Dismissing a probationary employee

Dismissing a probationary employee

Weintraub v NYC Board of Education, App. Div., 298 A.D.2d 595, Lv. to appeal denied, 99 N.Y.2d 507

The Weintraub case succinctly sets out what could be characterized as "black letter law" concerning the dismissal of a probationary employee.

The New York City Board of Education dismissed probationary teacher David H. Weintraub. Weintraub sued, only to have his petition summarily dismissed by a State Supreme Court judge.

The Appellate Division affirmed the lower court's ruling, indicating that:

As a probationary employee, [Weintraub] could be terminated without a hearing provided that the termination was not in bad faith, a consequence of constitutionally impermissible reasons, or prohibited by statute or case law.

The probationary employee bears the burden of establishing such bad faith or unlawful reason for his or her termination. However conclusory allegations of bad faith are insufficient to meet this burden and apparently all that Weintraub presented was what the court characterized as "conclusory allegations of bad faith."

In addition to confirming the lower court's dismissal of Weintraub's petition without a hearing, the Appellate Division commented that "[t]he termination of the petitioner's employment was not in bad faith or illegal."

The court's reference to the bar of termination prohibited by statute or case law includes the prohibition against terminating a probationary employee during his or her minimum period of probation without notice and hearing.

Where a probationary period has been set in terms of a minimum and a maximum period of probation, case law holds that if the appointing authority elected to terminate a probationary  employee during his or her minimum period of probation, such an individual is entitled to a notice and hearing in the same manner as a tenured individual.

In contrast, a probationer terminated after completing his or her minimum period of probation may be terminated without notice and hearing prior to the completion of his or her maximum period of probation.

Changing vacation scheduling not a mandatory subject of collective bargaining

Changing vacation scheduling not a mandatory subject of collective bargaining
Mtr. of NYS Correctional Officers and Police Benevolent Asso. and Elmira Correctional Facility, PERB Case U-23550

The Board reversed the Decision of the ALJ and dismissed NYSCOPBA's improper practice charge that alleged that the State had violated §209-a.1 (d) of the Act by unilaterally changing the manner in which unit employees working vacation relief are scheduled at the Elmira Correctional Facility.

The Board balanced the interests of unit employees in making plans and scheduling events against the State's need to provide corrections service by filling the vacant job openings through vacation leave and any other vacancies and found that the State's interests predominated.

Because the determination as to whether a particular work rule constitutes a mandatory or nonmandatory subject of bargaining involves identifying the subject matter and then balancing the competing interests of the employer and the employees, the Board concluded that the charge dealt with a nonmandatory subject of negotiations

Disqualification for unemployment insurance benefits

Disqualification for unemployment insurance benefits

Rivera v Commissioner of Labor, 298 A.D.2d 673

As a general rule, termination for misconduct will disqualify an applicant for unemployment insurance benefits. In the Rivera case, the New York City Department of Citywide Administrative Services controverted the claim for unemployment insurance filed by one of its former employees, Emerita Rivera, on the grounds that she had been terminated for misconduct.

The Unemployment Insurance Appeal Board agreed, and ruled that Rivera was disqualified from receiving unemployment insurance benefits because she had been terminated due to her own misconduct. The Appellate Division sustained the Board's determination.

The court pointed out that substantial evidence in the record supported the Board's decision. The Appellate Division noted that the record established that, prior to her termination, Rivera:

1. Refused to perform field-monitoring duties associated with her position as a Contract Specialist II despite being warned that she could be discharged for insubordination is she refused to perform her field duties.

2. That although Rivera had been granted a medical leave of absence, she failed to submit any medical documentation substantiating her request to be placed in a "restricted duties" status.

3. When Rivera was examined by the employer's physicians, the physicians concluded that she was medically and psychologically able to perform the duties of her position.

Under these circumstances, said the court, "we find no reason to disturb the Board's decision" and dismissed Rivera's appeal.

Ordering a hiring freeze

Ordering a hiring freeze
Caputo v Halpin, 160 A.D.2d 938; Motion for leave to appeal dismissed, 76 N.Y.2d 773

From time to time a jurisdiction’s chief executive officer places a “hiring freeze” on appointments to vacant positions in departments and agencies in the jurisdiction. Does he or she need an expressed power to do so?

The Caputo decision involved this question: the truncating of the power of an appointing officer to fill vacant positions in his or her department after the Suffolk County Executive issued an order freezing the filling of vacant county positions in order to avoid an expected budget deficit.

The Appellate Division ruled that:

Within this context, it was well within the power of the Soffolk County Executive to delay the approval of the appointments to the vacancies in the anticipation that there will be a budget deficit and that not filling these vacancies for which funds had been appropriated would be a convenient source to realize savings. The statutory provisions dealing with the avoidance of a deficit make the County Executive, as chief budget officer, the overseer of expenditure of budgeted funds.

In affirming the Appellate Division's ruling, the Court of Appeals referred to its decision in Slominski v Rutkowski, 62 NY^2d 781, a case involving a similar challenge to the Erie County Executive ordering a hiring freeze.

The Court said that despite the lack of an express provision granting the Suffolk County Executive authority to order temporary hiring freezes, a statutory power, by contrast, enjoyed by the Erie County chief executive officer, the rationale in Slominski was applicable in the Suffolk County situation. The Court of Appeals held that "the very broad powers granted the Suffolk County Executive are sufficiently similar to those granted the Erie County Executive [considered] in Slominski to render that case essentially indistinguishable."

Other problems are certain to arise in the context of such an anticipated budget deficit. Among them are the following:

1. Compensation: In Abberbock v Nassau County, a State Supreme Court judge decided that the freeze imposed on expected salary increases, as well as the reduction of salaries, of employees designated managerial or confidential [M/C] in the context of a fiscal crisis "cannot be said ... represents an unreasonable course of conduct or that it is unrelated to an active and manifest evil" insofar as employees designated managerial or confidential were concerned. The Appellate Division agreed.

2. Eligible lists: When deciding Lopez v Barrios-Paoli, the Supreme Court, New York County, considered a number of issues that frequently result when there is a hiring freeze, including the "backing up" of eligible lists. Here the court decided that New York City’s personnel director's extension of earlier lists after a subsequent list had been established, thereby requiring the earlier lists to be certified first for appointment to vacancies, was a discretionary act pursuant to Section 56.1 of the Civil Service Law. Section 56.1 permits the extension of any eligible list in the event of a restriction against the filling of vacancies.

3. Leave from a "hold" position: The status of an individual's leave from his or her "hold item" may lead to difficulties, as the decision by the Appellate Divisions in Dworkin v Dept of Environmental Conservation demonstrates. Such employees may erroneously believe that they are protected in the event of termination because a budget problem because they think that they have a "hold item." As the Dworkin decision demonstrates, sometimes such a belief that they are protected by having a "hold position" is illusory!

In addition, the termination of temporary and provisional employees could result in litigation while the layoff of persons holding a permanent appointment pursuant to Section 80 or 80-a of the Civil Service Law creates significant technical difficulties as well as personal problems for the individuals affected. Also, in some instances provisions in collective bargaining agreements may set out procedural elements that must be honored before a layoff may be instituted by the appointing authority.

Judicial review of administrative decisions

Judicial review of administrative decisions
Albano v NYC Fire Pension Fund, Court of Appeals, 98 N.Y.2d 548

What are the controlling rules to be followed by the courts in cases involving challenges to administrative decisions that concern the interpretation or application of a statute? In the Albano case, the Court of Appeals sets out the criteria used by courts in determining the weight to be accorded such administrative determinations.

The basic rule applied in such cases, said the court, is as follows:

In contrast to matters requiring "pure statutory interpretation" of the controlling law by the courts, where the interpretation or application of a statute "involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data" within the expertise of the agency administering the statute, courts accord great deference to the agency's judgment unless it is "irrational or unreasonable"

Here the statute involved was General Municipal Law Section 207-kk, the so-called Cancer Bill.

Section 207-kk provides that:

Notwithstanding any other provisions of this chapter to the contrary, any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems ... [of a] member of a fire department in a city with a population of one million or more, who successfully passed a physical on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.

Section 207-kk was enacted after medical data demonstrated that there was a high incidence of cancer in firefighters, as compared with the average adult population. The statute creates a rebuttable presumption that a firefighter who develops certain enumerated types of cancers, incurred them in the course of performing his or her duties, thereby eliminating the burden of proving causation.

In other words, the "rebuttable presumption" provided by the Section 207-kk permits the disabled firefighter to establish a prima facie case that his or her cancer incurred as the result of his or her performing firefighter duties. The employer may then attempt to rebut this presumption by introducing evidence that establishes that the cancer was the result of some other cause or does not involve the types of cancers described in the statute.

Emil Albano, a New York City firefighter for 30 years, was diagnosed with testicular cancer. He filed an application for an accident disability pension [ADR] on the ground that his cancer had presumptively been caused by the performance of his firefighting duties. The Medical Board of the New York City Fire Department Pension Fund found that Albano was, in fact, disabled, but recommended he be awarded an ordinary disability retirement allowance [ODR] rather than the ADR retirement allowance for which he had applied.

The reasons given by the Medical Board:

Although Albano is disabled from performing full fire duties due to testicular cancer, there was no evidence that Albano's lymphatic or urinary systems were involved as a result of his medical condition.

The Board of Trustees split on the question and, under its longstanding practice in such situations, the recommendation of the Medical Board was adopted: i.e., Albano's application for ADR benefits was denied but the Medical Board's recommendation that Albano be awarded ODR pension benefits was approved.

The issue before the Court of Appeals:

Was the denial of ADR benefits based on the Medical Board's finding that Albano's testicular cancer is not a cancer "affecting the lymphatic, digestive, hematological, urinary or prostate systems" rational and supported by substantial evidence?

The court said that the decision was both rational and supported by substantial evidence. In this instance the court concluded that the resolution of the issue "involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data” and thus the Board's administrative ruling was entitled to great deference because it was not shown to be either irrational or unreasonable.

In contrast, where, the question is one of pure statutory interpretation there is little basis to rely on any special competence or expertise of the administrative agency, courts "need not accord any deference to the agency's determination" and can undertake its function of statutory construction.

In Albano's case, in order to decide whether Albano was entitled to an ADR pension, the Medical Board and the Trustees were called upon to interpret the applicability of the statute in Albano’s case. This interpretation involved its respective expertise in the evaluation of factual data. Accordingly, said the Court of Appeals, the administrative decision is to be afforded deference.

In addition, the court ruled that because testicular cancer is not enumerated as a cancer entitled to the statutory presumption -- the statute offers presumptive coverage for cancers affecting the lymphatic, digestive, hematological, urinary or prostate systems -- the Board was required to use its medical expertise to decide whether testicular cancer "affects the urinary or prostate systems." Again, this question was a question involving the expertise of the Medical Board and the Retirement Board of Trustees.

Concluding that there was a rational basis for the Medical Board's decision, the Court of Appeals dismissed Albano's appeal.