Terminated individual must repay salary received while his appeal was pending arbitration

Terminated individual must repay salary received while his appeal was pending arbitration
Rensselaer County v Hudson Valley Community College Faculty Association, Appellate Division, Third Dept., 262 AD2d 843, Motion for leave to appeal denied, 4 NY2d 753

In the Hudson Valley case, the Appellate Division decided that an arbitrator had the power to require a faculty member to repay the college for the salary it had paid to him while an appeal of his dismissal was pending arbitration.

The arbitrator had ordered the college to provide salary during this period, but apparently reserved the right to direct that the salary be repaid if she later determined that the dismissal was warranted, which she did.

Hudson Valley Community College dismissed a tenured member of its faculty, Thomas P. Neuhaus, and removed him from the payroll effective September 1, 1996.

The college alleged that Neuhaus had violated the collective bargaining agreement between the college and the Hudson Valley Community College Faculty Association when he gave each of the students in his electronics communication course a grade of 100 percent in lieu of an examination, which had been scheduled but was not administered.

Neuhaus was also charged with “improperly selling electronics equipment to students in exchange for special considerations.”

The Faculty Association filed two grievances on Neuhaus’ behalf. The first challenged Neuhaus’ termination. The second grievance concerned the college’s removing Neuhaus from the payroll and failing to continue his benefits while the disciplinary grievance was pending.

As to the salary grievance, the arbitrator ruled that the college had violated the collective bargaining agreement by failing to keep Neuhaus on the payroll during the pendency of the termination grievance. Accordingly, the college restored Neuhaus to the payroll retroactive to September 1, 1996.

The termination grievance then went to arbitration. In August 1997, the arbitrator rendered her award, concluding that:

1. Neuhaus was guilty of violating several articles in the collective bargaining agreement;

2. The penalty of termination was appropriate;

3. Neuhaus was not entitled to salary beyond August 21, 1996; and

4. Neuhaus should reimburse the college for salary paid to him after that date.

The college asked a State Supreme Court judge to confirm the arbitration award [see Section 7510, Civil Practice Law and Rules]. Neuhaus cross-petitioned the court seeking (1) to vacate the termination award and (2) to confirm the award in the salary grievance.

The Appellate Division rejected Neuhaus’ appeal seeking to overturn his termination. The court then said that it was “unpersuaded” that the arbitrator exceeded her authority in ordering Neuhaus to repay salary received for the period following August 21, 1996.

The Appellate Division ruled that the provision in the termination grievance award requiring Neuhaus to repay the salary the college had paid to him since September 1, 1996 “did not contradict” the salary grievance award. The court concluded that the salary grievance dealt exclusively with the issue of Neuhaus’ right to receive his salary pending the resolution of the termination grievance.

The court commented that in the salary grievance the arbitrator had ordered the college “to continue such payments until the matter is resolved by the issuance of an arbitration decision dealing with the merits of the dismissal, which decision shall then be controlling”. Accordingly, there was nothing to bar the arbitrator from directing Neuhaus to repay the salary he had received from the college since September 1, 1996.

However, there may be limitations with respect to the period during which a person against whom disciplinary charges have been filed may be suspended from his or her position without pay. An example of this is the statutory limitation set out in Section 75 of the Civil Service Law. Section 75 allows an individual against whom disciplinary charges have been filed to be suspended without pay for up to 30 days. The employee must be restored to the payroll after 30 days, even if he or she is directed not to report to work while the disciplinary action is pending.

In some cases a contract provision may allow the employer to suspend an individual without pay pending the determination of the disciplinary action. Such a provision is usually subjected to “narrow interpretation” by the courts. An illustration of such a narrow construction is set out in Board of Education v Nyquist (48 NY2D 97). In this case the Court of Appeals noted that the Taylor Law agreement negotiated by the parties allowed a teacher to be suspended without pay “pending an investigation and recommendation by the superintendent of schools.”

The board filed disciplinary charges against a suspended teacher after it had received the Superintendent’s recommendation. The teacher’s “suspended without pay” status was continued by the board. Some 10 months later a hearing panel found the teacher guilty of the charges. The penalty imposed: termination.

As a result of the litigation that followed, the district was directed to pay the teacher back salary for the period from the date of the superintendent’s recommendation to the board until the effective date of the dismissal. The Court of Appeals reasoned that “there (was) no authorization [in the contract] for the board’s suspending the employee without pay after the superintendent completed his investigation and made his report”.

Had the contract permitted the board to continue the teacher’s suspension without pay pending a final disciplinary decision, it appears likely that such a suspension would have been upheld by the court. The only limitation on the duration of a suspension without pay when authorized by a Taylor Law agreement appears to be that the employer may not use the suspension without pay as a sword by delaying the proceedings.

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Individuals may be disqualified for employment because of misrepresentations in employment application

Individuals may be disqualified for employment because of misrepresentations in employment application
Martin v Marchiselli, 262 AD2d 171

Section 50.4 of the Civil Service Law authorizes the state department of civil service or the responsible civil service commission to disqualify and terminate an applicant or an employee if he or she has materially misrepresented his or her qualifications on the application form. The Martin case concerns a New York City police officer who was terminated pursuant to Section 50.4 for this reason.

The New York City Civil Service Commission found New York City police officer Kevin A. Martin unfit for such employment following a post-appointment investigation where “undisputed evidence” showed that Martin had falsified his employment application “to conceal his using a social security number not his own to obtain a second New York State drivers’ license after his first license had been revoked.”

The Appellate Division ruled that the Commission’s action was neither arbitrary nor capricious since “the evidence warranted [Martin’s] retroactive disqualification for employment ... on grounds of both fraud and unsatisfactory character.”
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Absence due to incarceration

Absence due to incarceration
Karp v Comm. of Labor, App. Div., 3rd Dept., 262 AD2d 925
Matyjczuk v Delphi Automotive Sys., App. Div., 3rd Dept., 262 AD2d 847

Sometimes an employee cannot report to work because he or she is in jail. May the employee be terminated because of his or her inability to report to work because the incarceration? How far must the employer go to “accommodate” the employee’s incarceration? If terminated because of the incarceration, is the employee eligible for unemployment insurance benefits? These are some of the questions considered by the Appellate Division in the Karp and Matyjczuk cases.

The Karp decision

Susan Karp was dismissed from her position with the State Insurance Fund because she failed to “provide appropriate documentation regarding her unauthorized absence from work.” It seems that Karp had been arrested on May 27, 1998. She notified her supervisor that she could not report to work because she was in jail. Because she did not post, or arrange for, bail, Karp remained in jail.

The Fund wrote to Karp “acknowledging her arrest and informed her that because her absence from work was unauthorized, she was required to provide appropriate explanatory documentation by June 10, 1998.” Karp never replied to this letter. According to the decision, the Fund subsequently terminated her, deeming Karp to have “abandoned her employment.”

Former Section 4 NYCRR 5.3(d), of the New York State Civil Service Commission’s Rules for the Classified Service [repealed effective February 27, 1979] provided that a state employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position. This rule was held to violate the employee’s right to due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. Such a provision, however, has been held lawful if the parties had agreed to such a result through the collective bargaining process. Typically the courts will decline to void the provisions of such agreements except in cases involving the violation of a strong public policy.

The Unemployment Insurance Appeals Board disapproved Karp’s application for unemployment insurance, ruling that she was disqualified for benefits because she had been terminated as a result of her misconduct -- failing to respond to the letter that the Fund had sent to her.

The Appellate Division sustained the Board’s determination, pointing out that Karp conceded that she had been arrested and failed to post bail. It noted that the Unemployment Insurance Administrative Law Judge [ALJ] had asked Karp why she did not contact a bail bondsperson and she responded that “somebody said that they wouldn’t do it”. In other words she did not make any reasonable effort to be released from her incarceration.*

The Appellate Division said that it agreed with the Board that it was Karp’s “own willful or deliberate conduct [i.e., her failing to attempt to obtain bail] that rendered her unable to report to work.” This, coupled with Karp’s failing to respond to the letter sent to her, was deemed “disqualifying misconduct” for the purposes of claiming unemployment insurance benefits.


The Matyjczuk decision

The Appellate Division came to essentially the same conclusion in the Matyjczuk case -- failing to report to work because the employee was in jail under the circumstances present in this case constituted disqualifying misconduct.

Bob Matyjczuk was denied unemployment insurance benefits after he was dismissed by Delphi Automotive Systems.

Matyjczuk had been convicted of driving while intoxicated and was in jail from January 7, 1997 until September 5, 1997. Delphi initially allowed Matyjczuk to use his accrued vacation time and then granted him a 90-day leave of absence.

However, when this initial 90-day leave of absence expired on May 5, 1997, Delphi denied Matyjczuk’s request for a second leave of absence. It also refused to allow Matyjczuk to return to work under an approved county work release program because he had previously participated in a work release program during a prior incarceration.

Matyjczuk was unable to report to work upon the expiration of his leave of absence because he was still in jail. Delphi terminated him effective close of business May 5. Disqualified from receiving unemployment insurance benefits on the basis a finding that he was terminated for misconduct, Matyjczuk sued. An unsympathetic Appellate Division dismissed his appeal.

First the Court acknowledged that Matyjczuk “suffers from alcoholism.” It then noted the Snell v General Motors, 195 AD2d 746 and Opoka v Sweeney, 232 AD2d 718, decisions, cases which set out the proposition that alcoholism can excuse disqualifying misconduct in cases such as his if there is substantial evidence to show that:

1. The individual is an alcoholic;

2. The alcoholism caused the behavior leading to the individual’s discharge; and

3. The individual was available for and capable of work.

The Appellate Division said that Matyjczuk could not satisfy the third test -- being available and capable of work -- because his incarceration precluded him from being available for work. It rejected Matyjczuk’s argument that he would have been available for work if Delphi had “again afforded him the opportunity to participate in a work release program.” It agreed with the Unemployment Insurance Appeals Board that “the employer was not obligated to provide this accommodation a second time” and thus Matyjczuk could not satisfy all of the three elements essential to claiming he was eligible for an “exception” to his otherwise disqualifying misconduct.

The lesson here is that if an individual cannot report to work because he or she is in jail, the employer should attempt to determine the reason or reasons for the incarceration. It should then determine if it is possible and appropriate to make a reasonable effort to accommodate the employee’s situation. If, however, the employee fails to cooperate or if he or she has been provided with an “accommodation” related to an incarceration in the past, the employer is not required to undertake “heroic efforts” to continue the individual’s employment. Finally, unless a collective bargaining agreement so provides, a public employer may not deem an individual to have abandoned his or her position merely because he or she fails to report for work, with or without an explanation.

* When the ALJ asked her why she did not “more vigorously pursue help from her union following her termination,” Karp replied, “To tell you the truth, I really didn’t want to work there.”
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Effective date of appointment

Effective date of appointment
Challandes v Shew, Supreme Ct., Westchester Co., [not officially reported]

Which one of the following best describes when the appointment of an individual in the classified service is binding on the appointing authority?

a. The date on which the appointing authority decides to appoint the individual.

b. The date on which the individual accepts the appointment.

c. The date on which the individual is scheduled to report for duty.

d. None of the above.

According to the Challandes decision, the best answer is “none of the above.” State Supreme Court Judge Peter M. Leavitt ruled that an appointment takes effect upon the execution [signing] of the letter of appointment by the appointing authority. Further, the individual’s “acceptance of the appointment” is not a necessary element, Judge Leavitt ruled.

Judge Leavitt’s decision, in part, parallels the law concerning resignation from the public service. The state Civil Service Commission’s Rules for state workers in the classified service mandate that an individual’s resignation from his or her position be in writing [4 NYCRR 5.3].

Case law holds that such a resignation becomes operative upon its delivery to the appointing authority -- “acceptance” of the resignation is not required. At most, all that the appointing authority may wish to do is to “acknowledge” its receipt of the resignation. Further, the effective date of the resignation is the date specified but if no date is specified, it is effective upon delivery. Many jurisdictions have adopted rules and procedures that track the State Commission’s rule concerning resignation. “Delivery” is frequently critical in determining an individual’s “employment status” since the general rule is that once delivered, the individual may not withdraw his or her resignation without the approval of the appointing authority.

The case involved Joyce Challandes, a provisional Data Entry Operator with the Village of Ossining. She took and passed the examination for permanent appointment to the position. The village manager signed a letter offering her “a permanent appointment” to the position “effective January 1, 1999.” On December 30, 1998, the executed letter was faxed to Challandes’ union representative but it was never sent to Challandes.

The next day the village manager handed Challandes a different letter -- a letter informing her that she would not be appointed to the position. Challandes sued, contending that she had been lawfully permanently appointed to the position. Judge Leavitt agreed, ruling that Challandes had been unlawfully terminated from her permanent appointment. He directed that she be reinstated as a probationary employee with back salary. Judge Leavitt held that “the execution of the letter [i.e., the village manager’s signing the letter] constituted a clear, unequivocal and voluntary act by the village manager which became effective immediately upon such execution."

Judge Leavitt declared that although the faxing of the letter to the union on December 30 was evidence of its execution, “no delivery - to [Challandes] or anyone else - was required to effectuate the appointment memorialized therein.” The judge also ruled that reporting the appointment to “proper personnel and payroll officers” was not necessary to effect the appointment. Concluding that Challandes “was duly and lawfully permanently appointed” to the position, Judge Leavitt said that “she could not be removed therefrom without cause during [her] minimum probationary period.”

Case law indicates that an individual permanently appointed to a position in the competitive class is protected by the due process provisions of Civil Service Law Section 75 during his or her minimum probationary period and must be given “notice and hearing” if he or she is to be terminated before completing his or her minimum period of probation. A probationer, however, may be terminated without notice and hearing after completing his or her minimum period of probation and before the end of his or her maximum period of probation.

Notwithstanding this, it would seem that delivery, in contrast to mere execution, of a letter of appointment is as critical a step in the appointment process as is delivery of a resignation in the separation process. It could argued that the faxing of the appointment letter to the union in the course of negotiations “concerning the pay grade within which [Challandes] would be compensated” satisfied the “delivery” requirement.

Is the delivery of the letter of appointment one of the key elements in the appointment process? Case law supports this concept. For example, the refusal to “deliver” an executed commission [letter of appointment] which was essential to effecting the appointment of the individual was the genesis of one of the most famous cases decided by the U.S. Supreme Court, Marbury v Madison, 1 Cranch 137, [1803].

Marbury was one of the so-called “midnight judges,” individuals selected for these appointments during the final hours of the outgoing presidential administration but whose commissions were never sent to them.

The new administration’s Secretary of State, James Madison, had found the commissions among the former Secretary of State’s papers, but had refused to deliver them to the appointees thereby frustrating their ability to take office. Ultimately U.S. Supreme Court Chief Justice John Marshall held that Congress did not have the authority to adopt legislation compelling the delivery of the commissions, thereby establishing the precedent for the Supreme Court’s review of the constitutionality of an act of Congress.

It may be of interest to note that Marshall was the incumbent Secretary of State who had neglected to provide for the timely delivery of the commissions to Marbury and his co-appointees.

As to the question of the withdrawal of an appointment, courts have held that a written resignation may be withdrawn or canceled by the individual without the approval of the appointing authority if the notice rescinding the resignation is received by the appointing authority before delivery of the resignation. [see Wright v Town Board, 160 AD2D 1156; Informal Opinions of the Attorney General, August 23, 1974].

By analogy, it would appear that an appointment may be rescinded by an appointing authority if the appointee receives notice of the cancellation of his or her appointment prior to the “delivery of the letter of appointment”.
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Are school counselors teachers?

Are school counselors teachers?
North Tonawanda CSD v Mills, App. Div. 3rd Dept., 263 AD2d 574, Motion for leave to appeal denied, 94 NY2d 751

Teachers have many rights and entitlements under the Education Law. Should school counselors and social workers be considered teachers when determining their rights and benefits? Generally, the answer is no, as the North Tonawanda case shows.

Effective September 1996, the North Tonawanda City School District discontinued using the Orleans-Niagara BOCES to provide counseling and social work services to its special education students in favor of using its own employees to provide such services. The district appointed eight former BOCES employees for this purpose.

Seven of these former BOCES employees were certified school social workers; the eighth was a school counselor.

The appeal concerned the district’s denial of certain prior service credits for salary purposes and sick leave credits granted to the eight former BOCES employees upon their appointment by the district.

While at BOCES, the employees’ salaries reflected both their service and experience prior to their being employed by BOCES, together with their actual years of service at BOCES. When appointed by the district they were only given service credit for salary purposes for their actual BOCES service; no service credit was allowed for any pre-BOCES employment. In addition, the eight were not credited with any “BOCES sick leave” accruals.

The eight claimed that the district’s decision violated their rights under Section 3014-b (3) of the Education Law, which sets out the rights of teachers where a school district has taken over a program formerly operated by a BOCES. However, the term “teacher” is not defined in Article 61, where Education Law Section 3014-b is found.

The eight appealed to the Commissioner of Education. The then-Acting Commissioner ruled in favor of the employees and ordered the district to place them at the same salary step they had at BOCES and give them their BOCES sick leave credits.

North Tonawanda appealed the Acting Commissioner’s determination, contending that the former BOCES employees were not teachers and, therefore, not entitled to the rights given BOCES teachers by Education Law Section 3014-b. A State Supreme Court judge agreed and annulled the Acting Commissioner’s determination and the employees, together with the Department of Education, appealed. The Appellate Division concurred with the lower court, holding that counselors and social workers are not “teachers” for purposes of Section 3014-b.

The Appellate Division noted that the Legislature recently amended Section 3014-b to include “teaching assistants and teachers’ aides.” This, said the court, indicates that the term “teacher” has a very narrow meaning for the purposes of Section 3014-b.

The court also cited Fink v Avon Central School District, 207 AD2d 973, in which the Appellate Division, 4th Department, concluded that “the position of school psychologist does not fall within the scope of the term ‘teacher’ as used in Education Law Section 3014-b”. Because the positions of school psychologist, social worker and counselor are similar, the Fink decision suggested that school social workers and counselors are not “teachers.”
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