Extending an eligible list

Extending an eligible list
Doyle v NYC Dept. of Citywide Administrative Services, 261 A.D.2d 110

Thomas Doyle brought an Article 78 action to compel the New York City Department of Citywide Administrative Services to extend a civil service eligible list beyond its “maximum life.” The Appellate Division dismissed Doyle’s petition.

Noting that Doyle asked relief in the nature of mandamus (i.e., an order that a responsible official or agency perform a required duty), the Appellate Division said that mandamus is available only to compel a nondiscretionary governmental act, citing Matter of Altamore v Barrios-Paoli, 90 NY2d 378.

Here, said the court, Doyle is demanding that a civil service eligible list be extended. Because there is no question that the extension of a civil service eligible list is a discretionary act on the part of the administrator charged with maintaining such eligible lists, the court said it could not order the city to extend the list.

The Appellate Division said that there was no evidence that Department’s determination to let the list expire at the end of its maximum statutory term was arbitrary and capricious or made in bad faith.

As set out in Section 56 of the Civil Service Law, the duration of an eligible list shall be for at least one year but shall not extend beyond four years.

However, Section 56.3 provides that in the event an individual whose “disqualification has been reversed” or whose rank on the eligible list has been “adjusted by administrative or judicial action”, the candidate’s name is to be placed on the relevant eligible list[s] “for a period of time equal to the period of disqualification or for the period the application [sic] has been improperly ranked, up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer.

If the list expires before the individual has had his or her name “restoration to the eligible list,” for at least one year, the individual’s name is to be placed on a “special list” for the period remaining; if the list expires before being “restored,” the individual’s name is to be placed on a special eligible list “for a length of time equal to the restored period of time not to exceed a maximum of one year.”
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Transfer of employees

Transfer of employees
Allah v NYC Health and Hosp. Corp., 259 AD2d 409, Appeal dismissed, 93 NY2d 999

Section 45 of the Civil Service Law provides for the continuation of employment for eligible employees of a private entity when a public agency assumes the functions formerly performed by the private organization.

The Allah case concerns a variation of this: the “transfer” employees of a private employer to a public employer when (1) the private employer continues to provide services and (2) the public employer performs some of these functions as well. This was the situation when New York City’s Health and Hospital Corporation [HHC] decided to provide some of the services then being provided by the New York Medical College and Coney Island Medical Group as private entities. In other words, there was no Section 45 take-over of these two organizations.

HHC decided that it needed to transfer some of the College’s and the Group’s personnel to perform these “new” services.

To facilitate this “transfer,” the State Legislature enacted Unconsolidated Laws Section 7390(2)(b) exempting health care personnel formerly employed by the College and the Group transferred to HHC from having to take and pass a competitive examination as a condition of becoming civil service employees with permanent competitive status within the HHC system.

The Appellate Division ruled that this provision did not violate Article V, Section 6 of the State Constitution, which requires civil service appointments to be made according to merit and fitness and, as far as practicable, by competitive examination. The court said that the Legislature had expressly determined that “requiring a competitive examination as a condition of transferring the aforementioned personnel to HHC civil service employment with permanent competitive status would seriously interrupt the continuous provision of health and medical services.”

Another issue, however, concerned the “seniority” of individuals “transferred” to HHC.

Section 45 provides that employees in a “takeover” retain the seniority “as among themselves.” However, insofar as their seniority in the public service for the purposes of layoff and other statutory requirements is concerned, such individuals cannot claim seniority pre-dating the effective date of their permanent appointment in the public service with respect to the seniority of employees in the public service on or before the date of a takeover.

Allah and other individuals claimed that employees who had been transferred to HHC employment from New York Medical College and Coney Island Medical Group pursuant to the Unconsolidated Law had Section 45 seniority rights.

The Appellate Division disagreed, ruling that Section 45 is triggered only upon public acquisition of a private institution. Here, the Court decided, there was no takeover of a private entity but merely a transfer of employees to enable HHC to perform functions that New York Medical College and the Coney Island Medical Group continue to provide subsequent to their transfer. Accordingly, there was no acquisition within the meaning of Section 45 and therefore the statute is not applicable.
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Accidental disability retirement

Accidental disability retirement
Tuper v McCall, App. Div., 259 AD2d 941

Establishing eligibility for accidental disability retirement is not easy in New York State, as the Tuper case illustrates. State corrections officer Toni Tuper slipped on a wet floor while supervising a prison inmate mopping. She also fell on a stairway located in a building to which she was assigned, and later fell again while running with a medical bag to a medical emergency.

Tuper applied for accidental disability retirement benefits based on the injuries she sustained in each of these slips and falls. The state Employees’ Retirement System (ERS) denied her application on the grounds that none of the incidents she cited constituted accidents within the meaning of Retirement and Social Security Law (RSSL) Section 507-a(b)(3).

An accident under RSSL is an unexpected and unforeseen event whose occurrence is not the result of the ordinary, predictable risks inherent in one’s duties. For instance, a police patrol officer who is shot by a robber and is incapacitated probably would not be awarded accidental disability retirement because being exposed to gunfire is inherent risk of a patrol officer’s duty.

After exhausting her administrative remedies, Tuper sued, challenging the ultimate denial of her application by the then State Comptroller, H. Carl McCall. The Appellate Division sustained the Comptroller’s determination, noting that Tuper had failed to meet her burden of demonstrating that her disability was the result of a work-related accident.

As the Appellate Division pointed out, not every event that results in a work-related injury is an “accident” for the purposes of establishing eligibility for an accidental disability retirement allowance. In Lichenstein v Board of Trustees, 57 NY2d 1010, the Court of Appeals said that “[A]n injury that occurs without an unexpected event, as the result of activity undertaken in the performance of ordinary employment duties (considered in view of the particular employment in question) is not an accidental injury....”

In other words, if an employee is injured while he or she is performing his or her duties and the cause of the injury was not an “unexpected event,” -- that is, the injury was the result of an incident that could reasonably be anticipated or expected, considering the work being performed -- it is not an accident for the purposes of the Retirement and Social Security Law. In reviewing Tuper’s claims the Appellate Division addressed each of the events she claimed demonstrated her eligibility for accidental disability retirement benefits.

Tuper first contended that she was entitled to an accidental disability retirement allowance as the result of her slipping and falling on a wet floor while she was supervising a prison inmate mopping. The Appellate Division said that “inasmuch as a wet floor would ordinarily be anticipated in the context of [Tuper’s] supervision of the mopping detail, [the Comptroller] could rationally conclude that [Tuper’s] slip on the wet surface was not an accident ....”

Tuper fared no better with respect to her second basis for her claim. Here she contended that she had fallen on a stairway located in a building to which she was assigned. She alleged that the building had been condemned and the stairs moved up and down when in use. Tuper, however, was unable to attribute her fall to any of these defects and conceded that she was unsure of the exact cause of her fall. The court decided that under the circumstances, the Comptroller “could rationally conclude that [Tuper’s] petitioner’s fall was the result of her own misstep and did not constitute an accident....”

In her final effort, Tuper claimed that “while on light-duty status, [she] was directed to run with a medical bag to the scene of a medical emergency.” She fell while running. Again the Appellate Division sustained the Comptroller’s decision denying her accidental disability retirement benefits.

The court observed that the Comptroller “could rationally conclude that this third incident did not constitute an accident because the injury was the result of the risk of ‘exertional injury’ inherent in the activity which [Tuper] was expected to perform in the ordinary course of [Tuper’s] employment.”

As a correction officer member of the State’s Police and Firefighter Retirement System (PFRS), Tuper was eligible for disability retirement benefits pursuant to Section 507-a(b)(3). Other state and municipal employees are eligible for accidental disability retirement benefits under a different section -- Section 63 of the Retirement and Social Security Law. Section 63 provides for accidental disability retirement benefits for members of the State’s Employees’ Retirement System (ERS) who are disabled as a result of an “accidental injury” while performing official duties.

Section 363 provides similar benefits to police officers and firefighters who are members of the ERS.

Regardless of the statutory provision involved, courts use the same analysis to determine if a disability resulted from an accident for the purposes of determining eligibility for disability retirement.

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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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Displacement and layoff

Displacement and layoff
Yonkers Muni. Housing Auth. v Dugan, 261 AD2d 406

Typically when a position is abolished and this results in the layoff of a permanent employee, his or her name is placed on a preferred list in accordance with the provisions of Civil Service Law Section 80 [permanent employees in the competitive class] or Section 80-a [permanent employees in the noncompetitive class].

In some instances, however, the individual may be able to “displace” a less senior, lower grade employee in accordance with Section 80.6 of the Civil Service Law. Section 80.6 essentially allows a higher level, more senior individual whose position in the competitive class has been abolished to “displace” a less senior employee in a lower grade position “in the direct line of promotion” of the relevant job class.*

The Dugan case arose after the Yonkers Civil Service Commission ruled that Iliana Rodriguez, a Yonkers Housing Authority Field Representative had the right to “retreat” to another Housing Authority position -- Tenant Relations Aide -- when her position was abolished. The Commission’s decision was challenged by three Authority employees: Thomas E. Dugan, Mary E. Dorman, and Patricia Ortiz.

In the court proceeding that followed the Commission conceded that it was incorrect when it held that Rodriguez had the right to “retreat” to the title Tenant Relations Aide, and that it should have placed Rodriguez’s name a preferred list for the title of Field Representative as of the date of her termination.

The Commission then contended that the position of Tenant Relations Aide was “comparable” to the position formerly held by Rodriguez and thus her appointment from the Field Representative preferred list was authorized by Civil Service Law Section 81.

However, as the decision points out, the Commission’s initial determination contained no finding that the two titles were comparable. This was a fatal omission in the eyes of the Appellate Division. Nor could the court support the determination that Rodriguez had the right to ‘retreat’, because the Commission had admitted that it was in error with respect to that determination.


Accordingly, the matter had to be remanded [returned] to the Commission so that it could make express findings of fact, and to make whatever it deems the correct determination to be. The decision notes that “without such minimal findings, and without a concrete statement of exactly what it is the Commission intended to determine, intelligent judicial review is not possible.

Typically the price of making an incorrect personnel decision in a layoff situation is that the appointing authority must appoint or reinstate the individual who was entitled to the position with back salary and benefits as a matter of law.

* Section 80-a.6 provides displacement rights to employees in the noncompetitive class if specified conditions are satisfied.

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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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Dual employment

Dual employment
Holbrook v Rockland Co, 260 AD2d 437

Most public officers and employees serve in one position at a time. Sometimes, however, an individual may be employed by two different jurisdictions simultaneously. Such dual employments generally require the knowledge and approval of the appointing authorities involved.*

Dual employments are often suspect -- particularly when both are purported to be “full-time” posts. Another consideration: is there the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation. As the Attorney General advised in an informal opinion:

In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17, May 11, 1998].

The opinion notes that the “leading case on compatibility of office” is People ex rel. Ryan v Green, 58 NY 295. In Ryan the Court of Appeals said that “two offices are incompatible is one is subordinate to the other or if there is an inherent inconsistency between the two offices.”

The Holbrook case involved a “dual employment” situation, but with a novel twist. Here the “appointing authority” in each instance was the voter. Charles E. Holbrook had been elected to two different Rockland County public offices, by two different electorates, and, as a result, was simultaneously serving in two different elective offices in two different jurisdictions.

However, in 1993 Rockland County had passed a local law -- the so-called “two hats” law -- barring an elected county officials from holding any other elected town or village office [Rockland County Local Laws of 1993, #6]. In other words, an individual could not hold a county elective office if in so serving he or she would be simultaneously serving as a local elected officer in another public jurisdiction.**

Holbrook, who was elected to serve in the Rockland County Legislature, had also been elected to position of town supervisor of a town in Rockland County. He challenged Local Law 1993 #6, as well as a 1997 local law providing for reapportionment of election districts, contending that both local laws were invalid because they had been enacted without a voter referendum as mandated by Municipal Home Rule Law Section 23(2)(e) and (f).

The Appellate Division affirmed a ruling by a Supreme Court justice rejecting Holbrook’s complaint, holding that both local laws had been validly adopted. The decision noted that while Section 23(2)(e) and (f) requires a referendum if the proposed local law “changes the term of an elective office”, or “curtails any power of an elective officer,” Rockland’s “two hat” laws merely prohibited Rockland County legislators from simultaneously holding a second elective office. The Appellate Division said that the local laws in question neither changed the terms of an elective office nor curtail any powers of an elective officer.

* Dual employments, in which appointments to different positions are made, are not the same as a “joint appointment.” In a joint appointment, two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two appointing authorities typically share the personnel service costs.

** Local Law 1993, #6, permitted elected county officials then holding two elective offices to continue to serve in both offices until January 1, 1998.
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