Employee terminated following loss of a license required to perform the duties of the position

Employee terminated following loss of a license required to perform the duties of the position
Lytle v U.S. Postal Service, 257 AD2d 779

One of the conditions of Christopher M. Lytle’s employment by the United States Postal Service was that he posses a valid driver’s license so that he could perform his postal duties.

Lytle was arrested for driving while intoxicated and his license was suspended. As he could not lawfully drive a motor vehicle, he was terminated from his position. Finding that he was “terminated due to misconduct,” the Unemployment Insurance Appeals Board denied his application for unemployment insurance benefits.

The Appellate Division sustained the board’s ruling, holding that since Lytle “engaged in a voluntary act which violated a reasonable condition of his employment, we decline to disturb the Board’s decision that [Lytle’s] behavior constituted disqualifying misconduct.”
NYPPL

Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement

Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement
Matter of Town of Tuxedo v Town of Tuxedo Police Benevolent Assn., 2010 NY Slip Op 08122, decided on November 9, 2010, Appellate Division, Second Department

On December 4, 2004, Town of Tuxedo Police Officer John Tamburello was injured in the line of duty. He never returned to work and was awarded a disability retirement on or about December 23, 2008.

In March 2009 the Tuxedo Park PBA filed a grievance alleging that Tamburello had not been paid for all of his unused leave as mandated by the collective bargaining agreement [CBA]. According to the PBA, leave time continued to accrue during the four-year period that Tamburello was receiving benefits pursuant to General Municipal Law §207-c.

When it demanded that the question be submitted to arbitration, Tuxedo Park filed a petition pursuant to Article 75 seeking a permanent stay of arbitration.

Ultimately the Appellate Division ruled that “benefits provided to a police officer pursuant to General Municipal Law §207-c, like the benefits provided to a firefighter pursuant to General Municipal Law §207-a, are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits.”*

“Unless,” said the court, “a collective bargaining agreement expressly provides for compensation rights to disabled officers in addition to those provided by General Municipal Law § 207-c, there is no entitlement to such additional compensation,” citing Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686.

As the Appellate Division found that the controlling CBA “did not contain any language expressly providing that leave time would accrue during the period that a disabled officer receives General Municipal Law §207-c benefits, or that a disabled officer would be paid for such leave time upon retirement,”. Supreme Court should have granted the petition in Proceeding No. 2 to permanently stay arbitration.

Comment: The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.

The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.

Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c.

Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement.

Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.

Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary, i.e., a Section 207-a level of benefits.

Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.

Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:

1. Had been included in the contract by mistake and

2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.

The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.

Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.

In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.

As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.

Accordingly, Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement were entitle to Section 207-a type benefits.

* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08122.htm

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For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html

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NYPPL

Disciplinary suspension without pay tolled while individual incarcerated

Disciplinary suspension without pay tolled while individual incarcerated
Manning v Warsaw CSD, CEd 14071

The Warsaw Central School District served disciplinary charges against a tenured teacher, William Manning, Jr., related to his alleged operating a motor vehicle under the influence of alcohol.

Following a disciplinary hearing and an appeal, on November 22, 1994 former Commission of Education Sobol issued a decision and imposed a penalty of suspension without pay for two years. The decision was sustained by a State Supreme Court justice [Manning v Sobol, August 7, 1995, not officially reported].

Manning, however, was incarcerated in the Wyoming County jail on July 19, 1994. Because he was “unavailable” to work, the district changed his pay status from suspension with pay pending resolution of the Section 3020-a action to suspension without pay effective July 19, 1994.

Released from prison and claiming that his two-year suspension without pay commenced on November 22, 1994, Manning advised the district that he intended to return to work on November 22, 1996. The District said that the two-year suspension period commenced on March 21, 1995, when he was released from prison and therefore he could not return to work earlier than March 21, 1997. Manning appealed.

Commissioner of Education Richard P. Mills said that the two-year suspension imposed by former Commissioner Sobol commenced when Manning was released from incarceration since allowing the suspension to run concurrently with his incarceration “nullifies a portion of the suspension, since [Manning] could not work during that period in any event.”

The Commissioner rejected Manning’s claim that he was entitled to back salary from November 22, 1996, holding that to do so would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol.
NYPPL

Payment for vacation credits upon resignation

Payment for vacation credits upon resignation
Karp v North Country Community College, 258 AD2d 775

After 15 years of service, Robert Karp resigned from his position with the North Country Community College in 1997. When the college refused to pay him for accrued vacation credits he claimed he accrued between 1982 and 1985, he sued.

Although Karp admitted that the college lacked express authority to pay him for his unused vacation time, he nevertheless claimed that he was entitled to such payments because the college had paid other employees for unused vacation time in the past. Karp argued that this meant that the college was obligated to pay him for such credits as well.

Karp claimed that in 1986 two employees received compensation for their unused vacation time when they resigned. He also referred to a 1986 memorandum written by respondent’s then-Dean of Administration recognizing that the school’s policy respecting unused vacation time needed clarification and that, in the interim, respondent would honor its past practice for vacation time accrued up until August 31, 1985.

Supreme Court said that if not expressly authorized by statute, local law, resolution or pursuant to a contract term, a public employee may not be paid for unused vacation time, citing General Municipal Law Section 92. The court noted that payments made without such authority are deemed public gifts, prohibited by Article VIII, Section 1 of the New York State Constitution.

The Appellate Division agreed, commenting that “the mere fact that [the college] despite lacking authority to do so, may have on prior occasions compensated employees for unused vacation time does not validate [Karp’s] claim. Express authorization being required, prior conduct cannot satisfy the express statutory authorization needed to form a basis for recovery against a public body.”

Also noted was the fact that in 1986 the college advised Karp that he should develop a plan to use any remaining vacation time during that academic year.
NYPPL

Educator terminated before the end of the probationary period

Educator terminated before the end of the probationary period
Strax v Rockland County BOCES, 257 AD2d 578

The Rockland County Board of Cooperative Educational Services dismissed Carol Strax, a probationary administrative assistant, from her position. Strax sued, seeking a court order reinstating her to the position.

The Appellate Division rejected her appeal, commenting that “it is well established that a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period, without a hearing, unless that person establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription.”

According to the ruling, Strax did not allege that the BOCES had terminated her probationary employment for a constitutionally impermissible reason nor did she demonstrate that it failed to comply with the procedural requirements of Education Law Section 3031 or otherwise acted in violation of a statutory proscription.

Accordingly, the Appellate Division ruled that under the circumstances the Supreme Court properly ruled that Strax’s termination was neither arbitrary nor capricious.
NYPPL