Involuntary leave under Civil Service Law Section 72

Involuntary leave under Civil Service Law Section 72

NYC Parks and Recreation v Matthews, OATH, 219/00

The New York City Department of Parks and Recreation wanted to place Rufus Matthews on leave pursuant to Section 72 of the Civil Service Law. Matthews objected.

The department claimed that Matthews, a park maintenance worker, was medically unfit to perform the duties and responsibilities of his position due to a heart condition.

Matthews, on the other hand, contended that he was fully able to perform the duties of his position notwithstanding his “heart condition.”

Pointing out that Section 72 places the “burden of proving mental or physical unfitness” upon the entity alleging it, OATH Administrative Law Judge [ALJ] Rosemarie Maldonado held that Parks and Recreation had failed to prove by a preponderance of the evidence that Matthews was “currently unfit” to competently perform his job duties as a city park maintenance worker.

Maldonado said that Matthews’s personal physician presented “compelling evidence” that [Matthews’] “cardiac rehabilitation was complete, and that physical exertion did not pose an unreasonable risk to his patient.”

In response to the department’s concern that Matthews “is endangering himself” by insisting that he be reinstated to full duty, the ALJ said while “commendably humanitarian,” the legal issue remains the impact of Matthew’s condition on his current ability to work.

Maldonado said that unless there is a clear showing of present impairment, the employer cannot place an individual on Section 72 leave “simply because there is some risk” that Matthews’ performance of his work might place him in some physical jeopardy.

According to the decision, where it is apparent at the time of the hearing that the employee’s condition is in check or otherwise under control, OATH has declined to find unfitness merely because of the existence of the potential for relapse or deterioration.

Reassigning work formerly performed by an individual laid off after his or her position is abolished

Reassigning work formerly performed by an individual laid off after his or her position is abolished

Matter of Kelly Krause and the Spencer-Van Etten CSD, Commissioner of Education, Decision No. 15,516

The lesson in this decision is that although it is not unlawful to reassign or redistribute the work performed by the former incumbent of a position that has been abolished to other staff members, the individual or individuals to whom the work is assigned must be qualified to perform the duties assigned to them.

The Spencer-Van Etten Central School District employed Kelly Krause as a full-time home economics teacher beginning with the 2000-2001 school year. During the 2004-2005 school year, Krause taught three Home and Career Skills courses to seventh grade students and two related courses to high school students.

At its July 12, 2005 meeting, the District’s Board adopted a resolution abolishing a number of teaching positions, including its full-time Home and Career Skills teaching position. Krause was laid off and her name was placed on a preferred eligible list for the Home and Career Skills title.

The District, however, continued to offer Home and Career Skills courses during the 2005-2006 school year. These courses, however, were assigned to five of the District’s incumbent teachers, none of whom was certified to teach Home and Career Skills.

Krause appealed to the Commissioner of Education, contending that the District’s actions with respect to the Home and Career Skills curriculum did not meet regulatory requirements.*

The Commissioner ruled that the District had improperly assigned teachers who lacked the required certification to teach its Home and Career Skills courses. He also found the Krause was on the “preferred eligible list” and remained available to teach the course during the time at issue here.

Noting that Education Law §3009 prohibits boards of education from employing unqualified teachers, the Commissioner said that the District’s practice of assigning teachers without the requisite Family and Consumer Sciences/Home Economics certification to teach the entire core curriculum in effect circumvents both the certification requirements and the incidental teaching regulations.

Although he said that the District improperly assigned uncertified teachers to its Home and Career Skills courses, the Commissioner concluded that the District had not created a specific position mandating the use of the preferred list to fill the vacancy. In the words of the Commissioner”

The record here shows that no vacancy occurred and no new position was created; instead, [the District’s] former teaching duties were redistributed albeit to teachers who lacked the proper certification. If, as a result of this decision, the District creates a new position in Home and Career Skills, [Krause] may indeed be entitled to such position by virtue of her place on the preferred eligible list of candidates.

The Commissioner ordered the District to “cease assigning teachers who lack the appropriate Family and Consumer Sciences or Home Economics certification to its seventh grade Home and Career Skills classes, review its curriculum, and comply with Education Law §3013 in the filling of any future vacancies.”

* The Home and Career Skills core curriculum prepared by the State Education Department (“SED”) identifies four process skills and ten content areas to be included in the course. The curriculum also notes that a certified Family and Consumer Sciences teacher must teach the course.

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected
Kevin M Gorey, Jr. v New York State Comptroller, 2011 NY Slip Op 03329, Appellate Division, Third Department

Kevin M. Gorey Sr. applied for service retirement effective September 1, 2004 and elected benefit payments under the "Single Life Allowance" option. This option provided that Gorey Sr. would receive the maximum lifetime retirement allowance payable to him and the payments would stop upon his death. Further, this option did not permit Gorey to designate a beneficiary.

New York State and Local Employees’ Retirement System [ERS] sent Gorey Sr. a letter confirming his option selection and detailing his annual benefit payments. In addition, ERS told Gorey Sr. that he could his selection of his retirement option prior to September 30, 2004. Gorey Sr. did not submit any change and died on November 19, 2004.

Gorey Sr.’s children [Gorey, Jr.] asked ERS to void decedent's selection of the "Single Life Allowance" option, contending that Gorey, Sr. was incompetent at the time he made the selection. Ultimately ERS rejected Gorey Jr.’s application, holding that Gorey Jr. had not established that Gorey Sr. was incompetent* when he made his retirement option selection and Gorey Jr. sued in an effort to overturn the Retirement System’s decision.

The Appellate Division affirmed the Retirement System’s determination.

Noting that Gorey Jr. contend that the Retirement System “did not take adequate steps to ensure that [Gorey Sr.] made a proper retirement option choice, the court said that the Retirement System is "not required to insure that proposed retirees receive the best possible entitlement," citing Matter of Cummings v New York State & Local Employees' Retirement Sys., 187 AD2d 862, appeal dismissed 81 NY2d 834.

Further, said the court, the State Comptroller "has the exclusive authority to determine all applications for any form of retirement or benefits" and his decision will not be disturbed if it is supported by substantial evidence.

* The applicant for a retirement allowance is presumed to have been competent at the time he or she made his or her retirement option selection and the burden is on those challenging that election to prove the contrary.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03329.htm

Infringing on constitutionally protected speech

Infringing on constitutionally protected speech
Timothy M. Wrobel v County of Erie, CA2, 2007 WL. 186264

In reviewing Wrobel’s claim that Erie County had violated his right to free speech and association, the U.S. Court of Appeals for the Second Circuit said:

1. Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment.

2. Conditioning public employment on the provision of support for the favored political party “unquestionably inhibits protected belief and association”.*

The court concluded, “When reasonable inferences are drawn in Wrobel’s favor, the amended complaint sufficiently alleges that Wrobel was retaliated against for his lack of political affiliation with, or his refusal to pledge his allegiance to, the new Erie County administration.”

The Circuit Court also noted that in Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir. 2006), it explained that “actionable retaliation” in the context of the First Amendment was employer actions that “well might have dissuaded a reasonable worker [from asserting First Amendment-protected rights]”.**

As to Wrobel’s claim that the County had violated his First Amendment free speech rights, the Circuit Court said that "While we agree with the District Court that Wrobel’s pre-transfer speech was not on a matter of public concern, and was therefore not constitutionally protected we do not agree with its conclusion that Wrobel had not sufficiently alleged actionable retaliation following his expression of protected speech.”

Wrobel alleged that “defendant Douglas Naylon implicated him as the perpetrator of a theft of government property shortly after Wrobel discussed the corruption and politicization of his place of employment with an FBI agent.” Wrobel also alleged that other county officials had bribed others to testify against him at an arbitration hearing shortly after he engaged in protected speech.

In Conrick v Myers, 461 US 1l38, the United States Supreme Court established a two-prong test with respect to claims of dismissal in retaliation for "whistle blowing." To win, the individual must prove that (1) his or her speech is protected, i.e., the speech was a matter of public concern, and (2) that the protected speech was a substantial factor in motivating the termination

These adverse actions, said the court, “are sufficient to support a First Amendment retaliation claim,” because Wrobel’s petition “sets forth the necessary nexus between [Wrobel’s] statements concerning a matter of public concern and the defendant[s’] subsequent alleged retaliatory acts.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution.***

The decision is posted on the Internet at:  

http://nypublicpersonnellawarchives.blogspot.com/2007/01/freedom-of-association.html

* See also §107 of the Civil Service Law setting out certain prohibitions against certain political activities and improper influence.

** The court commented that monitoring of Wrobel’s phone calls, transfer of Wrobel to a faraway location, initiation of a criminal investigation against Wrobel, and other adverse actions alleged in the amended complaint—if proven true—would be sufficient to dissuade a reasonable worker from asserting his First Amendment rights. Wrobel, said the court, adequately alleges that the adverse actions were taken in retaliation for his protected associational activity.

*** See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, where the court held that a public employee’s speech was not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

In re Police Officer Ruben Olavarria, etc., v Raymond W. Kelly, as Police Commissioner of the City of New York, et al., 37 AD3d 191

The so-called Pell Doctrine frequently is cited as the standard against which a disciplinary penalty imposed on a public employee by the appointing authority is to be measured.*

In Olavarria, the Appellate Division affirmed the imposition of the penalty of dismissal on a New York City police officer found guilty of a number of alleged acts of misconduct, including assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty.

Ruling that it found no basis to question the credibility of the findings underlying holding that Olavarria was guilty of these charges, the Appellate Division said the “Under the circumstances, the penalty of dismissal does not shock the judicial conscience,” citing another leading decision addressing the imposition of the “ultimate” administrative disciplinary penalty, -- dismissal. Harp v New York City Police Dept., 96 NY2d 892.

For the full text of this decision, go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/penalty-of-dismissal-sustained.html

* Pell v Board of Education, 34 NY2d 222, a disciplinary penalty imposed by an appointing authority will not be overturned unless the court finds that it is shocking to one's sense of fairness.