Conducting an administrative hearing

Conducting an administrative hearing
Flood v NYSERS, App. Div., First Dept., 279 A.D.2d 304

Clearly an individual may not be found guilty of disciplinary charges not alleged in the notice of discipline served on the employee. Similarly, a hearing officer in an administrative hearing may not rely on evidence in the record in making his or her determination if the other party was not permitted to challenge or rebut such evidence.

Theresa Flood, a teacher's assistant, was injured aboard a bus during a field trip in November 1990. The New York State Employee's Retirement System denied her application for accidental disability retirement benefits on the grounds that she had not been "incapacitated ... as the natural and proximate result of an accident sustained in ... service". Flood appealed and the issues were framed by the initial Hearing Officer designated to consider the matter as follows:

1. Was there an accident?

2. Is the applicant permanentlyincapacitated? and

3. If so, is the incapacity a proximate result ofthe accident?

The appeal was eventually considered by a different Hearing Officer. Flood's attorney framed the issue before the new hearing officer as simply whether Flood's disability was "the natural and proximate result of an accident sustained in . . . service".

The new hearing officer agreed, cutting off any questioning on "incapacity" on the grounds that there was no "notice to the applicant on that point." He said "causation" was the sole issue to be resolved.

At the conclusion of the hearing the second hearing officer, after acknowledging that the hearings had been limited to the issue of causation, said that "all three questions (accident, incapacity and causation) were once again at issue." His decision, based on the Retirement System's expert's testimony: Flood had failed to establish a "permanent incapacity." That being the case, he denied her appeal without considering the issue of proximate cause.

The Appellate Division vacated the hearing officer's determination, pointing out that Flood "never had an opportunity to pursue or challenge [NYSERS's] testimonial evidence because the issue at the hearing, as framed in the notice, was limited to the question of causation."

The Appellate Division said that "[i]f the issues are to be expanded to cover accident and incapacity as well, then the interests of fairness dictate that [Flood] should have an opportunity to cross-examine the witness and present her own evidence in that respect."

The matter was returned to the Retirement System for a new hearing.

Demanding negotiations concerning changes in the employer's payroll system

Demanding negotiations concerning changes in the employer's payroll system
CSEA and Nassau County, 31 PERB 3032

Nassau County employees in a negotiating unit represented by the Civil Service Employees Association [CSEA] had been receiving their regular pay in one check and any payment for overtime in a second, supplemental check.

The County unilaterally discontinued its practice of issuing two separate paychecks to employees entitled to overtime when it adopted a new payroll system. The new system allowed it to combine an employee’s regular pay and his or her overtime pay, and other payments due the employee, in a single paycheck. The new payroll system also resulted in other processing and payment schedule changes.

CSEA filed an unfair labor practice charge with PERB contending that the payroll change initiated by Nassau County changed or affected mandatory subjects of negotiations and therefore Nassau was barred from making the change unilaterally.

PERB upheld its ALJ’s dismissal of the charge, ruling that Nassau County did not violate the Taylor Law by unilaterally deciding to include overtime [and other payments] in the employees regular paycheck.

Another issue involved the recording of leave accruals and usage. CSEA claimed that the County had discontinued providing unit members with a report of their time and leave record at the beginning of each year. The employees would then use the report to record their accrual and use of leave credits.

PERB said that this had not changed. Rather, the County had discontinued manually entering time and leave information on time cards for record keeping purposes and maintained that information using its new payroll system program. Employees wishing to check their leave and accrual records could do so by viewing a computer screen or reading a computer print out rather than reviewing a traditional “time card.”

Significantly, PERB said that an employer may maintain a record of attendance of its employees and the maintenance of such a record is not mandatorily negotiable.

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims

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.

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.

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.