Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement
Matter of Laird v Village of Pelham Manor, 2011 NY Slip Op 01278, Appellate Division, Second Department
The PBA and the Village of Pelham Manor entered into a collective bargaining agreement that included a procedure to be followied by an police officers seeking disability and other benefits available to him or to her pursuant to General Municipal Law §207-c.
The CBA’s procedure provided for the filing of an application for benefits, a determination to be made on the application submitted, and the review of the determination if the applicant was unhappy with the decision including appealing the denial of such benefits in the event the police officer’s application for §207-c benefits was rejected because the “applicant failed to comply with the agreed-upon procedures.”
The Village denied the application for §207-c benefits filed by police officer Christopher Laird after determining that he did not file his application for such benefits within the time limit permitted for filing such claims set out in the CBA.
Laird appealed the determination and he was given an opportunity to demonstrate that he had credible reasons for failing to file the application within the agreed-upon period. His appeal was denied and ultimately the Village Board of Trustees affirmed the initial finding that Laird’s application seeking §207-c benefits was untimely.
The Appellate Division sustained the Village Board’s decision, ruling that the Board’s determination was “rationally based.”
The court said that the appropriate application forms were available to Laird upon request and found that other police officers following the procedure set out in the collective bargaining agreement had been granted “disability status” after filing a timely application for §207-c benefits.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01278.htm
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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic handbook.
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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 23, 2011
Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Taxi & Limousine Commission v Alvarez, OATH Index # 924/11
OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.
Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).
The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”
As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:
Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:
• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;
• Operated the vehicle inattentively, including failure to exercise defensive driving skills;
Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-924.pdf
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Taxi & Limousine Commission v Alvarez, OATH Index # 924/11
OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.
Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).
The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”
As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:
Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:
• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;
• Operated the vehicle inattentively, including failure to exercise defensive driving skills;
Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-924.pdf
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Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process
Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process
Paul Barrows v John Wiley and Luoluo, US Circuit Court of Appeals, 7th No. 05 C 658, 2007 U.S. App. LEXIS 3792
The U.S. Circuit Court of Appeals ruled that placing a public university employee on unpaid administrative leave and requiring him to use leave credits in order to remain on the payroll did not violate his Fourteenth Amendment rights to due process.
The University of Wisconsin-Madison had employed Paul Barrows in various academic capacities for more than 20 years, most recently as Vice Chancellor for Student Affairs. Barrows annual salary as Vice Chancellor was $191,749.00.
This case arose when Barrows was asked to submit a letter of resignation, which he claimed he did reluctantly. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that “[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time.”
Barrows later asserted that he did not resign from his position, but rather that one of the defendants, Wiley, had fired him.
While on “unpaid administrative leave,” Barrows continued to be paid at the annual rate of pay he received as Vice Chancellor for Student Affairs -- $191,749.00 – by charging his various leave accruals. On June 23, 2005, Barrows was placed in his backup position in the Provost’s Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.
One of the complaints in Barrows’ petition alleged that forcing him to use his leave credits in order to remain on the payroll prior to his reinstatement in his “backup position” without notice or the opportunity to be heard violated his Fourteenth Amendment right to due process.
The Circuit Court affirmed the district court’s ruling that held that Barrows’ Fourteenth Amendment rights had not been violated. It said that:
1. There is no evidence in the record that Barrows requested to be placed in his backup position or challenged the University’s failure to immediately place him in his backup position.
2. Although Barrows asserted in his affidavit that he sought to return to work, this generalized statement is insufficient to establish that he sought his backup position.
3. Barrows failed to assert economic harm flowing from the University’s decision not to immediately place him in his backup position. As noted, while he was on leave Barrows continued to receive compensation at the Vice Chancellor rate of pay of $191,749.00 annually, as opposed to the rate of pay for his backup appointment, $72,881.00.
The court also rejected Barrows’ argument that he suffered an economic harm by being forced to use his leave time in order to remain on the payroll while on “unpaid administrative leave.” Barrows claimed that several University policies allowed employees to receive compensation for the leave credits that he was required to use in order to remain in pay status. In effect, Barrows contended that by forcing him to use this leave time, rather than placing him in the backup position, the University deprived him of the extra compensation he would have received after he left the backup position.
The problem with Barrows’ argument, said the court, is that he failed to present sufficient evidence of an economic harm because he failed to provide an adequate loss calculation.
Holding that Barrows failed to establish either a property interest or an economic harm flowing from the University’s decision not to immediately place Barrows in his backup position, and instead placed him on unpaid administrative leave, requiring him use his leave time in order to receive compensation, it ruled that Barrows’ due process claim failed. Accordingly, the district court properly granted the defendants’ motion for summary judgment.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/placing-individual-on-upaid.html
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Paul Barrows v John Wiley and Luoluo, US Circuit Court of Appeals, 7th No. 05 C 658, 2007 U.S. App. LEXIS 3792
The U.S. Circuit Court of Appeals ruled that placing a public university employee on unpaid administrative leave and requiring him to use leave credits in order to remain on the payroll did not violate his Fourteenth Amendment rights to due process.
The University of Wisconsin-Madison had employed Paul Barrows in various academic capacities for more than 20 years, most recently as Vice Chancellor for Student Affairs. Barrows annual salary as Vice Chancellor was $191,749.00.
This case arose when Barrows was asked to submit a letter of resignation, which he claimed he did reluctantly. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that “[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time.”
Barrows later asserted that he did not resign from his position, but rather that one of the defendants, Wiley, had fired him.
While on “unpaid administrative leave,” Barrows continued to be paid at the annual rate of pay he received as Vice Chancellor for Student Affairs -- $191,749.00 – by charging his various leave accruals. On June 23, 2005, Barrows was placed in his backup position in the Provost’s Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.
One of the complaints in Barrows’ petition alleged that forcing him to use his leave credits in order to remain on the payroll prior to his reinstatement in his “backup position” without notice or the opportunity to be heard violated his Fourteenth Amendment right to due process.
The Circuit Court affirmed the district court’s ruling that held that Barrows’ Fourteenth Amendment rights had not been violated. It said that:
1. There is no evidence in the record that Barrows requested to be placed in his backup position or challenged the University’s failure to immediately place him in his backup position.
2. Although Barrows asserted in his affidavit that he sought to return to work, this generalized statement is insufficient to establish that he sought his backup position.
3. Barrows failed to assert economic harm flowing from the University’s decision not to immediately place him in his backup position. As noted, while he was on leave Barrows continued to receive compensation at the Vice Chancellor rate of pay of $191,749.00 annually, as opposed to the rate of pay for his backup appointment, $72,881.00.
The court also rejected Barrows’ argument that he suffered an economic harm by being forced to use his leave time in order to remain on the payroll while on “unpaid administrative leave.” Barrows claimed that several University policies allowed employees to receive compensation for the leave credits that he was required to use in order to remain in pay status. In effect, Barrows contended that by forcing him to use this leave time, rather than placing him in the backup position, the University deprived him of the extra compensation he would have received after he left the backup position.
The problem with Barrows’ argument, said the court, is that he failed to present sufficient evidence of an economic harm because he failed to provide an adequate loss calculation.
Holding that Barrows failed to establish either a property interest or an economic harm flowing from the University’s decision not to immediately place Barrows in his backup position, and instead placed him on unpaid administrative leave, requiring him use his leave time in order to receive compensation, it ruled that Barrows’ due process claim failed. Accordingly, the district court properly granted the defendants’ motion for summary judgment.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/placing-individual-on-upaid.html
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Employee’s termination for off-duty misconduct bars unemployment insurance award
Employee’s termination for off-duty misconduct bars unemployment insurance award
Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961
A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper’s actions were in violation of the Division’s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.
The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.
While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.
The decision indicates that the ALJ’s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ’s decision. The Division of State Police appealed.
The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper’s termination was not a result of disqualifying misconduct.
The court’s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved … constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:
Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.
The Division had argued that the Trooper's conduct in, among other things, “getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.” According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."
The court ruled that “Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/discharge-for-misconduct-may-bar.html
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Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961
A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper’s actions were in violation of the Division’s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.
The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.
While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.
The Trooper, however, was subsequently acquitted of the driving under the influence charge.
Following his termination the Trooper applied for unemployment insurance benefits. An Administrative Law Judge [ALJ] ruled that the Trooper’s behavior had not risen to the level of disqualifying misconduct.The decision indicates that the ALJ’s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ’s decision. The Division of State Police appealed.
The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper’s termination was not a result of disqualifying misconduct.
The court’s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved … constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:
Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.
The Division had argued that the Trooper's conduct in, among other things, “getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.” According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."
The court ruled that “Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/discharge-for-misconduct-may-bar.html
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February 22, 2011
The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch
The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch
Source: Appolicious Inc.
The developer of this application reports that it provides the full text of the 2011 New York Civil Service Law [sic] in an easily readable and searchable format and provides the user with the following:
The full text of the New York State Civil Service Law
The ability to perform a fast full-text search and to search within search results to narrow down matches and create bookmarks .
As to mechanics, the user can navigate through the text of the Civil Service Law by swiping a finger.
No network connection is required and the developer states that it "runs fast and uses little memory."
Additional features include support for Portrait or Landscape mode and allows the text to be rotated to the Landscape mode for a larger font display
For additional information click on:
http://www.appolicious.com/tech/apps/214746-ny-civil-service-law-2011-new-york-statutes-pda-wizard/developer_notes
Source: Appolicious Inc.
The developer of this application reports that it provides the full text of the 2011 New York Civil Service Law [sic] in an easily readable and searchable format and provides the user with the following:
The full text of the New York State Civil Service Law
The ability to perform a fast full-text search and to search within search results to narrow down matches and create bookmarks .
As to mechanics, the user can navigate through the text of the Civil Service Law by swiping a finger.
No network connection is required and the developer states that it "runs fast and uses little memory."
Additional features include support for Portrait or Landscape mode and allows the text to be rotated to the Landscape mode for a larger font display
For additional information click on:
http://www.appolicious.com/tech/apps/214746-ny-civil-service-law-2011-new-york-statutes-pda-wizard/developer_notes
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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.
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