Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

Lathrop v Onondaga County, USDC NDNY, 220 F. Supp. 2d 129

Charlene Lathrop enrolled in the Central New York Police Academy in 1997. She completed all of the course requirements except the "defensive tactics" portion of the program successfully. After she failed a "retest" for defensive tactics, the Academy told her she could be again retested within a year of her provisional appointment as a police officer with the Village of Marcellus.

Lathrop, however, had filed a human rights complaint against the Academy alleging discrimination because of her gender. Following its receipt of the complaint, the Academy's offer to again retest Lathrop was withdrawn by its director. Although Lathrop subsequently passed the defensive tactics portion of her training requirement, the State Division of Criminal Justice Services refused to certify her as a police officer because she had not passed the test within one year of her appointment to her police officer position.

Chief JudgeScullin ordered the Division to certify Lathrop as qualified for appointment as a police officer. Judge Scullin held that Lathrop's First Amendment rights were violated as a result of being denied any retest opportunities during the relevant year qualifying period in retaliation for her having filed a civil rights complaint against the Academy. In effect, said the court, the State refused to certify a police officer candidate who had not completed her testing within the required time period because it barred her from taking the test while her gender discrimination claim was pending.

Significantly, the decision notes that the Academy director had told Lathrop that she would not be tested because of the pending litigation she had initiated. This, in itself, said Judge Scullin, constituted a violation of Lathrop's First Amendment rights.

Further, the court noted that any delay in Lathrop's becoming fully qualified for employment as a police officer resulted from actions taken by the Academy rather than because of failure on her part to satisfy its requirements.

The relief directed by Judge Scullin: DCJS was ordered to issue a "certificate of completion" to Lathrop certifying that she had completed the basic course required for appointment as a police officer and thus met this requirement for such employment.

Emergency Rule filed by the New York State Department of Civil Service changes the ratio of the State and the State employee and State retirees contributions for health insurance premiums

Emergency Rule filed by the New York State Department of Civil Service changes the ratio of the State and the State employee and State retirees contributions for health insurance premiums

Source: “Provision of the Health Benefit Plan for Active and Retired New York State Employees,” Item CVS411100007E; State Register dated October 12, 2011

§167.1(a) of the Civil Service Law provides that the State is to pay 90 percent of the health insurance premium for individual coverage and 75 percent of the premium for dependent coverage. The Department of Civil Service has promulgated an Emergency Rule changing the ratio of the “employer/employee” contributions for health insurance for active and retired New York State Employees effective September 27, 2011 requiring active and retired individuals to pay a greater portion of the premium for their health insurance than is now set by law.

On October 20, 2011 the Retired Public Employees Association wrote NYS Civil Service Commission President Patricia Hite objecting to this emergency rule insofar as it changed the ratios of the “employer-retiree” contribution for health insurance premiums for now retired State employees and their dependents from those set out in §167.1(a) of the Civil Service Law.

RPEA contends that “Except as otherwise provided by an agreement between the State and an employee organization entered into pursuant to Article fourteen of the Civil Service Law [the Taylor Law], §167.1(a) requires the State to contribute nine-tenths of the cost of premiums or subscription charges for health insurance coverage of each such State employee or retired State employee and three-quarters of the cost of premium or subscription charges for the coverage of dependents of such State employees and retired State employee except as otherwise provided by §167.1(a).” No such agreement covers retired employees of the State as an employer.

The letter notes that §167.1(a) of the Civil Service Law has not been amended and that “It is well-settled that a State regulation should be upheld [only] if it has a rational basis and is not … contrary to the statute under which it was promulgated,” citing Kuppersmith v Dowling, 93 NY2d 90 [emphasis in the original].

RPEA points out that the Emergency Rule is “is contrary to the statute under which it was promulgated” because §167.1(a) currently provides that the State as the employer shall pay 90% of the health insurance premium for individual health insurance coverage and 75% of the health insurance premium for dependent health insurance coverage on behalf of its retirees.

In contrast, the Emergency Rule, in pertinent part, provides that with respect to State retirees who retired on or after January 1, 1983 and current employees of the State retiring prior to January 1, 2012, the State will contribute 88 percent of the premium for individual health insurance coverage and 73 percent of the premium for dependent coverage.

As to employees retiring on or after January 1, 2012 from a title allocated or equated to salary grade 9 or below, the Emergency Rule provides that the State will contribute 88 percent of the premium for individual coverage and 73 percent of the premium for dependent coverage while for employees retiring on or after January 1, 2012 from a title allocated or equated to salary grade 10 or above, the Emergency Rule provides that the State will contribute 84 percent of the premium for individual coverage and 69 percent of the premium for dependent coverage.

The full text of RPEA’s October 20, 2011 letter to President Hite is posted on the Internet at:

http://rpea.org/documents/commentsobjectEmergRule-10-20-11-2.pdf

Personal interests not protected by the Taylor Law

Personal interests not protected by the Taylor Law

Westhampton Beach Police PBA and Village of Westhampton Beach, 35 PERB 3026

An employee making complaints unrelated to any specific provision in the collective bargaining agreement and that essentially concern matters of private, personal interest, has not established any basis for prosecuting a claim that he or she was subjected to adverse personnel action because of his or her engaging in a protected activity within the meaning of the Taylor Law. 

Timely notice of claim as a condition precedent to maintaining a lawsuit

Timely notice of claim as a condition precedent to maintaining a lawsuit

Delle v Kampe, 296 AD2d 498

In the Delle case, the Appellate Division, Second Department, was asked to determine if James R. Delle's failure to file a timely Notice of Claim precluded his maintaining his Article 78 action challenging the Nassau County Civil Service Commission's refusal to reinstate his name on an eligible list.

Supreme Court had dismissed Delle's petition on the grounds that he had failed to serve a notice of claim on the County. In the words of the Appellate Division:

[Delle's] request for relief "presents the classic formulation of an Article 78 proceeding and `whether the determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion'"

The Appellate Division said that this type of action does not require that the aggrieved individual file a timely notice of claim or be barred from proceeding with his lawsuit.

As authority for its ruling the court cited Piaggone v Floral Park-Bellrose Union Free School District, 92 AD2d 106, in which the Appellate Division ruled that "a notice of claim is not a condition precedent to a special proceeding properly brought pursuant to CPLR Article 78 seeking either judicial enforcement of [a] duty or judicial review of a prior adjudication by an administrative agency."

In another late "notice of claim" case, Taha v City of New York [New York State Supreme Court, Ia Part 5] Justice Stallman allowed a police officer who was assigned to the World Trade Center site from September 13, 2001 until December 2, 2001 and again on December 17, 2001 to file a late notice of claim. Taha alleged that the City did not provide her with proper respiratory gear and that she developed lung damage and breathing problems as a result.

Justice Stallman held that the City was aware that similar claims had been filed by police officers, firefighters and others as a result of their being involved in 9/11 activities. Accordingly, said the court, neither the defenses of "surprise" nor that it would be "substantially prejudiced" because of the delay in being notified of the claim were available to the City in situations where the individual had a reasonable excuse for failing to comply with the notice requirements set out in General Municipal Law §50-e.

In the words of the court:

... in light of the intensive media coverage and investigations at all levels of government including City agencies, the City cannot contend it did not know of the environmental conditions at the World Trade Center site or the equipment it issued to its own personnel.

Duty of fair representation

Duty of fair representation

Matter of Bruns and Council 82, 35 PERB 2023

Unit member's dissatisfaction with his or her representation by the union in a grievance that resulted in a negotiated settlement rather than proceeding to arbitration, did not, without more, establish a prima facie case that the union breached its duty of fair representation as a member's "disagreement with the tactics utilized or his or her dissatisfaction with the quality and extent of representation" does not constitute a breach of the union's duty of fair representation.