The date of the certification of the candidate for appointment rather than the date a candidate's name is reachable for appointment controls

The date of the certification of the candidate for appointment rather than the date a candidate's name is reachable for appointment controls
Matter of Woods v New York City Dept. of Citywide Admin. Servs., 2011 NY Slip Op 02719, Court of Appeals

Among the qualifications for appointment as New York City firefighter was that the candidate, by the date of appointment, have “successfully completed 30 semester credits from an accredited college or university or obtained a four-year high school diploma and completed two years of honorable full-time U.S. military service.”

Robert Thomas Woods passed a civil service examination and his name was placed on a list of eligibles to be appointed as a New York City firefighter.

Woods did not meet these requirements at the time he sat for the examination nor did he meet them at the time his name was initially reached for appointment as a firefighter. However, Woods was on active military duty when his name was initially reached on the list.

When Wood was discharged from military service he filed an "Application Under State Military Law for Determination of Rights on Eligible List" with the New York City Department of City-wide Administrative Services [DCAS] for “a determination of his rights under Military Law §243.” §243, in pertinent part, provides that any person whose name is on an eligible list and comes up for certification while on duty, shall have his or her name placed on a special eligible list if a request is made within 90 days of his or discharge from active duty.

DCAS decided that Woods’ name could not be placed on a special eligible list because on the date when his name initially had been reached for appointment from the list, he was not qualified for appointment on that date.

The Court of Appeals disagreed, holding that Military Law §243(7) required DCAS to place petitioner on a "special eligible list", from which he could be certified for appointment after his military duty ended. The court explained that so long as Woods met the qualifications for appointment when the time to certify him for appointment arrived, it did not matter that he did not satisfy them when his name was first reached for certification for appointment from the list, at which time he was on military duty.

DCAS, said the court, “misconceived the statutory scheme,” pointing out that §243(7), by using the word "shall" rather than "may" gives DCAS no discretion to refuse to put names on a special eligible list.

Although Civil Service Law §50.4 allows DCAS to exercise its discretion not to certify names of people who do not meet the required qualifications, that discretion, said the Court of Appeals, may be exercisable at the time when the decision about such certification is made — here when Woods’ name “was or should have been reached on the special list” and certified for appointment.

Accordingly, said the court, Supreme Court and the Appellate Division determinations that Woods’ name should not be placed on a special military eligible list were incorrect and must be vacated.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02719.htm
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If substantial evidence supports the appointing authority’s denial of GML §207-a benefits, it must be sustained

If substantial evidence supports the appointing authority’s denial of GML §207-a benefits, it must be sustained
Matter of Ridge Rd. Fire Dist. v Schiano, 2011 NY Slip Op 02720, Court of Appeals

Kevin Nowack, a firefighter employed by the Ridge Road Fire District, claimed to have sustained a back injury while on duty.

Ultimately the arbitrator concluded that the District's denial of Nowack's §207-a benefits was not supported by substantial evidence.

The District appealed the arbitrator's determination and Supreme Court granted the District's petition, vacated the arbitrator’s decision and reinstated the District's original decision denying Nowack application for §207-a benefits.

Supreme Court held that the hearing officer's decision was arbitrary and capricious, and noted that the District's determination denying benefits "was supported by substantial evidence in the record as a whole despite the fact that there was conflicting medical evidence to support a contrary result."

The Appellate Division reversed the Supreme Court’s determination and dismissed the Fire District’s petition, holding that the District's "denial of benefits, which was based on the determination that the disability was solely related to a prior non-work-related injury, [was] not supported by substantial evidence."

The Court of Appeals reversed the Appellate Division’s decision.

The court said that the parties here agree that under the relevant statute and collective bargaining agreement, the District's denial of benefits had to be upheld if substantial evidence* supported it. Accordingly, said the Court of Appeals, “the independent hearing officer was required to give deference to the District's decision and Nowack bore the burden of establishing that the District's denial determination had not been supported by substantial evidence.”

Viewing this record as a whole, the Court of Appeals held that “Supreme Court correctly held that the hearing officer's decision, i.e. that the District's denial of section 207-a benefits was not based on substantial evidence, was arbitrary and capricious.”

Further, said the court, “It is of no consequence that the record also indicates that there was evidence supporting Nowack's contention.” While frequently there is substantial evidence on both sides, the Court of Appeals explained that the applicable standard here was whether the District's denial of benefits was supported by substantial evidence.

In this instance, said the court, there is unquestionably substantial evidence supporting both sides' positions. Accordingly “the hearing officer acted arbitrarily in deciding that none supported the District's” position.

* Court of Appeals noted that it had defined "substantial evidence" as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, and "is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02720.htm

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Concerning disciplinary probation

Concerning disciplinary probation
Gonzalez v Safir, App. Div., 270 AD2d 52
Dillon v Safir, App. Div., 270 AD2d 116

The Gonzalez case deals with the imposition of probation as a disciplinary penalty; the Dillon decision indicates the potential impact that a disciplinary probation may have on an individual.

The bottom line: an individual serving in disciplinary probationary status may be dismissed without notice or hearing if his or her service during the probationary period is found to be unsatisfactory.

The Gonzalez case

Eduardo A. Gonzalez, a New York City police officer, was found guilty of having wrongfully struck another person. The penalty imposed by the disciplinary hearing officer: disciplinary probation for one year and a 30-day suspension without pay.

The Appellate Division, First Department, confirmed the findings of the hearing officer and the penalty given to Gonzalez as a result of his having been found guilty of the charges filed against him. The court said that it found the penalty imposed was appropriate in light of Gonzalez’s’s violent behavior and poor judgment when he struck his girlfriend.

The Appellate Division also commented on Gonzalez’s evident lack of candor when he testified about the incident.

The Dillion Case

Bradly Dillion, another New York City police officer, was terminated from his employment as a probationary employee without notice or hearing. Dillion had been serving a one-year disciplinary probation imposed pursuant to an earlier disciplinary action at the time he was dismissed.

Dillon had been found guilty of charges alleging excessive use of force.

Dillion challenged his termination, contending that under Section 891 of the Unconsolidated Law, police officers can be terminated only for incompetence or misconduct shown after a hearing.

The Appellate Division rejected Dillion’s arguments for two reasons. The court said that:

1. In Williams v Safir, 696 NY2d 139, Dillion’s theory that Section 891 applies to probationary as well as tenured police officers was specifically rejected; and

2. Unless it is shown that the termination of an individual on disciplinary probation was made in bad faith, police officers on disciplinary probation, like those on ordinary probation, can be terminated for any or no reason.

The court said that evidence in the record of disciplinary problems other than that underlying the probation that would support the conclusion that [Dillion’s] termination was made in good faith.

However, there may be limitations to dismissing an individual serving a disciplinary probation without first providing the employee with a pre-termination notice and a hearing.

If the individual is placed on disciplinary probation subject to specific terms and conditions set out in the disciplinary settlement or award, he or she may not be summarily terminated as a probationer unless he or she violates the specific terms of the disciplinary probation.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. Taylor was subsequently terminated from his position for sleeping on the job.

Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties were unsatisfactory because of his consumption of alcohol.

The Dillion and Taylor decisions illustrate two basic formulas followed in imposing disciplinary probation as a penalty:

1. The Dillion formula: You should be terminated but you’re getting another chance: any kind of misperformance, malperformance or nonperformance and you will be dismissed!

2. The Taylor formula: You should be terminated based on specific misconduct, but you’re getting another chance: if you do it again, you will be dismissed!

In effect, an individual serving a Dillion formula disciplinary probationary period is treated as though he or she is serving a Civil Service Law Section 63 probationary period.

In contrast, an individual serving a Taylor formula disciplinary probation period continues to hold status as a tenured employee but he or she may be summarily terminated if he or she commits a specified type offense.
There are other potential impacts resulting from disciplinary probationary status to be considered as well. For example, assume there is a layoff. Sections 80 and 80-a of the Civil Service Law provide that probationary employees are to be laid off before less senior tenured employees.

An individual serving a Dillion type disciplinary probation presumably would be treated in the same manner as any other probationer with respect to suspension or demotion in a layoff situation. In contrast, the Taylor type disciplinary probationer presumably would retain all of his or her tenured seniority rights without regard to his or her disciplinary probation status.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Certification of the payroll critical to lawfully paying an individual in the classified service

Certification of the payroll critical to lawfully paying an individual in the classified service

Eldridge v Carmel Cent. School Dist. Bd. of Educ., 2011 NY Slip Op 02620, Appellate Division, Second Department

The Personnel Officer of Putnam County, who also serves as the Personnel Director for the Putnam County Personnel Department, Paul Eldridge, sued the Carmel Central School District’s Board of Education and a number of employees of the District pursuant to Civil Service Law §102(2) to recover certain sums that were allegedly illegally paid by the School District to an individual in the classified service that had been employed by the District without the certification required by the Civil Service Law §100.*

Eldridge contended that the School District “illegally paid or authorized payment of salary or compensation to nonparty Joseph Gramando, totaling approximately $233,245” during the period February 10, 2006 through October 15, 2008, which payments Eldridge alleged were not properly certified as required by Civil Service Law §100(1)(a).

In response to a number of technical objections to the parties named as defendants in Eldridge’s petition, the Appellate Division, noting that the Board of Education was not an officer within the meaning of CSL §100(1)(a), said that Supreme Court should have dismissed Eldridge’s complaint with respect to the Board as an entity being named a defendant but that the complaint sufficiently alleged that School Board members “Kreps, Riley, Dougherty, MacDonald, Nesheiwat, Port, and Shilling,” as individual members of the Board of Education, were "officers by whom [nonparty Joseph Gramando] w[as] appointed in violation of the provisions of law and of the rules made in pursuance of law."

Further, said the court, Eldridge’s complaint sufficiently alleged that the officers of the District that he named in his petition, Terranova, Wilson, Stark, and Haywood, were "officer[s] signing or countersigning or authorizing the signing or countersigning of any warrant for the payment of" salary or compensation distributed to nonparty Joseph Gramando contrary to the provisions of Civil Service Law §100.

Among the defenses raised by the board members and district officers were the following:

1.      Eldridge failed to notify "the appropriate disbursing and auditing officers" that Gramando was being employed in violation of the law. 

 
The Appellate Division rejected the argument, holding that such notice that a person has been "promoted, transferred, assigned, reinstated or otherwise employed" in violation of the law is not a condition precedent to an action to recover sums illegally paid under Civil Service Law §102(2). Further, said the court, the “defendants failed to submit documentary evidence conclusively establishing that the salary and compensation allegedly paid to Gramando in violation of the law was properly certified by the civil service department or municipal commission having jurisdiction, as required by Civil Service Law § 100(1)(a).”

2.      Eldridge failed to serve a timely serve a notice of claim as required by Education Law § 3813(1). 

  
Citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, the Appellate Division rejected this defense as well, commenting that “Contrary to the defendants' contention, an action commenced pursuant to Civil Service Law §102(2) is an action ‘to vindicate a public interest’ to which the notice of claim requirement in Education Law §3813(1) does not apply.”

 

3.      The action brought was untimely as barred by the one-year statute of limitations in Education Law §3813(2-b). 

  
The court said that "All of the public policy considerations for finding that Education Law §3813's notice of claim requirement is inapplicable to [this action] are equally valid with respect to the Statute of Limitations set forth in [Section 3813(2-b)]" and since the action is to recover upon “a liability, penalty or forfeiture created or imposed by statute" a three-year statute of limitations is applicable. Accordingly, Eldridge’ action to recover sums allegedly illegally paid said the Appellate Division, ‘should be limited to the money paid to Gramando on or after June 2, 2006, citing General Construction Law §20.

In response to another argument advanced by the defendants, the court commented that Eldridge was not required, nor does he have the authority, to extend or terminate provisional appointments. It is the obligation of the appointing authority to terminate all provisional appointments "within two months following the establishment of an appropriate eligible list for filling vacancies" (Civil Service Law §65[3]).

The court explained that power of the civil service department and municipal commission lies in their ability to withhold certification "from an entire payroll or from any item or items therein." (Civil Service Law § 100[1][a]).

The Appellate Division said that the allegations in the complaint were sufficient to establish that the individual defendants “continued to pay and approve salary and compensation to Gramando after the expiration of his provisional appointment and without proper certification of the payroll

* Subdivision 1(a) of Civil Service Law §100, Certification of payrolls, in pertinent part, provides that certification of the payroll is required and that “no disbursing or auditing officer of the state or of any civil division thereof shall approve or pay or take any part in approving or paying any salary or compensation for personal service to any person holding an office or position in the classified service unless the voucher or payroll therefor bears the certificate of the civil service department or  municipal commission having jurisdiction that the persons named therein  are employed in their respective positions in accordance with law and  rules made pursuant to law. The certificate of municipal commissions shall also include a statement of membership in an appropriate retirement system where such membership is mandatory.”

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02620.htm
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Inability to obtain a timely waiver to reemploy a person receiving a retirement allowance from a public retirement system of this State does not result in a breach of contract

Inability to obtain a timely waiver to reemploy a person receiving a retirement allowance from a public retirement system of this State does not result in a breach of contract
LaSalle v Board of Educ. of Bridgehampton Union Free School Dist., 2011 NY Slip Op 02632, Appellate Division, Second Department

Edward J. LaSalle, a retired schoolteacher, applied for a teaching position with the Bridgehampton Union Free School District. In order for LaSalle to be so reemployed without having his retirement allowance adjusted, the district applied for a “§211 waiver” pursuant to §211.2(a) of the Retirement and Social Security Law.*

In essence, if the school district’s application for a §211 waiver for LaSalle was not approved, LaSalle’s earnings could not exceed the statutory annual earnings limitation of $27,500, which was the sum then applicable to him.** [The maximum currently permitted without loss of retirement benefits set out in RSSL §212 absent a waiver is $30,000. However, there is no earning limitations in or after the calendar year in which the retired individual attains age 65.]

LaSalle signed a salary notification for the school year containing a notation that the salary was "pending NYS waiver for Retiree." In addition, a resolution of the board of education appointing LaSalle as a teacher recited that the hiring was "effective" September 5, 2006. The resolution did not contain termination date for the period of employment but it did state that confirmation of his appointment was "pending NYS Education Department waiver for employment of retiree." The school superintendent also wrote to LaSalle to the same effect.

The school district’s waiver application, which it had submitted in June 2006, was denied.

The district then resubmitted a second waiver application and LaSalle commenced teaching on September 5, 2006.

However, by November 2006 LaSalle was close to the maximum compensation he could earn without have his retirement allowance adjusted and the State Department of Education had not acted on its resubmitted waiver application.

In view of the situation, the district offered LaSalle a number of options, including “placement of his retirement benefits on hold, resignation prior to the date when his salary would reach the statutory earnings limitation, or termination of employment.”

LaSalle elected to resign, which resignation took effect prior to the district’s receiving the Education Department’s approval of the §211 application it had filed on behalf of LaSalle.

LaSalle then sued the district “to recover damages for breach of contract and wrongful termination of employment.”

The Appellate Division affirmed Supreme Court’s determination that the district had established its prima facie entitlement to judgment as a matter of law when it dismissed LaSalle’ petition.

Failure to obtain the required waiver in a timely fashion may result in a financial liability to the retiree.

For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had been paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.

N.B. RSSL §217.1 requires "school salary transparency and disclosure" and mandates that school districts and all BOCES to report " all monies earned by a retired person in their employ that is in excess of the limitations set out in §212 to the appropriate retirement system and to the appropriate political subdivision. RSSL §217.2 requires the school district or the BOCES employing a retired person "who is eligible to collect or is already collecting a retirement allowance" to report, among other things, all earnings of such an individual to the appropirate retirement system and to the State Comptroller.


*The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.

** RSSL §211.2(a), in pertinent part, provides that ”No retired person may be employed in a position in public service pursuant to subdivision one hereof except upon approval of  …  (2) the commissioner of education if such person is to be employed in the unclassified service of a school district other than the city of New York, a board of cooperative educational services or a county vocational education and extension board.... The

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02632.htm