Appointing authority must have the transcript of the disciplinary hearing available to it before it can make its determination

Appointing authority must have the transcript of the disciplinary hearing available to it before it can make its determination

Ernst v Saratoga County, 234 AD2d 766

In Ernst the court annulled a disciplinary determination dismissing the employee because each individual member of the appointing authority, a board, was not given a complete copy of the Section 75 hearing transcript for review prior to the board makings its determination.

The court said that the entire matter should be returned to the board for a de novo determination based on the record made during the disciplinary proceeding.

The appointing authority, after reconsidering the matter, again found Ernst guilty and, again, imposed the penalty of dismissal. The determination was sustained on appeal from the Board’s subsequent decision [Ernst v Saratoga County, 251 AD2d 866].

Unilateral transfer of unit work

Unilateral transfer of unit work

City of Rome v PERB, 283 AD2d 817

The Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO Inc., City of Rome Unit [CSEA], filed an improper practice charge with the Public Employment Relations Board [PERB] alleging that Rome had impermissibly assigned unit work to nonunit employees without first bargaining with CSEA. PERB determined that Rome had violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally transferred the responsibilities of its acting purchasing agent Marilyn McLiesh to others.

Rome was ordered to immediately transfer certain duties previously performed by McLiesh to the unit represented by CSEA, offer McLiesh reinstatement to her former position and make McLiesh whole for lost wages, benefits and conditions of employment from the effective date of her separation from service to the effective date of the offer of reinstatement.

The Appellate Division set out the following critical points in reviewing Rome's petition to vacate PERB's determination:

1. From October 1986 until December 1995, McLiesh served as Rome's deputy assistant purchasing agent. In December 1995, McLiesh was appointed acting purchasing agent after the Purchasing Agent resigned.

2. In January 1998, Rome abolished its purchasing agent position and transferred some of the work previously performed by McLiesh to employees in the Oneida County Purchasing Department. The tasks not transferred to the County were assigned to Rome's Treasurer's office. It then terminated McLiesh.

Rome challenged PERB's directive providing for McLiesh's reinstatement and the award of back pay as violative of Article V, Section 6 of the State Constitution.

Supreme Court ruled that McLiesh's continuation in service as an acting purchasing agent beyond the three-month period for temporary appointments permitted by Civil Service Law Section 64(1) violated Article V, Section 6 and thus PERB exceeded its authority by directing McLiesh's reinstatement. The Court annulled that part of PERB's decision that directed Rome to reinstate McLiesh with back pay and benefits. CSEA and PERB appealed.

The Appellate Division commenced its analysis of the case by noting that the transfer of McLiesh's responsibilities to nonunit workers did not, of itself, violate any law. Rather, it was Rome's failure to negotiate the transfer of such duties with PERB that violated Civil Service Law Section 209-a(1)(d).

The court said that its prior decision in Village of Scotia v PERB, 241 AD2d 29, was relevant in this case. In Scotia the Appellate Division held that although an individual “had been impermissibly demoted from police sergeant to patrolman,” PERB could not direct that he be restored to his prior position because he was not on a current eligibility list for appointment to police sergeant.

Here, said the court, the record showed that although McLiesh had been on an eligible list for the position of purchasing agent, that list expired on April 25, 1987 and would, in any event, have expired by operation of law at the end of four years. The Appellate Division's conclusion:

Since McLiesh took no subsequent test for purchasing agent and there was on no eligible list for the title, “it necessarily follows that, at the expiration of three months following McLiesh's appointment as 'acting' purchasing agent' her employment in that position violated the requirement of Article V, Section 6.”

In the court's view, “PERB's effort at justifying its remedial order by pointing out that it did not restore McLiesh to the position of purchasing agent but, rather, to her prior position of “acting” purchasing agent, fails to recognize that [her retention in] the latter position was itself violative of NY Constitution, Article V, Section 6.” Accordingly, PERB's directing Rome to reinstate McLiesh with back salary was not viewed as lawful.

It should be noted that McLiesh died while this appeal was pending. The court said that her “unfortunate death ... did not render the appeal moot. Notably, an award of back pay, which is primarily at issue here, would inure to the benefit of McLiesh's estate.”

Special Errand exception - Workers' Compensation eligibility for injury suffered going to or from work

Special Errand exception - Workers' Compensation eligibility for injury suffered going to or from work

Dziedzic v Orchard Park CSD, 283 AD2d 878

A kindergarten teacher employed by the Orchard Park Central School District died as the result of an automobile accident that occurred while she was traveling to school.

Just prior to the accident, the teacher had stopped at a store to purchase items to be used by her students in a classroom project, as she had done many times before during her long tenure with the school district. The store was along Dziedzic's regular route to school and the accident happened after she had exited the store's parking lot and was on her way to her school.

The Workers' Compensation Board ruled that accident arose out of and in the course of the teacher's employment and said that the payment of workers' compensation death benefits was appropriate under the circumstances. The district and its workers' compensation carrier had controverted the claim* and subsequently appealed the Board's decision.

The Appellate Division pointed out that the general rule in such situations is that injuries sustained during travel to and from work are not compensable under the Workers' Compensation Law. However, the court quickly noted, this general rule is subject to a number of exceptions, including an exception for an injury or death that occurs in the course of an individual performing a “special errand.”

The “special errand” exception is triggered when it is determined that the employee's travel serves a purpose of the employer. Injuries sustained by workers in the course of such travel may be compensable. There is a “two-prong” test that is applied in making such a determination. The special errand exception is applicable only if it is determined that the employer both:

1. Encouraged the errand; and

2. Obtained a benefit from the employee's performance of the errand.

The Appellate Division said that there was “evidence in the record that Dziedzic and her fellow kindergarten teachers at the school employed a hands-on, developmental approach to teaching, with the students involved in activities which included projects that required the purchase of materials that were not available in the school.” The district, said the court, was aware of the activities and recognized them as extra efforts or enhancements in the teachers' annual evaluations.

Further, said the court, the record indicated that the district knew of this practice by their teachers which involved their routinely purchasing classroom project materials outside the school to facilitate their hands-on approach to teaching and the district “neither discouraged nor placed any limitations on the purchases which, depending upon the dollar amount, were subject either to reimbursement or the use of a purchase order.”

The Appellate Division sustained the Workers' Compensation Appeals Board's conclusion that Dziedzic was engaged in a “special errand” when she was involved in this fatal accident as there was substantial evidence demonstrating that the employer not only benefited from the teachers purchases of materials outside the school, but also encouraged those purchases.

In Dziedzic the employee was on her way to work when she was involved in the accident. Does the same rule apply in cases where the individual is injured after he or she leaves work?

Neacosia v NY Power Authority, 85 NY2d 471, decided by the Court of Appeal, involved such a variation of the facts -- the employee was injured after he left work and while he was driving to his home.

Michael Neacosia, a New York Power Authority security officer, was involved in an automobile accident after he stopped on his way home from work to leave his work uniform at a cleaning shop. The basic question: Was Neacosia acting within the scope of his employment and thus was eligible for workers' compensation benefits when he suffered his injuries?

According to the decision, Neacosia was required to keep his “employer provided uniforms” clean and presentable. To this end, the Authority had made arrangements with a number of cleaning establishments to clean these uniforms and to bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and submit bills for the cost of the cleaning to the Authority.

The critical elements in this case:

1. Neacosia completed his shift, left work, and in the course of driving home, stopped to deliver his uniforms to one of the cleaners recommended by the Authority. After leaving his uniform at the cleaning establishment, Neacosia continued to head home along his usual route.

2. After leaving the cleaners, Neacosia was involved in an automobile accident in which he sustained severe injuries.

The Authority controverted his application for workers' compensation benefits.

Applying the special exceptions rule, the Court of Appeals sustained the Workers' Compensation Board's ruling that Neacosia was engaged in a “special errand” at the time he was injured and thus eligible for Workers' Compensation benefits.

* In the event the employer and, or, the employer’s insurer challenges a Workers’ Compensation Award, it has “controverted the claim.”

Noncompetitive promotion to a position in the competitive class

Noncompetitive promotion to a position in the competitive class

Rockland County Patrolmen's Benevolent Association, Inc. v. Prendergast, 25 AD3d 615

Section 52.7 of the Civil Service Law provides:

7. Promotion by non-competitive examination. Whenever there are no more than three persons eligible for examination for promotion to a vacant competitive class position, or whenever no more than three persons file application for examination for promotion to such position, the appointing officer may nominate one of such persons and such nominee, upon passing an examination appropriate to the duties and responsibilities of the position may be promoted, but no examination shall be required for such promotion where such nominee has already qualified in an examination appropriate to the duties and responsibilities of the position.*

The Rockland County PBA sued in an effort to annul the “non-competitive permanent appointment” of William Sherwood to the position of Chief of Police, Town of Clarkstown Police Department. Sherwood apparently had taken and passed a civil service examination for Police Chief but that list had expired prior to the date he was selected for appointment to the title.

The Appellate Division ruled that Sherwood’s promotion to the position pursuant to Civil Service Law Section 52.7 violated Section 4 of the Rockland County Police Act (RCPA).

RCPA Section 4 provides that: "[n]otwithstanding any other special or general laws to the contrary, such promotion examination shall be competitive examinations held by the state civil service commission regardless of the number of candidates eligible for such promotion."**

The Appellate Division said that although Civil Service Law Section 52.7 authorizes the non-competitive appointment of police officers for promotion, this provision is inconsistent with RCPA Section 4, as Section 4, which in this situation controls, requires competitive examinations for promotion regardless of the number of eligibles or applicants for promotion to the title.” ***

* This provision reflects the so-called “rule of three” whereby the appointing authority may select from among the three candidates scoring highest on the eligible list.

** In the words of the Appellate Division, the RCPA is a "special act which takes precedence over inconsistent provisions of the Civil Service Law," and "was intended to supersede any general statute with regard to the establishment, organization and operation of police departments in Rockland County."

*** If Sherwood was the single candidate eligible for promotion to chief at the time, it would appear that permanently appointing him to the chief title pursuant to CSL 52.7 would not, under these circumstances, satisfy RCPA Section 4.

New York State’s Governor Cuomo signs ethics reform legislation

New York State’s Governor Cuomo signs ethics reform legislation

Source: Office of the Governor

Characterized as a new law addressing major inadequacies in the current ethics system designed to restore public trust in government, on August 15, 2011 Governor Andrew M. Cuomo signed into law the New York State "Public Integrity Reform Act of 2011," [Chapter 399 of the Laws of 2011].

The Governor said that this new statute establishes “unprecedented transparency, strict disclosure requirements, and a strong independent monitor with broad oversight of New York State government.”

According to the Governor’s office, the Public Integrity Reform Act of 2011 includes the following:

Greater financial disclosure: Financial disclosure statements filed with the new Joint Commission on Public Ethics from elected officials will now be posted on the internet and the practice of redacting the monetary values and amounts reported by the filer will be ended.

The Act also includes greater and more precise disclosure of financial information by expanding the categories of value used by reporting individuals to disclose the dollar amounts in their financial disclosure statements. It also requires disclosure of the reporting individual's and his or her firm's certain outside clients and customers doing business with, receiving grants or contracts from, seeking legislation or resolutions from, or involved in cases or proceedings before the State as well as certain of such clients that were brought to the firm by the public official.

Increased access to information concerning who is appearing before a State entity and why: The Act establishes a new database of any individual or firm that appears in a representative capacity before any state governmental entity.

Additional disclosures by registered lobbyists: The bill expands lobbying disclosure requirements, including the disclosure by lobbyists of any "reportable business relationships" of more than $1,000 with public officials. It also expands the definition of lobbying to include advocacy to affect the "introduction" of legislation or resolutions, a change that will help to ensure that all relevant lobbying activities are regulated by the new Joint Commission.

Forfeiture of pensions by public officials convicted of a felony: Certain public officials who commit crimes related to their public offices may have their pensions reduced or forfeited in a new civil forfeiture proceeding brought by the Attorney General or the prosecutor who handled the conviction of the official. 

The bill amends the Retirement and Social Security Law [RSSL] and the Criminal Procedure Law requiring that prior to trial, and before accepting a defendant's plea to a count, the court must individually advise the defendant, on the record, that if at the time of the alleged felony crime the defendant was a public official, the defendant's plea of guilty and the court's acceptance thereof or conviction after trial may result in proceedings for the reduction or revocation of such defendant's pension. 

The court must individually advise the defendant, on the record, that if at the time of the alleged felony crime the defendant as a public official, as defined in division six of section one hundred fifty-six of the RSSL, the defendant's plea of guilty and the court's acceptance thereof or conviction after trial may result in proceedings for the reduction or revocation of such defendant's pension pursuant to article three-B of the RSSL.

A new joint Commission on Public Ethics: The Joint Commission on Public Ethics will replace the existing Commission on Public Integrity with jurisdiction over all elected state officials and their employees, both executive and legislative, as well as lobbyists.

Clarifying independent expenditures for elections: The Act requires the state board of elections to issue new regulations clarifying disclosure of Independent Expenditures.

Increased penalties for violations: The Act substantially increases penalties for violations of the filing requirements and contribution limits in the Election Law, and provides for a special enforcement proceeding in the Supreme Court. The bill also increases penalties for violations of certain provisions of the state's code of Ethics that prohibits conflicts of interest.