Part-time paid elected official cannot continue receiving unemployment insurance benefits while serving in office

Part-time paid elected official cannot continue receiving unemployment insurance benefits while serving in office

Cass v Commissioner of Labor, 296 A.D.2d 759

Donald M. Cass applied for and was granted unemployment insurance benefits. While he was collecting unemployment insurance benefits, however, Cass was also serving as a member of the Geneva City Council and received a salary of $208.33 per month. Later Cass was sworn in as the Mayor of the City of Geneva, a part-time position for which he was paid $625 per month. He continued to collect unemployment insurance benefits while serving at Mayor.

The Unemployment Insurance Appeal Board [Board] ruled that Cass was ineligible for benefits because he was not totally unemployed during the time he was receiving unemployment benefits and, in addition, it concluded that he had made willful false statements in order to receive these benefits.

According to the Appellate Division's decision, Cass testified that he had mentioned his status as an elected official when he first applied for benefits and was told, by a clerk at the local unemployment insurance office, not to "worry about it". Thus, he contended, he did not reveal that he had received these payments when he made his weekly certifications for benefits.

In contrast to Cass' testimony, the record before the Board included testimony from the clerk who took Cass' application that if claimant had mentioned his status as an elected official, she would have made a note of it on his application for benefits, and she had not done so. In addition, the record included testimony from another Labor Department representative indicating that she had spoken to Cass concerning his benefits and had specifically instructed him that he was required to report any activities performed by him as an elected official during the benefit period.

The Appellate Division sustained the Board's determination. It concluded that there was substantial evidence in the record to support the Board's finding that Cass was ineligible for benefits because he was not totally unemployed at the time and its further finding that he willfully made false statements in order to obtain benefits.

Selection for appointment - the Rule of Three and the Rule of One

Selection for appointment - the Rule of Three and the Rule of One

UFT v. Board of Education, New York City School District, 298 A.D.2d 60

In United Federation of Teachers [UFT] v Board of Education, an action taken to confirm an arbitration award, the critical issue concerned the degree of discretion enjoyed by an employer in determining the "most qualified applicant to fill a vacancy." In effect the court was asked to determine if the “Rule of Three” set out in Civil Service Law §61 trumped a “Rule of One” set out in a collective bargaining agreement.

Linda Feil, a third grade teacher, applied for one of six "per session" positions in Project Read, an after school program. While Feil did not have an Early Childhood or Reading License, she did have 26 years experience as a primary school teacher, possessed a "common branch" teaching license, and had substituted for the Project Read program in the past. Feil was not selected for the job.

UFT grieved the "non-selection" of Feil for the position, contending that the Board's failure to appoint Feil was arbitrary and capricious. The arbitrator, after noting that there was no provision in the collective bargaining agreement [CBA] that addressed the procedure for filling a Project Read position, awarded the position to Feil, together with back pay. In making the award, the arbitrator relied on a provision of the agreement that barred the Board from acting in an arbitrary and capricious fashion.

Although the Board placed Feil in the position, it did not grant her any back pay. In an attempt to obtain the back pay provided for in the arbitration award, UFT initiated a CPLR Article 75 proceeding seeking an order confirming the arbitrator's award. The School Board cross-moved to vacate the arbitrator's award. Supreme Court granted UFT's motion to confirm the award and the Board appealed.

The Appellate Division reversed the lower court's determination, holding that (1) the arbitrator exceeded her authority when she awarded the position to Feil; and (2) the award violated strong public policy.

The court said that despite the fact that the arbitrator acknowledged that there was no contract provision setting out any procedure for selecting an applicant for the Project Read program, she nevertheless awarded one of the positions to Feil.[1]

Accordingly, the Court said it was necessary to analyze the reasoning behind the arbitrator's decision that the CBA had been violated. The court's conclusion: the arbitrator's ruling was based on the fact that she was not convinced that Feil should have been eliminated from consideration because none of four individuals selected for appointment were any more qualified than Feil. This, in the view of the court, constituted "contract making" rather than "contract interpretation."

In addition, the Appellate Division said that the arbitrator's decision, mandating the employment of the individual in this instance, violated strong public policy. Essentially, said the court, notwithstanding the absence of any contract procedure for selecting applicants for a specific job, the arbitrator took it upon herself to decide who was the best qualified applicant -- and decided that it was Feil.

Citing Honeoye Falls-Lima CSD v Honeoye Falls-Lima Education Association, 49 NY2d 732, the Court said "[i]t is well established that `it is beyond the power of a school board to surrender through collective bargaining a responsibility vested in the board in the interest of maintaining adequate standards in the classroom.'" Clearly the Board cannot be divested of its authority concerning the selection of personnel by an arbitrator's award; not even one promulgated under color of a provision contained in a collective bargaining agreement.[2]

The Appellate Division concluded that for the arbitrator to substitute her judgment for that of the appointing authority, "at least in this case."

In contrast, courts have upheld the right of the employer to give up a right to exercise its discretion in selecting an individual for appointment in the course of collective negotiations under certain circumstances.

In Professional, Clerical, Technical Employees Association v Buffalo Board of Education 90 N.Y.2d 364, the Court of Appeals upheld the validity of a collective bargaining agreement that provided for appointment pursuant to "a rule of one" -- the selection of the highest scoring candidate on a civil service examination for appointment to a vacancy. In effect this contract provision obviated the so-called Rule of Three [Civil Service Law Section 61], which gives the appointing authority the discretion to select from among at least three eligibles on the list when filing a vacancy.

§61, in pertinent part, provides that appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion.

Initially the Civil Service Law mandated the appointment of “those graded highest” – i.e., “the Rule of the List.” The Court of Appeals, however, ruled that such a requirement, in effect, made the Civil Service Commission the appointing authority [People v Mosher, 163 NY 32 (1900)]. As a result, Rule VIII [1] of the 1909 Rules for the Classified Service provided for the “selection of one of the three persons who are willing to accept [appointment] and are graded highest on the most nearly appropriate eligible list...” -- the so-called Rule of Three.[3]

The Professional, Clerical, Technical Employees Association [PCT] had filed a grievance objecting to the Buffalo City School District's "passing over" Melvin Cross, the highest-scoring candidate on a promotion eligible list for appointment to the position of Associate Account Clerk. Buffalo had appointed three lower ranking eligibles to fill three Associate Account Clerk vacancies.

PCT argued that the School District had agreed to be bound by the "rule of one" under a contract negotiated pursuant to the Taylor Law. The School District, however, contended that such a contract provision should not be enforced because enforcing it would violate strong public policy.

Holding the contract provision enforceable, the arbitrator directed the district to appoint Cross to the position of Associate Account Clerk, with back salary and benefits.

Could the arbitrator require the Board of Education to promote the highest-scoring negotiating unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement?

The Court of Appeals ruled that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain employees on an eligible list where a probationary period precedes the employee's attaining tenure.

Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court of Appeals affirmed the arbitrator's award, holding that:

The promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law. Thus, the court concluded, public policy is not offended by an appointing authority's agreeing to be bound by the so-called "rule of the list."

The lesson here: in contrast to being mandated to follow the rule of the list or a "rule of one," by law, rule or regulation, an appointing authority may elect to forfeit its right to select from among the candidates standing highest on the eligible list.

This concept was acknowledged by the Appellate Division in deciding Feil. It said that its ruling "is not meant to suggest that a collective bargaining agreement may not require that the most senior qualified teacher within the bargaining unit be given preference in filling an open position. Such seniority provisions are, of course, fully enforceable."

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[1] While the arbitrator recognized that the selection of teachers for Project Read was "not covered by the Agreement," she stated that "[t]he exercise of [managerial] discretion [in making such selections] is subject to the general arbitral rule that such an exercise must be undertaken in good faith and not be arbitrary, capricious or discriminatory in nature."

[2] : The Appellate Division, citing Cohoes City School Dist. v Cohoes Teachers Association, 40 NY2d 774, commented that although an arbitrator may render an award based on a school board's failure to adhere to contractually mandated "supplemental procedural steps preliminary to the board's final [action], the school board's ultimate determination on a matter bearing directly on the maintenance of educational standards generally remains immune from arbitral review".

[3] See, also, People v Gaffney, 142 AD 122, affirmed 201 NY 535. In Gaffney the court held that a law or rule limiting the selection for appointment to a single individual on an eligible list unconstitutionally interfered with the right of the appointing authority to select its own officers and employees.

Imposing a disciplinary penalty

Imposing a disciplinary penalty

Toth v Nassau County Police Department, 302 AD2d 600

Was suspending a police officer found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circumstances and the controlling law. It sustained the 270-day suspension without pay disciplinary penalty imposed by the appointing authority on Nassau County police officer Peter S. Toth after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using departmental equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the Nassau County Police Department, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that Toth's guilt with respect to these charges was supported by substantial evidence in the record. As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although §75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permissible pursuant to Civil Service Law §76(4) and Nassau County Administrative Code §8-13.0.

Section 76(4), in pertinent part, provides as follows:

Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division [emphasis supplied.]

In contrast to the “suspension without pay for a period not exceeding two months” cap set out in Section 75 of the Civil Service Law, §8-13.0(a)(3) of Nassau’s Administrative Code does not place any limitation on the length of any suspension, with or without pay, that may be imposed as a disciplinary penalty by he Commissioner of Police.*

* Nassau County Administrative Code §8-13.0 Discipline and punishment, in relevant part, provides as follows:

a. The Commissioner shall have power to discipline a member of the force by:

1. Reprimand;

2. Fine;

3. Suspension, with or without pay;

4. Dismissal or removal from the force; or

5. Reducing him to any grade below that in which he was serving. If he be above the grade of patrolman, after which his compensation shall be the same as that allowed to remembers [sic] of the grade to which he is reduced.

Videotape used at disciplinary hearing to demonstrate alleged misconduct

Videotape used at disciplinary hearing to demonstrate alleged misconduct

NYC Department of Corrections v Negron, OATH Index #1844/11

A New York City correction officer was charged with using unnecessary and excessive force against inmates on three different occasions. 

After reviewing videotape of the incidents and hearing testimony from a number of correction officers, two supervisors and the employee, OATH Administrative Law Judge Kara J. Miller ruled that the correction officer had used unnecessary and excessive force three times and submitted false or misleading reports concerning the incidents.  

Judge Miller, who had dismissed one of the charges filed against the correction officer – failure to report an  incident -- recommended that the employee be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1844.pdf

Promotion to entrance level positions

Promotion to entrance level positions

Gallagher v City of New York, 307 A.D.2d 76 

May the state or a municipal civil service commission authorize a promotion examination for an entrance level position? This was the significant issue explored by Justice Solomon in the Gallagher case.

Kevin E. Gallagher, as president of the Uniformed Firefighters Association, sued the City of New York's Department of Citywide Administrative Services [DCAS] in an effort to bar the use of a "special promotional list" in place of, or ahead of, a list established by open competitive examination for appointment to New York City firefighter positions.

According to the decision, DCAS held two identical written examinations for firefighter on February 27, 1999. One examination, No. 7514, was open only to employees of the New York City Fire Department [FDNY] and was treated as a "promotion examination." The other, No. 7029, was open to members of the general public who met age and other eligibility requirements. Essentially, only the individuals transferred into FDNY from the Emergency Medical Service of the City's Health and Hospital Corporation were eligible for examination 7514.

DCAS established an eligible list composed exclusively of candidates who passed examination 7513 and a number of appointments were made from that list. No candidate who only took examination 7029 was appointed as a fire fighter.

Gallagher asked the court to require the DCAS to "merge" the two lists and make all future appointments from this merged list on the theory that since the position of firefighter was an entrance level position, providing for a "promotion examination" for that title violated the Civil Service Law.

Justice Solomon noted that the Court of Appeals in Murray v McNamara, 303 NY 140, said that:

while it was mindful of the legislative policy embodied in then Civil Service Law Section 16 (now Section 52), favoring the filling of vacancies through promotions, under Article 5, section 6 of the Constitution, "the right to appointment is entitled to the same protection as the right to promotion ...."

Essentially the Court of Appeals ruled that "promotion examinations may be held only where the employees sought to be promoted have passed an open examination for a lower grade in the type of work involved in the position to which promotion is sought." 

In Beloten v Diamond, 276 AD2d 438, the Appellate Division, First Department, with specific reference to employees of the FDNY in titles that were carried over from EMS, held that "the position of firefighter is an 'entry level' position," and, prior to the transfer of EMS to the FDNY, there could be no "promotion" to that position.

After weighting these several decisions and the arguments made by the parties, Justice Solomon decided that "FDNY shall make appointments of candidates for the position of firefighter from a merged list encompassing both the promotional and open lists." In the words of Justice Solomon:

Fairness dictates this result because the examinations were identical, and the determination by DCAS to exhaust the promotional list before appointing candidates from the open list was arbitrary and capricious....

The Court than prohibited FDNY from making any future firefighter appointments from other than the merged list.