The most viewed summary of a court decision posted on New York Public Personnel Law during 2010:
Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively
Matter of Rosenblum v New York City Conflicts of Interest Bd., 75 AD3d 426
This summary is posted at: http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
February 05, 2011
February 04, 2011
Performance in the tenure area is critical when determining an individual’s seniority in such tenure area the purposes of layoff
Performance in the tenure area is critical when determining an individual’s seniority in such tenure area the purposes of layoff
Appeal of Ralph Coviello against the Board of Cooperative Educational Services for the First Supervisory District of Erie County and John E. Snyder regarding layoff, Decisions of the Commissioner of Education, Decision No. 16,200
Ralph Coviello was certified to teach in electrical/electronic equipment occupations (repair and installation) and was granted a probationary appointment by BOCES on or about October 21, 1999 in the technical electronics tenure area.
John E. Snyder was certified to teach in the same tenure area, electrical/electronic equipment occupations (repair and installation), but was granted a probationary appointment by BOCES in the trade electricity tenure area on or about January 14, 2009, retroactive to September 22, 2008.*
In June 2010, BOCES voted to abolish one position in the technical electronics tenure area and advised Coviello that he was the least senior teacher in the technical electronics tenure area and that his employment was terminated. Coviello’s name was placed on a preferred eligibility list.
Coviello appealed, contending that he was improperly terminated in violation of Education Law §3013 and that he had greater seniority than Snyder, whose employment BOCES should have been terminated instead.
Addressing the merits of Coviello’s appeal, the Commissioner stated that Education Law §3013(2) provides that when a BOCES abolishes a position “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” Section 30-1.1(f) of the Commissioner’s regulations defines seniority as “length of service in a designated tenure area ....”
Here, BOCES abolished a position in the technical electronics tenure area. The principal issue in Coviello’s appeal is whether he was the least senior teacher in that tenure area.
The Commissioner, conceding that Coviello has been employed by BOCES for a longer period than Snyder, ruled that Coviello failed to demonstrate that Snyder served in the technical electronics tenure area. Coviello, in fact, contended that Snyder never taught any subjects in the area covered by his certification. BOCES confirmed this, stating that Snyder was appointed to the trade electricity tenure area and never performed any duties in the technical electronics tenure area.
In view of this, the Commissioner ruled that Coviello has failed to meet his burden of demonstrating that Snyder was the least senior teacher in the technical electronics tenure area because Snyder had never taught in that tenure area; Snyder had taught in the trade electricity tenure area, albeit without the requisite tenure area certification.
The Commissioner found that essentially Coviello argued that because the BOCES assigned Snyder to the trade electricity tenure area without regard to appropriate certification, “it should now assign him to a full-time position similarly teaching courses outside his certification on the grounds that he would have obtained the required certification had he been notified that there was a tenure area in trade electricity.” The Commissioner ruled that there was no basis for granting such relief and dismissed Coviello’s appeal.
* The Commissioner explained BOCES’ “retroactive action” as follows: “In June 2010, BOCES allegedly learned that in 2008 Snyder had applied for the wrong certificate to teach in the trade electricity tenure area and that the appropriate credential was the Initial Electrical 7-12 certificate. Upon notifying Snyder of this mistake, Snyder then applied for and was granted the Initial Electrical 7-12 certificate, effective September 1, 2010.”
As a coda to the decision the Commissioner said: … I note, however, that [Coviello] has made serious allegations about BOCES’ practices in assigning and retaining career and technical education teachers. BOCES acknowledges that it initially erred in assigning Snyder to teach trade electricity subjects without the appropriate certification and that it awarded him seniority credit in a tenure area for which he did not hold appropriate certification. I urge [BOCES] to review the certification of all of its career and technical education teachers and the tenure areas of such teachers to ensure compliance with Part 30 of the Rules of the Board of Regents and Part 80 of the Commissioner’s regulations.
This ruling illustrates yet another element in the often complex decision-making situations that confront administrators in their effort to make certain that the statutory seniority rights of individuals in a layoff situation are honored.
N.B. The decision involved individuals in serving in positions in the unclassified service. §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”
In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.
In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”
Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.
§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.
§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16200.htm
========================
Layoff, Preferred List and Reinstatement - A 674 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions is available from BookLocker.
For more information please click on: http://www.booklocker.com/books/5216.html
===========================
Appeal of Ralph Coviello against the Board of Cooperative Educational Services for the First Supervisory District of Erie County and John E. Snyder regarding layoff, Decisions of the Commissioner of Education, Decision No. 16,200
Ralph Coviello was certified to teach in electrical/electronic equipment occupations (repair and installation) and was granted a probationary appointment by BOCES on or about October 21, 1999 in the technical electronics tenure area.
John E. Snyder was certified to teach in the same tenure area, electrical/electronic equipment occupations (repair and installation), but was granted a probationary appointment by BOCES in the trade electricity tenure area on or about January 14, 2009, retroactive to September 22, 2008.*
In June 2010, BOCES voted to abolish one position in the technical electronics tenure area and advised Coviello that he was the least senior teacher in the technical electronics tenure area and that his employment was terminated. Coviello’s name was placed on a preferred eligibility list.
Coviello appealed, contending that he was improperly terminated in violation of Education Law §3013 and that he had greater seniority than Snyder, whose employment BOCES should have been terminated instead.
Addressing the merits of Coviello’s appeal, the Commissioner stated that Education Law §3013(2) provides that when a BOCES abolishes a position “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” Section 30-1.1(f) of the Commissioner’s regulations defines seniority as “length of service in a designated tenure area ....”
Here, BOCES abolished a position in the technical electronics tenure area. The principal issue in Coviello’s appeal is whether he was the least senior teacher in that tenure area.
The Commissioner, conceding that Coviello has been employed by BOCES for a longer period than Snyder, ruled that Coviello failed to demonstrate that Snyder served in the technical electronics tenure area. Coviello, in fact, contended that Snyder never taught any subjects in the area covered by his certification. BOCES confirmed this, stating that Snyder was appointed to the trade electricity tenure area and never performed any duties in the technical electronics tenure area.
In view of this, the Commissioner ruled that Coviello has failed to meet his burden of demonstrating that Snyder was the least senior teacher in the technical electronics tenure area because Snyder had never taught in that tenure area; Snyder had taught in the trade electricity tenure area, albeit without the requisite tenure area certification.
The Commissioner found that essentially Coviello argued that because the BOCES assigned Snyder to the trade electricity tenure area without regard to appropriate certification, “it should now assign him to a full-time position similarly teaching courses outside his certification on the grounds that he would have obtained the required certification had he been notified that there was a tenure area in trade electricity.” The Commissioner ruled that there was no basis for granting such relief and dismissed Coviello’s appeal.
* The Commissioner explained BOCES’ “retroactive action” as follows: “In June 2010, BOCES allegedly learned that in 2008 Snyder had applied for the wrong certificate to teach in the trade electricity tenure area and that the appropriate credential was the Initial Electrical 7-12 certificate. Upon notifying Snyder of this mistake, Snyder then applied for and was granted the Initial Electrical 7-12 certificate, effective September 1, 2010.”
As a coda to the decision the Commissioner said: … I note, however, that [Coviello] has made serious allegations about BOCES’ practices in assigning and retaining career and technical education teachers. BOCES acknowledges that it initially erred in assigning Snyder to teach trade electricity subjects without the appropriate certification and that it awarded him seniority credit in a tenure area for which he did not hold appropriate certification. I urge [BOCES] to review the certification of all of its career and technical education teachers and the tenure areas of such teachers to ensure compliance with Part 30 of the Rules of the Board of Regents and Part 80 of the Commissioner’s regulations.
This ruling illustrates yet another element in the often complex decision-making situations that confront administrators in their effort to make certain that the statutory seniority rights of individuals in a layoff situation are honored.
N.B. The decision involved individuals in serving in positions in the unclassified service. §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”
In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.
In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”
Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.
§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.
§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16200.htm
========================
Layoff, Preferred List and Reinstatement - A 674 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions is available from BookLocker.
For more information please click on: http://www.booklocker.com/books/5216.html
===========================
Adjudicating performance
Adjudicating performance
Ratigan v Daemen College, 273 AD2d 891
The Ratigan case sets out the parameters that courts typically use when considering challenges to a school’s decision concerning a student’s academic achievement. Presumably the same standard would be applied in evaluated an employee’s performance in a training program coupled with his or her eligibility to continue in his or her position.
Daemen College dismissed John Ratigan from its physician assistant program based on its substantive evaluation of [Ratigan] academic performance. Ratigan appealed, only to have the Appellate Division, Fourth Department, dismiss his petition.
In contrast to attempting to show that college’s decision was made in bad faith or was arbitrary, capricious, irrational or in violation of the Constitution or a statute, Ratigan’s challenged the evaluation of his academic performance by the college.
This, said the court was fatal to his petition, as a student’s complaint about a particular grade or other academic determination relating to a genuine substantive evaluation of the student’s academic capabilities, is beyond the scope of judicial review. The court cited Susan M. v New York Law School, 76 NY2d 241, in support of its ruling.
Ratigan v Daemen College, 273 AD2d 891
The Ratigan case sets out the parameters that courts typically use when considering challenges to a school’s decision concerning a student’s academic achievement. Presumably the same standard would be applied in evaluated an employee’s performance in a training program coupled with his or her eligibility to continue in his or her position.
Daemen College dismissed John Ratigan from its physician assistant program based on its substantive evaluation of [Ratigan] academic performance. Ratigan appealed, only to have the Appellate Division, Fourth Department, dismiss his petition.
In contrast to attempting to show that college’s decision was made in bad faith or was arbitrary, capricious, irrational or in violation of the Constitution or a statute, Ratigan’s challenged the evaluation of his academic performance by the college.
This, said the court was fatal to his petition, as a student’s complaint about a particular grade or other academic determination relating to a genuine substantive evaluation of the student’s academic capabilities, is beyond the scope of judicial review. The court cited Susan M. v New York Law School, 76 NY2d 241, in support of its ruling.
Public policy precludes the arbitrating of court’s directing the removal of assigned personnel in alleged violation of the terms of a CBA
Public policy precludes the arbitrating of court’s directing the removal of assigned personnel in alleged violation of the terms of a CBA
Matter of County of Broome v New York State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO, 2011 NY Slip Op 00325, Appellate Division, Third Department
Timothy Mooney is a correction officer with the Broome County Sheriff's Office. In January 2009, the Administrative Judge for the Sixth Judicial District sent a letter to Broome County Sheriff David Harder directing, on behalf of the Broome County Judges, that Harder "immediately and permanently remove Officer Timothy Mooney from all assignments at Broome County court facilities."
Subsequently, the Administrative Judge informed Harder that "under no circumstances will the court allow Officer Mooney to reassume his previous role at or in any Broome [County] court facility."
Harder complied with these directives, and reassigned Mooney from his duties — which included, among other things, guarding inmates in the holding cell at the courthouse and during court appearances.
Council 82 filed a grievance on Mooney's behalf, contending that the reassignment violated the party’s collective bargaining agreement [CBA]. The grievance was denied and the union demanded arbitration pursuant to the CBA. As a remedy it sought Mooney's reinstatement to his previous courthouse assignment.
The County initiated an Article 75 proceeding seeking to stay arbitration. Supreme Court, concluding that public policy prohibits arbitration of this matter, granted the County’s application to stay arbitration and Council 82 appealed.
The Appellate Division said that "Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain [first] whether the parties may arbitrate their dispute and, if so, whether they agreed to do so"
As the Appellate Division found that subject matter of the dispute satisfied the test, it said that it must now determine "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance."
Noting that "judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships," the Appellate Division said that in this instance it concluded that that public policy prohibits arbitration of Council 82’s grievance.
The court explained that public policy implicated here derives from the courts' inherent authority to maintain the integrity of the judicial process, manage their judicial functions, and guarding their independence. Thus, said the court, the Administrative Judge was acting within his responsibility when he directed that Harder, an officer of the court* permanently reassign Mooney from duties that would require him to enter a Broome County courthouse.
Although Council 82 contended that such reassignment of Mooney constituted a disciplinary action taken without resort to the bargained-for disciplinary procedure and sought Mooney's immediate reinstatement to his bid assignment of court holding officer, the Appellate Division concurred with Supreme Court view that that “Mooney's reinstatement to his former court officer duties by an arbitrator would encroach upon the authority of judges to manage their courtrooms.”
Despite Council 82’s argument that the inherent authority of judges to control their courtrooms does not implicate a public policy interest, the Appellate Division said that “such an encroachment upon the court's authority is, in our view, contrary to strong public policy and would frustrate the orderly administration of justice.”**
As there was no dispute that Mooney was reassigned to a position with the same schedule and pay rate that he had in his court holding officer position and there was no allegation that Mooney was aggrieved in any manner beyond his reassignment from his duties at the Broome County Courthouse, the Appellate Division said that “Under these circumstances, the granting of any relief would violate public policy and, accordingly, Supreme Court properly stayed arbitration of this matter.”
* County Law §650
** The Appellate Division also rejected Council 82’s contention that the application to stay arbitration was premature because the arbitrator could fashion relief that would not violate public policy.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00325.htm
Matter of County of Broome v New York State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO, 2011 NY Slip Op 00325, Appellate Division, Third Department
Timothy Mooney is a correction officer with the Broome County Sheriff's Office. In January 2009, the Administrative Judge for the Sixth Judicial District sent a letter to Broome County Sheriff David Harder directing, on behalf of the Broome County Judges, that Harder "immediately and permanently remove Officer Timothy Mooney from all assignments at Broome County court facilities."
Subsequently, the Administrative Judge informed Harder that "under no circumstances will the court allow Officer Mooney to reassume his previous role at or in any Broome [County] court facility."
Harder complied with these directives, and reassigned Mooney from his duties — which included, among other things, guarding inmates in the holding cell at the courthouse and during court appearances.
Council 82 filed a grievance on Mooney's behalf, contending that the reassignment violated the party’s collective bargaining agreement [CBA]. The grievance was denied and the union demanded arbitration pursuant to the CBA. As a remedy it sought Mooney's reinstatement to his previous courthouse assignment.
The County initiated an Article 75 proceeding seeking to stay arbitration. Supreme Court, concluding that public policy prohibits arbitration of this matter, granted the County’s application to stay arbitration and Council 82 appealed.
The Appellate Division said that "Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain [first] whether the parties may arbitrate their dispute and, if so, whether they agreed to do so"
As the Appellate Division found that subject matter of the dispute satisfied the test, it said that it must now determine "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance."
Noting that "judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships," the Appellate Division said that in this instance it concluded that that public policy prohibits arbitration of Council 82’s grievance.
The court explained that public policy implicated here derives from the courts' inherent authority to maintain the integrity of the judicial process, manage their judicial functions, and guarding their independence. Thus, said the court, the Administrative Judge was acting within his responsibility when he directed that Harder, an officer of the court* permanently reassign Mooney from duties that would require him to enter a Broome County courthouse.
Although Council 82 contended that such reassignment of Mooney constituted a disciplinary action taken without resort to the bargained-for disciplinary procedure and sought Mooney's immediate reinstatement to his bid assignment of court holding officer, the Appellate Division concurred with Supreme Court view that that “Mooney's reinstatement to his former court officer duties by an arbitrator would encroach upon the authority of judges to manage their courtrooms.”
Despite Council 82’s argument that the inherent authority of judges to control their courtrooms does not implicate a public policy interest, the Appellate Division said that “such an encroachment upon the court's authority is, in our view, contrary to strong public policy and would frustrate the orderly administration of justice.”**
As there was no dispute that Mooney was reassigned to a position with the same schedule and pay rate that he had in his court holding officer position and there was no allegation that Mooney was aggrieved in any manner beyond his reassignment from his duties at the Broome County Courthouse, the Appellate Division said that “Under these circumstances, the granting of any relief would violate public policy and, accordingly, Supreme Court properly stayed arbitration of this matter.”
* County Law §650
** The Appellate Division also rejected Council 82’s contention that the application to stay arbitration was premature because the arbitrator could fashion relief that would not violate public policy.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00325.htm
Selecting from among conflicting medical opinions
Selecting from among conflicting medical opinions
Bell v NYC Employees’ Retirement System, 273 AD2d 119, Motion for leave to appeal denied, 96 NY2d 701
The New York City Employees’ Retirement System rejected the application for accidental disability retirement filed by Augusta Bell. Bell appealed, contending that the System’s decision was arbitrary and capricious.
The Appellate Division dismissed Bell’s petition, thus sustaining the Systems’ decision. The ruling points out that the System’s Medical Board found that Bell was not disabled while her personal physician had a conflicting opinion.
The court found that the Board’s determination was rationally based on its own examination of Bell. The fact that it chose to rely on the findings of its examiners rather than the conflicting reports of Bell’s physicians is not an indication of arbitrariness.
Bell v NYC Employees’ Retirement System, 273 AD2d 119, Motion for leave to appeal denied, 96 NY2d 701
The New York City Employees’ Retirement System rejected the application for accidental disability retirement filed by Augusta Bell. Bell appealed, contending that the System’s decision was arbitrary and capricious.
The Appellate Division dismissed Bell’s petition, thus sustaining the Systems’ decision. The ruling points out that the System’s Medical Board found that Bell was not disabled while her personal physician had a conflicting opinion.
The court found that the Board’s determination was rationally based on its own examination of Bell. The fact that it chose to rely on the findings of its examiners rather than the conflicting reports of Bell’s physicians is not an indication of arbitrariness.
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CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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