Binding arbitration demanded for deciding General Municipal Law Section 207-c claims
Watertown v PERB, 95 N.Y.2d 73
In the course of collective bargaining under the Taylor Law the Watertown Police Benevolent Association [PBA] demanded that the question of a police officer’s eligibility for disability benefits pursuant to General Municipal Law Section 207-c be submitted to arbitration.*
When Watertown declined to negotiate the proposal on the grounds that it was not a mandatory subject of negotiations, PBA filed an unfair practice charge with PERB. PERB decided that “because 207-c benefits are a form of wages, procedures which condition, restrict or potentially deny an employee’s receipt of those benefits are terms and conditions of employment and, therefore, are subject to mandatory bargaining” [30 PERB 3072].
PERB also decided that arbitration was an appropriate means of resolving such disputes, holding that “the method for review of a municipality’s determination of eligibility under 207-c is such a procedure.”
Noting that Watertown conceded that “the establishment of 207-c procedures is subject to mandatory negotiations (because the procedure affect terms and conditions of employment), Justice Donahue rejected Watertown’s argument that “the interjection of arbitration in the 207-c eligibility process ‘simply guts’ the municipality’s right to determine eligibility and that [Civil Practice Law and Rules Article 78] is the exclusive method of review.”**
The Court of Appeals agreed, holding that he procedures for contesting the employer’s determinations made pursuant to General Municipal Law Section 207-c were mandatory subject of bargaining.
* General Municipal Law Section 207-c provides disability benefits for police officers injured in the line of duty, including the continuation of the officer in full pay status and the payment of his or her medical expenses associated with the injury. Section 207-a of the General Municipal Law provides for similar benefits for firefighters injured in the line of duty.
** A challenge to an arbitration award is processed pursuant to Article 75 of the Civil Practive Rules and Law rather than via an Article 78 action.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
June 29, 2010
Provisional employee has no right to continued employment as a provisional
Provisional employee has no right to continued employment as a provisional appointee
Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]
In the Singletarly case Judge Gammerman sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,* ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.
Singletarly was serving as a permanent Fraud Investigator, a position in the noncompetitive class. The New York City Department of Homeless Service provisionally appointed him to a vacant Associate Fraud Investigator position, a competitive class position, effective February 20, 1998.
On June 8, 1998 the Department reinstated him to his permanent title, Fraud Investigator. Claiming that this change constituted a “demotion,” thus entitling him to notice and a hearing within the meaning of Section 75 of the Civil Service Law, Singletarly sued.
Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination** for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”
Describing Singletarly’s status as a provisional employee as that of “an employee at will” Justice Gammerman concluded that Singletarly “could be terminated from any position without good cause.”***
The court also briefly analyzed the status of a provisional employee, commenting that when there is no appropriate eligibility list available for filling a [wholly] vacancy in the competitive class the position may be filled on a provisional basis.
A provisional employee, however, has no expectation of tenure rights, including the right to notice or hearing prior to termination, or being given the reason for his or her termination. Thus, said the court, “a provisional employee may be terminated at any time without charges proffered, a statement of reasons given or a hearing held.”
* The “rare exception” referred to by the Justice Gammerman is probably the one leading to the decision in Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611. In Roulett the court held that the continued provisional employment of a person eligible for permanent appointment to the position when the individual is qualified for permanent appointment from a nonmandatory eligible list results in that individual being deemed permanent in the position upon the completion of the period of probation otherwise required [Section 64.5, Civil Service Law].
** Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.
*** This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights.
Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]
In the Singletarly case Judge Gammerman sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,* ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.
Singletarly was serving as a permanent Fraud Investigator, a position in the noncompetitive class. The New York City Department of Homeless Service provisionally appointed him to a vacant Associate Fraud Investigator position, a competitive class position, effective February 20, 1998.
On June 8, 1998 the Department reinstated him to his permanent title, Fraud Investigator. Claiming that this change constituted a “demotion,” thus entitling him to notice and a hearing within the meaning of Section 75 of the Civil Service Law, Singletarly sued.
Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination** for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”
Describing Singletarly’s status as a provisional employee as that of “an employee at will” Justice Gammerman concluded that Singletarly “could be terminated from any position without good cause.”***
The court also briefly analyzed the status of a provisional employee, commenting that when there is no appropriate eligibility list available for filling a [wholly] vacancy in the competitive class the position may be filled on a provisional basis.
A provisional employee, however, has no expectation of tenure rights, including the right to notice or hearing prior to termination, or being given the reason for his or her termination. Thus, said the court, “a provisional employee may be terminated at any time without charges proffered, a statement of reasons given or a hearing held.”
* The “rare exception” referred to by the Justice Gammerman is probably the one leading to the decision in Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611. In Roulett the court held that the continued provisional employment of a person eligible for permanent appointment to the position when the individual is qualified for permanent appointment from a nonmandatory eligible list results in that individual being deemed permanent in the position upon the completion of the period of probation otherwise required [Section 64.5, Civil Service Law].
** Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.
*** This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights.
Judicial review of the disciplinary penalty imposed on an employee by the appointing authority
Judicial review of the disciplinary penalty imposed on an employee by the appointing authority
Matter of Rutkunas v Stout, 8 N.Y.3d 897
Anthony Rutkunas, a senior maintenance mechanic (carpenter) with the Westchester County Department of Parks, was found guilty of disciplinary charges that alleged that he (1) failed to bring wood to a job site; (2) failed to complete certain work, despite being asked to do so and (3) threw a coffee cup and at least two, four-inch nails from a height of “approximately fifteen feet in the direction of other employees who were working below him,” two of which struck an employee in the back and chest.
The Hearing Officer recommended a suspension without pay for a minimum of sixty days but noted that termination would be “equally appropriate.” The appointing authority, Joseph Stout, Commissioner of the Westchester County Department of Parks, Recreation, and Conservation, adopted the finding of the Hearing Officer but chose to terminate Rutkunas from his position rather than suspend him without pay.
Supreme Court ruled that Stout did not abuse his discretion in imposing the sanction of termination, stating “It cannot seriously be argued that the penalty is so disproportionate to the offense as to be shocking to one's sense of fairness.”
The Appellate Division disagreed, ruling that although the determination that the Rutkunas was guilty of misconduct was supported by substantial evidence, but “Under the circumstances, including, but not limited to, [Rutkunas’] lack of a prior disciplinary history, minimal prospects of alternative employment, and the devastating impact the sanction of termination imposes on his ability to support his family, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness.”
The Appellate Division remanded the case to the Commissioner, stating that a penalty less severe than termination of Rutkunas employment should be imposed. The Commissioner appealed.
The Court of Appeals reversed the Appellate Division’s ruling, holding that Rutkunas’ petition should be dismissed “in its entirety…”
The decision notes that Rutkunas’ conduct jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked. Accordingly, said the Court of Appeals, “we cannot conclude that the penalty of dismissal imposed . . . shocks the judicial conscience as a matter of law,” citing a number of decisions, including Matter of Will v Frontier Central School District Board. of Education. 97 NY2d 690, and Matter of Pell v Board of Education, 34 NY2d 222.
The court observed that: “The Appellate Division has no discretionary authority or interest of justice jurisdiction in this Article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation,” citing Matter of Kelly, 96 NY2d at 38.
Matter of Rutkunas v Stout, 8 N.Y.3d 897
Anthony Rutkunas, a senior maintenance mechanic (carpenter) with the Westchester County Department of Parks, was found guilty of disciplinary charges that alleged that he (1) failed to bring wood to a job site; (2) failed to complete certain work, despite being asked to do so and (3) threw a coffee cup and at least two, four-inch nails from a height of “approximately fifteen feet in the direction of other employees who were working below him,” two of which struck an employee in the back and chest.
The Hearing Officer recommended a suspension without pay for a minimum of sixty days but noted that termination would be “equally appropriate.” The appointing authority, Joseph Stout, Commissioner of the Westchester County Department of Parks, Recreation, and Conservation, adopted the finding of the Hearing Officer but chose to terminate Rutkunas from his position rather than suspend him without pay.
Supreme Court ruled that Stout did not abuse his discretion in imposing the sanction of termination, stating “It cannot seriously be argued that the penalty is so disproportionate to the offense as to be shocking to one's sense of fairness.”
The Appellate Division disagreed, ruling that although the determination that the Rutkunas was guilty of misconduct was supported by substantial evidence, but “Under the circumstances, including, but not limited to, [Rutkunas’] lack of a prior disciplinary history, minimal prospects of alternative employment, and the devastating impact the sanction of termination imposes on his ability to support his family, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness.”
The Appellate Division remanded the case to the Commissioner, stating that a penalty less severe than termination of Rutkunas employment should be imposed. The Commissioner appealed.
The Court of Appeals reversed the Appellate Division’s ruling, holding that Rutkunas’ petition should be dismissed “in its entirety…”
The decision notes that Rutkunas’ conduct jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked. Accordingly, said the Court of Appeals, “we cannot conclude that the penalty of dismissal imposed . . . shocks the judicial conscience as a matter of law,” citing a number of decisions, including Matter of Will v Frontier Central School District Board. of Education. 97 NY2d 690, and Matter of Pell v Board of Education, 34 NY2d 222.
The court observed that: “The Appellate Division has no discretionary authority or interest of justice jurisdiction in this Article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation,” citing Matter of Kelly, 96 NY2d at 38.
June 28, 2010
Preexisting condition does not bar receiving GML §207-c if the claimant shows that the job duties were a direct cause of the disability
Preexisting condition does not bar receiving GML §207-c if the claimant shows that the job duties were a direct cause of the disability
D'Accursio v Monroe County, 2010 NY Slip Op 05455, Decided on June 18, 2010, Appellate Division, Fourth Department
Paul D’Accursio, a "Deputy Sheriff Jailor" with the Monroe County Sheriff's Department, filed a petition pursuant to CPLR Article 78 proceeding seeking to annul the denial of his application for General Municipal Law §207-c benefits. His application had been rejected on the ground that D’Accursio did not sustain the injury on which he based his claim in the performance of his job duties.
Supreme Court properly concluded that the determination was arbitrary and capricious and granted the petition.
The Appellate Division agreed, holding that General Municipal Law § 207-c, which provides for the payment of full regular salary or wages to certain law enforcement officers injured in the performance of their duties or taken sick as a result of the performance of their duties so as to necessitate medical or other lawful remedial "does not require that [officers] additionally demonstrate that their disability is related in a substantial degree to their job duties."
Citing White v County of Cortland, 97 NY2d 336, the Appellate Division ruled that “an officer ‘need only prove a direct causal relationship between job duties and the resulting illness or injury."
Further, the court observed that a preexisting condition does not bar recovery under section 207-c if the officer establishes "that the job duties were a direct cause of the disability."
Sustaining Supreme Court’s ruling the Appellate Division said that it concluded that D’Accursio had established "such a direct causal relationship and thus demonstrated his entitlement to benefits under General Municipal Law §207-c."
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05455.htm
D'Accursio v Monroe County, 2010 NY Slip Op 05455, Decided on June 18, 2010, Appellate Division, Fourth Department
Paul D’Accursio, a "Deputy Sheriff Jailor" with the Monroe County Sheriff's Department, filed a petition pursuant to CPLR Article 78 proceeding seeking to annul the denial of his application for General Municipal Law §207-c benefits. His application had been rejected on the ground that D’Accursio did not sustain the injury on which he based his claim in the performance of his job duties.
Supreme Court properly concluded that the determination was arbitrary and capricious and granted the petition.
The Appellate Division agreed, holding that General Municipal Law § 207-c, which provides for the payment of full regular salary or wages to certain law enforcement officers injured in the performance of their duties or taken sick as a result of the performance of their duties so as to necessitate medical or other lawful remedial "does not require that [officers] additionally demonstrate that their disability is related in a substantial degree to their job duties."
Citing White v County of Cortland, 97 NY2d 336, the Appellate Division ruled that “an officer ‘need only prove a direct causal relationship between job duties and the resulting illness or injury."
Further, the court observed that a preexisting condition does not bar recovery under section 207-c if the officer establishes "that the job duties were a direct cause of the disability."
Sustaining Supreme Court’s ruling the Appellate Division said that it concluded that D’Accursio had established "such a direct causal relationship and thus demonstrated his entitlement to benefits under General Municipal Law §207-c."
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05455.htm
Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA
Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an in loco parentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter. The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition.
Parent includes in loco parentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child. Under the existing regulation, 29 CFR 825.122(c)(3), an in loco parentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support.
In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both. The DOL's "interpretation" is at direct odds with the plain reading of the regulation.
Mr. Bosland Comments: The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentis parent for purposes of FMLA leave. While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentis parental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or." My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave.
The DOL Memorandum is available on the Internet at: http://www.feedblitz.com/t2.asp?/121772/2190912/0/http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an in loco parentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter. The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition.
Parent includes in loco parentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child. Under the existing regulation, 29 CFR 825.122(c)(3), an in loco parentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support.
In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both. The DOL's "interpretation" is at direct odds with the plain reading of the regulation.
Mr. Bosland Comments: The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentis parent for purposes of FMLA leave. While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentis parental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or." My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave.
The DOL Memorandum is available on the Internet at: http://www.feedblitz.com/t2.asp?/121772/2190912/0/http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm
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