Whistleblower must blow the whistle to claim the whistleblower protection provided by the Whistleblower Statute, Civil Service Law §75-b

Whistleblower must blow the whistle to claim the whistleblower protection provided by the Whistleblower Statute, Civil Service Law §75-b
Hastie v State Univ. of N.Y. Coll. of Agric. & Tech. At Morrisville, 2010 NY Slip Op 04911, Decided on June 10, 2010, Appellate Division, Third Department

Civil Service Law §75-b protects an officer or employee in the event he or she reports what he or she in good faith believes is an improper governmental action to a governmental body.*

James Hastie was employed by SUNY Morrisville. Among his job duties was overseeing SUNY Morrisville’s development program and fundraising efforts. In the course of reviewing an Internal Revenue Service tax form (IRS form 8283) prepared by a third party involving property donated to Morrisville, Hastie became concerned about the truthfulness of statements regarding the property's appraised value.**

Sharing his concerns with Morrisville's president and its vice-president for administrative services, they directed him to sign the form. Hastie refused and his employment was terminated shortly thereafter.

Hastie then sued Morrisville, claiming he had been subjected to “a retaliatory discharge” within the meaning of Civil Service Law §75-b, the so-called the whistleblower statute. Supreme Court, however, granted Morrisville’s motion to dismiss his petition.

The Appellate Division, in reviewing Hastie’s appeal from the Supreme Court’s ruling, said that notwithstanding its accepting Hastie’s allegations in his complaint as true, it must, nevertheless, affirm the Supreme Court’s ruling.

Explaining that although an adverse employment action may not be taken against a public employee based upon his or her disclosure of information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" to a governmental body, in this instance the alleged wrongdoing consisted of Morrisville’s president and vice-president directing Hastie to sign the receipt section of the IRS form 8283.

Hastie, however, had not reported the alleged improper directive to any governmental body other than the alleged wrongdoers themselves. As §75-b requires that the employee to advise the appointing authority prior to his or her reporting the information to a “governmental body,” the court apparently concluded that neither Morrisville’s president or vice-president qualified as a “governmental body” for the purposes of §75-b in this instance.

Accordingly, the Appellate Division ruled that Hastie had not undertaken “the notification efforts which are a procedural prerequisite to invoke the protections of the statute.”***

In Hastie’s case, the single possible improper governmental action was not the submission of the allegedly flawed tax form by a third party but, rather, “the directives from the alleged wrongdoers, [Morrisville’s] president and vice-president, that [Hastie] sign the receipt section of the form.”

As Hastie had not reported this “directive” to any “governmental body,” he failed to undertake the notification effort that constitutes the procedural prerequisite to his invoking the protections of the statute.

* See, also, Labor Law §740, which essentially applies to employers in the private sector.

** IRS form 8283 required an acknowledgment from Morrisville that it had received the property.

*** Civil Service Law §75-b 2, in pertinent part, provides: “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” Further, sub-paragraph (b), in pertinent part, requires that the individual “Prior to disclosing information pursuant to paragraph (a) … shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action….”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04911.htm

Employee disciplined for failing to wear a vehicle seat belt properly

Employee disciplined for failing to wear a vehicle seat belt properly
Department of Sanitation v Parker, OATH Index #1923/10

The New York City Department of Sanitation sought discipline against Michael Parker, a sanitation worker, for improperly wearing his seatbelt while operating a Department vehicle.

A Sanitation Department safety inspector observed Parker driving with his shoulder belt tucked behind his left arm, and issued a ticket when, the inspector alleged Parker became belligerent after receiving a warning.

ALJ Ingrid Addison found Parker guilty of improperly wearing his seat belt while on duty and recommended that Parker be fined two days' pay.

The decision is posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1923.pdf

Preferred list rights following layoff

Preferred list rights following layoff
Bojarczuk v Mills, 98 NY2d 663

Joseph T. Bojarczuk was excessed when the Utica City School District abolished his position when the Oneida-Herkimer-Madison Board of Cooperative Educational Services (BOCES) took over its Alternative Educational Program. As Bojarczuk was “transferred to BOCES” with his position, Utica did not include him on its “preferred list” for reemployment with the District should a suitable vacancy occur while his name was on the list.

According to Utica, Bojarczuk "was afforded seniority rights under section 3014-a," and he had received all the rights to which he was entitled in connection with the layoff. The Commissioner of Education sustained Utica’s actions.

The Court of Appeals, however, disagreed, noting that Education Law Section 3014-a(4) provides that “[t]his section shall in no way be construed to limit the rights of any of such employees set forth in this section granted by any other provision of law.” Accordingly, ruled the court, the fact that Bojarczuk had been provided with Section 3014-a seniority rights did not preclude his having “additional recall rights” in the District under Sections 2510(3) and 3013(3) of the Education Law.

The decision states that a teacher whose position has been abolished during a BOCES takeover of a school district program has the right to be placed on the school district's preferred eligibility list for employment for seven years in accordance with sections 2510(3) and 3013(3), provided the teacher otherwise qualifies for the statutes’ benefits.

As the lower courts had not determined whether or not Bojarczuk qualified for placement on the Utica School District preferred list, the case was remanded back to Supreme Court for such a determination.

The basic principle expressed by this decision:

If a teacher is excessed and his or her name is placed on a preferred list upon the abolishment of his or her teaching position, he or she is entitled, subject to seniority considerations, to be appointed to the next available vacancy in the school district in the tenure area in which he or she is certified the district decides to fill, unless he or she is found unqualified for that position by the District.

The fact that the teacher may obtain employment in another jurisdiction does not truncate his or her rights to reinstatement from the preferred list by the school district.

Some key considerations concerning preferred lists:

1. A preferred list comes into being when an individual having tenure or permanent status in the title is excessed as the result of the abolishment of a position.

2. Unless otherwise disqualified, an individual's name is continued on the preferred list until (a) he or she is reinstated from the list to the same or a similar position or (b) his or her eligibility for reinstatement from the list expires. Depending of the controlling statute providing for the establishment of the preferred list, an individual’s name may on a preferred list from two years, i.e., a “special military list” [Military Law Section 243.7] to seven years under the Education Law.

3. If additional positions are abolished on a later date, the names of the more recently excessed individuals would be placed on the same preferred list on the basis of seniority as among themselves. In other words, an individual who is first on an existing preferred list would be displaced to a lower rank on the list if the names of an individual having greater employment seniority are placed on the same preferred list at a later date.

4. Preferred lists do not "expire" but continue in existence as long as there is at least one eligible individual qualified for appointment from the list.

To illustrate this last point, assume that Bojarczuk is never reinstated from the preferred list. On the day before the last day of the seventh year from date when Bojarczuk's name was placed on the preferred list another layoff takes place and the name of the individual excessed is placed on the preferred list.

For one day both Bojarczuk name and this second individual's name are on the preferred list, in order of relative seniority as among themselves. If neither is reinstated from the preferred list on the following day, the preferred list continues in existence but thereafter would include only the name of the second individual. The preferred list then continues in existence as long as the second individual continues to be eligible for reinstatement from the preferred list.

Reinstatement from a preferred list, however, may raise other concerns. For example, nepotism. Section 3016 of the Education Law deals with the issue of the employment of a relative by blood or marriage of a member of its school board as a teacher by the district. In essence, it requires that any such appointment must be approved by a two-thirds vote of the board.

Does Section 3016 apply in situations involving the reinstatement of a relative of a school board member as teacher from a preferred list?

Barbara Gmelch thought it did and asked the Commissioner of Education to remove a school board member from his position because the board member did not advise the board that his daughter was among a number of teachers to be reinstated from a preferred list that resulted from the lay off of a number of teachers and that a two-thirds vote would be required with respect to her employment.*

The Commissioner dismissed Gmelch's appeal, agreeing with the school board Section 2510 mandates the reinstatement of a teacher from a preferred and thus it was required to reinstate the relative of a board member regardless of his or her relationship to the member.

In this instance the Commissioner ruled that reinstating the board member's daughter "was required by law and not within its discretion to decline" [Commissioner of Education Decision #12794].

* The record indicates that the teacher was employed by the district prior to the election of her father to the board.

Health insurance coverage decides Unemployment Insurance claim

The School District paid its teachers' their annual salary on a 10-month, 21 payroll period, basis. The District advised one of its teachers [Claimant] she had been denied tenure and her "last day of service" would to be June 30. 

On July 1 Claimant applied, and was approved, for unemployment insurance benefits. The District appealed, contending Claimant was not totally unemployed during the following two summer months as she had been paid for a full year of service through August 30 of that year.

This 10-month payroll mode is offered by many school districts, with the last pay check "prepaying" health insurance premiums for "July and August." The school district usually would prevail once it was able to demonstrate the distinction between the professional obligation of the teacher (one year of service) and the method of payment (either a 21 payroll period mode or a 26 payroll period mode).* 

There was a difference in Claimant's situation, however. This difference Appellate Division** found was "critical to the Unemployment Insurance Board's determination." The record indicated that Claimant's final salary payment was made in June and although the employer typically pre-paid the employer contribution for its employee's health insurance and the educators "pre-paid" any required employee health insurance contributions in order to provided uninterrupted health insurance coverage through August, Claimant's health insurance coverage ceased on June 30. 

Had Claimant's health insurance coverage been continued through the end of August presumably both the Unemployment Insurance Board and the Appellate Division would have ruled that Claimant was not fully unemployed during July and August and thus not entitled to Unemployment Insurance benefits for that period. 

* The New York State Teachers' Retirement Systems gives the member one year of member service credit for a "10 months" professional obligation, regardless of the payroll mode used to compensate the educator.

** See Smith v Moriah Central School District, __ AD2 __.

Recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits ruled lawful

Recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits ruled lawful
Godfrey v Spano, 2009 NY Slip Op 08474, Decided on November 19, 2009, Court of Appeals [Decided with Lewis v New York State Department of Civil Service]

Plaintiffs in this action are taxpayers challenging directives recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits.* The Court of Appeals held that that plaintiffs' actions were properly dismissed by the courts below.

Many residents of New York State in a same-gender relationship have traveled to Massachusetts, Connecticut, Iowa and Vermont, jurisdictions permitting same-gender marriage, for the purpose of marrying.

In response to this development, several state and county officials issued general directives relating to the recognition of those out-of-state same-sex marriages.

This appeal involved challenges to the lawfulness of two such directives: a Policy Memorandum, Employee Benefits Division Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service, which became effective May 1, 2007* and an Executive Order issued by the County Executive of the County of Westchester, Westchester County Executive Order No. 3 of 2006.**

However, the Court of Appeals commented with respect to the action brought by Godfrey that it did adopt the Second Department's rationale for affirmance of the Supreme Court’s ruling, i.e., the Executive Order did not purport to change the law, because it included language directing recognition of same-sex couples "to the maximum extent allowed by law."

The high court said that it found such language ambiguous, and it said it “would not encourage executive officials to try to insulate their orders from judicial review by this means.” Instead the Court of Appeals sustained the result “because the Godfrey plaintiffs have failed to allege an unlawful expenditure of taxpayer funds, they have not stated a cognizable claim under General Municipal Law §51.”

As to the Lewis plaintiffs, the Court of Appeals noted that the only surviving causes of action were based on State Finance Law §123-b and the separation of powers doctrine.

As to Finance Law § 123-b, the court said although a taxpayer may bring suit under this statute to prevent the unlawful expenditure of state funds "whether or not such person is or may be affected or specially aggrieved" (State Finance Law §123-b [1]), there must be some specific threat of an imminent expenditure. In this instance the Court of Appeals ruled that “The State Finance Law claim of the Lewis plaintiffs fails to state a cause of action for the same reason that the General Municipal Law § 51 claim of the Godfrey plaintiffs fails.

Addressing the Lewis plaintiffs' action based on the separation of powers doctrine, essentially the complaint alleges that the Department of Civil Service acted "inconsistently with the Legislature's pronouncements on spousal benefits" and was thus in violation of Civil Service Law §164. In the words of the Court of Appeals: “The statute itself refutes plaintiffs' claim.”

Civil Service Law §161(1) provides that the President of the Civil Service Commission is "authorized and directed to establish a health insurance plan for state officers and employees and their dependents and officers" and provides that every state employee "shall be entitled to have his spouse and dependent children, as defined by the regulations of the president, included in the coverage upon agreeing to pay his contribution, if any, to the cost of such coverage for such dependents" (emphasis in the original).

Accordingly, said the court, the statute thus expressly gives the President of the Civil Service Commission the authority to define "spouse."

Moreover, said the court, the statute does not restrict the President's provision of health insurance to spouses and dependent children. The language is of entitlement, not restriction.

The Court of Appeals concluded by stating that "in each case the order of the Appellate Division should be affirmed with costs."

* The decision notes that “The Memorandum explained that the State had provided eligibility for employee benefits, including New York State Health Insurance Program benefits, to the domestic partners of State employees, including same-sex partners, since the mid-1990s. The coverage, while mandatory for the State, as an employer, itself, providing such coverage was discretionary for Participating Agencies (PAs) and Participating Employers (PEs).”

** The New York State Employees’ Retirement System recognized “same-sex marriages” for retirement benefit purposes if the union was performed in a jurisdiction where performing a same-sex marriage was lawful. It successfully defended a lawsuit challenging that policy [Godfrey v DiNapoli, 22 Misc.3d 249]. In the Godfrey case the jurisdiction was Canada.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08474.htm