Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2

Routinely assigning employees to perform out-of-title work in non-emergency situations violates Civil Service Law Section 61.2
MacRae v Dolce, 273 AD2d 389; motion for leave to appeal denied: 95 NY2d 765

Duncan MacRae, in his capacity as president of the City of White Plains firefighters union, challenged the Fire Department’s policy of routinely ... assigning ... fire fighters to perform the duties of an ‘Officer/Designated Fire Fighter’ as described in the [Fire Department’s] Manpower Accountability Standard Operating Procedure [MASOP] as constituting out-of-title work.

Essentially, MacRae complained that the City of White Plains was assigning its firefighters to perform the duties of a Fire Lieutenant in non-emergency situations.

A State Supreme Court justice dismissed complaint, ruling that the department’s policy was proper and does not violate Article V, Section of the New York Constitution or Section 61.2 of the Civil Service Law. The ruling did not pass muster when the Appellate Division considered MacRae’s appeal.*

The Appellate Division reversed the lower court’s ruling and barred White Plains from routinely assigning its firefighters to perform the duties of fire lieutenant on a non-emergency basis.... The Appellate Division, agreeing with MacRae, held that the City’s policy of routinely assigning firefighters to perform the duties of fire lieutenant on a non-emergency basis violates Civil Service Law Section 61.2.

The court said that the policy provided for the routine, non-emergency imposition upon firefighters of supervisory duties not in their job description and required firefighters to routinely perform supervisory functions clearly within the ambit of the job description applicable to fire lieutenants.**

The court rejected the department’s argument that the MASOP merely codified a long-standing practice of requiring motor and pump operators to perform certain of the duties of fire lieutenants, commenting that the routine temporary assignments improperly harden to a pattern for permanently filling the positions of fire lieutenant.

* Section 61.2 provides as follows: Prohibition against out-of-title work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

** In contrast, the designation of an individual to serve as the “temporary supervisor” when the supervisor is temporarily absent when on vacation or ill is not considered “out-of-title” work within the meaning of Section 61.2.

Petitioner has the burden of proving that his or her probationary termination was made in bad faith

Petitioner has the burden of proving that his or her probationary termination was made in bad faith
Negron v Jackson, 273 AD2d 241

The New York State Department of Motor Vehicles terminated Pedro Negron during his probationary period. Negro objected but his appeal was rejected by the Appellate Division, Second Department.

The court pointed out that A probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a showing that the termination was for a constitutionally impermissible purpose, made in bad faith, or in violation of statutory or decisional law, citing Iannuzzi v Town of Brookhaven, 258 AD2d 651.

Further, the discharged employee has the burden of demonstrating bad faith by competent evidence, not speculation. This, apparently, was the defect in Negron’s appeal. The court said that his petition failed to allege facts that supported his conclusory claim of discrimination or to otherwise demonstrate bad faith. Ruling that this constituted a fatal defect, the court said that his petition was properly dismissed by the lower court.

Ability to perform “light duty” defeats accidental disability retirement claim

Ability to perform “light duty” defeats accidental disability retirement claim
Matter of Roache v Hevesi, 38 AD3d 1036

Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.

Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.

Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.

The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.

The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."

Members of the NYSERS experiencing "discontinued service” [layoff] may be eligible for certain retirement benefits

Members of the NYSERS experiencing "discontinued service” [layoff] may be eligible for certain retirement benefits
Retirement and Social Security Law §73.b

Considering the various statements suggesting a potential for a significant number of State an municipal employees being laid off appearing in the press, it may be timely to consider the benefits available to members of the New York State Employees' Retirement System pursuant to §73.b of the Retirement and Social Security Law.

This section, captioned “Discontinued Service,” authorizes certain retirement benefits for individuals who became members of the New York State Employees’ Retirement System on or after April 8, 1943* who are laid off if they have 20 or more years of service.

§73.b, in pertinent part, provides that:

“1. A person who last became a member on or after April eighth, nineteen hundred forty-three, and who is discontinued from service while a member, through no fault or delinquency on his [or her] part, may elect to receive his [or her] accumulated contributions or a retirement allowance pursuant to the provisions of paragraph two of this subdivision b if:

“(a) He [or she] shall have completed twenty years of total service, and

“(b) During the six months immediately preceding such discontinuance, he [or she] shall have been in paid service continuously, regularly and without interruption.”**

The benefits payable to those eligible and electing to retire upon being laid off are set out in the statute as follows:

2. A retirement allowance granted pursuant to the provisions of this subdivision b shall consist of:

(a) An annuity of equivalent actuarial value to the member's accumulated contributions, and

(b) A pension which is the actuarial equivalent of the reserve-for-increased-take-home-pay to which he may be entitled, if any, and

(c) A pension, to begin immediately, which shall be composed of one or more of the following parts:

(1) One which is the actuarial equivalent, at his age at the time of such discontinuance, of a pension, beginning at age sixty, of one-seventieth of his final average salary multiplied by the number of years for which he has prior service credit and credit for service in war after world war I, if any, plus

(2) One which is the actuarial equivalent, at his age at the time of such discontinuance, of one-one hundred fortieth of his final average salary multiplied by the number of years for which he has member service credit, plus

(3) If the member shall have attained age fifty, one which equals fifty per centum of the difference between the pension payable to him pursuant to items one and two of this subparagraph (c) and the pension that would be allowable to him were he age sixty.

3. Application shall be made for a discontinued service retirement allowance pursuant to this subdivision b in the same manner and subject to the same conditions, which govern applications and elections for superannuation retirement allowances.

* Section 73.1.a. applies to individuals who last became members of the Retirement System before April 8, 1943.

** N.B. §73.b provides that “The provisions of subparagraph (b) of this paragraph one shall not apply to legislative employees or laborers who have served as such for at least parts of each of the two years immediately preceding such discontinuance.”

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For additional information concerning Layoff, Preferred Lists and Reinstatement, click on http://nylayoff.blogspot.com/

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Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected

Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected
Michael P. Thomas and the New York City Department of Education, Decision No. 16,193

Michael P. Thomas, a tenured teacher employed by the New York City Department of Education, objected to the placement of certain documents in his personnel file.

Noting that an appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown, the Commissioner noted that Cardozo had commenced his appeal more than six months after the date of the most recent document he objected to having been placed in his personnel file.

Conceding that his appeal was not filed in a timely manner, Thomas argued that the placement of these letters and documents in his personnel file constitutes a continuing wrong.

The Commissioner rejected Thomas’ theory, noting that the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual, unlawful appointments to a district’s shared decision-making team, an improperly constituted professional development team, certain expenditures under an austerity budget that did not comply with the law.

In contrast, the Commissioner said that the doctrine did apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful.

Although the parties disagreed as to the nature of each letter and document, the Commissioner ruled that placement of letters and grievance documents in a personnel file is not an inherently unlawful action, ruling that the continuing wrong doctrine does not apply and dismissed Thomas’ appeal as untimely.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16193.htm