Filing an employer application for disability retirement pursuant GML 207-c

Filing an employer application for disability retirement pursuant GML 207-c
City of Schenectady v McCall, AD 3rd Dept., 245 A.D.2d 708

The City of Schenectady filed an application for accidental disability benefits for one of its police officers, Kevin J. Coker, with the New York State and Local Policemens' and Firemens' Retirement System [PFRS]. It claimed that Coker had sustained at least four neck and back injuries while on duty. Although Coker had returned to duty after each episode, in 1992 he ceased working claiming that the back pain resulting from these accidents permanently incapacitated him.

Section 207-c.2 of the General Municipal Law authorizes the filing of an application for accidental disability retirement on behalf of a disabled police officer if the officer does not elect to do so.
PFRS' medical expert, Neurologist Neil Lava, testified that Coker was not "permanently incapacitated" and that there was no medical explanation for Coker's complaints of pain and a limited range of motion. The City's medical expert, Police Surgeon Dominic Belmonte, an occupational physician, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming employment as a police officer. The application was rejected by PFRS and the City appealed.

The Appellate Division, with Judge Mikoll dissenting, sustained the System's disapproval of the City's application to have Coker retired for work-related disability. The Court said that the System's determination "is supported by substantial evidence, even though there is other evidence that would support a contrary result."

However, the PFRS' determination may have triggered another provision of the General Municipal Law, Section 207-c.3. Section 207-c.3 provides that if a police officer is not eligible for or not granted an accidental disability retirement allowance, he or she may be required to perform "light duty ... consistent with his [or her] status as a policeman" if found medically qualified to perform such duties. If the police officer refuses to perform such light or modified duty, Section 207-c payments "shall be discontinued." As PFRS has found Coker is not "permanently disabled," the City could have Coker evaluated by its medical experts to determine whether he is able to perform "light police duties."

Another alternative: the City could, if Coker agrees, transfer him to a position with another City agency or department [see Section 207-c.4, General Municipal Law] if he meets the civil service qualifications for the position to which the transfer is to be made.

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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Determining seniority for tenure purposes

Determining seniority for tenure purposes
Kaufman v Fallsburg CSD, Court of Appeals, 91 NY2d 57

Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In the Kaufman case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by the Fallsburg Central School District.

Two teachers, Forman and Kaufman, were both appointed to the elementary tenure area on September 1, 1992. Forman had been given a probationary appointment in the special education tenure area in November 1990 but in the 1991-92 academic year she was assigned to teach sixth grade subjects to mixed classes consisting of regular education students and six learning-disabled special needs students. On September 1, 1992, the District additionally appointed Foreman to the elementary tenure area, and assigned her to teach fourth grade.

Kaufman, who had prior service in the District as a substitute teacher, also received a probationary appointment in the elementary tenure area on September 1, 1992. Kaufman then took over the instruction of Foreman's sixth grade class.

Effective June 30, 1994, the District abolished four elementary education positions. Kaufman was excessed when the District determined that she had the least seniority in the elementary tenure area. Kaufman sued, contending that she was entitled to additional credit in the elementary tenure area for the two months she taught as a regular substitute elementary teacher during the 1991-1992 school year and thus had greater seniority in the elementary tenure area than did Foreman.

While the District conceded that Kaufman was entitled to the two months of additional credit as she claimed, it said it had also recalculated Foreman's seniority and concluded that she was entitled to additional credit in the elementary tenure area for the entire 1991-1992 school year during which she taught the mixed sixth grade class of regular education and special needs students. This, the District argued, meant that Foreman still remained senior to Kaufman in the elementary tenure area.

Kaufman challenged this, contending that: (1) The facts in the record did not establish that Foreman served in the elementary tenure area during the 1991-1992 school year; and (2) the District did not have any authority to grant Foreman seniority credit in the elementary tenure area as of September 1991 because the District (a) failed to expressly notify Foreman that her assignment for the 1991-1992 school year was outside her initial special education appointment, and (b) it had not obtained Foreman's prior written consent to that out-of-tenure area assignment.

These omissions, Kaufman contended, barred the District from retroactively crediting Foreman with elementary tenure area seniority for her service during the 1991-1992 school year. A New York State Supreme Court justice disagreed, reasoning that accepting Kaufman's theory would penalize teachers for school district mistakes by depriving them of credit to which they would have been entitled but for the school district's error. The Appellate Division concurred with the Supreme Court's analysis and affirmed the lower court's ruling (234 AD2d 698).

The Court of Appeals agreed, dismissing Kaufman's appeal. It said that the lower courts "correctly concluded that there was a sound factual basis for the District's determination that Foreman devoted a substantial portion of her time during the 1991-1992 school year to teaching in the elementary tenure area." The Court said that the record contains "ample evidence to support the District's finding that Foreman devoted over 40% of her time to teaching the "common branch subjects" of reading, science, arithmetic and language arts to her sixth grade students."*

The Court also held that the fact that some of her sixth-graders were learning-disabled special needs students "does not, under these circumstances, compel a different conclusion and thus Foreman was entitled to seniority credit in the elementary tenure area for her service during the 1991-1992 school year."

What about the District's failure to comply with the notice provisions set out in 8 NYCRR 30.9(b)? Shouldn't this prevent the District from giving Foreman retroactive elementary area seniority credit for the 1991-1992 sixth-grade assignment?

The Court of Appeals said that "concededly, Foreman was not formally notified that her assignment to teach sixth grade in 1991-1992 was out of her original tenure area, and her consent was not obtained." More important, said the Court, 8 NYCRR 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors," citing Ricca v Board of Education., 47 NY2d 385, 391.

Finding that the underlying purpose of 8 NYCRR 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area, the Court said that the regulation has a two-fold protective purpose: (1) it protects teachers from being required to accept assignments outside of their designated tenure areas involuntarily; and (2) it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments.

The Court of Appeals concluded that 8 NYCRR 30.9(b) was intended, and has been consistently construed administratively, as a safeguard for teachers who are assigned (either involuntarily or without their knowledge) outside of their designated tenure areas. Accordingly, the provision should not be interpreted to prevent a teacher from knowingly and voluntarily waiving that section's consent requirement when strict application of the regulation would itself impose adverse consequences upon the teacher.

* 8 NYCRR 30.1[g] provides that a "substantial portion" of the teacher's time "means 40 percent or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."

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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Terminating an interim appointee

Terminating an interim appointee
Amnawah v NYC Bd. of Education, 266 AD2d 455

Linda Amnawah, an interim-acting “Special Education Review Specialist,” was terminated from her position by the New York City Board of Education.. She sued, seeking reinstatement to her former position. A State Supreme Court justice dismissed her petition.

In affirming the lower court’s determination, the Appellate Division quickly disposed of Amnawah appeal, commenting that because she was a “non-tenured, interim-acting employee,” the board of education could terminate her employment without any statement of reasons, provided that the termination was not made in bad faith or for impermissible reasons.

The court said that while Amnawah had the burden of proving that her termination was made in bad faith or was for an impermissible reason she only offered “conclusory, unsupported, and irrelevant arguments” to this end. Thus, said the court, Amnawah failed to sustain her evidentiary burden and dismissed her appeal.
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Rescinding a letter of retirement

Rescinding a letter of retirementElmira CSD v Newcomb, 266 AD2d 622, Motion for leave to appeal dismissed, 94 NY2d 899

Among the basic general rules applicable to resignation from public service are the following:

1. An individual may rescind his or her letter resignation prior to its delivery to the appropriate authority.

2. The letter of resignation is effective upon delivery to the appointing authority unless an “approval” or “acceptance” of the resignation is mandated by law or a provision in a collective bargaining agreement.

3. Once delivered, the individual cannot withdraw or rescind his or her resignation without the approval of the appointing authority.

4. An appointing authority may elect to ignore a resignation and proceed with disciplinary action against the individual.

Do the same rules apply in cases involving an individual’s submission of a letter indicating his or her intent to retire? In the Newcomb case, the Appellate Division considered the effort of an individual to rescind his notice of his intention to retire.

James E. Newcomb, a tenured guidance counselor employed by the Elmira City School District, told the district that he could not return to his position due to “medical problems.” He was absent for practically all of the Fall 1997 semester.

Eventually Newcomb and the district entered into a “settlement agreement” in lieu of district’s pursuing disciplinary action against Newcomb. Under the terms of the settlement Newcomb agreed to submit his “written notice of retirement,” to take effect February 1, 1998. The district agreed to keep Newcomb on the payroll from December 11, 1997 until January 31, 1998. Newcomb submitted his “retirement letter” in December 1997. For its part, the district continued Newcomb on the payroll.

However, in January 1998 Newcomb sent the district a second letter rescinding his December 1997 letter of retirement. This second letter was delivered to the district before Board of Education had taken formal action on Newcomb’s December retirement letter. The board voted to disregard Newcomb’s attempt to rescind his letter of retirement unless he (1) returned “the previously paid leave funds” and (2) “presented medical documentation certifying his ability to work.” Newcomb failed to comply with either of these conditions and ultimately was deemed “retired” and terminated from the payroll.

When Newcomb sued to void the board action and to reclaim his position, the district countered with a petition asking the court to rule that Newcomb “had no right to unilaterally rescind his retirement letter and that his retirement was effective February 1, 1998.” The district argued that it had acted in reliance of the settlement agreed to by the parties in lieu of its bringing disciplinary action against Newcomb, pursuant to which Newcomb agreed to retire, when it continued him on the payroll as agreed and had hired his replacement. The Supreme Court justice denied Newcomb’s motion for summary judgment and he appealed.

Newcomb’s basic argument:

This is a simple rescission before acceptance case, i.e., I rescinded my retirement letter prior to its acceptance by the Board and thus the district had no authority to terminate my employment.

The district position:

Newcomb’s letter of retirement was not a unilateral act on his part but rather reflected a settlement agreement between the parties and therefore it was not obligated to honor the letter Newcomb submitted in a unilateral effort to rescind his retirement letter.

The Appellate Division commenced its analysis be noting that “authority exists to support the general proposition that a retirement letter may be withdrawn prior to a legally binding acceptance by a board of education,” citing a number of court decision and rulings by the Commissioner of Education. This, according to the ruling, means that although submitting a notice of an intention to retire simultaneously implies a “resignation” from one’s position, delivery of the “retirement letter” is not the operative factor; the appointing authority must take some action to “finalize it.”

The Appellate Division, however, concluded that there were questions of fact that barred the application of this general principle -- a retirement letter must be formally acted upon to be effective -- at this stage of the litigation. Among the issues of fact to be resolved:

1. Was Newcomb’s retirement letter, submitted in compliance with a settlement of a disciplinary action, essentially a term or condition of the settlement and thus he could not unilaterally rescind it notwithstanding the fact that the board had not formally acted on his retirement letter; and, if not,

2. Was the absence of a formal acceptance by the Board fatal in view of the fact that it had indicated its acceptance of the settlement by continuing Newcomb on the payroll and recruiting his replacement?

The Appellate Division, ruling that the Supreme Court was correct in denying Newcomb’s motion for summary judgment, returned the matter to Supreme Court for its consideration of these issues.
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Provisional appointee covered by the State’s “Whistle Blower Law”

Provisional appointee covered by the State’s “Whistle Blower Law”
Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858

The fact that an individual is a provisional employee does not necessarily mean that the individual cannot challenge his or her dismissal in court. For example, the individual may allege that he or she was discharged for “whistle blowing.” In such a case, the individual has a statutory right to sue his or her former employer. The Sisson decision illustrates this.

Dismissed from his provisional appointment with the Niagara County Department of Mental Health, Joseph A. Sisson sued. Although a State Supreme Court justice summarily dismissed his petition, the Appellate Division reversed and said that the matter should go to trial.

Sisson alleged that “he was terminated from his public employment in violation of Civil Service Law Section 75-b, commonly referred to as the ‘whistleblower’s law’, and that he was terminated in bad faith.”

It is well settled that a provisional employee may be “discharged at will” after completing the minimum period of probation and before the end of his or her maximum period of probation unless there was evidence that his or her termination “was for a constitutionally impermissible purpose or in violation of statutory or decisional law.” The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal for any alleged “whistle blowing.”

Section 75-b defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”

According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior, Antoinette Lech, acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Lech]” and thus neither Lech nor the department were entitled to summary judgment.
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