Untenured employee must demonstrate his or her termination was made bad faith or for an unlawful reason in order to successfully challenge his or her dismissal

Untenured employee must demonstrate his or her termination was made bad faith or for an unlawful reason in order to successfully challenge his or her dismissal

Shih v Waterfront Commn. of N.Y., 2011 NY Slip Op 03190, Appellate Division, First Department

As Conrad Shih’s status as an auditor with the New York City Waterfront Commission was not within the Commission’s definition of a "permanent employee" Supreme Court ruled that Shih was not entitled to the due process protections of a “permanent employee” i.e. a pretermination hearing.

The Appellate Division agreed with the lower court determination that the Commission’s terminating Shih without such a hearing was neither arbitrary nor capricious.

Key to the Appellate Division’s decision was Howard v Wyman, 28 NY2d 434. In Howard the Court of Appeals said that “An agency has broad power to construe and interpret its own rules” and its interpretation must be upheld where, as here, it is rational.

As a nontenured employee, said the court, Shih was not entitled to a full adversarial hearing concerning the reasons for his termination. Further, the Appellate Division said that Shih “failed to show that his termination was for an improper reason or in bad faith,” citing Beneky v Waterfront Commn. of N.Y. Harbor, 42 NY2d 920, Certiorari denied 434 US 940.

Applying the “Pell Doctrine,”* the court ruled that “Given [Shih’s] attempt to steal a DVD from a music store and failure to report his arrest on related charges, we cannot say that the penalty imposed was so disproportionate to the offense as to shock one's sense of fairness.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03190.htm

* Matter of Pell v Board of Education, 34 NY2d 222.

Vacating a disciplinary arbitration award

Vacating a disciplinary arbitration award

Roemer v NYC Bd. of Ed., 268 AD2d 479, Motion for leave to appeal denied, 94 NY2d 763

The Roemer decision serves as a reminder that the grounds for appealing a Section 3020-a disciplinary determination are very limited. In order to overturn a Section 3020-a arbitration award, it is necessary to prove that one or more of the statutory reasons set out in Article 75 of the Civil Practice Law and Rules for vacating the award exist.

Under Article 75, [Section 7511.b] an arbitrator’s award can be vacated if a court finds that the rights of a party were violated because of corruption, fraud or misconduct in obtaining the award; the arbitrator was not impartial; to one party; the arbitrator exceed his or her powers or so imperfectly exercised them that a final determination was not made or the arbitration procedures were not followed [unless the party objecting to the award continued with the arbitration without objection after becoming aware of the defect].

Here David Roemer, a New York City schoolteacher, was terminated after the Section 3020-a arbitrator found him guilty of charges of incompetence and insubordination. He attempted to vacate the award. However, the Appellate Division sustained the Supreme Court’s dismissal of Roemer’s petition to vacate the award because Roemer “did not demonstrate” any basis for vacating the award under Section 7511.

In addition to the limited grounds for vacating the arbitration award set in Section 7511, Section 3020-a set a very short statute of limitations for filing a petition to overturn or modify the award as well as settling other limitations in such cases. Section 3020-a.5 sets out the following limitations with respect to challenging a Section 3020-a disciplinary determination:

1. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to CPLR Section 7511.

2. The court’s review shall be limited to the grounds set forth in Article 75. Further, the hearing panel’s determination shall be deemed final for the purpose of such proceeding.

3. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Point 3 is particularly significant as it allows the appointing authority to impose the penalty determined by the arbitrator while the decision is being challenged.

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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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Accidental disability retirement benefits application based on a training-related injury

Accidental disability retirement benefits application based on a training-related injury

Geraci v Hevesi, 37 AD3d 941

Joseph Geraci, a police officer, injured his left knee while participating in training course. Geraci said that his injury occurred when his left foot sank into an exercise mat and his sneaker gripped the mat, thereby causing his left leg to twist as he attempted to move to his right.

Claiming that the injury resulted from an accident, Geraci applied for accidental disability retirement benefits. The Retirement System’s hearing officer found that Geraci failed to establish that the incident resulting in his injury constituted an accident within the meaning of the Retirement and Social Security Law. The State Comptroller accepted the Hearing Officer's findings and conclusions, and disapproved Geraci ’s application for accidental disability retirement benefits.

The Appellate Division confirmed the Comptroller’s determination. The court said that based on its review of the record, “we cannot characterize the subject incident as a “'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact'“ that would support a finding that Geraci’s injury resulted from an accident.

Rather, said the court, Geraci ’s injury “was the result of a training program constituting an ordinary part of petitioner's job duties and the normal risks arising therefrom,” citing Matter of Felix v New York State Comptroller, 28 AD3d 993, and other rulings.*

For the full text of the opinion, go to:

http://www.nycourts.gov/reporter/3dseries/2007/2007_01046.htm

* The Appellate Division also commented that “regarding [Geraci’s argument concerning] the inappropriateness of his footwear, even if accepted, would not transform the incident into an accidental event.”

Payment of unreimbursed medical expenses permitted by the Internal Revenue Code via a “Health Reimbursement Arrangement Plan” held not the same as health insurance premiums

Payment of unreimbursed medical expenses permitted by the Internal Revenue Code via a “Health Reimbursement Arrangement Plan” held not the same as health insurance premiums

Kathleen Rockwell et al v Broadalbin-Perth Central School District, Supreme Court, Fulton County, Judge Joseph M. Sise, Decision [RJI #27-1-2009-05091. Motion #13, April 18, 2011]

The Broadalbin-Perth Central School District was providing active employees and their dependents represented Broadalbin-Perth Teacher’s Association with health insurance. Upon retirement, the District continued to provide the same level of benefit to Association retirees and their dependents.

The District and the Association then entered into a “memorandum of understanding” that modified the District’s Health Insurance Plan. One of the key components of the new plan, and the focus of this litigation, was the creation of a “District-funded Health Reimbursement Arrangement" [HRA] providing for the payment of unreimbursed medical, dental, and other allowable expenses "permitted by the Internal Revenue Code."

The HRA provided for an annual contribution of $500 by the District for each employee in the negotiating unit to the individual’s HRA. It also featured a “rollover” permitting the HRA account to accumulate up to a $10,000 “maximum balance cap.” Upon retirement the plan provided for a one-time $3,000 HRA contribution. While a retiree could submit qualified medical expenses for reimbursement from his or her HRA fund, no additional contributions would be made to their HRA.

Contending that HRA with respect to retirees violated the mandates set out in Chapter 30 of the Laws of 2009,* Rockwell sued the District seeking a court order to compel the District to reimburse the retirees affected by the change for certain medical care expenses they had incurred as a result of the implementation of the HRA program.

The thrust of Rockwell's argument was that District's HRA contribution for retirees violated Chapter 30 insofar as it provided a different level of benefit for retirees than it did for active employees. Judge Sise disagreed.

The court said that HRA accounts only provide a means for active members to pay their unreimbursed medical and other qualified expenses and that the District’s contributions to an HRA account, or the possibility of underwriting the cost of insurance copayments from an HRA account, were not within the scope of, or in violation of, Chapter 30 as claimed by Rockwell.

Further, said the court, Rockwell failed to show that the retirees had sustained any diminution of health insurance benefits greater than those experienced by active employees as a result of the implementation of the HRA for both active employees and retirees of the District.

Indeed, said Judge Sise, the District demonstrated that “even considering the $500 annual HRA contribution … retirees are each still saving an average of $264.17 more per year [in health insurance costs] than each active employee” and dismissed Rockwell's petition.

* Chapter 30 of the Law of 2009 temporarily** extended the provisions of §1 of Chapter 566 of the Laws of 1967, which Chapter, in pertinent part, provided that BOCES and school districts could not diminish the health insurance benefits and employer contributions for such benefits provided to retirees “unless a corresponding diminution of benefits or contributions is effected from the present level … from the corresponding group of [active] employees….”

** N.B. Part B of §14 of Chapter 504 of the Laws of 2009 made this provision "permanent."

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Guidelines followed in determining if an individual was provided administrative due process in a quasi-judicial hearing

Guidelines followed in determining if an individual was provided administrative due process in a quasi-judicial hearing

Matter of Hildreth v New York State Dept. of Motor Vehicles Appeals Bd., 2011 NY Slip Op 03066, Appellate Division, Second Department

In considering this appeal from an adverse administrative decision that resulted in the  revocation of Wilbur Hildreth’s driver's license pursuant to Vehicle and Traffic Law §1194 for one year as the result of his refusal to submit to a chemical blood-alcohol test, the Appellate Division addressed a number of issues concerning administrative adjudication procedures.

The court said that:

1. In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination;

2. Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;

3. The courts may not weigh the evidence or reject the choice made by an administrative agency where the evidence is conflicting and room for choice exists; and

4. Unlike the constitutional right to confrontation in criminal matters, parties in administrative proceedings have only a limited right to cross-examine adverse witnesses as a matter of due process.

In response to Hildreth’s argument that the administrative proceeding should have been dismissed” for failure to hold a hearing within a reasonable time as required under the State Administrative Procedure Act §301 or within six months from the date the DMV received notice of his chemical test refusal as required under 15 NYCRR 127.2(b)(2),” the Appellate Division said that the time limitations imposed on administrative agencies by their own regulations are not mandatory.

Unless the individual can show the delay caused “substantial prejudice,” he or she is not  entitled to relief for an agency's noncompliance with its own “time limits” controlling the proceeding.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03066.htm

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