Past practice - paying for health insurance premiums

Past practice - paying for health insurance premiums
Matter of Ulster County Local 856, 33 PERB 4584

Local 856 filed an improper practice charge with PERB contending that the Town of Shawangunk violated Section 209-a.1(d) of the Civil Service Law when it unilaterally changed the long-standing practice of paying health insurance premiums for unit members after their retirement.

Notwithstanding the Local’s allegation, PERB Administrative Law Judge Gordon R. Mayo found that only two employees who would have been included within the existing negotiating unit had retired -- one in 1978 and the other in 1980 -- were provided with fully paid health insurance by the Town upon their retirement.

Both employees, however, retired prior Local 856 being recognized as the collective bargaining agent for the unit in 1984. Also noted was the fact that no unit member has retired since 1984. In contrast, when a Town employee who was not in the negotiating unit retired in 1992, the town board adopted a resolution allowing this retiree to purchase health insurance on the Town’s policy at his own expense.

Essentially the Local argued that a past practice existed while the Town disagreed. In support of its position it contended that in 1997 it suggested to a CSEA Labor Relations specialist that the topic should be discussed during the next round of collective bargaining by the parties.

Based on this record, Mayo ruled that “[b]ecause of the equivocal nature of the evidence contained within the stipulation of facts, I cannot find that a past practice ever existed within the Town regarding retiree health insurance.”

Governor Paterson issues pardons to the benefit of 24 individuals subject to deportation as a result of a criminal conviction in the past

Governor Paterson issues pardons to the benefit of 24 individuals subject to deportation as a result of a criminal conviction in the past
Source: Office of the Governor

On December 24, 2010,Governor David A. Paterson today announced that he has issued pardons to the 24 individuals listed below otherwise subject to deportation as a result of prior criminal convictions. The Governor said:

"Over the course of my Administration's review of more than 1,100 pardon applications it became abundantly clear that the Federal government's immigration laws are often excessively harsh and in need of modernization," Governor Paterson said. "The individuals pardoned today committed past offenses but paid their debt to society. They now make positive contributions to our State and nation, and I believe they should be protected from inflexible and misguided immigration statutes."

In May 2010, Governor Paterson created a special Immigration Pardon Panel, comprised of members of the his staff and his counsel's office, to collect information and provide recommendations on pardons for deserving individuals to assist them in avoiding deportation.

The initiative was designed to address and counter aspects of the immigration laws that may result in inflexible and unjust decisions to remove legal immigrants from the United States, often tearing them away from their children and spouses. In many of these cases, the individual's efforts toward rehabilitation, their years of living a law-abiding life in the community and their positive contributions to society have not been considered by Immigration and Customs Enforcement (ICE) in the decision to deport.

One harshness of the Federal law results from retroactive changes made in the mid-1990s, whereby crimes that did not previously carry the consequence of deportation were made deportable. In many other cases, individuals previously had pled guilty without being aware that their plea might subject them to mandatory deportation. As a result, many individuals who were convicted many years ago are now facing deportation, often after they apply for citizenship or seek to renew their permanent resident status. Additionally, individuals may face deportation to a country they left as a child, where they now have no relatives, may not speak the language and have no place to live or means to support themselves.

"That our Federal government does not credit rehabilitation, nor account for human suffering is antithetical to the ideals this country represents. With these pardons, I have selected cases that exemplify the values of New York State and any civilized society: atonement, forgiveness, compassion, and the need to achieve justice, and not simply strict adherence to unjust statutes. I will not turn my back on New Yorkers who enrich our lives and care for those who suffer," Governor Paterson concluded.

The individuals who received pardons from the Governor include:

• Tressan Allen, in 2002, was convicted of Attempted Criminal Possession of Marijuana in the Fourth Degree, a class B misdemeanor. She is married to an active duty U.S. Army Specialist who is currently stationed in Germany and will be deployed for his second tour of duty in Afghanistan in February.

• Luz Marina Camacho was convicted of drug sale and possession crimes in 1983. She was sentenced to 15 years to life in prison, but Governor Mario Cuomo commuted her sentence in 1991. Since her release, U.S. Immigration and Customs Enforcement has permitted her to remain in the United States under a "deferred action," which will expire in February 2011.

• Ian Carter pled guilty to Attempted Criminal Sale of Stolen Property in the Third Degree in 1994 and was sentenced to five years on probation. He has demonstrated his rehabilitation by receiving an Associates and a Bachelors Degree, maintaining gainful employment and serving his community by participating in charitable activities. A pardon will remove the basis for his deportation.

• Edouard Colas was brought to the United States from Haiti as a lawful permanent resident at age 10. He was convicted in 1997 of Attempted Burglary in the Third Degree and sentenced to five years on probation. He has maintained gainful employment and is married to a United States citizen with whom he has two young sons. The pardon will remove the basis for his deportation.

• Lucila Cruz has been a lawful permanent resident of the United States since 1992. She was convicted of Attempted Grand Larceny in the Third Degree in 1996, and was sentenced to a conditional discharge. Many supporters, including her employer, have commended her for the care she provides to her severely disabled son. The pardon should remove all grounds for her deportation.

• Vijay Dandapani was pardoned for a 1993 conviction of first-degree grand larceny, for which he served a one-to three year sentence. He cooperated with the prosecution, including providing essential testimony at the trial of his accomplices. A pardon will prevent his deportation, allowing him to remain in the United States with his wife, who is a citizen, and two children.

• Neil Drew has been a lawful permanent resident of the United States since he was 10 years old. He was convicted of third-degree grand larceny in 1998, for which he served a one-to-three year sentence and made restitution. He has earned a Bachelors Degree from the School of Visual Arts in New York City and has been gainfully employed as a graphic designer. His two brothers serve in the U.S. military. The pardon should fully resolve his immigration problems.

• Carol Hamilton, now a Reverend was convicted of two class A misdemeanors of Criminal Possession of Marijuana in the Fourth Degree in 1995 and 1986, for which he was sentenced to a conditional discharge and a fine, respectively. He has now earned a Bachelors and a Masters Degree and works as an ordained minister, counseling youth, ex-offenders and people living with HIV/AIDS. A pardon should assist him in fighting his deportation, allowing him to remain in the United States with his wife and three young children.

• Olusegun Ola Johnson, a lawful permanent resident since 1991, was convicted of three counts of second-degree forgery and one count of third-degree grand larceny in 1990, for which he was sentenced to five years of probation. He has had no further contacts with the criminal justice system, and is now an ordained deacon, who is married to a citizen and is the father of four children.

• Walter Mills, now 60-years-old, was convicted of attempted possession of a firearm in 1973 and was sentenced to a conditional discharge. In the 37 years since this conviction, he has had no other contact with the criminal justice system. He now works full time and cares for his 82-year-old mother. The pardon will be considered a favorable discretionary factor if he is ever placed in deportation proceedings.

• Pedro Montesquieu was convicted in 2000 of attempted Criminal Sale of a Controlled Substance in the Third degree and was sentenced to five years on probation. Montesquieu runs his own business, and is the father of three young children, two of whom suffer from severe and life-threatening illnesses. The pardon should enable Montesquieu to re-open his immigration proceedings and would make him eligible to seek cancellation of removal but because he was convicted of a controlled substance offense, it will not guarantee that he will be permitted to remain in the United States.

Governor Paterson, commenting on this particular case, said: "At a later date, we may have a clearer idea of the impact that a pardon will have for persons with controlled substance convictions who are fighting deportation, but I am granting this pardon for humanitarian reasons because of the sorrowful multiple tragedies that may beset this family."

• Francisco Moya de Leon, who has been a lawful permanent resident of the United States since 1988, was convicted in 1994, of fourth-degree criminal possession of a controlled substance for which he served five years on probation. He is married to a citizen, and his son serves as a police officer in New York City. Moya de Leon is now facing removal as an inadmissible alien because he left the country three times after he was convicted, despite the fact that he has been a lawful permanent resident for 22 years and was re-admitted to the United States after each trip outside the country. Governor Paterson granted the pardon to assist Moya de Leon in overcoming the unfairness of the U.S. Customs and Immigration Services decision.

• Frances Novoa, who is now 63 years old, is being threatened with removal for attempted petit larceny convictions from 1984 and 1974, for which she was sentenced to a conditional discharge. Novoa is gainfully employed, and provides stability to one of her daughters and three of her grandchildren, who would suffer a serious disruption of their lives and extreme emotional harm if she were to be deported.

• Angela Parker was brought to the United States at age four. When her father was killed when Parker was 11 years old she was kicked out of her home and, along with her 16-year-old sister, forced to live on the streets and endure years of abuse and violence. During these tumultuous years, she was convicted, in 1989, of two counts of third-degree criminal sale of a controlled substance and one count of first-degree assault and was sentenced to 1½ to 4½ years in State prison. For the last 17 years, she has raised her oldest son, who served in the U.S. Army, and is now desperate to remain in the United States so that she may help her two younger children have a better life than she had.

• Juan P. Ramirez, who was then the owner of a bodega, was convicted in 2003 of two misdemeanors. Since these convictions, he has been gainfully employed, supporting his wife and children. He has been an active member of his community who has devoted himself to helping others. The pardon should remove all grounds of deportability and allow him to have his green card restored.

• Laurenton Rhodon has been a lawful permanent resident of the United States for twenty years, but now faces removal as a result of a 1995 conviction for Attempted Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to five years probation. Rhodon has sole custody of his 12-year-old daughter. The pardon will make him eligible to seek cancellation of removal, but because he was convicted of a controlled substance offense, there is no guarantee that he will be permitted to remain in the United States.

• Fredy C. Rojas, a veteran of the U.S. Army and after having served our country for 8 years, is deportable as a result of a single misdemeanor drug possession conviction in 1995. Since that time, he has completed drug treatment and, together with his wife, who is a citizen, he is raising his 7-year-old daughter and working as a truck driver.

• Jose Sanchez was granted lawful permanent resident status in 1998, even though he disclosed to immigration officials that he had been convicted in 1989 of fifth-degree criminal possession of a controlled substance and sentenced to five years on probation. Eleven years later, after Sanchez has built a stable life in New York, Immigration and Customs Enforcement is seeking to deport him for that same conviction.

• Melbourne Sinclair has been a lawful permanent resident of the United States since 1986. He was convicted in 1990 of the misdemeanor offense of fourth-degree criminal sale of marijuana and sentenced to a fine. As many permanent residents do, he applied for naturalization, unaware that he was ineligible as a result of his conviction, and he now faces the likelihood of being placed in deportation proceedings. If removed, he would be torn from his wife, who is a citizen, and sons, who would likely be unable to continue their college attendance without their father's support and assistance. If he is placed in proceedings, the pardon will make Sinclair eligible seek cancellation of removal, but will not guarantee that he will be permitted to remain in the United States.

• Eligio Valerio has resided in the United States since 1982, but was recently the subject of immigration proceedings based on a 1986 conviction for fifth-degree criminal sale of a controlled substance and a 1988 conviction for fourth-degree criminal possession of a weapon. In the 22 years since his conviction, Valerio has been gainfully employed, has raised a family and has had no further contact with the criminal justice system. The pardon will make him eligible for cancellation of removal.

Included in the group pardoned by Governor Paterson are four individuals who, due to retroactive changes to the immigration laws, would have been subject to deportation.

These individuals were all convicted of offenses that did not initially carry the penalty of deportation, though that was changed due to subsequent legislation. Those pardoned include:

• Salvador Gonzalez was convicted of first-degree assault in 1975, for which he served a one to three year sentence in State prison. He has had no involvement with the criminal justice system in the 35-years since his conviction, and is now a small-business owner who takes care of his elderly parents and his young son. Gonzalez has been hampered in his efforts to prevent his removal, because retroactively-effective changes in the immigration laws in the 1990s made him ineligible for cancellation of removal – a form of relief that was available to him at the time of his conviction.

• Engels R. Guzman, a lawful permanent resident of the United States since age 15, was convicted of second-degree robbery in 1990, when he was 16 years old. After his release from prison, he worked in the family supermarket business, married and is the father of four young children. He too has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.

• Jose Palma has been a lawful permanent resident of the United States since 1971, but faces deportation as a result of a first-degree reckless endangerment conviction from 1978, for which he served 60 days in jail and five years on probation. He has lived an exemplary life during the 30 years since he was released from parole supervision, having become a business owner and raising his three children with his wife of over 30 years. Like Gonzalez and Guzman, he has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.

• Randy Valentin De La Cruz has been a lawful permanent resident since the age of 13, but now faces removal to an unfamiliar country as a result of a 1984 conviction for first-degree assault, for which he was sentenced to 1½ to 4½ years in prison. In the 26 years since this conviction, De La Cruz and his wife have raised their two children, one of whom has served in the U.S. Navy for the last 11 years. Like other pardon recipients, retroactive changes in the immigration laws have made De La Cruz ineligible for cancellation of removal. The pardon should eliminate all grounds for deportability.

Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate

Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate
Matter of Brynien v New York State Dept. of Civ. Serv., 2010 NY Slip Op 09442, Decided on December 23, 2010, Appellate Division, Third Department

The New York State Department of Civil Service asked the State Civil Service Commission to jurisdictionally reclassify over 30 medical job titles from competitive class to the noncompetitive class.*

The New York State Public Employees Federation [PEF], which represented individuals employed, or to be employed, in such titles objected.

Following an “informal hearing,” the Commission approved the Department's request to reclassify as noncompetitive “29 enumerated clinical physician, medical specialist, psychiatrist, pathologist, dentist and veterinarian job titles, but denied reclassification for pharmacy-related titles.”

PEF filed a petition pursuant to Article 78 of the CPLR challenging the Commission’s determination. Supreme Court granted PEF’s petition and annulled the Commission’s determination with respect to the “29 enumerated titles” and the Civil Service Department appealed.

The Appellate Division, noting that “it is axiomatic that a job classification determination is subject to limited judicial review and will not be disturbed absent a showing that it was wholly arbitrary or without a rational basis” and further, “if the classification determination has a rational basis in the record, it will be upheld even if there exists legitimate grounds for a difference of opinion.”

In this instance the Appellate Division concurred with Supreme Court’s determination and dismissed the Department’s appeal.

Starting with the basic proposition that New York State’s Constitution, Article V, §6 mandates that appointments and promotions to civil service positions be made according to merit and fitness to be determined, "as far as practicable," by competitive examination, the court addressed each of the Department’s arguments as set out below.

1.The Department argued that because the job titles at issue already require a license, credential and/or board certification, competitive examination for these positions is "unnecessary, redundant and adds no value to the assessment of candidates' merit and fitness."

The court said that the fact that a competitive examination is "redundant" or "unnecessary" has no bearing on whether such an examination is impracticable.

2. The Department argued that competitive examination "adds little if any value" to the assessment of a candidate's merit and fitness because the license, credential and/or board certification required for the job titles already provides an objective and verifiable measure of a candidate's qualifications for the position.

The Appellate Division rejected this argument, stressing that Article V, §6 mandates that appointments be made according to fitness and merit and although a licensing accreditation process measures whether an applicant is fit to practice in that discipline according to the minimum standards established by the regulating authority it found no factual or rational basis for the conclusion that competitive testing is impracticable because the possession of a credential, license and/or board certification is an adequate substitute for measuring a candidate's fitness and merit.**

3. The Department claim that a competitive examination was impracticable was based on its assertion that candidates who rank highest on the examination — the candidates with the most training and experience — are not necessarily the best qualified for the position.

Noting that “the Department has not submitted any facts or empirical data to support its claim in this regard, other than its conclusory assertion that ‘[e]xperience has shown’ that ranking candidates based upon years of experience does not ensure that candidates with the most experience are the most qualified for the job” the Appellate Division said that “the classification standards issued by the Department for nearly all of the job titles at issue clearly establish that work experience is the primary and distinguishing factor in evaluating a candidate's fitness and merit.” Further, said the court, “[t]o the extent that the Department suggests that a candidate's on-the-job performance, coupled with a noncompetitive examination, would provide a more effective indicator of merit and fitness, we need only note that this is not a valid basis for dispensing with competitive examination,” citing Matter of Wood v Irving, 85 NY2d at 249.

4. The Department claimed that the use of competitive examination causes delay in the hiring process and inhibits the ability to recruit qualified employees.

Such an argument, said the court, is entirely irrelevant to practicability — that is, the ability to objectively and fairly assess candidates' merit and fitness by way of competitive examination.

5. The Department claimed that the competitive examinations for the subject job titles do not rank candidates based on experience and training that is relevant to the specific type of work that the particular position requires.

The Appellate Division rejected this claim as well, commenting that “this could easily be remedied by a mere specification of the particular training needed for any given position.” In addition, the court pointed out that “under the so-called ‘rule of three,’ the appointing authority is never required to appoint or promote the candidate with the highest score.” Rather the appointing authority is given flexibility and may choose among other reachable candidates if it finds them to be more qualified for a particular position.

* Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law].

** The Appellate Division said that the Department's claim of irrelevancy is belied by its own job descriptions for essentially all of the positions, which not only indicate that possession of the required license is only a minimum qualification for the position. Further, said the court, another “distinguishing factor” with respect to a candidate's qualifications is the number of years of work experience he or she claimed.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09442.htm

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Purvis v. Oest, ___F.3d____(7th Cir. Aug. 2, 2010), is an interesting case.

The Seventh Circuit held that three school officials who conducted an investigation into allegations that a teacher had sexually abused one of her students were entitled to qualified immunity from the former teacher’s suit that the biased nature of the investigation corrupted the subsequent criminal investigation in violation of her due process rights.

The court also ruled that the chief of police was entitled to qualified immunity from the teacher’s claim of false arrest because he had probable cause to make the arrest.

The teacher had resigned from her employment in exchange for a cash settlement. In finding that the individual defendants were entitled to qualified immunity, the court applied the two-step immunity test:

(1) whether the plaintiff showed a that the defendant had violated a constitutional right; and

(2) whether that right was clearly established at the time the violation occurred.

Mitchell H. Rubinstein

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege

Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege
Liere v Scully, 2010 NY Slip Op 09227, Decided on December 14, 2010, Appellate Division, Second Department

Peter Scully, Regional Director of the State Department of Environmental Conservation told a television reporter alleging the Robert Liere was "bulldozing" his farm to create a "massive solid waste facility," as well as alleging that Liere accepted "land clearing debris" and "yard waste" without obtaining required governmental approvals, just prior to the Department issuing an administrative warrant to inspect Liere’s farm.

Liere sued, contending that he had been defamed by Scully, sued seeking to recover damages. Supreme Court dismissed Liere’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division ruled that Scully had demonstrated that he was entitled to have Liere’s lawsuit dismissed as a matter of law by presenting evidence that the challenged statements were protected by a qualified privilege.*

A qualified privilege, explained the court, applies to statements that are " fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned."

Scully had shown that he made the statements to which Liere had objected “in his official capacity as regional director of the DEC and that the television reporter to whom he made the statements, and the public in general, had corresponding interests in the statements' subject matter.”

Although the matter could have gone to trial if Liere had shown that there was a triable issue of fact as to whether Scully statements had exceeded the scope of the privilege or whether the statements were made with either spite or ill will [common law malice**] or a high degree of awareness of the statements' probable falsity [constitutional malice***], the Appellate Division ruled that Liere had failed to demonstrate that Scully was guilty of any act that would otherwise defeat his claim to a qualified privilege.

* In contrast, an "absolute privilege" protects the speaker from any and all liability based on statements alleged to be defamatory. Typically this privilege is extended in connection with some governmental function such statements made by a member of a legislative body in connection with his or her legislative duties or when uttered as sworn testimony in a judicial or legislative proceeding.

** Common requires proof of hatred or ill will.

*** See New York Times Co. v. Sullivan, 376 U.S. 254

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09227.htm