Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position

Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position
New York State Socy. of Professional Engrs., Inc. v City of New York, 2010 NY Slip Op 08352, Decided on November 16, 2010, Appellate Division, First Department

Prior to September 3, 2008, the New York City Charter required that the Commissioner of Buildings had to be a licensed professional engineer or registered architect.

New York City Local Law 39, which took effect on September 3, 2008, amending §641 of New York’s City Charter to provided that either the Commissioner of Buildings or the First Deputy Commissioner to be a licensed professional engineer or a registered architect. §642 was also amended to authorize the Commissioner to delegate any duties to the First Deputy Commissioner.

New York State Society of Professional Engineers, Inc., challenged this amendment and asked the court to declare Local Law 39 unconstitutional on its face on the grounds that it was inconsistent with and preempted by Articles 145 and 147 of the State Education Law, which, respectively, set out the State’s licensing requirements for professional engineers and registered architects.

The Society also contended that by no longer requiring the Commissioner to be a licensed professional engineer or registered architect, the City Council has thereby permitted that official to engage in the practice of engineering without a license.

The Appellate Division rejected the Society’s claim, holding that the fact that an unlicensed Commissioner had the expressed power to delegate any duties that involve the practice of engineering or architecture to a properly licensed Deputy First Commissioner validates Local Law 39.

In addition, the court ruled that the State law does not preempt the City from establishing the qualifications for the offices of Commissioner and First Deputy Commissioner of Buildings, as the City is specifically permitted to set and enforce its own Building Code.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08352.htm

Employee dismissed for altering the value of his paycheck

Employee dismissed for altering the value of his paycheck
Local 375 v NYC Health & Hospital Corp., 257 AD2d 530

Jose Hernandez was charged with changing a “3” on his pay check into an “8,” “significantly enhancing the putative value of the check.” Hernandez explained that the change was caused by his inadvertent “doodling.”

A disciplinary arbitrator found him guilty of altering the value of the amount of the check payable to him, concluding that “Hernandez’s consistent conduct [with respect to attempting to cash the check or have it reissued in the “forged amount”] evinced an effort to benefit from an alteration concededly made by him.” Hernandez was terminated and his union, Local 375, appealed.

A State Supreme Court justice, finding some inconsistencies in the arbitrator’s findings and that criminal charges concerning the same allegations had been dismissed,* vacated the award on the grounds that the arbitrator had exceed her authority.

The Appellate Division reversed and reinstating the arbitrator’s determination. It noted that Section 7511 of the Civil Practice Law and Rules allows an arbitration award to be vacated only in situations such as “fraud, corruption or bias of the arbitrator” or a procedural violation by the arbitrator, or in the event the arbitrator exceeds his or her authority, none of which were present here.

The court said that it found no basis to set the arbitration award aside “notwithstanding the explainable absence of the check and some possible inconsistencies in the arbitrator’s findings.** It commented that the lower court’s conclusions “amount to no more than impermissible second-guessing these factual findings.”

* In Kelly v. Levin, 440 NYS2d 424, the court ruled that is reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations. In contrast, an individual may be found guilty of charges in an administrative disciplinary hearing notwithstanding the fact that he or she may have been acquitted of criminal charges involving the same allegations. The reason for this is that the standard of proof required to prove guilt in a criminal proceeding is more rigorous than that in an administrative disciplinary proceeding. In a criminal case, the standard is “proof beyond a reasonable doubt” while in an administrative disciplinary action the standard of proof is the less demanding “substantial evidence” test. In an administrative proceeding, “substantial evidence” will support a finding that the individual is guilty of the disciplinary charge or charges. In some case, however, the standard used to determine guilt applied in an administrative disciplinary action is the even less demanding “preponderance of the evidence” test [see Martin v Ambach, 67 NY2d 975].

** Criminal charges had been filed against Hernandez. The altered check, however, “was destroyed in the normal course of events” by the District Attorney after forgery charges brought against him were dismissed and thus the item could not be introduced as evidence at the disciplinary administrative hearing.
NYPPL

Changing the scheduled number of hours that employees are to work during the workweek

Changing the scheduled number of hours that employees are to work during the workweek
Mitchell v LaBarge, 257 AD2d 834

Ann M. Mitchell and other employees and former employees sued the Town of Ulster when it unilaterally changed their workweek from 30 hours to 35 hours, contending that the town’s action violated the federal Fair Labor Standards Act.

At the time the individuals were hired the normal workweek was Monday through Friday, 9:00 a.m. through 4:00 p.m. Effective January 1996 they were required to work Monday through Friday, 9:00 a.m. through 5:00 p.m. without additional compensation.

This, Mitchell contended violated the FLSA because of the town’s “refusal to bargain [the change] in good faith.” A state Supreme Court justice granted the town’s motion to dismiss the action.

The Appellate Division affirmed the lower court’s dismissal of Mitchell’s complaint. It said that the sole federal claim set out in Mitchell’s petition alleged that the Town “violated the Fair Labor Standards Act [FLSA] by their refusal to bargain in good faith.” As the Act “does not impose a duty upon the employer to negotiate in good faith,” the court concluded that Mitchell failed to state a federal cause of action and dismissal of her claim was appropriate.

The Appellate Division commented that the Fair Labor Standards Act sets out “minimum wage and maximum hour requirements” [29 USC 206, 207] while the particular section relied upon by Mitchell, 29 USC 213, provides for exceptions to those provisions.
NYPPL

School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education

School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education
Guadagnino v Lancaster CSD, CEd 14080

The Lancaster Central School District filed disciplinary charges against Anthony P. Guadagnino pursuant to Section 75 of the Civil Service Law. The charges alleged that Guadagnino, a custodian, made false, baseless and damaging statements concerning alleged inappropriate conduct by a building principal, the president of the school board and others to various district officials and staff members.

Found guilty of all charges, Guadagnino was dismissed from his position. His appeal to the Erie County Civil Service Commission pursuant to Section 76 of the Civil Service Law was denied.

Guadagnino next filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law contending that the school district violated federal and state law protecting “whistle blowers” by terminating him in retaliation for his making and pursuing his allegations of “inappropriate conduct.”

The Commissioner dismissed the appeal for lack of subject matter jurisdiction. He said that with respect to Guadagnino’s claims concerning “whistle blowing” [Civil Service Law Section 75-b], such claims may be asserted as a defense in a Section 75 hearing. However, nothing in the Education Law authorizes an appeal to the Commissioner from disciplinary action taken under Section 75. The Commissioner noted that “it is well established ... that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law Section 310.”

As to Guadagnino’s federal claims, the Commissioner pointed out that the federal law cited, 5 USC 1213, is generally applicable to federal employees and those in federally related employment.
NYPPL

Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement

Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement
Burns v NY State and Local Police and Fire Retirement Systems, 258 AD2d 692

Town of Clarkstown police officer Robert Burns was granted Section 207-c benefits after suffering a work-related injury in May 1993. In 1996, the department filed an application for disability retirement with the State and Local Police and Fire Retirement Systems [PFRS] seeking Burns “involuntary retirement from the police force.”*

When PFRS asked Burns to sign a consent form for the release of his medical records for its review, he refused. The Comptroller then issued subpoenas for the production of his medical records to a hospital and to two physicians. Burns attempted to quash the subpoenas on the grounds that the release of his medical records would “violate the physician-patient privilege” of Section 4505 of the Civil Practice Law and Rules. The Appellate Division affirmed a lower court’s ruling that Section 4504 did not protect Burns’ medical records since the Comptroller had the authority to determine applications for retirement benefits and had statutory authority to issue subpoenas.

The Appellate Division said that Burns “affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege” by applying for Section 207-c benefits.

The Court said that “to exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of [Section 363-c(c)(2) of the Retirement and Social Security Law], expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.”

* Both Section 207-a and Section 207-c of the General Municipal Law authorize the employer to file an application for disability retirement on behalf of an individual receiving benefits pursuant to these sections.
NYPPL