When appealing individual’s employment status all parties that may be affected must be named and served

When appealing individual’s employment status all parties that may be affected must be named and served
Five Residents v Liberty CSD, Decisions of the Commissioner of Education, Decision #13861

If a party wishes to have the Commissioner of Education review an issue, it is critical that all parties who might be affected by the Commissioner’s decision be named in the petition. This point was made clear in an appeal filed by five residents of the Liberty Central School District.

A five-year employment contract between Superintendent and the District was to terminate June 30. Prior to June 30, the parties signed a new contract providing for the Superintendents employment for an additional two years.

The resident-appellants challenged the extension of the contract, claiming it violated the “minimum/maximum” term provisions set out in Section 1711(3) of the Education Law.*

The Commissioner dismissed the petition without considering its merits. He commented that the residents had failed to name a necessary party -- the District’s Board of Education. The Commissioner said that “since the board’s agreement with the superintendent would be adversely affected by a decision in favor of the [residents], the board is a necessary party to this appeal.”**

* Section 1711(3) provides, in pertinent part: “a board of education may enter into a contract with such superintendent for a period of not less than three and not more than five years,”

** In addition, the Commissioner said that he would have had dismiss the appeal event if the board had been named in the petition as the issue had become moot as a result of the Superintendent’s having resigned and thus the contract that the residents sought to have annulled was no longer in effect.
.

New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine

New York City Fire Department Emergency Medical Technician terminated after testing positive for cocaine
NYC Fire Department v Rivera, OATH Index #3416/09

OATH Administrative Law Judge Julio Rodriguez recommended termination of Carlos Rivera, a New York City Fire Department EMT.

Rivera tested positive for cocaine in a random workplace drug test -- registering more than 250 times the official cut-off.

The Department had previously sent him for voluntary rehabilitation three times and afterwards reinstated him to his position.

In his defense Rivera asserted that his drug addiction was a disability requiring accommodation.

ALJ Rodriguez disagreed, finding that Rivera did not establish that he was disabled within the relevant definition of disability set out in the federal Americans with Disabilities Act or the New York State Human Rights Law.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/09_Cases/09-3416.pdf

Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System

Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System
Soronen v Comptroller, 244 A.D.2d 842

William Soronen, Jr., was a temporary aide to a New York State Senator during the 1974 and 1975 legislative sessions. He worked on a part-time basis. In July 1975 Soronen accepted a position with a private law firm. In 1978 he was appointed as a confidential law clerk to a State Supreme Court justice and joined the New York State Employees’ Retirement System [ERS].

Soronen subsequently applied for retroactive membership in ERS based on his service with the State legislature in 1974 and 1975 pursuant to Section 803 of the Retirement and Social Security Law.

ERS rejected his application on the grounds that he had a “break in service.” Soronen appealed, contending that he had not reapplied for employment with the State legislature, although his employer would have approved such part-time employment, because he wanted to care for his son. He attributed his three-plus year break in public service to childcare, claiming that Section 803(b)(2) allowed certain breaks in service “attributed to the birth of a child... or care for such child.”

The Appellate Division affirmed ERS’ determination, noting that Soronen’s break in public service was due to the end of the 1975 legislative session and his termination from his temporary employment, not childcare. The Court also commented that Soronen had not demonstrated that “a public employment position was definitely available to him during both the 1976 and 1977 legislative sessions and that he turned [them] down because of child care requirements.”

Disciplinary action could affect eligibility for Unemployment Insurance

Disciplinary action could affect eligibility for Unemployment Insurance
Cuevas v Sweeney, 246 A.D.2d 718

Sometimes an employee who has been dismissed from his or her position as a result of disciplinary action will file for unemployment insurance benefits. Typically the Unemployment Insurance Board will hold that the individual is disqualified from receiving such benefits because his or her employment was terminated for misconduct. Can the board rely on the disciplinary determination as the basis for denying the claim? Yes, it may, as the Cuevas decision by the Appellate Division illustrates.

Naptale Cuevas, a Mental Hygiene Therapy Aide employed by a State agency, was found guilty of abusing and threatening his supervisor with physical harm. An arbitrator issued the decision after a disciplinary grievance hearing conducted in accordance with the provisions of a Taylor Law agreement.

The arbitrator ruled that dismissal was appropriate based on Cuevas’ being found guilty of the charges and the fact that Cuevas “previously had carried out a physical assault upon a security guard.” The Court said that the Board properly gave collateral estoppel* effect to the arbitrator’s determination when it ruled that Cuevas had lost his job under disqualifying misconduct.

* The doctrine of collateral estoppel is used in situations where the conclusiveness of a judgment in a prior action involving the same parties is applied in a subsequent action involving a different claim, here a claim for unemployment insurance benefits.

Disqualifying an applicant for employment based on psychological evaluations

Disqualifying an applicant for employment based on psychological evaluations
Coffey v Kampe, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Coffey case concerns the disqualification of an individual who wanted to become a police officer because he did not pass the psychological evaluation portion of the Police Officer examination. Section 50 of the Civil Service Law allows a municipal civil service commission to disqualify an applicant if, after passing the required examination, he or she is found not to meet any of the announced requirements.

Coffey took the written test for Nassau County police officer. He scored highly on the written test and was ranked 70th among 70,000 candidates. He also passed a background investigation. But he was disqualified based on the results the third part of Nassau County’s screening process: a three-tiered psychological test battery.

Coffey’s objected, but his appeal was dismissed by the Commission. He sued, contending that his disqualification was arbitrary or capricious. The Commission replied that it had acted in accordance with all relevant rules, policies, and standards, which it had adopted in order to properly administer the provisions of Section 50 of the Civil Service Law.

According to the decision, the Commission found that Coffey failed the psychological screening process because he did not “score within an acceptable range on the objective psychological screening test, and failed in the personal psychological test and interviews.”

The Commission’s psychological screening process had been reviewed and approved by the Appellate Division [Keryc v Nassau County Civil Service Commission, et al, 143 AD2d 669].

New York State Supreme Court Justice O’Connell said, “Courts have also upheld determinations of disqualification, where, as here, the Commissioner of Civil Service found that an applicant was unqualified to serve in a law enforcement position for poor results on standardized Minnesota Multiphasic Personality Inventory (MMPI) exam, among other reasons,” citing the Appellate Division’s decision in Conlon v Commissioner of County of Suffolk, 640 NYS2d 145.

Under the Commission’s rules, the applicant has the burden of establishing his or her qualifications for appointment as a police officer. In dismissing Coffey’s petition, Justice O’Connell said that “where, as here, [the individual] was not actually an employee, but an applicant for appointment, he [or she] must demonstrate that the Commission was arbitrary and capricious, or acted in manner without a rational basis in not making the appointment. The Court ruled that Coffey had not proved this to be the case.

In addition, Justice O’Connell found that Coffey had failed to disclose certain information to the county including five military disciplinary proceedings, two of which resulted in disciplinary actions.

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