The ability of an “in-network” health care provider to sue an ERISA health benefit plan for breach of contract in state court depends on the nature of its claim

The ability of an “in-network” health care provider to sue an ERISA health benefit plan for breach of contract in state court depends on the nature of its claim

Montefiore Med. Ctr. v. Teamsters Local 272, 10-1451-cv, USCA 2^nd Circuit

The question presented in this appeal: May a healthcare provider’s breach of contract and quasi-contract claims against an ERISA health benefit plan were completely preempted by federal law under the two-prong test for preemption established in Aetna Health Inc. v. Davila, 542 U.S. 200?

The Davila two-prong test to determine whether a claim falls “within the scope” of §502(a)(1)(B). provides that claims are completely preempted by ERISA if they are brought:

a. by “an individual [who] at some point in time, could have brought his claim under ERISA § 502(a)(1)(B),”; and

b. under circumstances in which “there is no other independent legal duty that is implicated by a defendant’s actions.”

The Circuit Court noted that the test is conjunctive; i.e., a state-law cause of action is preempted only if both prongs of the test are satisfied.

The Circuit Court of Appeals ruled that:

1. An “in-network” health care provider may receive a valid assignment of rights from an ERISA plan beneficiary pursuant to ERISA §502(a)(1)(B)*;

2. Where a provider’s claim involves the right to payment and not simply theamount or execution of payment, i.e.,  where the claim principally implicates coverage and benefit determinations as set forth by the terms of the ERISA benefit plan, and not simply the contractually correct payment amount or the proper execution of the monetary transfer—that claim constitutes a colorable claim for benefits pursuant to ERISA §502(a)(1)(B).

In this instance, said the court, at least some of Montefiore's claims for reimbursement are completely preempted by federal law. However, the Circuit Court noted, the remaining state-law claims are properly subject to the exercise of the District Court’s supplemental jurisdiction.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/638f47ad-5866-4fe6-b0b7-de8642e536f7/1/doc/10-1451Complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/638f47ad-5866-4fe6-b0b7-de8642e536f7/1/hilite/

* 1 Section 502(a)(1)(B) provides, in relevant part: A civil action may be brought -- (1) by a participant or beneficiary -- (B) to recover benefits due to him [or her] under the terms of his [or her] plan, to enforce his [or her] rights under the terms of the plan, or to clarify his [or her] rights to future benefits under the terms of the plan.

Creating and abolishing a temporary position

Creating and abolishing a temporary position

Wilson v Madison-Oneida BOCES, 268 AD2d 625

Frequently a public employer will establish a temporary position to handle a particular need that is expected to be resolved in a relatively short period. The Wilson case addresses the creation and abolishment of temporary positions and the rights of individuals appointed to such temporary positions.

 The Madison-Oneida BOCES appointed Dana Wilson as “temporary clerk of the works” to perform construction oversight services for the Cazenovia Central School District and the Stockbridge Valley Central School District. The item was established as a temporary position in the civil service.*

BOCES initially wrote to Wilson telling him that his appointment was effective February 9, 1996 and would run through June 30, 1996. He was to be compensated at an annual salary rate of $40,000. BOCES later wrote Wilson advising him that he was appointed “temporary clerk of the works” for the period July 1, 1996 through June 30, 1997 at the same rate of compensation.

When the work at Cazenovia was nearing completion, Wilson commenced working at Stockbridge. When Stockbridge’s project was shut down due to poor weather conditions, Stockbridge asked BOCES to “adjust its contract” for clerk of the works services. As a result, BOCES abolished Wilson’s position effective January 17, 1997 and discontinued his employment.

Wilson sued, contending that BOCES violated its “employment agreement” to employ him through June 30, 1997 and, in addition, urged that it had terminated him without just cause.

The Supreme Court, treating this as an “Article 78” proceeding rather than as an action for “breach of contract,” dismissed his petition, finding that it was untimely. Wilson appealed.

First, the Appellate Division pointed out that the four-month Statute of Limitations contained in Section 217 of the Civil Practice Law and Rules is applicable to proceedings contesting the abolishment of positions in the public service. It then said that the time period to challenge the decision runs from the date abolition. Agreeing with the lower court, the Appellate Division said that Wilson’s Article 78 petition was untimely.

In an effort to avoid this result, Wilson tried to convince the court that this was a “breach of contract” case and thus his petition was timely as it was subject to a longer Statute of Limitations provision.

The Appellate Division rejected Wilson argument, holding that there was insufficient evidence to demonstrate a formal employment contract between Wilson and BOCES or the school districts. It said that the “employment notices” he relied do not establish the existence of such an agreement.

Thus, said the court, Wilson’s claims involve the abolition of the position of temporary clerk of the works, a matter that may be properly challenged only via an Article 78 proceeding.

According to the ruling, Wilson’s position was officially abolished effective January 17, 1997 at a meeting of BOCES held on February 13, 1997. The Appellate Division concluded that regardless of whether the four-month Statute of Limitations is measured from the date of the BOCES meeting or the effective date of abolition of the position, Wilson’s commencement of the action in January 1998 was untimely.

* The decision refers to Wilson’s temporary position as being in the “civil service” when it would be more accurate to describe it as being in the “classified service.” In New York, the civil service consists of the classified service and the unclassified service. Educators, typically serving in positions in the unclassified service, are also in the civil service. 

Disqualifying misconduct for the purposes of Unemployment Insurance benefits

Disqualifying misconduct for the purposes of Unemployment Insurance benefits

Matter of Jacquelyn M. Cody v Commissioner of Labor, 37 AD3d 920

Jacquelyn M. Cody, a tenured guidance counselor employed by the New York City Department of Education, was served with disciplinary charges pursuant Section 3020-a of the Education Law . The charges set out 42 specifications of misconduct for actions she committed during the 2001-2002 and 2002-2003 school years.

The Section 3020-a hearing panel found Cody guilty of 38 specifications of conduct unbecoming her profession.*

Terminated from her position, Cody applied for unemployment insurance benefits.

Ultimately, the Unemployment Insurance Appeal Board determined that Cody was disqualified from receiving such benefits because she lost her employment due to misconduct. Cody appealed the Board’s decision.

Citing Limoncelli [Commissioner of Labor], 32 AD3d 1066, the Appellate Division sustained the Board’s ruling. The court said that that “An employee's actions that are contrary to established policies and have a detrimental effect upon an employer's interests have been found to constitute disqualifying misconduct.”

Finding that there was substantial evidence in the record that Cody’s behavior represented “a departure from established procedures pertinent to faculty members engaged in similar activities or confronted by like circumstances,” the Appellate Division dismissed her appeal.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/disqualifying-misconduct-for-purposes.html

* According to the decision, Cody’s “transgressions include her failure to report the possession of illegal drugs by one of her students, attempts to surreptitiously distribute an unauthorized survey on school property, and 36 instances of improper revisions to student records or transcripts.”

Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations

Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations 

Matter of Cappellino v Town of Somers, 2011 NY Slip Op 03234, Appellate Division, Second Department

Cappellino v Town of Somers demonstrates, once again, that a disappointed individual’s reliance on a request for reconsideration of a final administrative decision to toll or extend the statute of limitations to file a timely appeal is misplaced

The Town of Somers and the Town of Somers Police Department denied a request submitted by James Cappellino and other individuals for reimbursement of the cost of their Medicare Part B benefits.

In an action characterized as “in the nature of mandamus,* Cappellino asked Supreme Court to order the Town of Somers to provide the appropriate amounts to reimburse them for those costs.

Supreme Court, however, never considered the merits of the petition, finding that it was untimely.

The Appellate Division agreed, explaining on June 18, 2009 Cappellino and the others involved in this action received “a final and binding determination within the meaning of CPLR 217(1), as it unequivocally denied the petitioners' request for reimbursement, and it therefore commenced the running of the statute of limitations.”

Cappellino and the other plaintiffs, however, did not commence this proceeding, until October 22, 2009, which was beyond the applicable four-month statute of limitations of CPLR 217(1). 

Although Cappellino contended that there were communications with the Town’s counsel after June 18, 2009, including an alleged request for further administrative review, neither such a request nor related correspondence extended or tolled the running of the statute of limitations.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03234.htm

* “Mandamus was one of a number of ancient common law writs and was issued by a court to compel an administrative body to perform an act required by law.

Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence

Employee’s claims of disparate treatment on the basis of gender, sexual harassment and retaliation by the employer dismissed for lack of sufficient evidence
Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 2011 NY Slip Op 03168, Appellate Division, Third Department

Robin Grovesteen was employed as a field representative by the New York State Public Employees Federation, a union representing various professional, scientific and technical employees of New York State, among others.

Grovesteen sued the Federation, alleging “disparate treatment on the basis of gender, sexual harassment and retaliation.” Supreme Court dismissed her petition and the Appellate Division affirmed the lower court’s action.

With respect to her claims of disparate treatment claim, Grovesteen alleged that because of her gender, she was, among other things, denied separate office space, required to conduct excessive training sessions, forced to cover work assignments in other regions, and denied direction, assistance and support from her supervisors.

As to her claims related to sexual harassment, Grovesteen said that the director of field services at the time she was hired, who eventually became her direct supervisor, made disparaging sexual remarks about her at the onset of her employment and that the elected regional coordinator in her region, who was a union member, created a sexually hostile environment by, among other things, voicing his opinion that plaintiff was hired because of her sexual relationship with another field representative and making inappropriate comments about her attire.

Lastly, Grovesteen contended that due to her disability and exercise of her rights under the Human Rights Law, the Federation retaliated against her by, among other things, closing the Region 7 office and contesting her claim for workers' compensation benefits.

The Appellate Division found that notwithstanding the fact that Grovesteen was a woman and thus a member of a protected class, the evidence she presented was insufficient to establish a prima facie case of sexual discrimination or harassment.

The court explained that “Even considering the totality of the alleged incidents in a light most favorable to [Grovesteen], the terms and conditions of her employment, which clearly caused her stress and frustration, were not so severe and pervasive as to create an adverse employment action in support of her claim of disparate treatment based on gender.

Turning to Grovesteen’s contention with respect to a hostile work environment, the Appellate Division said that there was not sufficient evidence to demonstrate that the conduct so permeated the workplace and altered the conditions of her employment as to support the claim of sexual harassment based on a hostile work environment. Further, said the court, although Grovesteen’s allegations demonstrate “the existence of personality conflicts and disagreements with the management's style, as well as the inherent demands and autonomous nature of being the only field representative in a large remote geographic region, the record does not demonstrate any material adverse change in her employment as a result of the alleged conduct warranting the inference of a discriminatory motivation.”

As to Grovesteen’s claim of retaliation, the Appellate Division ruled this aspect of her petition was also properly dismissed. Here, said the court, Grovesteen’s “sporadic complaints” during her employment are insufficient to establish that she was engaged in a protected activity, “particularly given the fact that no formal claim of unlawful discrimination was made until after the allegedly retaliatory action occurred.”

Finally, the court rejected Grovesteen’s argument that the Federation’s challenging her application for workers’ compensation benefits constituted retaliation within the meaning of the Human Rights Law, indicating that “an employer's exercise of its right to challenge a workers' compensation claim cannot be linked to a retaliatory motivation.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03168.htm

Unfair labor practices - protected activities

Unfair labor practices - protected activities

CSEA Local 1000 v PERB, 267 AD2d 935

CSEA appealed a determination by the New York State Public Employment Relations Board [PERB] that the Holbrook Fire District did not commit an improper employer practice when it disciplined one of its employees, Jason Feinberg.

The district had filed eight charges against Feinberg, a firehouse attendant, alleging misconduct and, or, incompetence pursuant to Section 75 of the Civil Service Law.

Feinberg was alleged to have “permitted unauthorized personnel in his work area, participated in inappropriate activities during work hours, failed to timely complete certain work assignments and follow standard operating procedures in performing certain work-related activities.”

CSEA filed an improper employer practice charge against the district pursuant to Civil Service Law Section 209-a with PERB on behalf of Feinberg. CSEA contended that the district had filed disciplinary charges against Feinberg “in retaliation for his efforts at organizing a union.”

While CSEA’s charges were pending before PERB, the disciplinary hearing officer issued a report and recommendation finding Feinberg guilty of six of the charges. The penalty recommended by the hearing officer: Feinberg should be terminated from his employment. The District accepted the hearing officer’s findings and recommendations and dismissed Feinberg.

CSEA and the district stipulated that rather than holding a separate hearing, the record of the proceedings conducted in connection with the disciplinary charges would be used by PERB’s Administrative Law Judge (ALJ) in resolving the improper practice charge. Finding that other employees who had engaged in similar misconduct had not been disciplined by the district, the ALJ ruled that the district “had committed an improper practice by discharging Feinberg in retaliation for protected union activities.” PERB reversed its ALJ’s ruling.

PERB said that “the ALJ should have deferred to the findings of the hearing officer that the charges against Feinberg were brought by the District for proper business reasons and not to retaliate against him for his organizing activities”.

The Appellate Division initiated its review of CSEA’s appeal from PERB’s ruling by noting that “the relevant inquiry in a proceeding pursuant to Civil Service Law Section 75 is very different than that in an improper practice proceeding under Civil Service Law Section 209-a.” The court, citing City of Albany v Public Employment Relations Board, 43 NY2d 954, said:

1. In considering an appeal involving Section 75, the focus is upon whether there was cause for the employee’s dismissal.

2. In considering an appeal involving Section 209-a, the focus it is whether the employer‘s action was motivated by anti-union animus and “it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed.”

The Appellate Division said that PERB relied upon its policy of deference and the disciplinary hearing officer’s determination when it reversed ALJ’s determination.

However, said the court, its review of the decision in the Section 75 proceeding indicates that the disciplinary hearing officer “did not fully consider the dispositive issue in the improper practice proceeding, i.e., whether Feinberg’s firing was improperly motivated.” Accordingly, the Appellate Division said that “PERB’s deference to the [Section 75] Hearing Officer’s findings as the sole basis in resolving the improper practice charge was inappropriate.”

The Appellate Division annulled PERB’s determination and remanded the case to PERB “for an independent review of the ALJ’s decision of [CSEA’s] improper practice charge in light of all the evidence contained in the record of the Civil Service Section 75 proceeding.”

Transfer of functions

Transfer of functions

Metacarpa v Johnston, App. Div., Third Dept., 268 AD2d 938

[decided with Terrusa v Wing, 268 AD2d 938]

In 1997 the Department of Social Services [DSS] was dissolved and its functions were distributed among one existing State agency -- the Department of Health [DOH] and -- and two newly created State agencies -- the Office of Children and Family Services [OCFS] and the Office of Temporary and Disability Assistance [OTDA].

Some of the former DSS employees (the Metacarpa plaintiffs) were transferred to OCFS while others (the Terrusa plaintiffs) were transferred to OTDA.

The basic argument advanced in both actions: because these employees were engaged in Medicaid audit functions, which were transferred to DOH, Civil Service Law Section 70.2 required that they be transferred to Health rather than to other agencies.

The Appellate Division said that the sole issue to be determined was whether the determinations transferring these employees to either OCFS or OTDA were arbitrary, capricious or affected by error of law.

The court commenced its review by stating that the transfer of employees under Section 70(2) of the Civil Service is controlled by the State Department of Civil Service’s State Personnel Management Manual. The manual provides that the agency losing the function [here DSS], after consultation with the gaining agencies [i.e., OCFS and OTDA] and the appropriate control agencies [presumably Civil Service Department and the Division of the Budget], determines which employees in which titles are ‘substantially engaged in the performance of the function’ to be transferred.”

Addressing the objections raised by the Metacarpa and Terrusa plaintiffs with respect to their inclusion on the list of employees to be transferred to OCFS or OTDA and their exclusion from the DOH list, the Appellate Division found that: 

1. DSS employees who worked in defined program units within DSS (2,285 out of the total 4,450 DSS employees) followed those units when entire program units were transferred; and

2. The Metacarpa and Terrusa plaintiffs were determined not to work in a particular program unit because they carried out functions and duties, which supported a variety of programs and thus held “generic administrative support positions.” 

The court took special note of the fact that the Manual stated that “.... interdepartmental titles which primarily provide support of a variety of functions ... shall not generally be considered to be substantially engaged in the function being transferred.”

In other words, the duties of the Metacarpa and Terrusa plaintiffs were not sufficiently limited in scope so as to be deemed “substantially engaged in the functions transferred to Health.

This guideline, said the court, was “not irrational.” Further, the Appellate Division pointed out that former DSS officials making the transfer decisions had determined that the Metacarpa and Terrusa petitioners’ respective expertise and experience relating to Medicaid were not necessary for the continuation and integrity of the Medicaid program, which had been transferred to DOH.

Noting that a number of the plaintiffs “tacitly acknowledge” this point by arguing that the same “could be said” of others transferred to DOH, the Appellate Division decided that the rejection of the Metacarpa and Terrusa plaintiffs’ objection to the administrative decision was neither irrational nor arbitrary. The Supreme Court’s dismissal of the petitions was affirmed.

Untenured employee must demonstrate his or her termination was made bad faith or for an unlawful reason in order to successfully challenge his or her dismissal

Untenured employee must demonstrate his or her termination was made bad faith or for an unlawful reason in order to successfully challenge his or her dismissal

Shih v Waterfront Commn. of N.Y., 2011 NY Slip Op 03190, Appellate Division, First Department

As Conrad Shih’s status as an auditor with the New York City Waterfront Commission was not within the Commission’s definition of a "permanent employee" Supreme Court ruled that Shih was not entitled to the due process protections of a “permanent employee” i.e. a pretermination hearing.

The Appellate Division agreed with the lower court determination that the Commission’s terminating Shih without such a hearing was neither arbitrary nor capricious.

Key to the Appellate Division’s decision was Howard v Wyman, 28 NY2d 434. In Howard the Court of Appeals said that “An agency has broad power to construe and interpret its own rules” and its interpretation must be upheld where, as here, it is rational.

As a nontenured employee, said the court, Shih was not entitled to a full adversarial hearing concerning the reasons for his termination. Further, the Appellate Division said that Shih “failed to show that his termination was for an improper reason or in bad faith,” citing Beneky v Waterfront Commn. of N.Y. Harbor, 42 NY2d 920, Certiorari denied 434 US 940.

Applying the “Pell Doctrine,”* the court ruled that “Given [Shih’s] attempt to steal a DVD from a music store and failure to report his arrest on related charges, we cannot say that the penalty imposed was so disproportionate to the offense as to shock one's sense of fairness.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03190.htm

* Matter of Pell v Board of Education, 34 NY2d 222.

Vacating a disciplinary arbitration award

Vacating a disciplinary arbitration award

Roemer v NYC Bd. of Ed., 268 AD2d 479, Motion for leave to appeal denied, 94 NY2d 763

The Roemer decision serves as a reminder that the grounds for appealing a Section 3020-a disciplinary determination are very limited. In order to overturn a Section 3020-a arbitration award, it is necessary to prove that one or more of the statutory reasons set out in Article 75 of the Civil Practice Law and Rules for vacating the award exist.

Under Article 75, [Section 7511.b] an arbitrator’s award can be vacated if a court finds that the rights of a party were violated because of corruption, fraud or misconduct in obtaining the award; the arbitrator was not impartial; to one party; the arbitrator exceed his or her powers or so imperfectly exercised them that a final determination was not made or the arbitration procedures were not followed [unless the party objecting to the award continued with the arbitration without objection after becoming aware of the defect].

Here David Roemer, a New York City schoolteacher, was terminated after the Section 3020-a arbitrator found him guilty of charges of incompetence and insubordination. He attempted to vacate the award. However, the Appellate Division sustained the Supreme Court’s dismissal of Roemer’s petition to vacate the award because Roemer “did not demonstrate” any basis for vacating the award under Section 7511.

In addition to the limited grounds for vacating the arbitration award set in Section 7511, Section 3020-a set a very short statute of limitations for filing a petition to overturn or modify the award as well as settling other limitations in such cases. Section 3020-a.5 sets out the following limitations with respect to challenging a Section 3020-a disciplinary determination:

1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.

2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed final for the purpose of such proceeding.

3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Point 3 is particularly significant as it allows the appointing authority to impose the penalty determined by the arbitrator while the decision is being challenged.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Accidental disability retirement benefits application based on a training-related injury

Accidental disability retirement benefits application based on a training-related injury

Geraci v Hevesi, 37 AD3d 941

Joseph Geraci, a police officer, injured his left knee while participating in training course. Geraci said that his injury occurred when his left foot sank into an exercise mat and his sneaker gripped the mat, thereby causing his left leg to twist as he attempted to move to his right.

Claiming that the injury resulted from an accident, Geraci applied for accidental disability retirement benefits. The Retirement System’s hearing officer found that Geraci failed to establish that the incident resulting in his injury constituted an accident within the meaning of the Retirement and Social Security Law. The State Comptroller accepted the Hearing Officer's findings and conclusions, and disapproved Geraci ’s application for accidental disability retirement benefits.

The Appellate Division confirmed the Comptroller’s determination. The court said that based on its review of the record, “we cannot characterize the subject incident as a “'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'“ that would support a finding that Geraci’s injury resulted from an accident.

Rather, said the court, Geraci ’s injury “was the result of a training program constituting an ordinary part of petitioner's job duties and the normal risks arising therefrom,” citing Matter of Felix v New York State Comptroller, 28 AD3d 993, and other rulings.*

For the full text of the opinion, go to:

http://www.nycourts.gov/reporter/3dseries/2007/2007_01046.htm

* The Appellate Division also commented that “regarding [Geraci’s argument concerning] the inappropriateness of his footwear, even if accepted, would not transform the incident into an accidental event.”

Payment of unreimbursed medical expenses permitted by the Internal Revenue Code via a “Health Reimbursement Arrangement Plan” held not the same as health insurance premiums

Payment of unreimbursed medical expenses permitted by the Internal Revenue Code via a “Health Reimbursement Arrangement Plan” held not the same as health insurance premiums

Kathleen Rockwell et al v Broadalbin-Perth Central School District, Supreme Court, Fulton County, Judge Joseph M. Sise, Decision [RJI #27-1-2009-05091. Motion #13, April 18, 2011]

The Broadalbin-Perth Central School District was providing active employees and their dependents represented Broadalbin-Perth Teacher’s Association with health insurance. Upon retirement, the District continued to provide the same level of benefit to Association retirees and their dependents.

The District and the Association then entered into a “memorandum of understanding” that modified the District’s Health Insurance Plan. One of the key components of the new plan, and the focus of this litigation, was the creation of a “District-funded Health Reimbursement Arrangement" [HRA] providing for the payment of unreimbursed medical, dental, and other allowable expenses "permitted by the Internal Revenue Code."

The HRA provided for an annual contribution of $500 by the District for each employee in the negotiating unit to the individual’s HRA. It also featured a “rollover” permitting the HRA account to accumulate up to a $10,000 “maximum balance cap.” Upon retirement the plan provided for a one-time $3,000 HRA contribution. While a retiree could submit qualified medical expenses for reimbursement from his or her HRA fund, no additional contributions would be made to their HRA.

Contending that HRA with respect to retirees violated the mandates set out in Chapter 30 of the Laws of 2009,* Rockwell sued the District seeking a court order to compel the District to reimburse the retirees affected by the change for certain medical care expenses they had incurred as a result of the implementation of the HRA program.

The thrust of Rockwell's argument was that District's HRA contribution for retirees violated Chapter 30 insofar as it provided a different level of benefit for retirees than it did for active employees. Judge Sise disagreed.

The court said that HRA accounts only provide a means for active members to pay their unreimbursed medical and other qualified expenses and that the District’s contributions to an HRA account, or the possibility of underwriting the cost of insurance copayments from an HRA account, were not within the scope of, or in violation of, Chapter 30 as claimed by Rockwell.

Further, said the court, Rockwell failed to show that the retirees had sustained any diminution of health insurance benefits greater than those experienced by active employees as a result of the implementation of the HRA for both active employees and retirees of the District.

Indeed, said Judge Sise, the District demonstrated that “even considering the $500 annual HRA contribution … retirees are each still saving an average of $264.17 more per year [in health insurance costs] than each active employee” and dismissed Rockwell's petition.

* Chapter 30 of the Law of 2009 temporarily** extended the provisions of §1 of Chapter 566 of the Laws of 1967, which Chapter, in pertinent part, provided that BOCES and school districts could not diminish the health insurance benefits and employer contributions for such benefits provided to retirees “unless a corresponding diminution of benefits or contributions is effected from the present level … from the corresponding group of [active] employees….”

** N.B. Part B of §14 of Chapter 504 of the Laws of 2009 made this provision "permanent."

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Guidelines followed in determining if an individual was provided administrative due process in a quasi-judicial hearing

Guidelines followed in determining if an individual was provided administrative due process in a quasi-judicial hearing

Matter of Hildreth v New York State Dept. of Motor Vehicles Appeals Bd., 2011 NY Slip Op 03066, Appellate Division, Second Department

In considering this appeal from an adverse administrative decision that resulted in the  revocation of Wilbur Hildreth’s driver's license pursuant to Vehicle and Traffic Law §1194 for one year as the result of his refusal to submit to a chemical blood-alcohol test, the Appellate Division addressed a number of issues concerning administrative adjudication procedures.

The court said that:

1. In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination;

2. Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;

3. The courts may not weigh the evidence or reject the choice made by an administrative agency where the evidence is conflicting and room for choice exists; and

4. Unlike the constitutional right to confrontation in criminal matters, parties in administrative proceedings have only a limited right to cross-examine adverse witnesses as a matter of due process.

In response to Hildreth’s argument that the administrative proceeding should have been dismissed” for failure to hold a hearing within a reasonable time as required under the State Administrative Procedure Act §301 or within six months from the date the DMV received notice of his chemical test refusal as required under 15 NYCRR 127.2(b)(2),” the Appellate Division said that the time limitations imposed on administrative agencies by their own regulations are not mandatory.

Unless the individual can show the delay caused “substantial prejudice,” he or she is not  entitled to relief for an agency's noncompliance with its own “time limits” controlling the proceeding.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03066.htm

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Crediting prior public service upon reemployment by a public employer

Crediting prior public service upon reemployment by a public employer

Cherniak v Office of Court Administration, 269 A.D.2d 680

From time to time an individual will claim that he or she should be given credit for certain benefits, typically for the purpose of determining salary or member service in a retirement system, based on his or her prior service with another public employer. A claim for “service credit for salary” based on prior state service was the basic issue considered by the Appellate Division in the Cherniak case.

Samuel A. Cherniak, then an employee of the Unified Court System [OCA], accepted an appointment as an Assistant Attorney-General [AAG] with the State Law Department and served as an AAG until October 1995. In early 1998 OCA appointed him to the position of Court Attorney. OCA credited Cherniak with his OCA service prior to his employment as an AAG in setting his rate of compensation. However, said OCA, such credit upon reinstatement was allowed only for OCA service and it refused to give him any credit for his AAG service with the New York State Department of Law.

OCA gave Cherniak two reasons for it action. First, OCA’s rules allowed it to grant such credit upon reinstatement of former OCA employees. Second, the Comptroller’s policy allowed non-OCA prior State service to be given only to an employee who returned to public service within one year. Cherniak appealed, challenging the Comptroller’s interpretation of “continuous service” to mean a “break in service for salary determination” of one year or less.

Both the Section 37.8 of the Judiciary Law and Section 131.5 of the Civil Service Law allow for approving salary rates greater then the minimum of the salary grade for the position upon “reinstatement” for individuals having “continuous service.”

Was the Comptroller’s interpretation of the term “continuous service” reasonable?

The Appellate Division thought it was. Pointing out that purpose of these provisions is to encourage employees to remain in State service, the court said that “the Comptroller’s policy promotes that purpose by allowing salary credit for prior service where an employee returns to State service after a brief break in service, but not where there is a substantial break in service.”

Cherniak tried to persuade the Appellate Division that the Comptroller’s interpretation was irrational, contending that there was no particular reason for the Comptroller’s selection of one year as the limit for a break in service.

The court disagreed, holding that it was rational for the Comptroller to construe the statutory phrase “continuously occupying” a position as encompassing “a relatively brief break in service” -- one year -- while no rational construction of the phrase would encompass Cherniak’s 2 1/2 year break in service.

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Eligibility for overtime

Eligibility for overtime

Spradling v City of Tulsa, CA10, 95 F.3d 1492

The U.S. Circuit Court of Appeals for the Tenth Circuit has rejected a claim by district fire chiefs employed by Tulsa, Oklahoma, for overtime payments under the Fair Labor Standards Act [FLSA].

The district chiefs claimed that such payments were required by the FLSA. The circuit court disagreed, ruling that the chiefs were “bona fide executive, administrative, or professional employees” within the meaning of FLSA and therefore not subject to its overtime provisions. In other words, they were “exempt” employees.

In Alden v Maine, 527 U.S. 706, the U.S. Supreme Court held that the Eleventh Amendment bars state employees suing their state employer in federal court without the state’s consent.

However, in Alden the court noted an “important limitation” to the principle of sovereign immunity under the Eleventh Amendment -- such immunity does not cover “lesser entities” such as political subdivisions of a state.

In the words of the Supreme Court, “[t]he immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.”

The City of Tulsa case demonstrates that federal courts will continue to hear claims brought by public employees alleging violations of the Fair Labor Standards Act involving a political subdivision of a state that is not an “arm of the state.”

However, it could be argued that because sworn officers serving with a municipal police department are exercising “the police powers of the state,” their employer is “an arm of the state” and thus the municipality has Eleventh Amendment immunity from law suits in federal court.
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Individual’s “lack of remorse and refusal to take responsibility” for misconduct considered by the court in affirming hearing officer’s disciplinary determination

Individual’s “lack of remorse and refusal to take responsibility” for misconduct considered by the court in affirming hearing officer’s disciplinary determination

Cipollaro v New York City Dept. of Educ., 2011 NY Slip Op 03131, Appellate Division, First Department

Barbara Cipollaro was served with disciplinary charges pursuant to §3020-a of the Education Law by her employer, the New York City Department of Education, alleging that she had knowingly defrauded Department of $98,000 over a two-year period by enrolling two of her children in New York City public schools while she and her family lived in Westchester County.

The hearing officer found Cipollaro guilty of the charges and she was terminated from her position.

Cipollaro filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking a court order vacating hearing officer decision and the penalty imposed.

The Appellate Division ruled that there was no basis to disturb the Hearing Officer's determination. Significantly the court said that in view of Cipollaro’s “lack of remorse and failure to take responsibility for [her] actions, as well as the harm caused by her actions, the penalty of dismissal, even if there was an otherwise adequate performance record, cannot be said to shock the conscience” [of the court].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03131.htm

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Independent Contractors vs. Employees

Independent Contractors vs. Employees

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.

The line between who is and who is not an employee is often a blur. However, it is an important line to draw as it can have consequences. Non-employees are not protected under our employment laws and are often not eligible for employee benefits.

IRS Gets Class Conscious is an interesting April 2011 article from the ABA Journal which addresses some of these issues. Of significant note is that both the IRS and the DOL are cracking down on employee misclassification. So, employers beware!

Mitchell H. Rubinstein

Randall comments: The ABA Journal article refers to a “20-factor IRS” for guidance when classifying individuals as workers or independent contractors.

An employer must generally withhold income taxes; withhold and pay social security and Medicare taxes; and pay unemployment taxes on wages paid to an employee. An employer does not generally have to withhold or pay any taxes on payments to independent contractors.

To help determine whether an individual is an employee under the common-law rules, the IRS has identified the 20 factors set out below as guidelines in determining whether sufficient control is present to establish an employer-employee relationship.

These factors should be considered guidelines. Not every factor is applicable in every situation, and the degree of importance of each factor varies depending on the type of work and individual circumstances. However, all relevant factors are considered in making a determination, and no one factor is decisive.

The 20 factors indicating whether an individual is an employee or an independent contractor are:

1. Instructions. An employee must comply with instructions about when, where, and how to work. Even if no instructions are given, the control factor is present if the employer has the right to control how the work results are achieved.

2. Training. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.

3. Integration. An employee's services are usually integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.

4. Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.

5. Hiring assistants. An employee works for an employer who hires, supervises, and pays workers. An independent contractor can hire, supervise, and pay assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.

6. Continuing relationship. An employee generally has a continuing relationship with an employer. A continuing relationship may exist even if work is performed at recurring although irregular intervals.

7. Set hours of work. An employee usually has set hours of work established by an employer. An independent contractor generally can set his or her own work hours.

8. Full-time required. An employee may be required to work or be available full-time. This indicates control by the employer. An independent contractor can work when and for whom he or she chooses.

9. Work done on premises. An employee usually works on the premises of an employer, or works on a route or at a location designated by an employer.

10. Order or sequence set. An employee may be required to perform services in the order or sequence set by an employer. This shows that the employee is subject to direction and control.

11. Reports. An employee may be required to submit reports to an employer. This shows that the employer maintains a degree of control.

12. Payments. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job or on straight commission.

13. Expenses. An employee's business and travel expenses are generally paid by an employer. This shows that the employee is subject to regulation and control.

14. Tools and materials. An employee is normally furnished significant tools, materials, and other equipment by an employer.

15. Investment. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.

16. Profit or loss. An independent contractor can make a profit or suffer a loss.

17. Works for more than one person or firm. An independent contractor is generally free to provide his or her services to two or more unrelated persons or firms at the same time.

18. Offers services to general public. An independent contractor makes his or her services available to the general public.

19. Right to fire. An employee can be fired by an employer. An independent contractor cannot be fire so long as he or she produces a result that meets the specifications of the contract.

20. Right to quit. An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.

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Assignment of personnel

Assignment of personnel

Westchester Co. v Westchester Co. Correction Officers Benev. Asso., Inc., 269 AD2 528

Sometimes an arbitrator will make an award that sets out terms and conditions with respect to the assignment of personnel. In deciding Westchester, the Appellate Division identified some of the limitations on the authority of an arbitrator to require such placements or assignments.

A hearing was held to determine if Westchester County correction officer Elsie Vallespi should be reinstated from disability leave. Vallespi had been placed on such leave pursuant to Section 207-c of the General Municipal Law.

Vallespi was placed on Section 207-c leave after she alleged that she suffered “psychological ramifications” as a result of a “verbal assault” by a supervisor. She returned to her job a few months later but on the day she returned she “had incidental contact with the same supervisor” and, as a result, again went out on an extended disability leave.

The arbitrator decided that Vallespi could now be reinstated “without restriction”, provided that “she is assigned to (1) the Women’s Unit for the 3-11 pm shift; (2) [the supervisor] is assigned to another shift or to a different unit; and (3) for the first 30 days of [Vallespi’s] return, [the supervisor] is not to be assigned on overtime more than once to the same shift and unit as [Vallespi]”.

The county objected and filed an Article 75 petition seeking to vacate the arbitration award. The Appellate Division affirmed a lower court’s order modifying the arbitration award by striking the assignment limitations directed by the arbitrator.

Agreeing with the Supreme Court, the Appellate Division said that “the arbitrator lacked the authority to direct how and when the County could assign its correction officer personnel.” Imposing such conditions, said the court, violated a strong public policy.

The court held that the terms and conditions set by the arbitrator “usurped the authority of the Westchester Department of Correction to determine where and when to assign its correction officer personnel.”

Considering the need to manage and control of the County’s prison population, “it would be imprudent to allow a third-party such as an arbitrator to determine the placement of correction officers....”

Clearly here the court was influenced by the special and unique duties of correction officers and the responsibility of the county to maintain security of its prison population. In another situation, such as directing the assignment or placement of individuals not having such security responsibilities, the courts probably would confirm an arbitration award providing for the particular assignment of an individual.

The courts may apply the rationale set out in Westchester in cases involving arbitration awards affecting the assignment of teachers and other public employees having specializes duties or for which special qualifications have been established.

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Employment at will

Employment at will
DiLacio v New York City District Council of United Brotherhood of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department

In this action George DiLacio, Jr. sued the District Council in an effort to recover damages for alleged wrongful termination of employment and defamation.

The Appellate Division ruled that both complaints should have been dismissed.

With respect to DiLacio allegations concerning “wrongful termination,” the court pointed out that he had served as “an employee at will.” Citing Murphy v American Home Prods. Corp., 58 NY2d 293, the Appellate Division ruled that DiLacio’s allegation that the District Council had violated their duty to terminate his employment "only in good faith and with fair dealing" failed to state a recognized cause of action under New York law.

Under New York law, "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."

Unless the individual has a statutory or contractual right to a pre-termination hearing he or she may be terminated at any time so long as the termination is not otherwise unlawful under State or federal law.

As to DiLacio’s defamation claim, the court said that although the termination letter containing the phrase "severe dereliction of duty," it had not been published to anyone other than DiLacio himself.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm

Contracting out a negotiating unit's work

Contracting out a negotiating unit's work
Vestal Employees Asso., NEA/NY v Vestal CSD, 94 N.Y.2d 409

Management may attempt to “contract out” work claiming that to do so is more efficient or less expensive or because the tasks are “too technical” for its employees to perform. Unions typically object to contracting out, contending that its unit members can perform the tasks as well or better than “outsiders” and that it is more economical to use unit members than to go outside the organization for this purpose.

Suppose a school district asks a BOCES to enter into a contract to perform services that the school district’s employees are current performing. Is such “contracting out” of services a mandatory subject of collective bargaining within the meaning of the Taylor Law? This was the critical question in the Vestal Employees Association case. The ruling sets out the tests that the Court of Appeals said should be used in deciding such issues.

Typically the contracting out of exclusive unit work is a mandatory subject of collective bargaining. Further, if the work to be contracted out is not “exclusive unit work,” the impact of such action of the collective bargaining unit may constitute a mandatory subject to negotiations under the Taylor Law.

In deciding the Vestal case, the Court of Appeals, following the rationale set out in its ruling in Webster Central School District v PERB, 75 NY2d 6, confirmed an exception this general rule -- where legislative scheme provides for such contracting out, as in the case of a school district-BOCES contract arrangement, the employer may unilaterally decide to “sub-contract” work to a BOCES.

In the Webster case the Court of Appeals held that Education Law Section 1950(4)(bb) allowed a school district to substitute BOCES summer school programs for its own summer school programs without first undertaking collective bargaining with its teachers’ unions.

In Vestal, the high court said that another provision set out in the same section, Section 1950(4)(d), allows a school district to contract with a BOCES to perform printing services then being performed by one of its own employees without first negotiating the change with the union.

The case began in September 1995, when the Vestal Central School District “contracted” for printing services with the Broome-Tioga BOCES. The decision indicates that the single Vestal district employee affected by the printing contract agreed to transfer to the BOCES and currently provides printing services for Vestal and a second school district.

The Vestal Employees Association filed an improper practice charge with the Public Employment Relations Board [PERB]. PERB’s Administrative Law Judge ruled that the district’s action constituted an improper practice and that it could not unilaterally subcontract out printing services performed exclusively by a bargaining unit employee (Matter of Vestal Employees Association, 30 PERB 4514).

On appeal, PERB reversed the ALJ’s ruling (Matter of Vestal Employees Association, 30 PERB 3029), holding that Section 1950(4)(d) allows unilateral changes of shared noninstructional services. PERB relied on the Commissioner of Education’s approval of the contract as evidence that “the printing services in issue in this case fall within the ‘other services’ authorized by the statute.”

Although a state supreme court justice sustained PERB’s ruling, the Appellate Division reversed, holding that “the broad scope of the Commissioner’s authority to approve cooperative services contracts could not overcome the Taylor Law’s mandate for public sector employment collective bargaining [Matter of Vestal Employees Association, 260 AD2d 699]. The Court of Appeals overturned the Appellate Division’s holding, reinstating PERB’s determination.

The high court said that the answer turned on whether or not printing falls within the scope of Section 1950(4)(d)(1). If it does, the statute must be examined to determine if there is any indication of a legislative intent that a school district’s decision to subcontract printing services was to be a mandatory subject of collective bargaining.

The Court of Appeals concluded that “[i]t is evident from the statute that the Legislature did not intend to limit the ‘available shared services’ to those enumerated in the statute” and delegated responsibility to the Commissioner of Education to identify the types of services that can be shared by school districts for the benefit of students. Accordingly, the statute does not limit contracts for “such other services as the commissioner may approve” to those that are “educational” or “nurturing” and therefore allows a school district to enter into a contract with a BOCES for such non-instructional services as printing.

In support of this view, the court noted that in 1996 the Legislature specifically limited the Commissioner’s discretion to approve school district/BOCES contracts in specified areas. Chapter 474 of the Laws of 1996 sets out the activities which “the commissioner shall not be authorized to approve as aidable shared services.”

Since printing does not fall within the list of prohibited “shared services,” and is a type of service that would promote the policy underlying the statute, the Court of Appeals concluded that “that printing falls within ... a service the Commissioner may approve to be offered on a cooperative basis by BOCES.”

The bottom line: the court decided that the statutory scheme embodies a legislative intent that a school district’s decision to subcontract printing services be exempt from collective bargaining.

This ruling has significant implications with respect to a school district’s plans to have a BOCES provide services that the district itself is then providing utilizing its own work force.

However, the court pointed out that Section 1950(4)(bb), which controlled in the Webster case, incorporated the job protection provisions. In contrast, the Court of Appeals noted that Section 1950(4)(d) “does not expressly refer to any job protection provisions for public employees whose jobs are transferred to a BOCES district as a result of a shared services contract.”

Here, however, the Vestal employee, an employee in the classified service, was “afforded certain protections upon the transfer of his functions as provided by Section 70.2 of the Civil Service Law. According, said the court, “[w]e need not explore the exact scope of the employee’s rights under Civil Service Law Section 70(2) because his Civil Service status has not been affected by the transfer and no allegation has been made to the contrary.”

This suggests that the courts might apply a stricter standard in situations where the contract has an adverse impact on the employment situations of the employees affected by the change.

A program takeover by BOCES pursuant to Education Law Section 3014-a involving classified service personnel is considered a transfer pursuant to Section 70 of the Civil Service Law. Accordingly, the Court of Appeals said that “the broad recognition that BOCES program takeovers are to be considered transfers under Section 70 implies that any action taken by BOCES pursuant to Section 1950 of the Education Law will not be subject to collective bargaining.” 

Filing of disciplinary charges against an employee must timely

Filing of disciplinary charges against an employee must timely

Transit Authority v Campbell, OATH Index No. 343/00

As a general rule, a statute of limitations continues to run with respect to the deadline for filing a timely action in the proper forum even if the complaint has been filed in a different, but incorrect, forum or notwithstanding the fact that another action is pending. This point was made clear to the Transit Authority when OATH Administrative Law Judge Ray Fleischhacker vacated Section 75 disciplinary charges it had filed against Colette Campbell as untimely.

In 1996 the New York City Transit Authority reassigned Campbell to a lower grade position. Campbell filed an Article 78 petition claiming the action constituted a disciplinary demotion, in violation of her Section 75 rights to due process. The court agreed, finding the Authority’s action constituted disciplinary action within the meaning of Civil Service Law Section 75.

It was conceded that on August 16, 1996, without a hearing, and as a result of the events which form the basis for the charges in this case, the Authority reassigned the respondent from a Level II supervisor to a Level I supervisor, with a significant cut in pay.

The Appellate Division rejected the Authority’s argument that “its action was a transfer permitted by Personnel Director rules without resort to a hearing” [Campbell v NYC Transit Authority, 253 AD2d 813], holding that Campbell was entitled to a Section 75 disciplinary hearing. The Court of Appeals denied the Authority’s petition to appeal on April 29, 1999 [93 N.Y.2d 805].

In July 1999 the Authority served Campbell with disciplinary charges setting out eight specifications of misconduct alleged to have occurred between May and August 1996. ALJ Fleischhacker, however, ruled that the agency’s delay in serving the charges until appeals related to the 1996 Article 78 action had been exhausted meant that they were filed too late.

Campbell contended that the statute of limitations in Section 75 began to run upon the commission of the alleged misconduct, was never tolled, and expired well before any charges were served. The Authority, on the other hand, argued that it was not until its effort to appeal the Appellate Division determination was denied by the Court of Appeals that it was obliged to serve charges.

Civil Service Law section 75(4) provides that “[n]otwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges . . ., provided, however, that such limitation shall not apply where the incompetency or misconduct complained of and described in the charges, would, if proved in a court of appropriate jurisdiction, constitute a crime.”*

Pointing out that all the Authority had to do “to toll the statute of limitations was to draft and serve the revised charges” in 1996, Judge Fleischhacker found that the Authority was time-barred from proceeding against Campbell.

Judge Fleischhacker said that a number of action could toll the running of the statute of limitations set out in Section 75, including:

1. An employee may be estopped to plead the Statute of Limitations where the employer was induced by fraud, misrepresentations or deception to refrain from filing a timely action;”

2. Where the misconduct constitutes “a continuing violation;” or

3. The parties can agree to extend limitations periods [but a court cannot, although a court order staying the disciplinary action tolls the running of the statute of limitations].

In contrast, the withdrawal of charges filed against an individual does not toll the statute of limitations insofar as “refilling such charges” at a later date is concerned.

* The statute of limitations for State employees designated “managerial or confidential” within the meaning of the Taylor Law is one year except where the charges, if proved in a court of appropriate jurisdiction, constitute a crime, in which case the one-year limitation would not apply.

Injury at the worksite

Injury at the worksite

Crockett v Safir, 269 AD2 227

Donna Crockett, a New York City police officer, was injured while on duty. She was “brushing her teeth in the ladies’ room of a police building.” A mirror dislodged and struck her.

Crockett’s asked that her injury be designated as “line-of-duty,” thereby entitling her reimbursement for her hospital bills. Her request was denied. The Commissioner ruled that Crockett was not “actually employed in discharging the orders of a superior officer at the time of the accident,” as required by the statute.

The Appellate Division affirmed the Commissioner’s decision, holding that his interpreting the statute to exclude personal hygiene not undertaken at the direction of a superior officer was not irrational. If, said the court, benefits were to be provided for any accidental injuries sustained while on duty by police officers, the Administrative Code would have so provided or at least used language similar to the “city-service” language used in Section 13-252 of the city’s Administrative Code concerning accident disability retirement.

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Negotiating paid religious holidays

Negotiating paid religious holidays

Port Washington UFSD v Port Washington TA, App. Div., 268 AD2d 523; motion to appeal dismissed, 95 NY2d 761, motion to appeal on Constitutional grounds dismissed 95 NY2d 790

According to the Appellate Division, Second Department’s ruling in the Port Washington Union Free School District case, a Taylor Law contract provision allowing an individual to be absent on a religious holiday with pay without charging his or her absence to leave credits violates the First Amendment.

In the course of collective bargaining under the Taylor Law, Port Washington agreed to include a “Religious Holiday” provision in the agreement.*

The contract clause allowed a teacher to be absent with pay on “any of the religious holidays designated by the New York State Commissioner of Education” without charging his or her absence to leave credits. To receive this benefit the teacher had to submit a written request to absent himself or herself for the holiday.

In September 1997, however, the district advised teachers who had requested paid days off for religious observance that the district would not implement the Religious Holidays provision in the contract “because it was unconstitutional.”

The district said that if a teacher wished to be absent for a religious observance, he or she would be required to charge the absence to his or her appropriate leave credits or request to be placed on a leave without pay for the duration of the absence.

Six teachers and the Port Washington Teachers Association filed a grievance and demanded that the district’s alleged violation of the agreement be submitted to arbitration in accordance with the Taylor Law contract’s grievance procedure.

The district objected and asked a State Supreme Court judge to stay the arbitration proceeding pursuant to Section 7503 of the Civil Practice Law and Rules. The district’s argument: the enforcement of the provision pursuant to an arbitration award would be unconstitutional.

The judge agreed with the district’s rational for refusing to implement the Religious Holidays provision -- the provision was unconstitutional -- and issued an order staying the arbitration. The teachers and the Association appealed.

The Appellate Division said that the first issue to be resolved in cases involving the granting of a stay of arbitration in a public sector dispute arising under a Taylor Law is whether the provision in question is, in fact, subject to arbitration. The court, referring to the Court of Appeals ruling in Matter of Blackburne, 87 NY2d 660, said:

If a statute, decisional law or public policy precludes the governmental employer and employee from referring the dispute to arbitration, then the answer to this inquiry is no and the claim is not arbitrable.

Citing Griffin v Coughlin, 88 NY2d 674, the Appellate Division pointed out that “[t]here is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State’s power to force one to profess a religious belief.” It affirmed the lower court’s order staying the arbitration on the grounds that the contract provision violated the Establishment Clause of the First Amendment of the Federal Constitution.

The Appellate Division’s rationale:

The Religious Holidays provision in the Taylor Law agreement between the district and the association “rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant.”

In contrast to the type of provision included in the Port Washington contract, many Taylor Law collective bargaining agreements provide for absences with pay charged to “personal leave.”

Typically, such leave may be used for any “personal business” including the observation of religious holidays. Presumably such provisions would pass the Second Department’s Constitutional test as they neither favor the “religiously observant” nor penalize “agnostics, atheists, and members who were less observant.”

* The New York State Public Employment Relations Board [PERB] has held that negotiating days off for religious observances was not a mandatory subject of collective bargaining [CSEA v Eastchester UFSD, 29 PERB 3041].
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Disclosure of a public agency’s "policies, procedures, rules and regulations”

Disclosure of a public agency’s "policies, procedures, rules and regulations”

Sabilia v State of New York, 14 Misc.3d 1228(A)

Peter Sabilia and his wife, Stephanie, sued the State of New York after Peter was injured as a result of his being run over by a State motor vehicle sunbathing on the beach at Jones Beach State Park. The vehicle, a pick-up truck, was being driven by John J. Fitzwilliam, an employee of the New York State Park Police. Fitzwilliam allegedly drove over Sabilia while, according to Fitzwilliam, he was attempting to avoid a "large hole" during a routine beach patrol.

In the course of this litigation before Court of Claims Judge Milano, the Sabilias asked for copies of “policies, procedures, rules, regulations, and training manuals" concerning driving a vehicle on the beach that were applicable at the time. Judge Milano noted that:

“Importantly, the claimants' demand specifically stated that they did not seek "any police strategies regarding pursuit techniques/strategies of any kind whatsoever and is limited to those rules . . . dealing with driving on the beach (when not in pursuit)."

The State’s response:

"We will not be providing any training manuals, regulations, policies, procedures or other internal memorandums that pertain to driving a vehicle on the beach." The reasons for this advanced by the State: “its own policies and procedures have ‘little relevance to the legal standard of care’ and that the ‘standard of care in the operation of a police vehicle is controlled by the reckless disregard standard as defined in [Vehicle and Traffic Law] §1104(e) and relevant case law’"

The State also argued that materials requested by the Sailias are "privileged and confidential" and might have "a detrimental impact on the safety and security of the various officers, as well as the general public" and that the “disclosure of its policy as to non-emergency, routine operation of a pick-up truck on the beach will "limit the ability [of the officers] to successfully perform their duties and self evaluation and analysis."

Noting that the disclosure provisions of the Civil Practice Law and Rules are to be liberally construed the court said that "The party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant” and that “It is the party opposing discovery who has the burden to prove that the particular items sought are exempt or immune from disclosure.”

Concluding that the State’s internally adopted standard of care, if any, for the routine, non-emergency operation of a motor vehicle on the beach, is relevant, Judge Milano said that a "failure to abide by its own rule is some evidence of negligence."*

As the State’s reliance on “the recklessness standard of care” set forth in Vehicle and Traffic Law §1104 (e), Judge Milano said that the Sailias “correctly state that the record is devoid of any evidence that Fitzwilliam was ‘involved in an emergency operation,’ which is a prerequisite for the statute to apply.”

Holding that “The conclusory assertions of privilege and confidentiality regarding [State’s] policy as to non-emergency, routine operation of a pick-up truck on the beach, set forth in the affirmation of [State’s] attorney, are unpersuasive and that the State failed to sustain its burden of showing that the disclosure of the requested materials would pose any danger to park police officers or the public,” Judge Milano ordered the State to provide the requested "policies, procedures, rules, regulations and/or training manuals regarding driving a vehicle on the beach which were applicable at the time" to the Court for an in camera** inspection by the court.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/disclosing-certain-policies-procedures.html

  

*  Citing Sherman v Robinson, 80 NY2d 483, Judge Milano said that the "[v]iolation of a company's internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence."

**  From the Latin “in chambers.” A review conducted by a judge in a court closed to the public or in the judge’s chambers rather than in open court.
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Joint employers

Joint employers

Putnam County Sheriff’s OMA v Putnam County, 33 PERB 3001

Who is the employer of the personnel serving with the Putnam County Sheriff’s Department? Putnam County contended that the county is the sole employer of Sheriff’s Department personnel while the Sheriff argued that he and the county were “joint employers” of these employees.

The issue arose when the Putnam County Sheriff’s Office Managers Association [OMA] filed a petition seeking certification as the exclusive bargaining agent for a unit consisting of lieutenants, captains and a chief criminal investigator employed by the “Office of the Sheriff.”

The county filed a response claiming that it was the sole employer of these employees and that they were managerial employees and thus not entitled to representation rights under the Taylor Law.

The sheriff also filed an answer in which he said that he and the county were “joint employers” of these employees and that he believed that certifying OMA to represent a negotiating unit consisting of these employees was appropriate.

Reversing a determination by its administrative law judge [ALJ], PERB ruled that the sheriff and the county were “joint employers” for the purposes of the Taylor Law.

PERB’s rationale: holding that the county was the sole employer would “relieve elected sheriffs of their right and duty to negotiate under the Act and it could elicit petitions to consolidate some or all of the titles in existing sheriffs department units with county-wide units, often the very units from which they were fragmented in the first place.”

This is not a new concept: in County of Ulster v Ulster County Sheriff, 3 PERB 3032, a case decided in 1970, PERB ruled that the county and the sheriff were joint employers and separate bargaining units for the sheriff’s department were appropriate.

What distinguishes the Putnam County sheriffs from other Putnam county governmental unit heads? The sheriff is an elected official and can only be removed by the Governor while other county unit heads serve at the pleasure of the county executive.

In contrast to the status of an elective sheriff, whom PERB characterized as an “executive officer,” PERB said that an “appointed sheriff” is “essentially a department head.

Accordingly, the elected sheriff has independent status as a joint employer. PERB had addressed this difference in Nassau County v Nassau County Sheriff, 25 PERB 3036. This is consistent with the general rule that an appointing authority’s power to appoint implies the power to remove, while the elective sheriff is a Constitutional office and subject to different removal procedures.

Turning to the ALJ’s ruling that “the at-issue employees” are not managerial, PERB said that the employees are “high-level supervisors akin to the clerks of the Court of Appeals and the Appellate Divisions, First and Second Departments. PERB concluded that despite their role in personnel and policymaking determinations, the clerks were neither managerial nor confidential employees.