Involuntary testing for drugs

Involuntary testing for drugs

DiCicco v Wyandanch Volunteer Fire Dept., 284 A.D.2d 459

The Appellate Division, 2nd Department, upheld the Wyandanch Volunteer Fire Department's [WVF] terminating Thomas DiCicco from membership in the Department because he refused to submit to a drug test within 24 hours of his being notified to undergo such a test pursuant to the WVF's random drug-testing policy.

Applying the Pell doctrine [Pell v Board of Education, 34 NY2d 222], the court said the penalty of dismissal is not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division also noted that DiCicco was told that he could reapply for membership in WVF in the future.

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"

Matter of Seidel v Prendergast, 2011 NY Slip Op 06132, Appellate Division, Second Department

Michael Seidel and others [Seidel] joined in filing a petition pursuant of Article 78 of the Civil Practice Law and Rules challenging the action of the Town Board of the Town of Orangetown appointing Kevin Nulty to the position of the town's Chief of Police. Supreme Court of Orangetown, Rockland County, dismissed the petition on the grounds that Seidel “lacked standing” to pursue the action. Seidel appealed.

Essentially Seidel contended that Nulty’s appointment was unlawful because no competitive examination had been held for appointment to the position of Chief of Police.

The Appellate Division sustained the lower court’s dismissal of Seidel’s petition, explaining that “In general, persons seeking to challenge governmental actions must demonstrate that they are personally aggrieved by those actions in a manner ‘different in kind and degree from the community generally,'"

In this instance Seidel and his co-petitioners made no attempt to demonstrate they was aggrieved by Nulty’s appointment. Rather, said the Appellate Divisiont, they claim that they "have standing to challenge unlawful and unconstitutional civil service appointments regardless of whether they are personally aggrieved."

The Appellate Division rejected this theory, holding that while the doctrine of common-law taxpayer standing would excuse such lack of personal aggrievement, that doctrine requires the petitioner to establish that "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action."

As Seidel failed to demonstrate that there was an "impenetrable barrier" to judicial scrutiny of the administrative determination resulting in the appointment of Nulty as the Town's Chief of Police, the Appellate Division concluded that the “Supreme Court properly granted the motions to dismiss the petition on the ground that the petitioners lacked standing.”

Out-of-title work

Out-of-title work

Haubert v GOER, 284 A.D.2d 879

In the Haubert case the Appellate Division, Third Department considered the issue of whether or not the assignment of certain additional duties to an individual, or specific changes in an employee's existing duties, constitutes “out-of-title” work. As the decision demonstrates, it all depends on the nature of the changes and the nature of the positions involved.

Section 61.2 of the Civil Service Law prohibits “out-of-title work.” In addition, no credit is given for out-of-title work in order to qualify for a promotion examination.

Ruth A. Haubert appealed the Governor's Office of Employee Relations' [GOER] denial of her out-of-title work grievance. The grievance arose after the State Department of Health changed its procedures with respect to surveying long-term health care facilities to ensure their compliance with State and federal laws and rules.

Initially the surveys were conducted by teams under the supervision of a Consultant Nurse, grade 24. In late 1996 Health revised its procedure and required various employees in grade 19, 20 or 22 specialized clinician positions to serve as the “team facilitator” on a rotating basis in addition to the designated “facilitator” remaining responsible for his or her primary tasks as a team member.

Claiming that the new role of team facilitator required them to perform out-of-title work, Haubert and other employees filed an “out-of-title” work grievance. The grievance was rejected at all steps and an appeal was filed in Supreme Court. Ultimately, the Appellate Division affirmed the Supreme Court's dismissal of Haubert's petition.

The Appellate Division said that not all additional duties assigned to an incumbent constitute out-of-title work. The question is whether the new duties are appropriate to the employee's titles and, or, are they similar in nature to, or a reasonable outgrowth of, the duties listed in the employee's job specifications.

In this instance, the court decided that based upon “the team concept of the survey work, which required coordination and cooperation among all team members, and the high level of expertise required of petitioners in order to qualify for their titles,” GOER rationally concluded that the obligation of a team facilitator to monitor the team's progress to ensure that the team accomplished its mission in a timely fashion “is appropriate to petitioners' titles and, or, constitutes a logical extension of their duties.” 

Determining seniority in a civil division of the State

Determining seniority in a civil division of the State

Turner v Ulster County, 284 A.D.2d 703

Seniority is the key to layoff rights in the public service. Typically seniority is based on the individual's uninterrupted service with the governmental entity in which the layoff takes place measured from the original date of the individual's permanent appointment in the civil service of that entity, regardless of the jurisdictional classification of the position or positions held by the individual.

Police Captain George B. Turner was laid off when the Town of Ulster abolished his position. Turner contended that he had displacement rights based on his seniority in the classified service and thus he could “bump” Donald H. Short, a lieutenant in the Town Police Department. The County personnel officer, Thomas J. Costello, ruled that Turner did not have displacement rights over Short as Short had more permanent service in the relevant civil division -- the Town of Ulster.

According to the decision, Turner was originally appointed as a Deputy Sheriff by the Ulster County Sheriff's Department on January 16, 1978 and was continuously employed there until November 9, 1990. On that date Turner was appointed to a position in the Town Police Department from a civil service open competitive eligible list. Turner was ultimately promoted to the position of police captain.

Short, on the other hand, had continuously served with the Town Police Department since January 1, 1983, and the Ulster County personnel director determined that he had been appointed as a permanent employee prior to Turner's appointment by the Town.

Ulster County Civil Service Rules and Regulations defines “permanent service,” a key element in determining seniority for the purposes of layoff, as “start[ing] on the date of the incumbent's original appointment on a permanent basis in the classified service.” The rules also provide that “[t]he permanent service of any employee who was transferred from another civil division shall start on the date of his/her original permanent appointment in the classified service in the other civil division [emphasis supplied].”

The Appellate Division said that: It is clear that for purposes of seniority, length of time in service is measured from the date of original appointment on a permanent basis in the classified service of the layoff unit where the abolishment occurs. Since petitioner was appointed to the position of lieutenant in the Town Police Department on November 9, 1990 from an open competitive eligible list, this date of appointment marks the commencement of his service in the classified service in the layoff [sic] unit. There is no merit to petitioner's contention that his original appointment in the classified service occurred in 1978 with his appointment to the Ulster County Sheriff's Department since he did not transfer from the Sheriff's Department to the Town Police Department.

The crux of the matter is the meaning of the term “civil division.” Section 2.8 of the Civil Service Law defines “service of a civil division” to “include all offices and positions in the civil division of any subdivision of the state and the term 'civil division' shall include within its meaning a city.”

The Appellate Division agreed with the personnel officer's determination that the Ulster County and the Town of Ulster are different and separate “civil divisions.” As the Court of Appeals said in Chittenden v Wurster, 152 NY 345, the civil divisions of the State are its counties and its towns and its villages. 

Eligibility for reinstatement from a preferred list to a “different” position

Eligibility for reinstatement from a preferred list to a “different” position

Davis v Mills, 285 A.D.2d 703, affirmed 98 N.Y.2d 120

As a general rule, a preferred list must be used to fill a vacancy for the same title, or a position found to be similar to, the position that gave rise to the creation of the preferred list in the first instance. Clearly the preferred list must be certified to fill vacancies having the same title. The determination of a “similar position” for the purposes of such certification is sometimes a less easy task.

School psychologist Maxine Davis was laid off by the Westport Central School District when the district abolished a school psychologist position. She claimed that she was entitled to be reinstated from the preferred list when the district decided to fill a newly created position of elementary counselor.

Davis argued that “because the majority of the duties that she performed as school psychologist consisted of the counseling and other related duties of the newly created elementary counselor position, the two positions are similar within the meaning of Education Law Section 2510.” Thus, she concluded, if the district wished to fill the newly created elementary counselor position, it was required to use the preferred list created as a result of her being laid off.

The Commissioner of Education disagreed and dismissed Davis' appeal after determining that the two positions were in different special subject tenure areas and required different certifications. The Appellate Division, Third Department, sustained the Commissioner's decision.

The court noted that although the abolished “school psychologist position apparently encompassed the duties of the newly created elementary counselor position, the record establishes that the school psychologist position included additional duties beyond those of the elementary counselor position” and which require “skills that were not necessary for the performance of the more limited duties of the elementary counselor position.”

In addition, said the court, the fact that some of the counseling-related duties of the school psychologist position became the duties of the elementary counselor position does not necessarily make the two positions similar.

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