Casual employment of BOCES board member by a school district

Casual employment of BOCES board member by a school district
Informal Opinions of the Attorney General 2007 - 2

According to an Informal Opinion by the Attorney General, Education Law §1950(9) bars a member of a board of a BOCES from being employed as a per diem substitute by a school district that is one of the component school districts served by the BOCES.

For the full text of the opinion, go to:

http://www.oag.state.ny.us/lawyers/opinions/2007/informal/2007-2.pdf

Determining eligibility for an accidental disability retirement allowance

Determining eligibility for an accidental disability retirement allowance
Matter of McCabe v Hevesi, 38 A.D.3d 1035
Matter of Wise v New York State Comptroller, 38 A.D.3d 1032
Matter of Stack v Board of Trustees of the N. Y. City Fire Dept., Art. I-B pension fund, 38 A.D.3d 562

The McCabe, Wise and Stack decisions consider the question of what constitutes an accident for the purpose of qualifying for accidental disability retirement benefits.

The courts have viewed the term “accident” for the purpose of qualifying for an accidental disability retirement allowance to mean a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” and “the precipitating event must emanate from a risk that is not an inherent element of the applicant's regular employment duties.”

1. In the McCabe case, the applicant, a police officer said that he had injured his back when he stumbled in a stairway while searching for a possible intruder. McCabe said that "I started to walk into the basement and caught [my] right foot on short step landing."* However, McCabe also testified that in the performance of his routine duties over the years, he had encountered thousands of stairways, many of which were substandard or defective. In this instance, the court said it found that substantial evidence in the record supports the retirement system’s determination that McCabe was injured by his own misstep, and did not suffer an accident within the meaning of the Retirement and Social Security Law.

2. Wise worked as a senior court officer and his regular job duties entailed, among other things, escorting criminal defendants in the courtroom and physically restraining unruly individuals. A prisoner suffered “unexpected seizure” while being escorted by Wise, who was injured as a result. The Appellate Division said that neither the “unexpected seizure” nor being injured while restraining a “combative defendant” constitute being injured as the result of an accident within the meaning of the Retirement and Social Security Law.

3. In Stack’s case, a somewhat different issue was addressed. Stack’s application for accidental disability retirement and his application of ordinary disability retirement were both rejected. Although the Appellate Division ruled that medical findings supported the determination of the Medical Board that Stack was not entitled to accidental disability retirement benefits, it found that the Board’s determination concerning Stack’s parallel application for ordinary disability retirement benefits was not supported by anything in the record. Accordingly, the court remanded the case to the Medical Board for it to reconsider its determination with respect to Stack’s application for ordinary disability retirement benefits.

For the full text of these decisions, go to:

McCabe v Hevesi
http://nypublicpersonnellawarchives.blogspot.com/2007/03/accidental-disability-retirement-what.html

Matter of Wise v New York State Comptroller
http://nypublicpersonnellawarchives.blogspot.com/2007/03/injury-involving-risk-that-is-inherent.html

Matter of Stack v Board of Trustees of the N. Y. City Fire Dept
http://nypublicpersonnellawarchives.blogspot.com/2007/03/applications-for-disability-retirement.html

* In his workers' compensation claim he reported that he "tripped [and] fell on [a] faulty interior stairway."

Decisions by the Public Employment Relations Board

Decisions by the Public Employment Relations Board
Summaries of rulings

Managerial positions: Incumbents of positions of Campus-wide Academic Deans at a community college are excluded from the faculty negotiating unit in view of their campus-wide responsibility for supervision and formulating policy notwithstanding the fact that other dean positions such as Dean of Students, Dean of Student Development and Dean of Retention Services are currently in the negotiating unit. [Matter of Administrators Association of Erie Community College, 33 PERB 3023]

Change in terms and conditions of employment: The fact that earlier executive orders did not specifically direct employees to report incidents involving criminal activity such as fraud and corruption under threat of disciplinary action for non-compliance now set out in newly promulgated executive orders does not constitute evidence of a change in the terms and conditions of employment subject to mandatory collective bargaining. [Public Employees Federation v State of New York, 33 PERB 3024]

Payroll deductions: Although a letter ruling by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers’ compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain. [Matter of Westchester County Correction Officers Benevolent Association, 33 PERB 3025]

Statute of limitation: The statute of limitations begins to run on the date of the injury, here the date when the union first learned of the change in the disciplinary procedure rather than the date on which discipline against an individual was implemented. [Matter of Local 100 TWU, 33 PERB 3026]

Attaining tenure by estoppel

Attaining tenure by estoppel
Lilley v Mills, App. Div., 274 A.D.2d 644

Robert Lilley was employed by the George Junior Republic Union Free School District to replace the district’s part-time per-diem school psychologist for the 1993-1994 academic year. As Lilley was paid on a per-diem basis, he did not receive any of the fringe benefits, such as health insurance, provided to full-time employees.

The record indicated that Lilley was not obligated to report to work on a daily basis nor was the district required to utilize his services on a daily basis or pay him for days he did not work.

In July 1994, Lilley was given a probationary appointment as a full-time school psychologist. He was terminated effective June 30, 1997. Lilley objected to his termination and appealed to the Commissioner of Education claiming that he had attained tenure by estoppel on the basis of his service as a per-diem substitute school psychologist during the 1993-1994 school year. Lilley later amended his claim, contending simply that he was employed full-time by the district commencing October 1993.

The Commissioner of Education dismissed Lilley’s appeal, holding that he had not attained tenure by estoppel. Lilley filed an Article 78 petition seeking to overturn the Commissioner’s determination.

The Appellate Division, Third Department, commenced its analysis by noting that:

Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term ...,” citing McManus v Hempstead Union Free School District, 87 NY2d 183.

The key to resolving Lilley’s problem: as he had to satisfactorily complete a three-year probationary period to attain tenure, he had the burden of proving that he had acquired tenure by estoppel by showing that he was entitled to probationary service credit for his services during academic 1993-1994.”

The court commented that the Commissioner had indicated that part-time service is generally insufficient to establish tenure by estoppel. After the Commissioner reviewed Lilley’s employment history for academic 1993-1994, he concluded that Lilley failed to meet his burden of proof that he had been employed full-time for this period.

The Appellate Division sustained the Commissioner’s determination, noting the following significant points:

1. The true nature of an individual’s employment status cannot be determined by the label given to it by the District and depends instead on the realities of the position and its accompanying duties.

2. The record showed that the change of Lilley’s status to full time in July 1994 involved more than merely changing the label of the position.

3. During academic 1993-1994 Lilley was paid only for days he actually worked and did not receive the fringe benefits provided to the District’s full-time employees.

4. Lilley was paid a salary and received the additional benefits provided to the district’s full-time professional staff commencing with academic 1994-95.

5. The superintendent stated that Lilley’s duties changed after July 1994 and provided examples such as his beginning to serve as Chair of the Committee on Special Education.

Thus, said the court, the record before the Commissioner contained sufficient evidence to provide a rational basis to support his rejection of Lilley’s appeal.

Citing Catlin v Sobol, 77 NY2d 552, the Appellate Division said that “[i]n such cases the Commissioner’s determination must be upheld unless it is arbitrary and capricious and without rational basis.”

Although Lilley attempted to support his claims by listing the duties contained in the district’s job description for the full-time school psychologist position and contended that he performed those duties during the 1993-1994 school year, he also conceded that his duties intensified after July 1994.

Considering the conclusory nature of Lilley’s answer to the district’s claims and Lilley’s “concession that his duties ‘intensified’, the absence of any independent evidence such as documents or affidavits of disinterested persons with knowledge of the facts to support [Lilley’s] self-serving allegations and the failure to include his claim concerning his 1993-1994 duties in his petition,” the Appellate Division held that there was nothing arbitrary, capricious or irrational in the Commissioner’s rejecting Lilley’s appeal.

Disciplinary action follows failure to report for medical exam

Disciplinary action follows failure to report for medical exam
Santiago v Koehler, 546 NYS2d 625

An appointment was schedule for an employee to be evaluated by the employer's Health Management Division. This apparently was one of a series of such appointments. Earlier appointments that had been scheduled for the employee but he failed to appear for the examination. When the Santiago failed to appear for this, the most recent scheduled appointment, he was served with disciplinary charges alleging misconduct based on his failure to report for the medical examination as scheduled.

Found guilty, Santiago was told that he had a choice as to the penalty to be imposed. He could elect either a five-day suspension without pay or, in the alternative, agree to pay a fine of 300 dollars. Santiago elected the five-day suspension without pay rather than the $300 fine. He then sued to vacate the disciplinary action, asking the court to rescind the penalty he had elected.

The Appellate Division, 1st Department, decided that the disciplinary determination was supported by substantial evidence. This evidence apparently included admissions by Santiago concerning the event. It then said that “the penalty of five days suspension, chosen by [Santiago] from the options adopted by the Commissioner, is not excessive in relation to the repeated infractions here involved.”