proper basis for discontinuing benefits.
Further, assuming that Chief Thomas’ letter was proper, the FPODP merely requires an individual who disagrees with the Commissioner's determination regarding a modified duty assignment to serve the Commissioner with "a demand for a hearing," It does not mention any supporting medical documentation is required to perfect such a demand.
Accordingly, the Appellate Division rejected the city’s argument that “pursuant to case law, [Richards] was not entitled to a hearing because he did not provide medical proof that he is unable to perform modified duties.
The court ruled that the case law cited by Binghamton, which included Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, was inapplicable as the city had chosen “a procedural framework that does not require that medical proof be submitted along with the hearing request.”
* The designation of an “agent” in writing may critical in other situations as well. For example, Section 75.2 of the Civil Service Law permits an appointing authority to designate “a deputy or other person ... in writing” to conduct a disciplinary hearing for the purpose of making findings of fact and recommendations concerning the disposition of the charges filed against the employee and the penalty, if any, to be imposed. The importance of naming a hearing officer in writing is demonstrated by Perez v NYS Dept. of Labor, 665 NYS2d 714. Citing the Court of Appeals ruling in Wiggins v Board of Education, 60 NY2d 385, the Appellate Division said that because there was no written designation appointing the hearing officer, the appointing authority “lacked jurisdiction” to maintain the initial disciplinary proceeding” against Perez.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00306.htm
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For additional information about concerning administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder go to: http://booklocker.com/books/3916.html
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Matter of Richards v City of Binghamton, 2011 NY Slip Op 00306, Appellate Division, Third Department
James Richards, a City of Binghamton firefighter, was receiving benefits pursuant to General Municipal Law §207-a as a result of his suffering a job-related disability.
Binghamton’s independent medical examiner subsequently determined that Richards was capable of returning to modified duty with specific restrictions and Fire Chief Daniel Thomas sent Richards a letter directing him to complete certain medical procedures and tests “within 30 days and report to work for light duty on a date six days from the date of the letter.” Richards was also advised that he had 10 days to appeal the determination by submitting a written request for appeal, accompanied by medical documentation that he was unable to perform light duty tasks.
Richards “was away on vacation” when Chief Thomas sent him the letter. The letter, however, was not received until after the deadlines for Richards to report to work or appeal had passed. Ultimately the city terminated Richards’ §207-a benefits following a number of communications and Richards sued, complaining that Binghamton failed to “comply with proper procedures.” Supreme Court agreed and directed the city to “continue paying benefits,” ruling that Richards was entitled to a hearing.
The Appellate Division agreed, holding that “Because [Binghamton] did not comply with its own procedures prior to terminating [Richards’] benefits, Supreme Court properly annulled the determination.”
The court noted that “A municipality is entitled to order medical examinations of a firefighter who is receiving benefits and direct the employee to return to light duty work if medically able (see General Municipal Law § 207-a [1], [3]).” Further, said the court, a municipality may terminate benefits if a firefighter refuses to report for such work, citing General Municipal Law §207-a[3].
Although §207-a does set out a procedural framework that must be followed for such determinations, it does permit "each municipality to formulate its own procedure consistent with the demands of due process” and such procedures may be established through collective bargaining.
In this instance, said the Appellate Division, the collective bargaining agreement [CBA] between Richards’ union and Binghamton provides that disagreements concerning determinations, other than initial determinations, — including whether a firefighter is able to perform light duty work — "will be resolved in accordance with the current City procedure using an impartial hearing officer."
The CBA, however, did not define what constituted the "current City procedure" and the parties did not agree on the meaning of that term. This did not create any insurmountable obstacle for the court, however, as the Appellate Division held that “Even if we accept [the city’s] contention that the CBA incorporates an undated document entitled Firefighter's and Police Officer's Disability Procedure (FPODP) as the current procedure, [the city] cannot prevail because it failed to comply with the FPODP.
The FPODP provided, in pertinent part, that "the Commissioner shall order the individual to report for such available modified duty.” Further, the parties agreed that Binghamton’s mayor is the "Commissioner," although that term is defined to also include "an agent appointed by" the Commissioner and so designated in writing by the Mayor.*
The Appellate Division found that because the record did not contain any written designation by the mayor granting “an agent” authority to perform the functions of the Commissioner, Chief Thomas did not qualify as the Commissioner's agent.
Accordingly, said the court, Thomas's letter does not constitute an order by the Commissioner, so Richards’ “noncompliance with that letter” cannot serve as a proper basis for discontinuing benefits.
Further, assuming that Chief Thomas’ letter was proper, the FPODP merely requires an individual who disagrees with the Commissioner's determination regarding a modified duty assignment to serve the Commissioner with "a demand for a hearing," It does not mention any supporting medical documentation is required to perfect such a demand.
Accordingly, the Appellate Division rejected the city’s argument that “pursuant to case law, [Richards] was not entitled to a hearing because he did not provide medical proof that he is unable to perform modified duties.
The court ruled that the case law cited by Binghamton, which included Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, was inapplicable as the city had chosen “a procedural framework that does not require that medical proof be submitted along with the hearing request.”
* The designation of an “agent” in writing may critical in other situations as well. For example, Section 75.2 of the Civil Service Law permits an appointing authority to designate “a deputy or other person ... in writing” to conduct a disciplinary hearing for the purpose of making findings of fact and recommendations concerning the disposition of the charges filed against the employee and the penalty, if any, to be imposed. The importance of naming a hearing officer in writing is demonstrated by Perez v NYS Dept. of Labor, 665 NYS2d 714. Citing the Court of Appeals ruling in Wiggins v Board of Education, 60 NY2d 385, the Appellate Division said that because there was no written designation appointing the hearing officer, the appointing authority “lacked jurisdiction” to maintain the initial disciplinary proceeding” against Perez.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00306.htm
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For additional information about concerning administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder go to: http://booklocker.com/books/3916.html
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Right to counsel in a disciplinary action
Right to counsel in a disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307
The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Edwin Elmore, alleging that Elmore had engaged in inappropriate conduct toward a student. Found guilty following a disciplinary hearing held pursuant to Section 3020-a of the Education Law, the district terminated Elmore.
Elmore appealed, contending that he had been unfairly denied his right to counsel when the Hearing Officer ruled that he could not discuss his testimony with his attorney during any adjournments in his cross-examination by the school district’s attorney. According to the decision, the five days of Elmore’s cross-examination extended over a period of 10 weeks. In other words, the hearing officer barred Elmore from discussing his testimony with his attorney for a ten-week period.
A State Supreme Court judge vacated the determination and the penalty imposed. The Appellate Division sustained the lower court’s decision. The Appellate Division pointed out that Section 3020-a(3)(c)(i) provides that a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.
However, because there were no cases discussing the precise issue herein, namely, to what extent a Hearing Officer may circumscribe a teacher’s contact with his attorney between adjourned dates of hearings, cited in the briefs submitted by the parties, the Appellate Division applied the rationale followed in criminal prosecutions involving similar situations -- barring the client from conferring with his or her attorney.
Commenting that teacher disciplinary proceedings are not criminal actions, the court said it was mindful that “a tenured teacher has a protected property interest in his [or her] position which raises due process considerations when a teacher is faced with termination of his employment, presumably deeming the loss of employment the economic equivalent of incarceration.”
As New York courts have disapproved forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division, citing Goldfinger v Lisker, 68 NY2d 225, decided that such a restriction in an administrative disciplinary proceeding was inappropriate in view of the due process considerations involved when a tenured employee is threatened with termination of his or her employment -- particularly in Elmore-type situation, where the time period involved was 10 weeks. The Appellate Division directed the district to hold a new hearing.
The court’s rationale would probably be applied in disciplinary actions taken against an individual pursuant to Section 75 of the Civil Service Law.
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307
The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Edwin Elmore, alleging that Elmore had engaged in inappropriate conduct toward a student. Found guilty following a disciplinary hearing held pursuant to Section 3020-a of the Education Law, the district terminated Elmore.
Elmore appealed, contending that he had been unfairly denied his right to counsel when the Hearing Officer ruled that he could not discuss his testimony with his attorney during any adjournments in his cross-examination by the school district’s attorney. According to the decision, the five days of Elmore’s cross-examination extended over a period of 10 weeks. In other words, the hearing officer barred Elmore from discussing his testimony with his attorney for a ten-week period.
A State Supreme Court judge vacated the determination and the penalty imposed. The Appellate Division sustained the lower court’s decision. The Appellate Division pointed out that Section 3020-a(3)(c)(i) provides that a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.
However, because there were no cases discussing the precise issue herein, namely, to what extent a Hearing Officer may circumscribe a teacher’s contact with his attorney between adjourned dates of hearings, cited in the briefs submitted by the parties, the Appellate Division applied the rationale followed in criminal prosecutions involving similar situations -- barring the client from conferring with his or her attorney.
Commenting that teacher disciplinary proceedings are not criminal actions, the court said it was mindful that “a tenured teacher has a protected property interest in his [or her] position which raises due process considerations when a teacher is faced with termination of his employment, presumably deeming the loss of employment the economic equivalent of incarceration.”
As New York courts have disapproved forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division, citing Goldfinger v Lisker, 68 NY2d 225, decided that such a restriction in an administrative disciplinary proceeding was inappropriate in view of the due process considerations involved when a tenured employee is threatened with termination of his or her employment -- particularly in Elmore-type situation, where the time period involved was 10 weeks. The Appellate Division directed the district to hold a new hearing.
The court’s rationale would probably be applied in disciplinary actions taken against an individual pursuant to Section 75 of the Civil Service Law.
Appointment and removal of Special Police Officers
Appointment and removal of Special Police Officers
O'Donnell v. Ferguson, App. Div., Fourth Dept., 273 AD2d 905; Motion for leave to appeal denied, 96 NY2d 701*
The O’Donnell case sets out some of the relevant law concerning the appointment and removal of special police officers by a town.
Since 1990, the Town of Evans had annually appointed John O’Donnell as a part-time police officer. When on duty for the Town, O’Donnell had the same powers and responsibilities as the full-time members of the Town’s Police Department. He also carried the same firearm, wore the same uniform as the full-time officers and was required to complete the same specialized training as the full -time officers.
Evans Chief of Police Robert R. Catalino posted a note on a bulletin board stating that effective November 17, 1998, O’Donnell would no longer work for the Town.** O’Donnell had no prior notice of this, nor was he informed of the reason why he would no longer work for the Town.
O’Donnell sued. A State Supreme Court issued an order directing the Town to reinstate O’Donnell as a part-time police officer and directed that he remain in that position unless suspended or dismissed pursuant to Section 155 of the Town Law.**** The court also ordered a hearing on damages.
The Town appealed, contending that because O’Donnell was a special police officer appointed pursuant to Section 158.1 of the Town Law, he served at the pleasure of the Town Board and therefore was not entitled to the protections of Section 155. The Appellate Division agreed and vacated the lower court’s order.
The Appellate Division said the Supreme Court erred in determining that the Town Board lacked authority to dismiss [O’Donnell] without first complying with Town Law Section 155. The court pointed out that contrary to O’Donnell’s claim that he was employed on a regular basis as a part-time police officer rather than as a special police officer, O’Donnell was not scheduled to work on a regular part-time basis but was called only from time to time to work on a temporary basis.
This decision suggests that the critical element in determining if an individual is a part-time police officer or a special police officer is whether or not the individual has a regular work schedule.
* In O'Donnell v. Ferguson, 23 A.D.3d 1005, a later decision involving the same parties but a different issue, the Appellate Division, 4th Department, commented that the “Defendants are incorrect to the extent that they contend that, as an "at-will" employee, plaintiff could be terminated for a constitutionally impermissible or statutorily proscribed purpose.”
** O’Donnell was a full-time employee of the New York State Department of Corrections and had worked a total of 27.5 days for the Town from January 1998 through October 1998.
*** Section 155 provides that a town police officer is entitled to a disciplinary hearing and if found guilty of charges of neglect or dereliction in the performance of official duty, or of violation of rules or regulations or disobedience, or of incompetency to perform official duty, or of an act of delinquency seriously affecting his general character or fitness for office, he or she may be punished by reprimand, loss of pay for up to 20 days, extra tours of duty not to exceed 20 days, suspension without pay for up to 20 days or dismissal.
**** Section 155 provides that a town board may employ temporary police officers from time to time ... and such officers shall serve at the pleasure of the Town Board. Such personnel are shall be known as `special policemen’ and shall have all the power and authority conferred upon constables by the general laws of the state....'
O'Donnell v. Ferguson, App. Div., Fourth Dept., 273 AD2d 905; Motion for leave to appeal denied, 96 NY2d 701*
The O’Donnell case sets out some of the relevant law concerning the appointment and removal of special police officers by a town.
Since 1990, the Town of Evans had annually appointed John O’Donnell as a part-time police officer. When on duty for the Town, O’Donnell had the same powers and responsibilities as the full-time members of the Town’s Police Department. He also carried the same firearm, wore the same uniform as the full-time officers and was required to complete the same specialized training as the full -time officers.
Evans Chief of Police Robert R. Catalino posted a note on a bulletin board stating that effective November 17, 1998, O’Donnell would no longer work for the Town.** O’Donnell had no prior notice of this, nor was he informed of the reason why he would no longer work for the Town.
O’Donnell sued. A State Supreme Court issued an order directing the Town to reinstate O’Donnell as a part-time police officer and directed that he remain in that position unless suspended or dismissed pursuant to Section 155 of the Town Law.**** The court also ordered a hearing on damages.
The Town appealed, contending that because O’Donnell was a special police officer appointed pursuant to Section 158.1 of the Town Law, he served at the pleasure of the Town Board and therefore was not entitled to the protections of Section 155. The Appellate Division agreed and vacated the lower court’s order.
The Appellate Division said the Supreme Court erred in determining that the Town Board lacked authority to dismiss [O’Donnell] without first complying with Town Law Section 155. The court pointed out that contrary to O’Donnell’s claim that he was employed on a regular basis as a part-time police officer rather than as a special police officer, O’Donnell was not scheduled to work on a regular part-time basis but was called only from time to time to work on a temporary basis.
This decision suggests that the critical element in determining if an individual is a part-time police officer or a special police officer is whether or not the individual has a regular work schedule.
* In O'Donnell v. Ferguson, 23 A.D.3d 1005, a later decision involving the same parties but a different issue, the Appellate Division, 4th Department, commented that the “Defendants are incorrect to the extent that they contend that, as an "at-will" employee, plaintiff could be terminated for a constitutionally impermissible or statutorily proscribed purpose.”
** O’Donnell was a full-time employee of the New York State Department of Corrections and had worked a total of 27.5 days for the Town from January 1998 through October 1998.
*** Section 155 provides that a town police officer is entitled to a disciplinary hearing and if found guilty of charges of neglect or dereliction in the performance of official duty, or of violation of rules or regulations or disobedience, or of incompetency to perform official duty, or of an act of delinquency seriously affecting his general character or fitness for office, he or she may be punished by reprimand, loss of pay for up to 20 days, extra tours of duty not to exceed 20 days, suspension without pay for up to 20 days or dismissal.
**** Section 155 provides that a town board may employ temporary police officers from time to time ... and such officers shall serve at the pleasure of the Town Board. Such personnel are shall be known as `special policemen’ and shall have all the power and authority conferred upon constables by the general laws of the state....'
Applying for reinstatement following a §73 termination from a §72 disability leave
Applying for reinstatement following a §73 termination from a §72 disability leave
Matter of Coleman v State of New York, Appellate Division, Third Department, 38 AD3d 1044
Coleman was involved in an off-duty automobile accident and was placed on disability leave pursuant to §72 of the Civil Service Law. After she had been continuously absent for more than one year, the Department terminated her in accordance with the provisions of §73 of the Civil Service Law.*
§73 provides that an individual terminated after being absent on leave pursuant to §72 may apply for reinstatement to his or her former position within one year after the termination the disability underlying being placed on §72 leave by applying to the civil service department or municipal commission having jurisdiction over the position “for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”
When Coleman initially applied for reinstatement she was evaluated to determine is she was fit to perform the essential duties of a correction officer.
Ultimately, the New York State Department of Correctional Services disqualified Delores Coleman for employment as a correction officer based on the Department’s medical expert opinion that Coleman was not psychologically qualified for the position. Coleman appealed.
Although Coleman was initially approved for reinstatement, information subsequently provided by the Department resulted in a second evaluation that concluded that she was "poorly suited" for the position. According to the decision, Coleman’s responses to specific questions during a subsequent psychological interview raised significant concerns about her judgment and integrity and as a result, she was denied reinstatement to her former position of correction officer..
Coleman contended that: Corrections incorrectly utilized the standards required of a new correction officer outlined in Correction Law §8 in rejecting her request to be reinstated to her former position with the Department.
The Appellate Division rejected Coleman’s argument, noting that although prior to 2004, a correction officer seeking reinstatement was examined solely to determine whether the disability still existed, by January 2004, [the Department] changed the medical evaluation processing of correction officer reinstatements to mirror the processing of correction officer trainee candidates.**
Accordingly, said the court, Corrections had the statutory authority under Civil Service Law §73 to determine if Coleman was mentally fit to return to her position as a correction officer and its use of the psychological standards detailed in Correction Law §8 for that purpose was entirely proper, It then dismissed her appeal.
* Section 73 of the Civil Service Law provides for the removal of a tenured employee in the classified service if he or she has been continuously absent from work for one year or more because of a non-work related injury or illness. Termination pursuant to Section 73 is at the discretion of the appointing authority. [Termination following a cumulative period absence of one year or more due to a work-connected injury or illness is controlled by §71 of the Civil Service Law. Again, termination of an individual placed on a §71 leave of absence is at the discretion of the appointing authority.]
** Correction Law Section 8 (2) provides that all applicants for the position of correction officer must undergo a psychological evaluation to determine if they are "suffering from psychotic disorders, serious character disorders, or other disorders which could hinder performance on the job [and] may be deemed ineligible for appointment."
Matter of Coleman v State of New York, Appellate Division, Third Department, 38 AD3d 1044
Coleman was involved in an off-duty automobile accident and was placed on disability leave pursuant to §72 of the Civil Service Law. After she had been continuously absent for more than one year, the Department terminated her in accordance with the provisions of §73 of the Civil Service Law.*
§73 provides that an individual terminated after being absent on leave pursuant to §72 may apply for reinstatement to his or her former position within one year after the termination the disability underlying being placed on §72 leave by applying to the civil service department or municipal commission having jurisdiction over the position “for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”
When Coleman initially applied for reinstatement she was evaluated to determine is she was fit to perform the essential duties of a correction officer.
Ultimately, the New York State Department of Correctional Services disqualified Delores Coleman for employment as a correction officer based on the Department’s medical expert opinion that Coleman was not psychologically qualified for the position. Coleman appealed.
Although Coleman was initially approved for reinstatement, information subsequently provided by the Department resulted in a second evaluation that concluded that she was "poorly suited" for the position. According to the decision, Coleman’s responses to specific questions during a subsequent psychological interview raised significant concerns about her judgment and integrity and as a result, she was denied reinstatement to her former position of correction officer..
Coleman contended that: Corrections incorrectly utilized the standards required of a new correction officer outlined in Correction Law §8 in rejecting her request to be reinstated to her former position with the Department.
The Appellate Division rejected Coleman’s argument, noting that although prior to 2004, a correction officer seeking reinstatement was examined solely to determine whether the disability still existed, by January 2004, [the Department] changed the medical evaluation processing of correction officer reinstatements to mirror the processing of correction officer trainee candidates.**
Accordingly, said the court, Corrections had the statutory authority under Civil Service Law §73 to determine if Coleman was mentally fit to return to her position as a correction officer and its use of the psychological standards detailed in Correction Law §8 for that purpose was entirely proper, It then dismissed her appeal.
* Section 73 of the Civil Service Law provides for the removal of a tenured employee in the classified service if he or she has been continuously absent from work for one year or more because of a non-work related injury or illness. Termination pursuant to Section 73 is at the discretion of the appointing authority. [Termination following a cumulative period absence of one year or more due to a work-connected injury or illness is controlled by §71 of the Civil Service Law. Again, termination of an individual placed on a §71 leave of absence is at the discretion of the appointing authority.]
** Correction Law Section 8 (2) provides that all applicants for the position of correction officer must undergo a psychological evaluation to determine if they are "suffering from psychotic disorders, serious character disorders, or other disorders which could hinder performance on the job [and] may be deemed ineligible for appointment."
Jan 21, 2011
Unemployment Insurance Appeals Board determines if there is disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Unemployment Insurance Appeals Board determines if there is disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Matter of Green v Village of Hempstead, 2011 NY Slip Op 00137, Appellate Division, Third Department
The Village of Hempstead dismissed Deputy Village Attorney Donna M. Green from her position for alleged misconduct. When the Unemployment Insurance Appeals Board approved unemployment insurance benefits for Green, the Village appealed.
Hempstead argued that that the credible evidence established that Green was discharged for conducting her private legal practice on “Village time,” and that her discharge was not, as she claimed, merely politically motivated.
The Appellate Division said that whether an employee was terminated for misconduct is a factual question for the Unemployment Insurance Appeals Board to resolve. Thus, said the court, “its resolution of this issue will not be disturbed if supported by substantial evidence, citing Matter of Ponce, 75 AD3d 1041.
According to the decision, Hempstead said that it had given three memoranda to Green concerning her performance of her duties but Green had testified that she had received only one of these three documents prior to her termination -- and she refuted the claims stated within the documents.
Further, the court said that two witnesses supporting Green’s allegation that she and other members of the Village’s legal staff were discharged for political reasons following the election of a new mayor, and the employer did not offer evidence refuting this testimony.
As to the merits of Hempstead’s opposition to the Board’s determination, the Appellate Division, after reviewing the conflicting evidence, noted that Green's occasional receipt of private legal mail at her Village office, “standing alone, did not conclusively establish that she conducted her private practice on the employer's time.”
The Appellate Division found that “there was no other evidence of wrongdoing [on the part of Green]” and her tardiness on one occasion “does not necessarily constitute disqualifying misconduct … even if [Green’s] explanation was inaccurate. ” citing Matter of Massucci, 8 AD3d 737.
Thus, concluded the court, substantial evidence supports the Board's conclusion that [1] Green had not engaged in disqualifying misconduct and [2] she was entitled to unemployment insurance benefits.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00137.htm
Matter of Green v Village of Hempstead, 2011 NY Slip Op 00137, Appellate Division, Third Department
The Village of Hempstead dismissed Deputy Village Attorney Donna M. Green from her position for alleged misconduct. When the Unemployment Insurance Appeals Board approved unemployment insurance benefits for Green, the Village appealed.
Hempstead argued that that the credible evidence established that Green was discharged for conducting her private legal practice on “Village time,” and that her discharge was not, as she claimed, merely politically motivated.
The Appellate Division said that whether an employee was terminated for misconduct is a factual question for the Unemployment Insurance Appeals Board to resolve. Thus, said the court, “its resolution of this issue will not be disturbed if supported by substantial evidence, citing Matter of Ponce, 75 AD3d 1041.
According to the decision, Hempstead said that it had given three memoranda to Green concerning her performance of her duties but Green had testified that she had received only one of these three documents prior to her termination -- and she refuted the claims stated within the documents.
Further, the court said that two witnesses supporting Green’s allegation that she and other members of the Village’s legal staff were discharged for political reasons following the election of a new mayor, and the employer did not offer evidence refuting this testimony.
As to the merits of Hempstead’s opposition to the Board’s determination, the Appellate Division, after reviewing the conflicting evidence, noted that Green's occasional receipt of private legal mail at her Village office, “standing alone, did not conclusively establish that she conducted her private practice on the employer's time.”
The Appellate Division found that “there was no other evidence of wrongdoing [on the part of Green]” and her tardiness on one occasion “does not necessarily constitute disqualifying misconduct … even if [Green’s] explanation was inaccurate. ” citing Matter of Massucci, 8 AD3d 737.
Thus, concluded the court, substantial evidence supports the Board's conclusion that [1] Green had not engaged in disqualifying misconduct and [2] she was entitled to unemployment insurance benefits.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00137.htm
Failure to meet contract deadlines does not void disciplinary action
Failure to meet contract deadlines does not void disciplinary action
Covino v Kane, 273 AD2d 380, Motion for leave to appeal denied, 96 NY2d 701
The significant issue raised in the Covino case concerns the impact of the employer’s failing to meet a contract-specified deadline in issuing a disciplinary determination.
A member of the Nassau County Police Department, Craig S. Covino, was found guilty of violating seven departmental rules and regulations and a disciplinary penalty was imposed.
Covino objected, complaining that the Police Commissioner, issued his decision late in violation of Section 6.3-1 of the collective bargaining agreement between the Police Department and the Covino’s union. This failure to make a timely determination as to Covino’s guilt and the penalty to be imposed as punishment, Covino argued, required that the disciplinary action be rescinded. Section 6.3-1 of the collective bargaining agreement provided that:
A determination as to guilt or innocence and punishment, if any, shall be made within sixty (60) days after the hearing is concluded unless an employee or the [Superior Officers Association] consents to a longer period.
According to the decision, Covino was served with charges and specifications and his disciplinary hearing was concluded in September 1998.
The hearing officer’s report, dated November 20, 1998, recommended that Covino be found guilty of all of the charges preferred against him. On January 4, 1999 the Commissioner concurred with the findings of the hearing officer as to Covino’s being guilty of the charges filed against him and imposed penalties based upon those findings and recommendations.
Should the Commissioner’s determination be overturned because he failed to meet the 60-day deadline for issuing a decision as required by the agreement?
No! said the Supreme Court, Nassau County, the Commissioner’s decision should not be vacated or rescinded and dismissed Covino’s petition. The court ruled that in the absence of specific language barring further action, an employer’s failure to act within the time frame contemplated in a collective bargaining agreement does not preclude further action by the employer.
The Appellate Division, Second Department, agreed.
In affirming the lower court’s ruling, the Appellate Division pointed out that in interpreting similar contractual provisions, the Second Department has repeatedly held that, in the absence of prejudice, the failure to timely render a determination pursuant to the terms of the parties’ contract does not warrant vacatur of the determination, citing Correctional Unit Employees v State of New York Department of Correctional Services, 236 AD2d 546.
The decision by the Appellate Division suggests that the Supreme Court decided, or assumed, that the 60-day period for the Commissioner to issue a timely decision in accordance with relevant contract provision started when the hearing was concluded in September 1999. If, on the other hand, the disciplinary hearing is not deemed concluded until the hearing officer issued his or her determination and recommendations, this 60-day period would begin to run not before the date the hearing officer issued his or her report -- November 20, 1998.
Another case contract time limits: City of Newburgh v DeGidio, 273 A.D.2d 468. In this Article 75 action to stay arbitration, the Appellate Division to the parties to proceed to arbitration to resolve the issue. Reversing the Supreme Court’s ruling to the contrary, the Appellate Division, citing County of Rockland v Primiano Construction Co., 51 NY2d 1, held:
Where the collective bargaining agreement does not contain an express provision making compliance with the time limitations set forth in the grievance procedure a condition precedent to binding arbitration, the issues related to compliance with the time limitations set forth in the grievance procedure are matters of procedural arbitrability for the arbitrator to decide.
In other words, the arbitrator is to decide whether if the demand for arbitration was valid under the terms of the agreement.
___________________
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. a 1020 page e-book is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
Covino v Kane, 273 AD2d 380, Motion for leave to appeal denied, 96 NY2d 701
The significant issue raised in the Covino case concerns the impact of the employer’s failing to meet a contract-specified deadline in issuing a disciplinary determination.
A member of the Nassau County Police Department, Craig S. Covino, was found guilty of violating seven departmental rules and regulations and a disciplinary penalty was imposed.
Covino objected, complaining that the Police Commissioner, issued his decision late in violation of Section 6.3-1 of the collective bargaining agreement between the Police Department and the Covino’s union. This failure to make a timely determination as to Covino’s guilt and the penalty to be imposed as punishment, Covino argued, required that the disciplinary action be rescinded. Section 6.3-1 of the collective bargaining agreement provided that:
A determination as to guilt or innocence and punishment, if any, shall be made within sixty (60) days after the hearing is concluded unless an employee or the [Superior Officers Association] consents to a longer period.
According to the decision, Covino was served with charges and specifications and his disciplinary hearing was concluded in September 1998.
The hearing officer’s report, dated November 20, 1998, recommended that Covino be found guilty of all of the charges preferred against him. On January 4, 1999 the Commissioner concurred with the findings of the hearing officer as to Covino’s being guilty of the charges filed against him and imposed penalties based upon those findings and recommendations.
Should the Commissioner’s determination be overturned because he failed to meet the 60-day deadline for issuing a decision as required by the agreement?
No! said the Supreme Court, Nassau County, the Commissioner’s decision should not be vacated or rescinded and dismissed Covino’s petition. The court ruled that in the absence of specific language barring further action, an employer’s failure to act within the time frame contemplated in a collective bargaining agreement does not preclude further action by the employer.
The Appellate Division, Second Department, agreed.
In affirming the lower court’s ruling, the Appellate Division pointed out that in interpreting similar contractual provisions, the Second Department has repeatedly held that, in the absence of prejudice, the failure to timely render a determination pursuant to the terms of the parties’ contract does not warrant vacatur of the determination, citing Correctional Unit Employees v State of New York Department of Correctional Services, 236 AD2d 546.
The decision by the Appellate Division suggests that the Supreme Court decided, or assumed, that the 60-day period for the Commissioner to issue a timely decision in accordance with relevant contract provision started when the hearing was concluded in September 1999. If, on the other hand, the disciplinary hearing is not deemed concluded until the hearing officer issued his or her determination and recommendations, this 60-day period would begin to run not before the date the hearing officer issued his or her report -- November 20, 1998.
Another case contract time limits: City of Newburgh v DeGidio, 273 A.D.2d 468. In this Article 75 action to stay arbitration, the Appellate Division to the parties to proceed to arbitration to resolve the issue. Reversing the Supreme Court’s ruling to the contrary, the Appellate Division, citing County of Rockland v Primiano Construction Co., 51 NY2d 1, held:
Where the collective bargaining agreement does not contain an express provision making compliance with the time limitations set forth in the grievance procedure a condition precedent to binding arbitration, the issues related to compliance with the time limitations set forth in the grievance procedure are matters of procedural arbitrability for the arbitrator to decide.
In other words, the arbitrator is to decide whether if the demand for arbitration was valid under the terms of the agreement.
___________________
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. a 1020 page e-book is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
Transfer to a different retirement plan
Transfer to a different retirement plan
Overton v Southampton, 273 AD2d 242; Motion for leave to appeal denied, 95 NY2d 764
In the Overton case, the Appellate Division, Second Department, ruled that if a member of the State Employees’ Retirement System transfers from one plan to a different plan, he or she is subject to the relevant provisions of law concerning the plan into which he or she has transferred.
The Town of Southampton adopted a resolution on November 23, 1999. This resolution terminated the employment of its Chief of Police, James P. Overton, effective January 7, 1999, Overton’s 55th birthday. The Town’s action was based on the retirement plan to which Overton had previously transferred -- the Section 384-d plan.
According to the decision, although Overton was initially enrolled in a 25-year retirement plan with a mandatory retirement age of 70, he later elected to transfer into an optional 20-year retirement plan when the optional plan became available to the Town’s police officers pursuant to Section 384-d of the Retirement and Social Security Law.
Although Section 384-d requires members to retire no later than age 62, in 1971 a new subdivision, subdivision (m), was added to Section 384-d. Subdivision m applied only to Southampton law enforcement personnel and required police officers in the Section 384-d plan to retire at age 55.
Subdivision (m) provides that [n]otwithstanding any inconsistent provision of law, if the town board of the town of Southampton elects to make the benefits of this section available to the members of its police department, each member of such department shall be separated from service upon completion of twenty years of service, provided, however, that the town board may permit a member to continue in service on an annual basis after the completion of twenty years of service, but in no event shall such annual service be continued after a member has attained age fifty-five.
Approaching age 55, Overton decided he wanted to withdraw from the Section 384-d 20-year plan and transfer back into the 25-year plan so that he could continue his employment with the Town after reaching age 55. The Town, however, adopted a resolution separating him from service effective January 7, 2000, his 55th birthday.
Another factor in the litigation: The State Comptroller had issued an opinion indicating that Section 384-d(m) requires any Town police officer who ever enrolled in the 20-year plan to separate from service at age 55, regardless of whether the officer has subsequently withdrawn from the plan.*
Overton sued the Town and the Comptroller in an effort to annul the Town’s action and be approved for transfer into another plan. Unsuccessful in Supreme Court, he appealed. The Appellate Division reversed the lower court’s ruling, holding that the resolution in question adopted by the Town of Southampton on November 23, 1999, is annulled.
The rationale for the court’s annulling the Town’s resolution:
Section 384-d(b) of the Retirement and Social Security Law allows a member who elects to participate in a 20-year plan to withdraw from the plan and enroll in another retirement plan. According to the decision, the plain meaning of the statute, read as a whole, is that a Town police officer may withdraw from the 20-year plan and enroll in another available retirement plan.
The court rejected the Town’s arguments in support of its action, commenting that subdivision (m) does not require a member who changes plans to nevertheless retire at age 55.
The court said that nothing in the Retirement and Social Security Law suggests that Overton was required to retire at age 55 upon his transfer to another plan with a higher mandatory retirement age.
The bottom line: the court decided that Overton has the right to withdraw from the 20-year retirement plan and transfer to the 25-year retirement plan available to Town police officers with a mandatory retirement age of 70.
* The Comptroller was severed from the lawsuit, having earlier agreed that if the Town’s resolution is annulled, the Retirement System would not prevent Overton from continuing in service and obtaining credit for such service for “retirement allowance” purposes.
Overton v Southampton, 273 AD2d 242; Motion for leave to appeal denied, 95 NY2d 764
In the Overton case, the Appellate Division, Second Department, ruled that if a member of the State Employees’ Retirement System transfers from one plan to a different plan, he or she is subject to the relevant provisions of law concerning the plan into which he or she has transferred.
The Town of Southampton adopted a resolution on November 23, 1999. This resolution terminated the employment of its Chief of Police, James P. Overton, effective January 7, 1999, Overton’s 55th birthday. The Town’s action was based on the retirement plan to which Overton had previously transferred -- the Section 384-d plan.
According to the decision, although Overton was initially enrolled in a 25-year retirement plan with a mandatory retirement age of 70, he later elected to transfer into an optional 20-year retirement plan when the optional plan became available to the Town’s police officers pursuant to Section 384-d of the Retirement and Social Security Law.
Although Section 384-d requires members to retire no later than age 62, in 1971 a new subdivision, subdivision (m), was added to Section 384-d. Subdivision m applied only to Southampton law enforcement personnel and required police officers in the Section 384-d plan to retire at age 55.
Subdivision (m) provides that [n]otwithstanding any inconsistent provision of law, if the town board of the town of Southampton elects to make the benefits of this section available to the members of its police department, each member of such department shall be separated from service upon completion of twenty years of service, provided, however, that the town board may permit a member to continue in service on an annual basis after the completion of twenty years of service, but in no event shall such annual service be continued after a member has attained age fifty-five.
Approaching age 55, Overton decided he wanted to withdraw from the Section 384-d 20-year plan and transfer back into the 25-year plan so that he could continue his employment with the Town after reaching age 55. The Town, however, adopted a resolution separating him from service effective January 7, 2000, his 55th birthday.
Another factor in the litigation: The State Comptroller had issued an opinion indicating that Section 384-d(m) requires any Town police officer who ever enrolled in the 20-year plan to separate from service at age 55, regardless of whether the officer has subsequently withdrawn from the plan.*
Overton sued the Town and the Comptroller in an effort to annul the Town’s action and be approved for transfer into another plan. Unsuccessful in Supreme Court, he appealed. The Appellate Division reversed the lower court’s ruling, holding that the resolution in question adopted by the Town of Southampton on November 23, 1999, is annulled.
The rationale for the court’s annulling the Town’s resolution:
Section 384-d(b) of the Retirement and Social Security Law allows a member who elects to participate in a 20-year plan to withdraw from the plan and enroll in another retirement plan. According to the decision, the plain meaning of the statute, read as a whole, is that a Town police officer may withdraw from the 20-year plan and enroll in another available retirement plan.
The court rejected the Town’s arguments in support of its action, commenting that subdivision (m) does not require a member who changes plans to nevertheless retire at age 55.
The court said that nothing in the Retirement and Social Security Law suggests that Overton was required to retire at age 55 upon his transfer to another plan with a higher mandatory retirement age.
The bottom line: the court decided that Overton has the right to withdraw from the 20-year retirement plan and transfer to the 25-year retirement plan available to Town police officers with a mandatory retirement age of 70.
* The Comptroller was severed from the lawsuit, having earlier agreed that if the Town’s resolution is annulled, the Retirement System would not prevent Overton from continuing in service and obtaining credit for such service for “retirement allowance” purposes.
Challenging administrative rulings
Challenging administrative rulings
Malitz v NYC Transit Authority, NYS Supreme Court, Justice Stallman [Not selected for publication in the Official Reports]
The Malitz case points out the differences in the standards that are used by the courts when reviewing different types of agency or administrative determinations.
In cases involving challenges to an agency’s administrative determination made without having held an administrative hearing, the test applied is whether or not the agency’s determination can be supported on any reasonable basis. Stated another way: was the administrative determination arbitrary or capricious?*
In contrast, Justice Michael D. Stallman pointed out that when a court considers a challenge to an administrative determination resulting from a quasi-judicial proceeding, i.e., an administrative hearing, it applies the substantial evidence test. The substantial evidence standard arises only when there has been a quasi-judicial hearing, and evidence taken pursuant to law, said Justice Stallman, citing Colton v Berman, 21 NY2d 322.
The issue before the court in the Malitz case: which was the appropriate test to be applied in addressing Malitz’s Article 78 petition?
The case arose as a result of the New York City Transit Authority [NYCTA] filing disciplinary charges against one of its railroad clerks, Bryan Malitz. NYCTA alleged that Malitz failed to properly relieve another railroad clerk, Holmes.
According to the decision, on August 1, 1997 Holmes had incorrectly tallied fare cards resulting in a $2,100 shortage. Malitz did not detect this error and carried over the same incorrect information during his shift. Malitz’s relief, Bayo, repeated Holmes’ and Malitz’s error. Holmes then relieved Bayo without detecting the error. Finally the $2,100 error was discovered by Malitz when he relieved Holmes for a second time.
The Authority terminated Malitz. The grievance arbitration panel upheld the termination, ruling that Malitz did not make a ‘proper relief’ [and] this failure did warrant dismissal since the per se procedural violation went to the heart of a railroad clerk’s responsibilities and was a serious failure of duty. Neither Holmes nor Bayo were terminated as a result of the error that Holmes made on August 1.
Malitz then filed a complaint with the New York State Division of Human Rights [NYSDHR] contending that he had been unlawfully terminated from his position due to his sleep apnea disability in violation of the New York State Human Rights Law [Section 296, Executive Law]. He also asserted that the charges leading to his dismissal were false. NYSDHR dismissed his discrimination complaint, finding that there was a lack of probable cause.
NYSDHR decided that Malitz had been terminated because of performance infractions unrelated to his sleep apnea. In reviewing Malitz’s complaint, the Division took into consideration various performance infractions set out in Malitz’s personnel record. These other infractions included episodes involving insubordination, arguing with customers, closing his window, refusing to sell tokens, exposing himself while on duty and sleeping on duty.
NYSDHR decided that NYCTA’s decision to penalize but not terminate Holmes or Boyd did not support a claim that NYCTA’s termination of Malitz constituted unlawful discrimination. NYSDHR noted that Holmes’ and Boyd’s employment dossiers, unlike Malitz’s, did not contain any reports of procedural violations prior to the August 1, 1997 incident.
Malitz appealed NYSDHR’s determination. His Article 78 petition alleged that NYSDHR’s dismissal of his complaint was not supported by substantial evidence. The court rejected this theory, indicating that Malitz’s reliance on the substantial evidence test in his case was misplaced.
The decision states that NYSDHR has the discretion to (1) determine how an investigation will be conducted and (2) to dismiss a complaint for lack of probable cause without a hearing where appropriate. As there was no hearing held concerning Malitz’s complaint, the appropriate test to be applied was whether the Division’s determination was rational, not whether it was supported by substantial evidence.
Justice Stallman ruled that the division’s action satisfied the rational test. He said that NYSDHR dismissed petitioner’s discrimination claim for lack of probable cause after a thorough investigation and review of all factors, including his sleep apnea diagnosis. Under the circumstances this, the court concluded, was reasonable.
Clearly, since Malitz’s complaint was dismissed for lack of probable cause and a quasi-judicial hearing was not held by the NYSDHR, the substantial evidence test was not applicable. As to his challenge to the administrative dismissal of his complaint, the court said that because he did not present any evidence that NYSDHR’s dismissal of his complaint was arbitrary or capricious, his petition had to be dismissed.
* The arbitrary and capricious standard involves a review of whether a particular administrative action is justified. In effect, the rationality of the decision is reviewed under this standard.
Malitz v NYC Transit Authority, NYS Supreme Court, Justice Stallman [Not selected for publication in the Official Reports]
The Malitz case points out the differences in the standards that are used by the courts when reviewing different types of agency or administrative determinations.
In cases involving challenges to an agency’s administrative determination made without having held an administrative hearing, the test applied is whether or not the agency’s determination can be supported on any reasonable basis. Stated another way: was the administrative determination arbitrary or capricious?*
In contrast, Justice Michael D. Stallman pointed out that when a court considers a challenge to an administrative determination resulting from a quasi-judicial proceeding, i.e., an administrative hearing, it applies the substantial evidence test. The substantial evidence standard arises only when there has been a quasi-judicial hearing, and evidence taken pursuant to law, said Justice Stallman, citing Colton v Berman, 21 NY2d 322.
The issue before the court in the Malitz case: which was the appropriate test to be applied in addressing Malitz’s Article 78 petition?
The case arose as a result of the New York City Transit Authority [NYCTA] filing disciplinary charges against one of its railroad clerks, Bryan Malitz. NYCTA alleged that Malitz failed to properly relieve another railroad clerk, Holmes.
According to the decision, on August 1, 1997 Holmes had incorrectly tallied fare cards resulting in a $2,100 shortage. Malitz did not detect this error and carried over the same incorrect information during his shift. Malitz’s relief, Bayo, repeated Holmes’ and Malitz’s error. Holmes then relieved Bayo without detecting the error. Finally the $2,100 error was discovered by Malitz when he relieved Holmes for a second time.
The Authority terminated Malitz. The grievance arbitration panel upheld the termination, ruling that Malitz did not make a ‘proper relief’ [and] this failure did warrant dismissal since the per se procedural violation went to the heart of a railroad clerk’s responsibilities and was a serious failure of duty. Neither Holmes nor Bayo were terminated as a result of the error that Holmes made on August 1.
Malitz then filed a complaint with the New York State Division of Human Rights [NYSDHR] contending that he had been unlawfully terminated from his position due to his sleep apnea disability in violation of the New York State Human Rights Law [Section 296, Executive Law]. He also asserted that the charges leading to his dismissal were false. NYSDHR dismissed his discrimination complaint, finding that there was a lack of probable cause.
NYSDHR decided that Malitz had been terminated because of performance infractions unrelated to his sleep apnea. In reviewing Malitz’s complaint, the Division took into consideration various performance infractions set out in Malitz’s personnel record. These other infractions included episodes involving insubordination, arguing with customers, closing his window, refusing to sell tokens, exposing himself while on duty and sleeping on duty.
NYSDHR decided that NYCTA’s decision to penalize but not terminate Holmes or Boyd did not support a claim that NYCTA’s termination of Malitz constituted unlawful discrimination. NYSDHR noted that Holmes’ and Boyd’s employment dossiers, unlike Malitz’s, did not contain any reports of procedural violations prior to the August 1, 1997 incident.
Malitz appealed NYSDHR’s determination. His Article 78 petition alleged that NYSDHR’s dismissal of his complaint was not supported by substantial evidence. The court rejected this theory, indicating that Malitz’s reliance on the substantial evidence test in his case was misplaced.
The decision states that NYSDHR has the discretion to (1) determine how an investigation will be conducted and (2) to dismiss a complaint for lack of probable cause without a hearing where appropriate. As there was no hearing held concerning Malitz’s complaint, the appropriate test to be applied was whether the Division’s determination was rational, not whether it was supported by substantial evidence.
Justice Stallman ruled that the division’s action satisfied the rational test. He said that NYSDHR dismissed petitioner’s discrimination claim for lack of probable cause after a thorough investigation and review of all factors, including his sleep apnea diagnosis. Under the circumstances this, the court concluded, was reasonable.
Clearly, since Malitz’s complaint was dismissed for lack of probable cause and a quasi-judicial hearing was not held by the NYSDHR, the substantial evidence test was not applicable. As to his challenge to the administrative dismissal of his complaint, the court said that because he did not present any evidence that NYSDHR’s dismissal of his complaint was arbitrary or capricious, his petition had to be dismissed.
* The arbitrary and capricious standard involves a review of whether a particular administrative action is justified. In effect, the rationality of the decision is reviewed under this standard.
Jan 20, 2011
State Comptroller finds that some school districts paid for health benefits for deceased or ineligible retirees and dependents
State Comptroller finds that some school districts paid for health benefits for deceased or ineligible retirees and dependents
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli reports that his auditors found that ten school districts in New York State paid nearly $239,000 for health insurance benefits for deceased or ineligible retirees. DiNapoli also said $117,556 had been recovered.
The audit, which covered July 1, 2008 to May 31, 2010, examined school districts with a high percentage of retirees who do not contribute toward the cost of their health insurance.
The auditors found that only two districts of those audited – Somers Central School District and Yonkers City School District – had written guidelines to ensure the accuracy and appropriateness of health insurance payments.
DiNapoli’s audit recommended that school district officials:
1. Develop written policies and procedures to periodically monitor the status of all retirees, their spouses and dependents receiving health insurance coverage; and
2. Consider establishing systems to maintain adequate information on retirees and their dependents, including social security numbers and emergency contact information, which can be used to ensure eligibility for health insurance coverage.
The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/swr/retireehealth/global.pdf
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli reports that his auditors found that ten school districts in New York State paid nearly $239,000 for health insurance benefits for deceased or ineligible retirees. DiNapoli also said $117,556 had been recovered.
The audit, which covered July 1, 2008 to May 31, 2010, examined school districts with a high percentage of retirees who do not contribute toward the cost of their health insurance.
The auditors found that only two districts of those audited – Somers Central School District and Yonkers City School District – had written guidelines to ensure the accuracy and appropriateness of health insurance payments.
DiNapoli’s audit recommended that school district officials:
1. Develop written policies and procedures to periodically monitor the status of all retirees, their spouses and dependents receiving health insurance coverage; and
2. Consider establishing systems to maintain adequate information on retirees and their dependents, including social security numbers and emergency contact information, which can be used to ensure eligibility for health insurance coverage.
The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/swr/retireehealth/global.pdf
Use of leave credits and the FMLA
Use of leave credits and the FMLA
Repa v. Roadway Express, Inc. USCA, 7th Circuit, 477 F.3d 938
Alice M. Repa complained that her employer, Roadway Express, Inc., required her to use her sick and vacation leave accruals while she was on FMLA leave although she was simultaneously receiving short-term disability benefit – i.e., paid leave - under Roadway’s disability plan.
The Circuit Court sustained a federal district court’s ruling that Roadway had violated the FMLA by requiring Repa to charge her FMLA-absence to her leave accruals. The lower court held that absence from work under a temporary disability benefit plan is not subject to a provision in the FMLA that allows employers to require employees to substitute paid leave for unpaid FMLA leave.
The decision states that “the purpose of the FMLA is, in part, “to entitle employees to take reasonable leave for medical reasons . . . in a manner that accommodates the legitimate interests of employers.” Although the employer is not required to pay an employee while the employee is on FMLA leave, [see 29 U.S.C. §2612(c)], the “employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for [FMLA] leave provided” [see 29 U.S.C. § 2612(d)(2)].*
In this instance, said the court, short-term disability leave pursuant to Roadways’ temporary disability benefit plan was not unpaid leave. Accordingly, the FMLA provision allowing the employer to require the employee to substitute paid leave for unpaid FMLA absences was inapplicable.
In addition, the decision noted that the employer may designate the short-term disability leave as FMLA leave and count the disability leave as running concurrently for purposes of both the benefit plan and the employee’s FMLA leave entitlement. Further, said the court, “If the requirements to qualify for payments pursuant to the employer’s temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/short-term-disability-program-use-of.html
* The Circuit Court noted that Department of Labor regulations [29 C.F.R. §825.207(d)(1)] places certain limitations with respect to the application of this provision and indicated that disability leave for the birth of a child would be considered “FMLA leave for a serious health condition” and counted in the 12 weeks of leave permitted under FMLA.
Repa v. Roadway Express, Inc. USCA, 7th Circuit, 477 F.3d 938
Alice M. Repa complained that her employer, Roadway Express, Inc., required her to use her sick and vacation leave accruals while she was on FMLA leave although she was simultaneously receiving short-term disability benefit – i.e., paid leave - under Roadway’s disability plan.
The Circuit Court sustained a federal district court’s ruling that Roadway had violated the FMLA by requiring Repa to charge her FMLA-absence to her leave accruals. The lower court held that absence from work under a temporary disability benefit plan is not subject to a provision in the FMLA that allows employers to require employees to substitute paid leave for unpaid FMLA leave.
The decision states that “the purpose of the FMLA is, in part, “to entitle employees to take reasonable leave for medical reasons . . . in a manner that accommodates the legitimate interests of employers.” Although the employer is not required to pay an employee while the employee is on FMLA leave, [see 29 U.S.C. §2612(c)], the “employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for [FMLA] leave provided” [see 29 U.S.C. § 2612(d)(2)].*
In this instance, said the court, short-term disability leave pursuant to Roadways’ temporary disability benefit plan was not unpaid leave. Accordingly, the FMLA provision allowing the employer to require the employee to substitute paid leave for unpaid FMLA absences was inapplicable.
In addition, the decision noted that the employer may designate the short-term disability leave as FMLA leave and count the disability leave as running concurrently for purposes of both the benefit plan and the employee’s FMLA leave entitlement. Further, said the court, “If the requirements to qualify for payments pursuant to the employer’s temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/short-term-disability-program-use-of.html
* The Circuit Court noted that Department of Labor regulations [29 C.F.R. §825.207(d)(1)] places certain limitations with respect to the application of this provision and indicated that disability leave for the birth of a child would be considered “FMLA leave for a serious health condition” and counted in the 12 weeks of leave permitted under FMLA.
Failing to appear for an examination trumps non-selection retaliation claim
Failing to appear for an examination trumps non-selection retaliation claim
Williams v City of New York, 38 A.D.3d 238
Gina Williams, complained that she was rejected for employment as a correction officer with the New York City Department of Corrections in retaliation for her filing a sexual harassment claim against her employer, the New York City Housing Authority.
The Appellate Division, First Department ruled that Williams failed to establish a prima facie claim of retaliation as there was no evidence of a causal connection between the filing of the harassment claim in 1998 and the denial of her appointment as a correction officer some two years later.
Significantly, Williams had been approved for appointment as a corrections officer on the condition that she take a psychological examination. She failed to appear for the examination.
This, said the court, was fatal to Williams’ lawsuit claiming retaliation since “even were it determined that there was a prima facie case of retaliation, [Williams] failed to show that the legitimate, nondiscriminatory reasons given by Corrections for their actions were mere pretext.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/sexual-harassment-claim-rejected.html
Williams v City of New York, 38 A.D.3d 238
Gina Williams, complained that she was rejected for employment as a correction officer with the New York City Department of Corrections in retaliation for her filing a sexual harassment claim against her employer, the New York City Housing Authority.
The Appellate Division, First Department ruled that Williams failed to establish a prima facie claim of retaliation as there was no evidence of a causal connection between the filing of the harassment claim in 1998 and the denial of her appointment as a correction officer some two years later.
Significantly, Williams had been approved for appointment as a corrections officer on the condition that she take a psychological examination. She failed to appear for the examination.
This, said the court, was fatal to Williams’ lawsuit claiming retaliation since “even were it determined that there was a prima facie case of retaliation, [Williams] failed to show that the legitimate, nondiscriminatory reasons given by Corrections for their actions were mere pretext.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/sexual-harassment-claim-rejected.html
Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits
Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits
Dwyer v Commissioner of Labor, 273 A.D.2d 675
In June 1997 the Unemployment Insurance Appeals Board ruled that former Orange County Personnel Director Joseph M. Dwyer was entitled to unemployment insurance benefits.
The Board subsequently reopened its prior decision and on March 19, 1998 issued a ruling rescinding its June 1997 decision. This action reinstated a prior determination that Dwyer’s work as Orange County Commissioner of Personnel ending in November 1994 was excluded from coverage under Labor Law Section 565(2)(e) because it was a major nontenured policy making or advisory position. Dwyer did not appeal the Board’s March 1998 ruling.
On May 18, 1999 the Board agreed with the department that Dwyer had to pay a recoverable overpayment of $7,800 in unemployment insurance benefits. Dwyer appealed the May 1999 determination.
The Appellate Division affirmed the Board’s determination, noting that while Dwyer contended that the Board abused its discretion when it reopened its June 1997 decision in his favor, he did not appeal the March 1998 decision that held he was not eligible for unemployment insurance benefits. Accordingly, the court said it could not consider any challenge to the March 1998 ruling by the Board in this appeal.
The Appellate Division noted that while Section 597 was amended in 1998 so as to limit the recoverability of certain unemployment insurance overpayments, the legislation is not retroactive and applies only to benefit claims filed on or after May 19, 1998, the effective date of the amendment.
Accordingly, Dwyer was not covered by any of its provisions.
Dwyer v Commissioner of Labor, 273 A.D.2d 675
In June 1997 the Unemployment Insurance Appeals Board ruled that former Orange County Personnel Director Joseph M. Dwyer was entitled to unemployment insurance benefits.
The Board subsequently reopened its prior decision and on March 19, 1998 issued a ruling rescinding its June 1997 decision. This action reinstated a prior determination that Dwyer’s work as Orange County Commissioner of Personnel ending in November 1994 was excluded from coverage under Labor Law Section 565(2)(e) because it was a major nontenured policy making or advisory position. Dwyer did not appeal the Board’s March 1998 ruling.
On May 18, 1999 the Board agreed with the department that Dwyer had to pay a recoverable overpayment of $7,800 in unemployment insurance benefits. Dwyer appealed the May 1999 determination.
The Appellate Division affirmed the Board’s determination, noting that while Dwyer contended that the Board abused its discretion when it reopened its June 1997 decision in his favor, he did not appeal the March 1998 decision that held he was not eligible for unemployment insurance benefits. Accordingly, the court said it could not consider any challenge to the March 1998 ruling by the Board in this appeal.
The Appellate Division noted that while Section 597 was amended in 1998 so as to limit the recoverability of certain unemployment insurance overpayments, the legislation is not retroactive and applies only to benefit claims filed on or after May 19, 1998, the effective date of the amendment.
Accordingly, Dwyer was not covered by any of its provisions.
Jan 19, 2011
Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law
Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law
Matter of DiBattista v Mcdonough, 2011 NY Slip Op 00131, Appellate Division, Third Department
After the Chief of Police of the Town of Rosendale Chief of Police, Michael DiBattista, was notified by the Town Supervisor, Patrick McDonough, that he had not been reappointed to the position at the annual organizational meeting of the Town Board, DiBattista filed a petition pursuant to CPLR Article 78 seeking a court order reinstating him to the position of Chief of Police with back pay, longevity pay and compensatory time.
DiBattista argued that as an honorably discharged veteran of the armed services, he should not have been discharged without a hearing.*
Supreme Court determined that DiBattista was not entitled to the statutory protection because he did not hold his position as Chief of Police "by permanent appointment."
Noting that §16-3 of the Town’s Code provides that the Chief of Police "shall be appointed annually on January 1 of each year" and his or her term shall continue "until he [or she] is reappointed or succeeded," Supreme Court apparently deemed DiBattista to hold a “term appointment” and thus “permanent” for the purposes of the Civil Service Law only during the specified statutory term of the office.**
The Appellate Division said it agreed and affirm the lower court’s determination.
As to DiBattista’s “permanent status” in the position, the Appellate Division ruled that that time of the Board’s action, DiBattista “no longer held the status of an appointed official with tenure for a limited term; instead, he held his position as a holdover and was an at-will employee not entitled to the protections of Civil Service Law §75.”***
Additionally, the Appellate Division said that DiBattista “was further excluded from the protection of Civil Service Law §75 because his position as Chief of Police was independent in nature.”
Citing Matter of Nolan v Tully, 52 AD2d 295, 297 [1976], appeal dismissed 40 NY2d 844 [1976], lv denied 40 NY2d 803 [1976], the Appellate Division explained that Civil Service Law §75(1)(b) was intended to apply only to veterans in subordinate positions and does not include those who "may be characterized as independent officers." Based on the job description for Chief of Police, the Appellate Division concluded that the position clearly requires independent judgment and initiative and thus he was an “independent” officer.
As to DiBattista’s argument that, as a member of the Town of Rosendale Police Department, he had the right to a pretermination hearing under Town Law §155, the Appellate Division said that both Town Law §155 and Civil Service Law §75 relate to the discipline of civil service employees, they are in pari materia**** and are to be read in conjunction so that they complement one another.
However, the court explained, “it is apparent that Town Law §155 only applies to police department members who, unlike [DiBattista], hold permanent appointments. Ruling that DiBattista did not have property interest in the position, the Appellate Division concluded that he was not entitled to the protection of Town Law §155.
* Civil Service Law §75(1)(b) provides, in pertinent part, that a person holding a position by permanent appointment or employment in the classified service “who was honorably discharged or released under honorable circumstances from the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter” is subject to its provisions.
** Section 15.1(b) sets out another example of a statutory “term of office” whereby “The term of office of a [county] personnel officer shall be six years.”
*** Presumably §75 would obtain had the Town sought to remove DiBattista while he was serving as a “one-year appointee” in contrast to his serving in a “holdover” capacity.
**** Two laws relating to the same subject matter that must be analyzed with each other.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00131.htm
Matter of DiBattista v Mcdonough, 2011 NY Slip Op 00131, Appellate Division, Third Department
After the Chief of Police of the Town of Rosendale Chief of Police, Michael DiBattista, was notified by the Town Supervisor, Patrick McDonough, that he had not been reappointed to the position at the annual organizational meeting of the Town Board, DiBattista filed a petition pursuant to CPLR Article 78 seeking a court order reinstating him to the position of Chief of Police with back pay, longevity pay and compensatory time.
DiBattista argued that as an honorably discharged veteran of the armed services, he should not have been discharged without a hearing.*
Supreme Court determined that DiBattista was not entitled to the statutory protection because he did not hold his position as Chief of Police "by permanent appointment."
Noting that §16-3 of the Town’s Code provides that the Chief of Police "shall be appointed annually on January 1 of each year" and his or her term shall continue "until he [or she] is reappointed or succeeded," Supreme Court apparently deemed DiBattista to hold a “term appointment” and thus “permanent” for the purposes of the Civil Service Law only during the specified statutory term of the office.**
The Appellate Division said it agreed and affirm the lower court’s determination.
As to DiBattista’s “permanent status” in the position, the Appellate Division ruled that that time of the Board’s action, DiBattista “no longer held the status of an appointed official with tenure for a limited term; instead, he held his position as a holdover and was an at-will employee not entitled to the protections of Civil Service Law §75.”***
Additionally, the Appellate Division said that DiBattista “was further excluded from the protection of Civil Service Law §75 because his position as Chief of Police was independent in nature.”
Citing Matter of Nolan v Tully, 52 AD2d 295, 297 [1976], appeal dismissed 40 NY2d 844 [1976], lv denied 40 NY2d 803 [1976], the Appellate Division explained that Civil Service Law §75(1)(b) was intended to apply only to veterans in subordinate positions and does not include those who "may be characterized as independent officers." Based on the job description for Chief of Police, the Appellate Division concluded that the position clearly requires independent judgment and initiative and thus he was an “independent” officer.
As to DiBattista’s argument that, as a member of the Town of Rosendale Police Department, he had the right to a pretermination hearing under Town Law §155, the Appellate Division said that both Town Law §155 and Civil Service Law §75 relate to the discipline of civil service employees, they are in pari materia**** and are to be read in conjunction so that they complement one another.
However, the court explained, “it is apparent that Town Law §155 only applies to police department members who, unlike [DiBattista], hold permanent appointments. Ruling that DiBattista did not have property interest in the position, the Appellate Division concluded that he was not entitled to the protection of Town Law §155.
* Civil Service Law §75(1)(b) provides, in pertinent part, that a person holding a position by permanent appointment or employment in the classified service “who was honorably discharged or released under honorable circumstances from the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter” is subject to its provisions.
** Section 15.1(b) sets out another example of a statutory “term of office” whereby “The term of office of a [county] personnel officer shall be six years.”
*** Presumably §75 would obtain had the Town sought to remove DiBattista while he was serving as a “one-year appointee” in contrast to his serving in a “holdover” capacity.
**** Two laws relating to the same subject matter that must be analyzed with each other.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00131.htm
Denial of an Article 75 petition to vacate an arbitration award requires that the court confirm the award
Denial of an Article 75 petition to vacate an arbitration award requires that the court confirm the award
Matter of Perilli v New York State Dept. of Correctional Servs., 2011 NY Slip Op 00229, Appellate Division, Second Department
John Perilli appealed an order of the Supreme Court that denied his Article 75 petition challenging an arbitration award. The Appellate Division sustained the lower court’s determination and dismissed his appeal.
Perilli contended that the arbitrator had [1] prejudiced his rights; [2] improperly admitted evidence of prior grievances he had filed or that had been filed against him; and [3] the arbitrator’s award was against public policy.
The Appellate Division rejected each of Perilli’s contentions.
First the court ruled that Perilli had failed to meet his burden of proving "by clear and convincing evidence" that alleged impropriety or misconduct of the arbitrator prejudiced his rights or the integrity of the arbitration process or award.
As to the arbitrator’s admission of evidence of prior grievances, the court said that “the admission of evidence of prior grievances filed by and against [Perilli] did not constitute misconduct by the arbitrator,” explaining that "[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be."
Also rejected by the Appellate Division was Perilli’s motion to vacate the arbitration award on the theory that it violated public policy, holding that “ vacatur of the arbitration award is not warranted [as] the award did not violate a strong public policy, was not irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power."
The Appellate Division also commented that if a motion to vacate or modify an arbitration award is denied, the court, in the alternative, must confirm the award.
Accordingly, as Supreme Court had denied Perilli’s petition seeking to vacate the award, and the Appellate Division had concurred with the lower court’s ruling, the Appellate Division held that the arbitrator's award must be confirmed.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00229.htm
Matter of Perilli v New York State Dept. of Correctional Servs., 2011 NY Slip Op 00229, Appellate Division, Second Department
John Perilli appealed an order of the Supreme Court that denied his Article 75 petition challenging an arbitration award. The Appellate Division sustained the lower court’s determination and dismissed his appeal.
Perilli contended that the arbitrator had [1] prejudiced his rights; [2] improperly admitted evidence of prior grievances he had filed or that had been filed against him; and [3] the arbitrator’s award was against public policy.
The Appellate Division rejected each of Perilli’s contentions.
First the court ruled that Perilli had failed to meet his burden of proving "by clear and convincing evidence" that alleged impropriety or misconduct of the arbitrator prejudiced his rights or the integrity of the arbitration process or award.
As to the arbitrator’s admission of evidence of prior grievances, the court said that “the admission of evidence of prior grievances filed by and against [Perilli] did not constitute misconduct by the arbitrator,” explaining that "[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be."
Also rejected by the Appellate Division was Perilli’s motion to vacate the arbitration award on the theory that it violated public policy, holding that “ vacatur of the arbitration award is not warranted [as] the award did not violate a strong public policy, was not irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power."
The Appellate Division also commented that if a motion to vacate or modify an arbitration award is denied, the court, in the alternative, must confirm the award.
Accordingly, as Supreme Court had denied Perilli’s petition seeking to vacate the award, and the Appellate Division had concurred with the lower court’s ruling, the Appellate Division held that the arbitrator's award must be confirmed.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00229.htm
Duty to file disciplinary charges
Duty to file disciplinary charges
Anonymous v Nassau County, Supreme Court, Nassau County, Justice Phelan [Not selected for publication in the Official Reports]
From time to time the question of whether a public employer acted reasonably when it filed disciplinary charges against an individual is raised in the course of litigation. The Lindenhurst case, brought by a school teacher against whom disciplinary charges had been served and who then sued the district for malicious prosecution, raised this issue.
The Lindenhurst Union Free School District filed Section 3020-a disciplinary charges against one of its teachers, after it was reported that the teacher was a voyeur who looked at photographs of teenage girls to sexually satisfy himself.
A Nassau County police detective had found two envelopes of developed photographs in a parking lot. The pictures were of women, mostly teenagers, clothed or in bathing suits. The detective determined that the teacher, using a fictitious name and address, had brought the film to a processor for developing. Ultimately, the photographs were determined to have been take from the teacher's home.
No criminal charges were filed against the educator but the New York State Education Department was advised of the situation and provided with a copy of a statement in which the detective claimed the teacher had told him that he was a voyeur who looked at photographs to sexually satisfy himself. Eventually this information was transmitted to the superintendent and school board.
The educator was charged with (1) conduct unbecoming a teacher based on allegations that he took photographs of unknowing females for the purpose of using these photos for sexual gratification; and (2) lying to the Associate Superintendent about taking the photos .... As a result the teacher was suspended with pay but ultimately the board dismissed the Section 3020-a charges and reinstated him to his position.
Contending that the board’s action violated his civil rights [42 USC 1983], the teacher sued the district and its superintendent in federal court. Federal District Court Justice Joanna Seybert dismissed his federal claims, holding that the actions taken by the district were reasonable. In the words of the court, [t]he information these defendants had obtained led them to take appropriate and reasonable actions under the circumstances as they knew them to be.
The educator, however, had also filed a state law claim against the district and the superintendent for malicious prosecution. The county and the detective were also named as defendants in the State action. State Supreme Court Justice Thomas P. Phelan ruled that the teacher’s state law claims against the district and the superintendent were barred by the doctrine of collateral estoppel as the federal court clearly determined that defendant School District and Superintendent acted properly in preferring charges pursuant to Education Law Section 3020-a against the teacher.
Justice Phelan said that he agreed with the district’s argument that presented with information that a school teacher engaged in sexual self-stimulation with the aid of photographs of school-aged children -- whether ultimately true or not -- the defendants would have been remiss in their duties had they taken no action at all.
Was the district required to file disciplinary charges against the educator after receiving the report from the Education Department? Not necessarily, as the decision by the Commissioner of Education in the Covino case indicates [Matter of Covino, Decision 11227]. The Covino decision holds that a board is not required to serve disciplinary charges against an individual simply because it is advised of allegations of wrongdoing on the part of the employee.
A parent complained that Covino, a teacher-coach, had been involved in the hazing of a student by other students. The parent wanted the school board to dismiss Covino and a bus driver who was alleged to have been present during the incident. The board’s response to the parent’s complaint was to suspend the teacher from his coaching duties. It did not initiate formal disciplinary action against either the teacher or the driver.
This, however, did not satisfy the parent and he appealed to the Commissioner of Education in an effort to obtain an order requiring the board to initiate disciplinary action seeking removal of the teacher.
Noting that a resident of a school district may file disciplinary charges against a tenured teacher, the Commissioner said that a board of education must have a reasonable basis for its decision whether or not to proceed with the disciplinary action.
The Commissioner decided that board’s investigation of the incident, followed by its relieving the teacher of his coaching duties was sufficient under the circumstances. He ruled that the board had a reasonable basis for the action it took and its decision not to pursue further disciplinary action was neither arbitrary nor capricious.
The test set out by the Commissioner in the Covino decision: did the board investigate the allegations and then make a reasonable determination whether or not to take further action?
The employer, once having completed its investigation, essentially has the following options available to it:
1. Decide that filing disciplinary charges or taking other administrative action against the individual is unwarranted;
2. Decide that there is insufficient evidence to justify the filing of disciplinary charges but that some other administrative action, such as counseling the individual, is appropriate.
3. Decide that filing disciplinary charges against the individual is appropriate under the circumstances.
If the employer determines that it is appropriate to bring disciplinary action against an employee, may it demand that the individual resign or be served with charges? In a word: YES!
In Rychlick v Coughlin, 63 NY2d 643, a case involving a tenured State employee, the Court of Appeals said the employer could threaten the employee with disciplinary action if he or she did not resign. The court pointed out that threatening to do what the appointing authority had a legal right to do -- file disciplinary charges against the individual -- did not constitute coercion so as to make the resignation involuntary.
Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain confidential has been tempered, however.
In response to the so-called silent resignation in cases involving child abuse in an educational setting by a school employee, the New York State Legislature has declared that making an agreement to maintain confidentiality in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.
A new provision, Education Law Section 1133, bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position.
A violation of Section 1133 is a Class D felony and, in addition, shall also be punishable by a civil penalty not to exceed $20,000.
In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”
___________________
The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State, is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
Anonymous v Nassau County, Supreme Court, Nassau County, Justice Phelan [Not selected for publication in the Official Reports]
From time to time the question of whether a public employer acted reasonably when it filed disciplinary charges against an individual is raised in the course of litigation. The Lindenhurst case, brought by a school teacher against whom disciplinary charges had been served and who then sued the district for malicious prosecution, raised this issue.
The Lindenhurst Union Free School District filed Section 3020-a disciplinary charges against one of its teachers, after it was reported that the teacher was a voyeur who looked at photographs of teenage girls to sexually satisfy himself.
A Nassau County police detective had found two envelopes of developed photographs in a parking lot. The pictures were of women, mostly teenagers, clothed or in bathing suits. The detective determined that the teacher, using a fictitious name and address, had brought the film to a processor for developing. Ultimately, the photographs were determined to have been take from the teacher's home.
No criminal charges were filed against the educator but the New York State Education Department was advised of the situation and provided with a copy of a statement in which the detective claimed the teacher had told him that he was a voyeur who looked at photographs to sexually satisfy himself. Eventually this information was transmitted to the superintendent and school board.
The educator was charged with (1) conduct unbecoming a teacher based on allegations that he took photographs of unknowing females for the purpose of using these photos for sexual gratification; and (2) lying to the Associate Superintendent about taking the photos .... As a result the teacher was suspended with pay but ultimately the board dismissed the Section 3020-a charges and reinstated him to his position.
Contending that the board’s action violated his civil rights [42 USC 1983], the teacher sued the district and its superintendent in federal court. Federal District Court Justice Joanna Seybert dismissed his federal claims, holding that the actions taken by the district were reasonable. In the words of the court, [t]he information these defendants had obtained led them to take appropriate and reasonable actions under the circumstances as they knew them to be.
The educator, however, had also filed a state law claim against the district and the superintendent for malicious prosecution. The county and the detective were also named as defendants in the State action. State Supreme Court Justice Thomas P. Phelan ruled that the teacher’s state law claims against the district and the superintendent were barred by the doctrine of collateral estoppel as the federal court clearly determined that defendant School District and Superintendent acted properly in preferring charges pursuant to Education Law Section 3020-a against the teacher.
Justice Phelan said that he agreed with the district’s argument that presented with information that a school teacher engaged in sexual self-stimulation with the aid of photographs of school-aged children -- whether ultimately true or not -- the defendants would have been remiss in their duties had they taken no action at all.
Was the district required to file disciplinary charges against the educator after receiving the report from the Education Department? Not necessarily, as the decision by the Commissioner of Education in the Covino case indicates [Matter of Covino, Decision 11227]. The Covino decision holds that a board is not required to serve disciplinary charges against an individual simply because it is advised of allegations of wrongdoing on the part of the employee.
A parent complained that Covino, a teacher-coach, had been involved in the hazing of a student by other students. The parent wanted the school board to dismiss Covino and a bus driver who was alleged to have been present during the incident. The board’s response to the parent’s complaint was to suspend the teacher from his coaching duties. It did not initiate formal disciplinary action against either the teacher or the driver.
This, however, did not satisfy the parent and he appealed to the Commissioner of Education in an effort to obtain an order requiring the board to initiate disciplinary action seeking removal of the teacher.
Noting that a resident of a school district may file disciplinary charges against a tenured teacher, the Commissioner said that a board of education must have a reasonable basis for its decision whether or not to proceed with the disciplinary action.
The Commissioner decided that board’s investigation of the incident, followed by its relieving the teacher of his coaching duties was sufficient under the circumstances. He ruled that the board had a reasonable basis for the action it took and its decision not to pursue further disciplinary action was neither arbitrary nor capricious.
The test set out by the Commissioner in the Covino decision: did the board investigate the allegations and then make a reasonable determination whether or not to take further action?
The employer, once having completed its investigation, essentially has the following options available to it:
1. Decide that filing disciplinary charges or taking other administrative action against the individual is unwarranted;
2. Decide that there is insufficient evidence to justify the filing of disciplinary charges but that some other administrative action, such as counseling the individual, is appropriate.
3. Decide that filing disciplinary charges against the individual is appropriate under the circumstances.
If the employer determines that it is appropriate to bring disciplinary action against an employee, may it demand that the individual resign or be served with charges? In a word: YES!
In Rychlick v Coughlin, 63 NY2d 643, a case involving a tenured State employee, the Court of Appeals said the employer could threaten the employee with disciplinary action if he or she did not resign. The court pointed out that threatening to do what the appointing authority had a legal right to do -- file disciplinary charges against the individual -- did not constitute coercion so as to make the resignation involuntary.
Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain confidential has been tempered, however.
In response to the so-called silent resignation in cases involving child abuse in an educational setting by a school employee, the New York State Legislature has declared that making an agreement to maintain confidentiality in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.
A new provision, Education Law Section 1133, bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position.
A violation of Section 1133 is a Class D felony and, in addition, shall also be punishable by a civil penalty not to exceed $20,000.
In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”
___________________
The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State, is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
General Municipal Law Section 207-c disability benefits forfeited following a change of residence
General Municipal Law Section 207-c disability benefits forfeited following a change of residence
Kevin O'Connor Et Al., v Police Commission Of The Town Of Clarkstown et al, 221 AD2d 444
Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to 30.1.d of the Public Officers Law because he "ceased to be an inhabitant within the geographical restrictions" set by law. Section 30.1.d provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.* Clarkstown also discontinued paying O’Connor disability benefits pursuant to 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County.
O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.
Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable." Further, O’Connor could not cure this difficulty by returning and again becoming a resident of Rockland County or to a county contiguous to Rockland County.
The Appellate Division said that there was ample evidence to support the determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Town’s decision was neither arbitrary nor capricious.
The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."
* Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located. Subdivision 19 of Section 3.2 sets out residence provisions applicable to police officers of the City of New York.
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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for further information about this electronic handbook.
Kevin O'Connor Et Al., v Police Commission Of The Town Of Clarkstown et al, 221 AD2d 444
Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to 30.1.d of the Public Officers Law because he "ceased to be an inhabitant within the geographical restrictions" set by law. Section 30.1.d provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.* Clarkstown also discontinued paying O’Connor disability benefits pursuant to 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County.
O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.
Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable." Further, O’Connor could not cure this difficulty by returning and again becoming a resident of Rockland County or to a county contiguous to Rockland County.
The Appellate Division said that there was ample evidence to support the determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Town’s decision was neither arbitrary nor capricious.
The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."
* Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located. Subdivision 19 of Section 3.2 sets out residence provisions applicable to police officers of the City of New York.
_______________
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for further information about this electronic handbook.
The ground rules for individual holding two public offices simultaneously
The ground rules for individual holding two public offices simultaneously
Informal Opinions of the Attorney General, Informal Opinion 2000-9
Wondering if an attorney may simultaneously hold two different public offices? The answer: it depends on the situation!
The Attorney General recently advised Columbia County Attorney Beth A. O’Connor that an assistant county attorney could also serve as the mayor of a city located within the County (Informal Opinion 2000-9).
In contrast, the attorneys for Jefferson-Lewis BOCES were told that the office of district attorney was incompatible with that official’s membership on a BOCES or school board within his or her jurisdiction. [Informal Opinion 2000-13].
The standard applied by the Attorney General, citing Ryan v Green, 58 NY 295, is that except where prohibited by law, one person may hold two offices simultaneously unless they are incompatible.
What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.
In the assistant county attorney/mayor situation the Attorney General indicated that the two positions were compatible and based on the representation that the assistant county attorney would not engage in any legal matters involving the city, the duties of the two positions did not appear inconsistent.
In the district attorney/BOCES-school board situation, the Attorney General said that there appeared to be a conflict between the two offices in view of the district attorney’s broad discretion in determining when and in what manner to investigate suspected crimes. In addition, the Attorney General said that in view of the policy making functions involved in the BOCES/school board position, this dual office holding raises questions as to whether the district attorney can impartially carry out his [or her] broad prosecutorial discretion and, therefore, tends to undermine public confidence in the integrity of government.
In another dual office situation, the Attorney General concluded that an individual could simultaneously serve as a town assessor and as a member of a school board of a district that included the town [Informal Opinion 2000-14] because a town assessor determines the value of real property for the purposes of taxation while a school board member determines policy for the district.
Informal Opinions of the Attorney General, Informal Opinion 2000-9
Wondering if an attorney may simultaneously hold two different public offices? The answer: it depends on the situation!
The Attorney General recently advised Columbia County Attorney Beth A. O’Connor that an assistant county attorney could also serve as the mayor of a city located within the County (Informal Opinion 2000-9).
In contrast, the attorneys for Jefferson-Lewis BOCES were told that the office of district attorney was incompatible with that official’s membership on a BOCES or school board within his or her jurisdiction. [Informal Opinion 2000-13].
The standard applied by the Attorney General, citing Ryan v Green, 58 NY 295, is that except where prohibited by law, one person may hold two offices simultaneously unless they are incompatible.
What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.
In the assistant county attorney/mayor situation the Attorney General indicated that the two positions were compatible and based on the representation that the assistant county attorney would not engage in any legal matters involving the city, the duties of the two positions did not appear inconsistent.
In the district attorney/BOCES-school board situation, the Attorney General said that there appeared to be a conflict between the two offices in view of the district attorney’s broad discretion in determining when and in what manner to investigate suspected crimes. In addition, the Attorney General said that in view of the policy making functions involved in the BOCES/school board position, this dual office holding raises questions as to whether the district attorney can impartially carry out his [or her] broad prosecutorial discretion and, therefore, tends to undermine public confidence in the integrity of government.
In another dual office situation, the Attorney General concluded that an individual could simultaneously serve as a town assessor and as a member of a school board of a district that included the town [Informal Opinion 2000-14] because a town assessor determines the value of real property for the purposes of taxation while a school board member determines policy for the district.
Jan 18, 2011
Beware of Face Book
Beware of Face Book
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Can employers get access to your Face Book account? Increasingly, the answer may be yes. In a New York case, where the plaintiff's physical condition was at issue, a lower court judge ordered that a defendant be granted access, Romano v. Steelcase, Inc., ___Misc.3d____(Suffolk Co. 2010). See also, Law.com discussion.
There are also some cases granting disclosure of Face Book accounts in the context of attorney disciplinary proceedings as discussed in Legal Prof Blog.
Moral of the story: Beware what you post on the internet. It can come back to haunt you!
Mitchell H. Rubinstein
Hat Tip: Legal Writing Prof Blog
NYPPL Comments: See, also, Matson v. Board of Education of the School District of City of New York, USCA, 2nd Circuit, 09-3773-cv.
The Matson decision by the U.S. Second Circuit Court of Appeals concludes that “Not all ‘serious medical conditions’ are protected by a constitutional right to privacy” and is posted by NYPPL at http://publicpersonnellaw.blogspot.com/2011/01/not-all-serious-medical-conditions-are.html
.
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Can employers get access to your Face Book account? Increasingly, the answer may be yes. In a New York case, where the plaintiff's physical condition was at issue, a lower court judge ordered that a defendant be granted access, Romano v. Steelcase, Inc., ___Misc.3d____(Suffolk Co. 2010). See also, Law.com discussion.
There are also some cases granting disclosure of Face Book accounts in the context of attorney disciplinary proceedings as discussed in Legal Prof Blog.
Moral of the story: Beware what you post on the internet. It can come back to haunt you!
Mitchell H. Rubinstein
Hat Tip: Legal Writing Prof Blog
NYPPL Comments: See, also, Matson v. Board of Education of the School District of City of New York, USCA, 2nd Circuit, 09-3773-cv.
The Matson decision by the U.S. Second Circuit Court of Appeals concludes that “Not all ‘serious medical conditions’ are protected by a constitutional right to privacy” and is posted by NYPPL at http://publicpersonnellaw.blogspot.com/2011/01/not-all-serious-medical-conditions-are.html
.
At-will employee’s claims of wrongful termination and defamation rejected by court
At-will employee’s claims of wrongful termination and defamation rejected by court
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department
George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.
The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.
Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."
The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.
NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department
George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.
The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.
Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."
The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.
NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm
Federal Court sustains employer application for employee’s involuntary retirement for disability
Federal Court sustains employer application for employee’s involuntary retirement for disability
Campbell v City of New York, USDC, SDNY
Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.
Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.
Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.
Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.
The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:
1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.
2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.
3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.
4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.
5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.
6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.
7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.
8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.
In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.
Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.
Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.
The district court began its review by noting that:
1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;
2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and
3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.
The elements that must be weighed determining if the individual was provided due process are:
(1) the importance of the individual’s interest affected by the official action;
(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and
(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.
Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”
Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.
Campbell v City of New York, USDC, SDNY
Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.
Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.
Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.
Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.
The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:
1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.
2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.
3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.
4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.
5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.
6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.
7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.
8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.
In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.
Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.
Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.
The district court began its review by noting that:
1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;
2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and
3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.
The elements that must be weighed determining if the individual was provided due process are:
(1) the importance of the individual’s interest affected by the official action;
(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and
(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.
Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”
Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.
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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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For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
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