Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith
Rosioreanu v New York City Off. of Collective Bargaining, 2010 NY Slip Op 07797, Decided on November 4, 2010, Appellate Division, First Department

Upon conclusion of a grievance procedure that resulted in her termination, Cleopatra Rosioreanu filed an improper practices petition with the New York City Office of Collective Bargaining [OCB] contending that her union failed to provide adequate representation throughout the grievance process.

OCB denied the petition and Rosioreanu filed an Article 78 proceeding challenging OCB’s determination.

The Appellate Division said that Rosioreanu’s Article 78 petition advanced the theory that because the grievance process ended with her termination, her union representatives must have acted arbitrarily, capriciously or in bad faith.

The court characterize Rosioreanu’s claim as a “conclusory assertion,” commenting that there was nothing in the record that suggests malfeasance by the union representatives, much less fraud, deceitful action, dishonest conduct or discrimination on the part of union representatives, citing Mellon v Benker, 186 AD2d 1020.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07797.htm
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Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)
Matter of Rivera v DiNapoli, 2010 NY Slip Op 07852, Decided on November 4, 2010, Appellate Division, Third Department

Although typically an applicant for accidental disability retirement benefits or performance of duty disability benefits has the burden of proof with respect to showing that his or her disability resulted from the performance of his or duties, such is not always the case.

For example, the Retirement and Social Security Law §507-b(c) sets out a rebuttable presumption that where an individual has "successfully passed a physical examination on entry into service as a correction officer" that did not reveal evidence of heart disease and later becomes disabled as the result of a heart condition sustained during employment, it is presumed that the disability was "incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence."

Juan C. Rivera’s had successfully passed his physical examination when he began his employment as a correction officer. He subsequently suffered a myocardial infarction after falling ill while at work.

When it was determined that he could not return to work because of his resulting medical condition, Rivera applied for performance of duty disability retirement benefits.

The New York State and Local Retirement System [ERS], however, denied his application, concluding that although Rivera was permanently incapacitated, his disability "was not sustained as a result of the performance or discharge of his . . . duties."

Ultimately the Comptroller sustained the ERS’s denial of his application for benefits and Rivera filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Comptroller’s determination.

Under the circumstances, said the Appellate Division, ERS had the obligation to rebut the statutory presumption that Rivera's disability occurred as a result of his performance and discharge of his duties as a correction officer.

The Appellate Division concluded that ERS had rebutted the presumption that Rivera’s disability was related to his employment as a correction officer by presenting evidence of risk factors coupled with expert testimony that excludes an applicant's employment as a causative factor" and sustained the Comptroller’s decision.

The court said that considering the record as a whole, it found that ERS had “effectively rebutted” the presumption set out in RSSL §507-b(c) and thus Rivera’s application for benefits was properly denied.

The record indicated that ERS had relied on the opinion of a cardiologist who, after examining Rivera, concluded that while work-related stress "can aggravate the symptoms of coronary artery disease," Rivera's coronary artery disease "was not related to his employment as a correction officer." The cardiologist made reference to the fact that Rivera suffered from a variety of risk factors commonly associated with coronary heart disease, including obesity and hypertension.

The Appellate Division said that it had previously held "the [statutory] presumption is effectively rebutted when evidence of risk factors is coupled with expert testimony that excludes an applicant's employment as a causative factor," citing Bryant v Hevesi, 41 AD3d at 932.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07852.htm
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Independent contractors in the public service

Independent contractors in the public service
Roesch v BOCES, App Div, 259 AD2d 900

The Roesch case is another in a series of actions involving claims for retroactive membership in a public retirement system.

Dorothy E. Roesch claimed that her service as a school psychologist with the Wayne-Finger Lakes BOCES qualified her for retroactive membership in the New York State Teachers’ Retirement System [TRS]. BOCES had rejected Roesch’s application on the grounds that she was a consultant on a per diem basis serving as an independent contractor and therefore she was ineligible to join TRS during the time in question.

The decision indicated that there were neither payroll or personnel records nor any formal appointment action by BOCES to employ her.

In contrast, such types of records were produced concerning others serving in similar positions indicating that such personnel “were formally appointed” to positions as employees of BOCES. Was this sufficient to support the conclusion that Roesch served as an independent contractor rather than as a BOCES employee?

The Appellate Division ruled that it was, sustaining BOCES’ rejection of Roesch’s application. The court said that there was rational basis for this determination, noting that the BOCES’ minutes of board meetings during the relevant period established that BOCES had a pattern and practice of making formal appointments of full and part-time employees.

The court said that the minutes “were devoid of any reference to the appointment of Roesch during this period when other school psychologists were so appointed by BOCES.”

This, coupled with the lack of any [IRS payroll withholding] W-4 forms that were completed by Roesch while others were produced for school psychologists employed near the relevant time period, “provides a rational basis to support the denial of Roesch’s application for retroactive membership in TRS based on her status as an independent contractor.”

The decision is silent as to whether or not BOCES produced copies of “an employment contract” between it and Roesch or copies of IRS Forms 1099, Miscellaneous to support its position that Roesch was an independent contractor rather than an employee. Typically, an individual providing personnel services to a public entity is deemed to be a public employee unless a contract for “personnel services” is authorized under law and a contract providing for such services has actually been executed by the parties.

In another application for retroactive membership in TRS case, Storrar v Mahopac Central School District, 257 AD2d 628, [motion to appeal denied, 93 NY2d 808], that the statement of the school district’s former payroll clerk that she and Barbara Storrar, a former member of TRS, discussed “FICA [Social Security] deductions versus reenrollment” in TRS was sufficient to establish that the district had “procedure that a reasonable person would recognize as an explanation or request requiring a formal decision ... to join a public retirement system” in place.
NYPPL

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense
Russo v Wantagh UFSD, 259 AD2d 703

Smoky conditions prompted school officials of the Wantagh school district to evacuate students from a school building. Investigation showed the fire began in the custodians’ area of the school and was caused by cigarettes igniting waste paper in a plastic trash pail that had not been emptied.

The school board dismissed custodian Clement Russo after he was found guilty of “charges of misconduct and incompetence concerning a smoke condition in the school at which he was employed.” Russo appealed.

The Appellate Division sustained the district’s determination, finding that it was supported by substantial evidence in the record.

Russo also protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty. The court said that “under the circumstances of this case, the termination of [Russo’s] employment was not so disproportionate to the offense as to shock one’s sense of fairness,” quoting the Pell standard in imposing a penalty [Pell v Bd. of Ed., 34 NY2D 222].
NYPPL

Employer fined after docking employee’s pay for jury duty absence
People v Rosenbach, Nassau Co. Ct. [Justice DeMaro], [Not selected for publication in the Official Reports]

From time to time a public employee is called to serve on jury duty. The attendance rules for state officers and employees [4 NYCRR 28.1.9], for example, grants employees “leave with pay without charge to leave accruals” when called upon for jury service. Other jurisdictions provide for similar benefits.

In contrast, penalizing an employee for performing his or her civic duty by reporting for jury duty can be expensive, as attorney Ann Rosenbach has learned. Rosenbach was fined $1310 for criminal contempt after she docked one and one-half weeks of pay from the salary of an attorney in her employ when the attorney was called for jury duty.*

State Assistant Attorney General Jennifer Brand, who prosecuted the case, said “this may be the first time an employer was held in criminal contempt for ‘penalizing’ an employee called to serve on jury duty.

* Lynn Weit, who worked as an attorney in Rosenbach’s law office, received a jury summons and informed Rosenbach that she would be absent from work for an expected two days to fulfill her civic obligation.
NYPPL