Means used to place candidates with tied scores on eligible list may impact on seniority for the purposes of layoff

Means used to place candidates with tied scores on eligible list may impact on seniority for the purposes of layoff
Fiffe v Cohoes Civil Service Comm., 262 AD2d 762, Motion for leave to appeal denied, 93 NY2d 819

Thomas Fiffe was one of seven candidates appointed to firefighter positions in Cohoes, all effective July 25, 1994. He was one of four candidates who had an examination score of 85 and was ranked fifth on the eligible list. But the Cohoes Civil Service Commission later revised this ranking and placed Fiffe seventh on the list. After losing his job in a layoff, Fiffe claimed this change was arbitrary and capricious, and that he had greater seniority than retained employees. The Appellate Division found in favor of the Commission, sustaining its action revising the list as rational and declined to disturb it.

The Commission claimed its original ranking was in error. It explained that at the time Fiffe applied for the examination, its seniority policy for civil service purposes differentiated applicants with the same examination score by ranking the applicants according to the date of receipt of each application and fee. As the result of an error, said the Commission, when the original eligibility list was issued, the candidates with tie scores were randomly placed on the list as among themselves rather than in the order of their application/fee date. In January 1997 -- 11 months before the layoff -- the Commission revised the eligible list “to reflect the correct date of application in accordance with its established policy.”

Fiffe contending that the issuance of a revised eligible list, and the resulting change in his rank and seniority, was arbitrary and capricious. He asked the court to change the date of his application to April 1, 1993. This, of course, would give him greater seniority for the purposes of layoff.

Fiffe argued that the April 1 date should be used because that was the date on which he had originally submitted his application for examination. His application was initially rejected by the Commission because of Fiffe’s date of birth but it was subsequently accepted and processed. The Commission used the later date rather than April 1, when determining his rank on the eligible list.

The Appellate Division sustained the Commission’s action, reflecting the fact that a local civil service commission can use any rational method of ranking to break scoring ties on eligible lists, as long as it is consistent in applying its rule.

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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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Union president required to comply with a county ethics commission subpoena concerning union's employment of former county worker

Union president required to comply with a county ethics commission subpoena concerning union's employment of former county worker

The Suffolk County Ethics Commission issued subpoena* to compel Cheryl A. Felice, the President of a Suffolk County municipal employees union, to appear before it and give testimony relative to its investigation of services provided by a former county employee to the union on or after December of 2007.

Felice resisted the Committee’s efforts and the Commission filed a petition seeking a court order directing Felice to comply with its subpoena and appear before it with the relevant documents.

According to the decision, underlying Committee’s investigation was a sworn complaint alleging possible violations of Article XXX (Code of Ethics) of the Suffolk County Administrative Code** by a former county employee who was retained by the Felice's union of municipal employees as a consultant, strategist, employee or independent contractor.

In opposing the Committee’s action, the union argued:

1. The provisions in the Code of Ethics relied upon by the Commission are not applicable to the former county employee whom the union retained to assist it in its labor relations with the County.

2. The Commission failed to demonstrate that the subpoena is an appropriate exercise of the Commission's discretion.

3. The subpoena was procedurally deficient in that it does not appear to have been issued upon the unanimous vote of the members of the Commission as required by the Ethics Code.

4. Disclosure of the communications and documentation called for by the subpoena violates the "labor union leader privilege".

Judge Whelan rejected all of the union’s arguments and granted the Commission’s petition noting that “It is only where the subpoena recipient demonstrates that the subpoena is not within the authority of the issuing agency or that its scope may be fairly characterized as irrelevant, illegitimate or oppressive will the recipient's challenge be sustained. In this instance, said the court, Felice has not met her burden in this regard.

Rather, said the court, the Commission has met its initial burden of demonstrating its authority for engaging in the investigation and issuance of the subject subpoena and that the materials sought have a reasonable relationship to the subject matter under investigation as well as to the public purpose to be achieved and that the investigation has a sufficient factual predicate.

As to “the targeted former employee” not being not subject to the Committee’s reach, the issue of whether there has been a violation of the Ethic Code provision is a matter for the Commission to determine and any challenge to its ultimate determination and any challenges to the Commission’s authority are premature and beyond the scope of this “special proceeding commenced pursuant to CPLR 2308.”

Addressing Felice’s claim that subpoena was issued pursuant to a unanimous vote of the Commission, Judge Whelan observed that “The record contains due proof that the subpoena was duly authorized by the unanimous vote of three members of the Ethics Commission as required by §30-6(b) of the Ethics Code.”

Finally Judge Whelan rejected Felice’s argument that “labor union leader privilege” insulates a union's leader from disclosing communications and documents that are the target of the Commission’s subpoena as they concern union strategies, proposals, alliances and positions viz a viz the County as it is currently involved in collective bargaining negotiations with the union.

The court said that “The expansive evidentiary privilege for labor union leaders advanced by [Felice], which would immunize from disclosure, communications among union leaders and its paid staff regarding collective bargaining tactics, strategies and advice provided by such staff and other nonunion members has not been shown to be necessary to avoid the impairment of any fundamental rights of [Felice], her union, its members or its retained staff.”

In addition, Judge Whelan said that Felice did not show “that harm would inure to the public interest by reason of the disclosure of the items called for by the subpoena and that such harm far outweighs the interests of the [Commission] who seeks such disclosure.”

* The subpoena also required Felice “to produce any and all records and correspondence in her possession or in the possession of the union, by and between [Felice], other union officials and the former county employee, relative to the union's retention of the former county employee.”

** See §§A 30-4 and A 30-5

The decision, Matter of Suffolk County Ethics Commn. (Felice), 2010 NY Slip Op 20418, Decided on October 9, 2010, Supreme Court, Suffolk County, Judge Thomas F. Whelan, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20418.htm
NYPPL

Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense

Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense

Julie Purcell initiated an Article 78 proceeding in an effort to compel the Jefferson County District Attorney to comply with her request pursuant to the Freedom of Information Law ([FOIL] Public Officers Law art 6) for documents relating to a criminal matter in which she was the complainant.

Supreme Court denied the District Attorney’s motion to dismiss Purcell’s petition on the grounds that she had failed to exhaust her administrative remedies.

The Appellate Division agreed, commenting that because the District Attorney’s office failed to advise Purcell of the availability of an administrative appeal of its refusal to supply the documents she had requested, “[the District Attorney] cannot be heard to complain that [Purcell] failed to exhaust [her] administrative remedies."

The Appellate Division also said that the award of attorney's fees by Supreme Court was appropriate as the District Attorney failed to respond to Purcell’s request or her appeal “within the statutory time" limits (see Pubic Officers Law §89[4][c][ii]). Under the circumstances, the Appellate Division concluded that Supreme Court did not abuse its discretion in awarding attorney's fees and costs in this action.

The decision, Matter of Purcell v Jefferson County Dist. Attorney, 2010 NY Slip Op 06882, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06882.htm
NYPPL

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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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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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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