Discontinuing certain disability benefits

Discontinuing certain disability benefits
Town of Cortland v PERB, NYS Supreme Court, [Not selected for publications in the Official Reports]

The Town of Cortland unilaterally adopted policies and procedures that terminated certain benefits that were being paid to police officers disabled in the line of duty if they had received such benefits for more than one year. These benefits were not expressly provided for by Section 207-c of the General Municipal Law. In support of its action, the town cited Section 71 of the Civil Service Law [Worker’s Compensation Leave], which authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.

The town also adopted procedures requiring (1) “timely notice” of any job-related injuries, (2) a time limit for appealing proposed light duty assignments and (3) a requirement that police officers claiming Section 207-c benefits charge any lost time to accumulated leave credits pending a determination of their eligibility for such benefits.

A state Supreme Court justice upheld a PERB ruling that the town’s unilateral adoption of such policies and procedures constituted a violation of Section 209-a(1)(d) of the Taylor Law. The court affirmed PERB’s order directing that these policies and procedures be rescinded. If such changes are to be implemented, they must be collectively negotiated.

The court stated that the submission of such policies and procedures to the bargaining process would not have any adverse effect upon Cortland’s ability to exercise any of the rights, which it is accorded under General Municipal Law Section 207-c.

Because the issue was settled under the Taylor Law, the court did not address the town’s innovative argument that Section 71 of the Civil Service Law can serve as statutory authority for discontinuing certain benefits for officers who had been absent because of a work connected injury for one year or longer.

Civil Service Law Section 71 [Workers’ Compensation Leave] applies to employees who have been “separated from service” because of a work-related injury or disease as defined in the Workers’ Compensation Law. If the injury did not “permanently incapacitate” the individual, Section 71 mandates that the public employer give the disabled employee a leave of absence for at least one year. Section 71 also authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.

The key issue here is what legislature meant by the term “separated from service.” While “separated” is not defined in the statute, reading Section 71 in its entirety suggests that it refers to a situation where the individual is physically unable to report to work rather having been “removed” from his or her position.

Application to Sections 207-a and 207-c: An employee who is receiving benefits under GML 207-a or 207-c may be physically unable to report to work. And some individuals who receive benefits under 207-a or 207-c also receive worker’s compensation benefits. Does this mean at least some employees on 207 leaves are “separated from service” within the meaning of Section 71? And do the provisions of Section 71 therefore apply to theses public employees receiving benefits under 207-a or 207-c?

Courts have not yet ruled on whether Section 71 is applicable in Section 207-a or 207-c situations. However, if the issue is litigated in the future, it is quite possible that courts will conclude that Section 71 simply does not apply in Section 207-a and Section 207-c situations.

The reason is that neither Section 207-a nor Section 207-c authorize the separation of an employee injured in the line of duty. Sections 207-a and 207-c appear to view disabled individuals as remaining employees who are subject to recall upon the termination of the disability or, under appropriate circumstances, assigned to perform light duty. In fact, Sections 207-a and 207-c provide for the continuation of compensation until his or her retirement, attaining the mandatory age of retirement or such other time as the individual is no longer qualified for such benefits. Arguably, the event of separation or termination in the sense referred to in Section 71 does not appear to occur in 207-a or 207-c situations.

On the other hand, the courts might well view the provisions of Section 71 to be triggered in a situation in which Section 207-a or Section 207-c salary payments are discontinued by the employer and the individual fails to return to duty, claiming that his or her disability prevents his or her doing so.

Under these facts, the individual, in effect, concedes that his or her absence is due to a workers’ compensation injury He or she has been separated from service -- i.e., cannot report for duty -- and thus the employer can deem that he or she is entitled to Section 71 leave by operation of law. Such a situation is clearly distinguishable from the employee’s status under Section 207-a or Section 207-c where he or she is physically continued on the payroll and thus has not been “separated.”

Another distinguishing element: Section 71 applies only in situations where the individual is determined not to be permanently incapacitated as a result of an occupational injury or disease. In contrast, Section 207-a and 207-c benefits are provided regardless of whether the individual’s work related injury is determined to have resulted in a temporary disability or a permanent incapacity.

Other cases: Other cases dealing with discontinuing certain benefits to individuals being paid pursuant to Section 207-a or Section 207-c include Chalachan v City of Binghamton, 55 NY2d 989, [contractual right to payment for accrued vacation credits while individual was receiving Section 207-a benefits] and PBA, Village of Walden, 30 PERB 3053, [discontinuation of a past practice that provided “contractual benefits” for vacations and other leaves to persons receiving Section 207-c benefits].

In Chalachan the Court of Appeals said that disabled firefighters were entitled to compensation and medical payments as a matter of law but “any additional benefits must be expressly provided for in the agreement....”

In Walden PERB observed that the Taylor Law agreement was silent as to such payments and found that they had been extended to disabled officers “only pursuant to a practice developed over time.” PERB ruled that Walden had not violated Section 209-a.1(d) when it unilaterally discontinuing its past practice.

PERB noted the PBA’s complaint was a “noncontract grievance,” and under the terms of the contract the “final disposition of past practice grievances” was left to the Village Manager. Accordingly, PERB concluded, “... the language in the ... [negotiated] grievance procedure vests the village with the right to continue or discontinue past practices in its discretion.”

ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record

ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record
NYC Fire Department v Gill, OATH Index #1871/10

Although the New York City Fire Department sought the termination of Harold Gill’s employment as a firefighter after he tested positive for cocaine in a random drug test, OATH Administrative Law Judge Faye Lewis recommended that the termination be stayed to permit Gill to retire in light of his unblemished 29-year record of service with the Department.

ALJ Fay also recommended that the Gill pay a substantial fine.

The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1871.pdf

A public employee's freedom of speech with respect to statements made to the press

A public employee's freedom of speech with respect to statements made to the pressHarman v. City of New York, CA2, 140 F.3d 111.

Two New York City agencies, the Human Resources Administration [HRA] and the Administration for Children’s Services [ACS] adopted policies [Executive Orders 101 and 641] requiring employees to obtain agency permission before speaking to the media concerning any policies or activities of the agency.

The City claimed that the policies were necessary to (1) meet the agencies’ obligations under federal and state law to protect the confidentiality of reports and information relating to children, families, and other individuals served by the agencies; and promote the effective operation of the organizations.

Rosalie Harman and other employees challenged these policies on the grounds that they violated the First Amendment rights of the workers. A federal District Court judge agreed and struck down the policy. The Second Circuit Court of Appeals [New York] upheld the District Court’s ruling.

The case began after Harman, a CWA employee, was suspended because of her statements to ABC News concerning the death of a six-year-old, Elisa Izquierdo. It was alleged that the child was beaten to death by her mother. The child’s death became the subject of intense media scrutiny when it was revealed that CWA had received numerous reports about the child before her death.

The court found that Harman had been disciplined for stating to the press that “the workers who are considered the best workers are the ones who seem to be able to move cases out quickly,” and, “there are lots of fatalities the press doesn’t know anything about.”

In affirming the District Court’s ruling that the gag orders were unconstitutional, the Circuit Court said:

1. Individuals do not relinquish their First Amendment rights by accepting employment with the government.

2. The Supreme Court has recognized that the government “may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large. [U.S. v National Treasury Employees Union, 513 US 454].

3. In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [Matter of Pickering, 391 US at 568].

4. Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest” [Connick v Myers, 461 US 138].

5. Where its employee speaks on matters of public concern, the government bears the burden of justifying any adverse employment action [Rankin v McPherson, 483 US 378].

It was undisputed that many federal and state laws require ACS and HRA records, reports, and information relating to specific children or families, be kept confidential. In fact, disclosure of statutorily confidential information, or failure to take reasonable security precautions that leads to such disclosure, is a misdemeanor under state social service provisions.

Nevertheless, the Circuit Court concluded that the gag orders clearly aim at speech that is of considerable importance to the public. “Indeed,” the opinion notes, “discussion regarding current government policies and activities is perhaps the paradigmatic matter[s] of public concern.”

Harman’s speech, according to the decision, concerned the priorities and effectiveness of the CWA, and obviously is of interest to the public whom the agency serves. Therefore, the city bears the burden of demonstrating that the challenged policies are necessary to the efficient operation of the agencies.

Among the justifications advanced by the city was its assertion “that the agencies will not prohibit employees from commenting on the non-confidential operations of the agency once they have ensured that the proposed speech is consistent with the efficient and effective operation of the agency.” However, such conditions do not satisfy free speech requirements, said the Court, because “even according to this interpretation, the regulations clearly interfere with employees’ ability to communicate their views to the media.”

The kind of approval procedure mandated by the city is generally disfavored under First Amendment law because it “chills potential speech before it happens”; it allows the agencies to determine in advance what kind of speech will harm agency operations instead of punishing disruptive remarks after their effect has been felt. For this reason, the court decided, the regulations run afoul of the general presumption against prior restraint on speech.

The Circuit Court affirmed District Court’s decision, ruling that Executive Orders 101 and 641 were unconstitutional infringements on the First Amendment rights of city employees.

The full text of the opinion is posted at:
http://nypublicpersonnellawarchives.blogspot.com/

Using e-mail as evidence in disciplinary actions

Using e-mail as evidence in disciplinary actions
Strauss v Microsoft, USDC SDNY, Lexis 7433

Employers and employees are discovering that with the increased use of electronic mail [e-mail], records thought not to exist may be hidden in computer files. Accordingly, employers are now reviewing computer backup tapes to find evidence of employee misconduct for use in disciplinary actions while employees are using the same sources to discover incriminating evidence of employer wrongdoing such as unlawful discrimination or sexual harassment.

The Strauss case illustrates this trend. Strauss, an employee of Microsoft, alleging she was not promoted because of gender discrimination. Microsoft’s efforts to have her charges summarily dismissed failed when Strauss introduced “explicit e-mail messages from her supervisor” that she found on backup tapes during the discovery phase of litigation.

Courts are usually disposed to granting motions that “appear reasonably calculated to lead to the discovery of admissible evidence.” The fact that the material sought is in electronic rather than a traditional paper form has not been a barrier to approvals.

In another case, Davidian v O’Mara, [USDC TN, 2-97-0020] a newspaper asked a federal district court to allow it to obtain information stored on City of Cooksville [Tennessee] employee’s computer hard drives under the state’s Freedom of Information Law. The newspaper wanted to find out the “web sites” that may have accessed through the City’s computers by its employees by reviewing the “cookie files” stored on the drives.

Originally the city said the newspaper had to pay for the information -- over $300 -- but later decided to refuse to produce the information, claiming the computer files were not public records. However, “cookie files” are like “telephone logs” according to some attorneys involved in First Amendment litigation and therefore must be produced under “Freedom of Information.”

What about employee claims that “personal e-mail” is private and not subject to scrutiny by the employer. As this is still an issue unsettled by the courts, many employers are advising employees that:

1. Workers should not have any “expectation of privacy” with respect to any information, official or personal, prepared using the organization’s computer equipment; and

2. The employer may periodically monitor or review computer files prepared using company equipment.

In some case, unions have attempted to include “employee privacy” provisions in collective bargaining agreements.

Official misconduct

Official misconduct
People v Lynch, Rockland County Court, [Not selected for publication in the Official Reports]

Kevin Lynch, a member of a school board, was charged with “Official Misconduct” [Penal Law Section 195 et seq] as the result of his voting in favor of the district’s purchasing health insurance policy recommended by a consultant hired by the school district. Lynch allegedly had a “secret arrangement” with the consultant and his employer, the court said. After the district had accepted the health insurance plan recommended by the consultant, Lynch “received approximately $107,000 in commissions....”

Section 195.02 provides that a public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit he or she knowingly refrains from performing a duty that is imposed upon him or her by law or is clearly inherent in the nature of his or her office.

Lynch contended that Section 195.02 was unconstitutionally vague because there the law did not set out a standard that could be used to determine conduct that was “clearly inherent in the nature of an office.”

Essentially Lynch argued that the Section 195.02 “fails to provide a clear and unmistakable warning as to the acts which will subject one to criminal punishment.” Judge Kelly, however, said “the essential characteristic of official misconduct is that public servants are under an inescapable obligation to serve the public with the highest fidelity.”

Did Lynch’s vote on the health insurance contract constitute “official misconduct?” Judge Kelly thought it did, noting that “... the object of the official misconduct statute is to punish a breach of duty committed with the requisite culpable state of mind ....” Here, said the Court, the evidence reasonably supports the charge that Lynch failed to perform a “duty clearly inherent in the nature of his office.” In addition, said the Court, Lynch had an ethical obligation to perform said his duties free from conflicts and to disclose such conflicts.

According to the Court, Lynch took an oath of office and was provided with an ethics policy enacted pursuant to General Municipal Law Section 806(a). This policy required that, “[i]f [Lynch] participates in the discussion or gives official opinion on any legislation before the Board he will publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he has in such legislation.” The policy also prohibited Lynch from “solicit[ing] or accept[ing] any commission, expense, paid trips, or anything of value from individuals or companies who are vendors or potential vendors to the district....”

Judge Kelly concluded that a school board trustee has a duty to procure insurance for the school district "free from conflict” and dismissed Lynch’s motion seeking to have the criminal action against him quashed.

The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/