Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago

Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago
Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773.

Reversing the Appellate Court, the Illinois Supreme Court essentially equated the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code to “domicile.”* The court, noting that “until just a few days ago, the governing law on this question had been settled in this State for going on 150 years,” citing Smith v. People ex rel.Frisbie , 44 Ill.16 (1867), sustained the decision of Chicago's Board of Elections that Rahm Emanuel was eligible to run for the office of Mayor of the City of Chicago.

The Supreme Court explained that “in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.”

* NYPPL earlier suggested that “Essentially the [Illinois Supreme Court] will decide if the term “residence” as used in §3.1-10-5(a) of [Chicago's] Municipal Code means “domicile” or something other than "domicile” [see http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html ]

The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs

Extending the probationary period

Extending the probationary period
Subway-Surface Supervisors Assn. v New York City Tr. Auth., 2010 NY Slip Op 52339(U), Supreme Court, New York County, Judge Saliann Scarpulla, [Not selected for publication in the Official Reports.]

Subway-Surface Supervisors Association brought an action seeking to have the court void “stipulations of settlement” between the Association and the Authority.

The Association and the Authority had to increase the one-year probationary term for certain employees upon their promotion to a Supervisor position to a two-year probationary period. Shortly before the expiration of their two-year probationary periods, these Supervisors entered into a settlement agreement with the Transit Authority after the Authority had determined that had taken “excessive sick leave during their two-year probationary period.”

As probationary employees, the Supervisors were not entitled to a disciplinary hearing concerning the sick leave violations and each agreed to serve a two year disciplinary probation during which any violation of time and leave would result in dismissal.

The Association argued that the Supervisors already served the maximum amount of probation and further extension was not permitted under Title 55 of the Rules of the City of New York, Section 5.2.8.* In addition, the Association claimed that the Transit Authority failed to get “written authorization to extend the probationary period from the Commissioner of Citywide Administrative Services.” Finally, the Association contended that even if the extension was permitted, its length was “impermissible.”

The Authority, on the other hand, claimed that it had found that Supervisors had unsatisfactory attendance or excessive absenteeism and although these problems were. serious enough to justify their termination, it decided to give them a last chance to salvage their promotions. This, said the Authority, resulted the Supervisors agreeing to a last chance settlement that would allow them to keep their promotions by agreeing to a two-year disciplinary probation.

During that two-year disciplinary probation, any further time and leave violations would result in their dismissal should the arbitrator find that they had committed such further violations.

Supreme Court found that the Stipulations were not “an extension of any probationary period” but constituted a separate probation imposed for disciplinary purposes, freely entered into by the Supervisors.

* The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974]. For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_52339.htm

Negligent hiring and retention of an employee

Negligent hiring and retention of an employee
Anonymous v Dobbs Ferry UFSD, 290 AD2d 464

In the Dobbs Ferry case, New York State Supreme Court Justice Donovan considered a number of important issues, including allegations that the district, and its school superintendent and a middle school principal [“the district”], were guilty of negligent hiring and retention of Steven Nowicki as a teacher.

The decision, which considered various motions to dismiss the action and to amend the complaint preliminary to a trial on the merits, reports that the parents of one of Nowicki’s students invited Nowicki to a New Year’s Eve party. Nowicki, it was alleged, became intoxicated at the party and, at the suggestion of the parents, spent the night at their home rather than risk driving to his own home. The complaint charged that Nowicki later that night sexually assaulted his student, and the student’s younger brother, in their bedroom.

The district asked the court to dismiss the complaint, contending that they cannot be held liable for an incident that occurred outside the school’s premises at a private function for a number of reasons, including:

1. A school’s duty toward its pupils extends only as far as physical custody and control over the pupils and that duty ceases once the pupils have passed out of the school’s orbit of authority.

2. Because of a superseding factor -- the parents invited Nowicki into their home -- any negligent hiring would not be the proximate cause of the alleged injuries.

3. The criminal acts allegedly committed by Nowicki were outside the scope of his employment, and therefore cannot be attributed to the district or its superintendent or principal under the doctrine of respondeat superior.

In response to the district’s motion to dismiss the action on the theory that the school has no duty to supervise a student once he or she has left the custody and control of the school, the court ruled that the location of the incident was irrelevant and declined to grant the district’s motion.

The district appealed. The Appellate Division ruled that Supreme Court improperly denied the district’s cross motion for summary judgment dismissing the complaint with respect to it.

The Appellate Division said that the district had made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any nexus between Nowicki's employment at the district and his alleged sexual molestation of the infant plaintiffs was severed by time, distance, and the intervening independent actions of their parents, citing Cardona v Cruz, 271 AD2d 221; K. I. v New York City Bd. of Educ., 256 AD2d 189; McDonald v Cook, 252 AD2d 302; and Lemp v Lewis, 226 AD2d 907, in support of its ruling.

Individuals performing services for a public employer may be designated "non-employees" by statute

Individuals performing services for a public employer may be designated "non-employees" by statute
Levitt v NYC Office of Collective Bargaining, 273 AD2d 104

For the purposes of collective bargaining Article 14 of the Civil Service Law -- the Taylor Law -- applies to all individuals in the services of a public employer except judges, individuals in the military service and public employees designated managerial or confidential.*

The point made clear by the Levitt decision -- individuals who might otherwise satisfy the criteria for public employment, and thus otherwise covered by the Taylor Law, may be denied such status by statute.

Kenneth Levitt challenged a ruling by New York City’s Office of Collective Bargaining [OCB] declaring that four hearing examiners employed by the city’s Parking Violations Bureau [PVB] were ineligible for inclusion in a collective bargaining unit representing city employees.

OCB’s rationale: Section 236(2)(d) of the Vehicle and Traffic Law provides that [s]uch hearing examiners shall not be considered employees of the city in which the administrative tribunal has been established.**

The Appellate Division, First Department, agreed, ruling that [g]iven this clear statutory language, the PVB hearing officers cannot be considered City employees entitled to collectively bargain pursuant to the Taylor Law even though, as OCB found following a hearing, in all other respects these hearing officers meet the criteria for public employment.

Does Levitt have any recourse? Perhaps. As the court pointed out, this was an issue for the Legislature, not the courts, to address.

* Certain individuals have been declared managerial or confidential within the meaning of the Taylor Law by statute.

** Civil Service Law Sections 210 - Prohibition against strikes - and Section 211 - Injunctive relief to prohibit a strike - specifically apply to judges, military personnel and managerial or confidential employees within the meaning of the Taylor Law. Presumably these provisions would not apply to Section 236(2)(d) hearing examiners as the incumbents of such positions are not employees of the jurisdiction in which they serve.

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."