Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
November 12, 2011
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Decisions of interest involving Government and Administrative Law
Decisions of interest involving Government and Administrative Law
Source: Justia November 11, 2011
Court: U.S. 1st Circuit Court of Appeals
| Docket: 11-1080 | November 10, 2011 |
Judge: Thompson
Areas of Law: Government & Administrative Law, Labor & Employment Law
Plaintiff, an employee of the VA, was accused of committing fraud with respect to a work-related injury. Her employment was terminated. When mediation failed, plaintiff was notified that she had 15 days to file a complaint with the EEOC. Her attorney failed to comply with the deadline and the EEOC dismissed her complaint. The district court dismissed a complaint of disability discrimination. The First Circuit affirmed. Both the Americans with Disabilities Act, 42 U.S.C. 12112(a) and the Civil Rights Act, 42 U.S.C. 2000e, require exhaustion of administrative remedies. Plaintiff did not establish the factors required to toll the time limit: she and her attorney were aware of the limitation period; no motion for appointment of counsel was pending; the court did not lead plaintiff to believe she had done everything required; and no affirmative misconduct by the VA had lulled her into inaction.
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Court: U.S. 1st Circuit Court of Appeals
| Docket: 11-1339 | November 10, 2011 |
Judge: Lynch
Areas of Law: Government & Administrative Law, Labor & Employment Law
A TSA worker developed a diabetic ulcer on his foot, was unable to work, and, after missing several months of work, was terminated from his position. The district court dismissed claims under the Aviation and Transportation Security Act (ATSA), 115 Stat. 597, and the Rehabilitation Act, 29 U.S.C. 791. The First Circuit affirmed, concluding that the ATSA clearly eliminates any cause of action under the Rehabilitation Act for TSA screeners.
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Court: U.S. 7th Circuit Court of Appeals
| Docket: 10-3340 | November 7, 2011 |
Judge: HAMILTON
Areas of Law: Government & Administrative Law, Public Benefits
Mother applied for supplemental security income on her daughter's behalf shortly before daughter's s eighteenth birthday, claiming that daughter was disabled by a combination of mental impairments (including bipolar disorder) and by physical impairments resulting from a 2005 car accident. An administrative law judge found the collective impairments severe but not disabling. The Seventh Circuit reversed and remanded. The ALJ did not properly analyze the nion of a treating psychiatrist and did not adequately question vocational experts with respect to limitations on her concentration, pace, or persistence.
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Court: U.S. 7th Circuit Court of Appeals
| Docket: 10-3430 | November 8, 2011 |
Judge: EASTERBROOK
Areas of Law: Government & Administrative Law, Professional Malpractice & Ethics
Plaintiff filed a charge with the EEOC accusing her employer, the Department of the Navy, of discriminating on account of race, sex, national origin, age, and disability. The EEOC found the charge unsupported. In the district court, neither party conducted discovery. Plaintiff sought judgment on the pleadings. The district judge denied the motion. After more than a year of inaction, the district judge dismissed the case for want of prosecution. Plaintiff's lawyer then filed an ex parte motion for relief from judgment, but did not serve the motion on his adversary or explain why a secret motion was authorized. The district judge denied the motion. Seventh Circuit affirmed, rejecting an argument that Local Rule 41.1 (the basis for dismissal for want of prosecution) violates the due process clause as "almost unintelligible." The court characterized the appeal as frivolous, stating that It bypassed the only possible argument:that the district judge abused his discretion by dismissing the suit without first warning about the risks of procrastination. The court gave plaintiff's attorney 21 days to show cause why he should not be subject to monetary sanctions for filing a frivolous appeal and violating Circuit Rule 30, and why he should not be censured, suspended, or disbarred on account of his apparent inability to practice competently and diligently in the federal courts.
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Court: U.S. 9th Circuit Court of Appeals
| Docket: 09-35892 | November 7, 2011 |
Judge: Bybee
Areas of Law: Constitutional Law, Government & Administrative Law, Public Benefits
Plaintiff sued defendants, employees of the State of Washington's State Operated Living Alternative (SOLA) program, on behalf of herself and her daughter's estate under 42 U.S.C. 1983, alleging that defendants deprived her daughter of her Fourteenth Amendment substantive due process right to safe physical conditions while in involuntary state custody. Plaintiff subsequently appealed the district court's grant of summary judgment in favor of defendants. The court held that defendants had no constitutionally required duty of care towards plaintiff's daughter because there was no special relationship between her daughter and the state and there was no state-created danger. Therefore, the court affirmed the judgment of the district court.
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Court: U.S. 10th Circuit Court of Appeals
| Docket: 11-3040 | November 10, 2011 |
Judge: Hartz
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiffs, a group of inmates in the custody of the Kansas Department of Corrections (KDOC), sued Defendant Roger Werholtz, Secretary of KDOC (the Secretary), under 42 U.S.C. 1983 and state law. They challenged two policies in the KDOC's Internal Management Policy and Procedure (IMPP), which requires money obtained by the inmate to be saved for use upon release from prison. "Plaintiffs' imprecise amended complaint appeared to contend" that these policies: (1) violated their private-property rights without due process, in violation of the Fifth and Fourteenth Amendments; (2) were unconstitutionally vague; (3) violated the federal and Kansas constitutional prohibitions on cruel and unusual punishment; and (4) imposed punishment in violation of the "principles of ex post facto." Contending that Plaintiffs had failed to state a claim and had failed to exhaust their administrative remedies, the Secretary filed a motion to dismiss or, in the alternative, to grant summary judgment. The district court granted the motion to dismiss, ruling that the compulsory-savings plans did not violate Plaintiffs' rights. Plaintiffs appealed. Upon careful consideration of the Plaintiffs' appellate brief, the Tenth Circuit concluded that their argument failed on multiple levels to allege the violation of any constitutional right or a basis on which the Court could grant any relief. Accordingly, the Court affirmed the district court's dismissal.
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Court: U.S. 10th Circuit Court of Appeals
| Docket: 10-1473 | November 8, 2011 |
Judge: Kelly
Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law
Plaintiffs-Appellants Ark Initiative, Alex Forsythe, and Paul Smith appealed a district court's judgment in favor of the Defendants-Appellees, the U.S. Forest Service and its Chief. The district court upheld the Defendants' acceptance of a 2003 Master Development Plan (MDP), as well as a National Environmental Policy Act (NEPA) analysis, and decisions concerning a 2006 Snowmass Ski Improvements Project. On appeal, Plaintiffs argued that the Defendants violated NEPA by approving the project without examining certain cumulative effects-- namely, effects on water resources, endangered fish, forest habitats, and "other resources." Defendants countered that Plaintiffs failed to exhaust their claims, and that the NEPA does not require a federal agency to examine the cumulative effects of its proposed action with those of an unrelated proposal where the proposed action will not affect the resource concerns pressed by the Plaintiffs. Upon review, the Tenth Circuit concluded Plaintiffs failed to exhaust their administrative remedies, and affirmed the district court's judgment.
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Court: U.S. D.C. Circuit Court of Appeals
| Docket: 11-5047 | November 8, 2011 |
Judge: Silberman
Areas of Law: Constitutional Law, Government & Administrative Law, Health Law
This suit involved a challenge to the "minimum essential coverage provision," which required all "applicable individual[s]" to purchase and maintain "minimum essential coverage" for each month beginning in January 2014 under the Patient Protection and Affordable Care Act (Act), Pub. L. No. 111-148, 124 Stat. 119. Appellants, four United States citizens and federal taxpayers, sought declaratory and injunctive relief to prevent various U.S. Government officials and agencies from enforcing the minimum essential coverage provisions. They argued that the mandate exceeded Congress's authority under the Commerce Clause and substantially burdened appellants' religious exercise, in violation of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq. The district court rejected appellants' challenge to the Act and they appealed. Despite questions raised as to the court's subject matter jurisdiction, the court concluded that it had jurisdiction and affirmed the district court's conclusion that the Act was constitutional.
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Court: Alabama Supreme Court
| Docket: 1100970 | November 4, 2011 |
Judge: Bolin
Areas of Law: Government & Administrative Law, Labor & Employment Law
Petitioner Andrew Sutley petitioned the Supreme Court for a writ of mandamus to direct the Court of Civil Appeals to quash a May 2011 writ. In its nion, the appellate court directed the Montgomery Circuit Court to vacate its December 2010 order that added the Alabama State Personnel Board as a party to Petitioner's administrative appeal. The underlying matter arose from Petitioner's dismissal from his job as an Alabama State Trooper. Petitioner moved to add the Board as respondent to his appeal at the circuit court. The circuit court granted that motion five months after the Board entered its final order upholding Petitioner's dismissal. The Board then petitioned the Court of Civil Appeals for a writ of mandamus to order the circuit court to dismiss Petitioner's case as untimely. Upon its review of the record, the Supreme Court found Petitioner did not have a clear legal right to a writ of mandamus to direct the appellate court to quash its writ of mandamus. Accordingly, the Supreme Court denied his petition.
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Court: Alaska Supreme Court
| Docket: S-13340 | November 10, 2011 |
Judge: Carpeneti
Areas of Law: Government & Administrative Law, Non-Profit Corporations, Real Estate & Property Law, Tax Law
Native nonprofit corporation Dena Nena Henash (d/b/a Tanana Chiefs Conference) applied to the Fairbanks North Star borough assessor for charitable-purpose tax exemptions on several of its properties. The assessor denied exemptions for five of the parcels, concluding that they did not meet the exemption’s requirements. The superior court affirmed the denial as to four of the properties and remanded the case for consideration of one property back to the assessor, who granted the exemption. The Nonprofit appealed the denial of exemptions for three of the remaining properties plus a portion of the fourth, and appealed the superior court’s award of attorney’s fees to the Borough. Because the properties in question were used exclusively for charitable purposes, the Supreme Court reversed the assessor’s determination on the four appealed properties, vacated the attorney’s fees award, and remanded for an award of fees.
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Court: Idaho Supreme Court - Civil
| Docket: 38012 | November 10, 2011 |
Judge: Jones
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Plaintiff-Appellant Kepler-Fleenor and several other property owners in Division III of the Sawtelle Mountain Subdivision challenged a district court's decision that an unnamed road in their subdivision was public by common law dedication. Although the road did not intrude on any lots in the subdivision, it straddled two lots, one of which belongs to Plaintiffs Joni Kepler-Fleenor and Kistin Fleenor, and the other of which belongs to Blue Sky Management, LLC. According to Plaintiffs, heavy construction traffic heading into and out of an adjoining subdivision was bothersome and was damaging the unnamed road. Plaintiffs installed a berm and a gate to block traffic on the road, but the County removed it believing the disputed road to be public. After the County removed the road obstructions, Plaintiffs filed this lawsuit seeking a judgment to declare the road as private. The district court granted the County’s Motion for Summary Judgment, holding that the plat unambiguously showed the disputed road to be dedicated to public use. Because the subdivision plat unambiguously dedicated the road, the Supreme Court affirmed the district court’s ruling.
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Court: Idaho Supreme Court - Civil
| Docket: 38116 | November 7, 2011 |
Judge: Jones
Areas of Law: Government & Administrative Law, Tax Law
The City of Lewiston (City) enacted "Ordinance No. 4512" that created a stormwater utility and fee for the operation and maintenance of the its stormwater system. Five government entities (Entities) subject to the stormwater fee brought suit seeking a declaratory judgment that the fee was an unconstitutional tax requiring authorization by the Legislature. The Entities thereafter filed a motion for summary judgment. The City filed its cross-motion for summary judgment asserting that the stormwater fee was authorized pursuant to the City’s police powers, the Revenue Bond Act, the Local Improvement District Code, and various other provisions of the Idaho Code. Relying primarily on "Brewster v. City of Pocatello," (768 P.2d 765 (1988)), and finding no legislative authorization for the stormwater fee, the district court granted summary judgment in favor of the Entities, holding that the stormwater fee was an unconstitutional tax. The City filed an appeal of the district court's decision. Because the Supreme Court concluded that stormwater fee was an unauthorized tax, it held that the district court did not err in granting summary judgment in favor of the Entities.
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Court: Idaho Supreme Court - Civil
| Docket: 37186 | November 9, 2011 |
Judge: Jones
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Petitioner-Appellant Brian Sopatyk sought judicial review of the Lemhi County Board of Commissioners' decision to validate Anderson Creek Road, which ran the length of his property. He contended the road never became public and, if so, was abandoned. He also maintained that the validation was an unconstitutional taking, that it was error for the road easement to be validated at fifty-feet wide, that one of the commissioners was biased against him, that the road illegally invades federal public lands, and that the Board of Commissioners failed to explain why the validation is in the public interest. Upon review, the Supreme Court affirmed the validation decision, finding the road became public by legislative declaration in the late 1800s and was never abandoned.
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Court: Maine Supreme Court
| November 1, 2011 |
Judge: Gorman
Areas of Law: Business Law, Constitutional Law, Government & Administrative Law, Zoning, Planning & Land Use
The Witham Family Partnership challenged two decisions of the Town of Bar Harbor's Zoning Board of Appeals (Board) in connection with North South Corporation's application to construct a hotel. The Partnership attended two public hearings before the Board on North South's appeal of the planning board's denial of its application. The Board subsequently reversed the planning board's denial. The Partnership also filed its own appeal challenging the portion of the planning board's decision finding that North South's proposed project conformed to certain criteria for obtaining a building permit. The Board affirmed the planning board's decision. The Partnership then filed a Me. R. Civ. P. 80B complaint challenging the Board's decisions in both North South's appeal and in the Partnership's appeal. The superior court dismissed the complaint on grounds that the Partnership lacked standing. The Supreme Court reversed, holding that the Partnership had standing to challenge the Board's decision in both appeals in a Rule 80B review of those decisions.
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Court: Maryland Court of Appeals
| Docket: 9/11 | October 28, 2011 |
Judge: Battaglia
Areas of Law: Business Law, Criminal Law, Government & Administrative Law, Real Estate & Property Law
The Maryland Real Estate Commission revoked the real estate licenses of Joel Pautsch pursuant to Md. Code Ann. Bus. Occ. & Prof. 17-322(b)(24)(i) based on Pautsch's convictions for child abuse. The circuit court affirmed after finding there was competent, material and substantial evidence to support the Commission's decision. The court of special appeals affirmed. The Court of Appeals affirmed, holding (1) there was substantial evidence upon which the Commission relief to support its finding that there was a nexus between Pautsch's convictions and his professional activities; and (2) the sanction was neither arbitrary nor capricious because Pautsch's crimes undermined his trustworthiness in dealing with the public during the course of providing real estate brokerage services and negatively impacted his character and reputation.
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Court: Montana Supreme Court
| Docket: DA 11-0048 | October 27, 2011 |
Judge: Baker
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law
NorthWestern Energy proposed constructing an electric transmission line from Montana to Idaho and submitted its application for a certificate from the Montana Department of Environmental Quality (DEQ). While preparing a draft of the Environmental Impact Statement (EIS), Jefferson County informed DEQ that it expected DEQ to consult with the County in determining the route. Jefferson County subsequently filed a petition for writ of mandamus and injunction relief against DEQ, (1) seeking an order requiring DEQ to comply with the Montana Environmental Policy Act and other environmental legislation, and (2) requesting DEQ be enjoined from releasing a draft EIS. NorthWestern subsequently intervened. The district court ruled in favor of Jefferson County after determining that DEQ had not satisfied its duty to consult with Jefferson County under Mont. Code Ann. 75-1-201(1)(c) and enjoined DEP from releasing the Draft EIS until it had done so. The Supreme Court reversed, holding (1) at this stage in the process, DEQ had not violated a clear legal duty to consult with the County prior to issuing its draft EIS; and (2) because the County had adequate legal remedies once DEQ rendered a final agency action, the County was not entitled to mandamus or injunctive relief.
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Court: Nebraska Supreme Court
| Docket: S-10-960 | November 4, 2011 |
Judge: Gerrard
Areas of Law: Government & Administrative Law, Insurance Law, Labor & Employment Law
The City of Scottsbluff implemented changes to police officers' health insurance coverage and related benefits without bargaining with the Scottsbluff Police Officers Association (the Union). The Union filed a petition with the Nebraska Commission of Industrial Relations (CIR), alleging that the City violated Nebraska's Industrial Relations Act (IRA) by unilaterally implementing changes in the health insurance hazardous activities exclusion and by unilaterally changing the group health care benefits. The CIR (1) determined that the City violated the IRA, ordered the City to return the parties to the status quo ante, and ordered the parties to commence good faith negotiations within thirty days; and (2) determined that the Union had not violated the IRA in refusing to execute a previously ratified agreement. The Supreme Court affirmed in part and reversed in part, holding (1) the portion of the CIR's order requiring the parties to commence good faith negotiations on the health insurance issues was affirmed; and (2) the Union's refusal to execute the previously ratified agreement constituted a prohibited practice under the IRA. Remanded to determine what remedies were available to the City for the Union's violation.
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Court: Ohio Supreme Court
| Docket: 2010-1754 | November 1, 2011 |
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law
Ohio State University filed an application to exempt a two-story building to which it had title, predicating the exemption claim on Ohio Rev. Code 3345.17, which provides that state-university property is exempt for real property taxation if it is "used for the support of such university." The tax commissioner granted tax-exempt status, and the Board of Tax Appeals affirmed. At issue on appeal was whether the property, which generated rental income from a first-floor commercial tenant and second-floor residential tenants, qualified for exemption to the extent that the income generated by the property was devoted to university purposes. The Supreme Court reversed the grant of exemption, holding that income-producing property may not be exempted under section 3345.17 unless the activity conducted on the property bears an operational relationship to university activities.
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Court: Ohio Supreme Court
| Docket: 2011-0441 | November 1, 2011 |
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Labor & Employment Law
The State Employment Relations Board (SERB) appointed Kay Kingsley as an administrative law judge (ALJ), which was a classified position. Several years later, the General Assembly enacted H.B. 1, which changed the position of SERB ALJ from the classified service to the unclassified service. That same year, SERB terminated Kingsley's employment. Kingsley requested a writ of mandamus to declare H.B. 1 unconstitutional as applied to her and to order SERB to recognize her as a classified employee and to reinstate her to her former ALJ position. The court of appeals dismissed Kingsley's mandamus complaint, determining that Kingsley had an adequate remedy in the ordinary course of law by way of an administrative appeal. The Supreme Court affirmed, holding that Kingsley did not set forth a viable claim for the requested extraordinary relief in mandamus as she had an adequate remedy by way of civil-service appeal to raise her claims.
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Court: Utah Supreme Court
| Docket: 20090742 | October 28, 2011 |
Judge: Durham
Areas of Law: Environmental Law, Government & Administrative Law
Marilyn Hamblin, the owner of a water right as an alleged tenant in common, filed a permanent change application with the state engineer, seeking to change her water right's place of use and point of diversion. The engineer rejected Hamblin's application because Hamblin had established no beneficial use under the water right since at least 1980. The district court granted the engineer's motion for summary judgment, basing its decision primarily on the determination that Hamblin's water right had been forfeited by operation of law through nonuse. The Supreme Court reversed, holding (1) the state engineer lacked the authority to adjudicate water rights, and therefore, could not consider non-adjudicated forfeiture when reviewing a change application; and (2) instead, the engineer was limited to considering factors presented in Utah Code Ann. 73-3-8(1) when deciding whether to approve or deny a change application, but could stay change application proceedings while pursuing an adjudication of forfeiture.
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Court: Vermont Supreme Court
| Docket: 2011-020 | November 4, 2011 |
Judge: Reiber
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law
Taxpayer-Petitioner Michael Garbitelli appealed a superior court judgment that affirmed the Town of Brookfield Board of Abatement's denial of his request for a tax abatement. During a townwide reappraisal in 2007, Petitioner refused to allow the listers to inspect his property, other than the foyer and the basement. His property was assessed at $1.6 million. Petitioner then appealed this assessment, and the Supreme Court affirmed, noting that Petitioner had refused entry to the tax assessor and therefore failed to provide an adequate basis to demonstrate that the assessment was erroneous. Taxpayer later allowed entry to the listers for 2009, which resulted in an assessment of $957,000. Taxpayer then moved for a tax abatement for the years 2007 and 2008. The Board denied the request, finding that there was no mistake attributable to the listers since they were denied entry and were forced to use the best information available to them. Although the Supreme Court agreed with Petitioner's interpretation of the abatement statute’s meaning, it reached the same result as the superior court: "[Petitioner] argues principally that the 'extreme disparity' between $1.6 million and $957,000 is an 'obvious mistake' amounting to manifest error." The Court disagreed with that premise and affirmed the superior court.
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Court: Virginia Supreme Court
| Docket: 102477 | November 4, 2011 |
Judge: Millette
Areas of Law: Business Law, Corporate Compliance, Government & Administrative Law
George Christian filed petitions for temporary injunction and declaratory relief, alleging that the clerk of the State Corporation Commission (SCC) failed to provide requested public records relating to all overpayments or unused payments that the Commission's authority to order a refund had lapsed, and any complaints or grievances arising therefrom. The SCC dismissed the petition, finding (1) no controversy existed given the clerk's timely response to Christian's request for records; and (2) because no controversy existed, it was not necessary to address Christian's other arguments, including whether the Virginia Freedom of Information Act (VFOIA) was applicable to the SCC. The Supreme Court affirmed, holding (1) a live controversy persisted because Christian would be entitled to recover his costs and fees if he prevailed; (2) however, the VFOIA was inapplicable to the SCC; and (3) therefore, Christian's assignments of error were resolved or rendered moot.
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Court: Wyoming Supreme Court
| Docket: S-11-0013 | November 1, 2011 |
Judge: Golden
Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law
The Wyoming Workers' Compensation Division denied Rick Bodily benefits for medical expenses related to his micro-lumbar discectomy for a herniated disc in his lower back after determining that Bodily's medical treatment was not related to his compensable work-related back injuries. The Office of Administrative Hearings (OAH) granted the Division's motion for summary judgment against Bodily. The district court affirmed. The Supreme Court reversed OAH's summary judgment, holding (1) genuine issues of material fact about causation of Bodily's disc herniation existed; and (2) the OAH erroneously acted as the trier of fact at the summary judgment stage in this case by weighing all the evidence and making credibility determinations.
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Court: Wyoming Supreme Court
| Docket: S-11-0072 | November 9, 2011 |
Judge: Voigt
Areas of Law: Criminal Law, Government & Administrative Law, Insurance Law, Labor & Employment Law
Appellant Steven DeLoge, an inmate in the state penitentiary, was working in the kitchen when he was injured in an altercation with another inmate. Appellant filed a workers' compensation claim based on the injuries sustained from a head-butt from the other inmate. The Wyoming Workers' Safety and Compensation Division (Division) denied the claim. The Office of Administrative Hearings (OAH) concluded that Appellant's injuries were the result of illegal activity and were therefore not compensable under the Wyoming Worker's Compensation Act. The district court affirmed. The Supreme Court affirmed, holding that because the head-butt was a battery under the criminal statute then existing, and therefore an illegal activity, Appellant was not eligible for workers' compensation benefits.
November 11, 2011
The Doctrine of Res Judicata bars relitigating the same issues earlier decided by another tribunal
The Doctrine of Res Judicata bars relitigating the same issues earlier decided by another tribunal
Matter of Finkel v New York City Housing Authority, 2011 NY Slip Op 07914, Appellate Division, First Department
Affirming State Supreme Court’s dismissing Finkel’s Article 78 proceeding seeking to annul a 2010 New York State Division of Human Rights' determination dismissing his complaint for lack of jurisdiction, the Appellate Division said that the complaint filed with New York State Division of Human Rights was barred under the doctrine of res judicata because they were based on the same complaints filed by Finkel in federal court in 1990 and 1991, which claims were decided by the federal court on the merits.
Addressing another issue, the timeliness of the 2010 action, the court said it disagreed with Finkel’s claim that the Lilly Ledbetter Fair Pay Act of 2009 (the Fair Pay Act) applied to payments made pursuant to a pension structure.
The Appellate Division said that the language of the statute itself provides that "[n]othing in this Act is intended to change current law treatment of when pension distributions are considered paid," citing Public Law 111-2, §2[4]. Accordingly, said the court, "[t]he [Fair Pay] Act preserves the existing law concerning when a discriminatory pension distribution or payment occurs, i.e., upon retirement, not upon the issuance of each check."
As Finkel began receiving his retirement compensation in 1996, the Appellate Division concluded that the Fair Pay Act did not "reset" the statute of limitations for the claims related to his employer’s failure to pay Finkel back wages as ordered in a prior action, or with respect to any of the other claims.
November 10, 2011
Status in the civil service system
Status in the civil service system
Kern v NYS Dept. of Civil Service, 288 A.D.2d 674
Section 45 of the Civil Service Law concerns the civil service status of employees upon the acquisition of a private institution or enterprise by government. The Kern case concerns the reverse: what is the civil service status of public employees continued in employment upon the privatization of their former governmental operation?
Kenneth H. Kern and Mary Dickerson, former employees of the State Department of Health at the Roswell Park Cancer Institute [Institute], were transferred to the Roswell Park Cancer Institute Corporation [Corporation] together with all other employees the Institute.
The Corporation was created in 1997 as a public benefit corporation by the Roswell Park Cancer Institute Corporation Act [Public Authorities Law Section 3553 enacted by Chapter 5, Section 2, Laws of 1997]. The Corporation and its employees are subject to the Civil Service Law and have the rights of State employees for purposes of the applicable provisions of the Civil Service Law, "[e]xcept as provided by [the Act] and rules issued pursuant thereto" ... pursuant to an internal merit system administered by a merit board.
Kern and Dickerson filed applications to take the New York State 1999 Promotional Test Battery Examination No. 01-001. Their applications were rejected by the State Department of Civil Service because they did "not have permanent competitive status as [State employees]". After exhausting their administrative appeals to the State Civil Service Commission, Kern and Dickerson sued.
A Supreme Court justice dismissed their petition, ruling that the Civil Service Law applied only to public corporation employees' rights within the corporation. Kern and Dickerson appealed, contending that employees of the corporation had the same rights as State employees under the Civil Service Law, including the right to take State promotional examinations pursuant to Civil Service Law Section 52.
The Appellate Division said that Kern's and Dickerson's rights were a function of the Legislature's intent based on the "plain meaning" of Chapter 5 of the Laws of 1997.
The court's conclusion:
While it is true that the Act expressly provides in general terms for civil service coverage, collective bargaining rights and retirement rights for corporation employees ... it is also apparent that the Legislature elected not to confer upon the employees of the corporation all the benefits of the Civil Service Law inasmuch as the Act provides a specific procedure whereby they are ranked, compensated and promoted pursuant to an internal merit system specifically laid out in the legislation.
According to the decision, the Corporation's merit system operates independently of the State civil service system. Evidence of this independence: corporation positions are classified separately and are not necessarily based upon the same criteria as might be applied in the classification of positions in State service.
Dismissing their appeal, the Appellate Division pointed out that the Legislature could have granted the full benefits of the civil service system to Corporation employees as it had done in adopting legislation concerning employees of the New York State Thruway Authority, the State's Environmental Facilities Corporation and the Nassau Health Care Corporation, had it chosen to do so.
As a general rule, unless the law specifically makes the Civil Service Law applicable to the employees of a public benefit corporation, such persons are not subject to its provisions. For example, although Section 8087 of the Unconsolidated Laws provides that the employees of the New York City Off-track Betting Corporation are subject to the Civil Service Law and "other laws applicable to civil service personnel," statutes creating other OTBs do not include such a provision. Accordingly, the Court have ruled that employees of such other OTBs are not in the public service for the purposes of the Civil Service Law.
Sometimes legislation may be enacted that provides for the retention of certain benefits when a State worker's status changes but he or she remains an employee of the State. For example, Section 355-a(10)(a) of the Education Law provides that an employee of the State University in the classified service whose position is jurisdictionally reclassified to the unclassified service "shall retain the rights and privileges of his [or her] classified service jurisdictional classification with respect to discipline, dismissal and suspension for as long as he [or she] remains in the redesignated position."
Attorney-client privilege may not protect confidential e-mail transmittals between an employee and his or her attorney posted from employer's computer
Long v. Marubeni America Corp., No. 05 Civ. 639 (GEL) (KNF), 2006 WL 2998671 (US District Court, Southern District of New York.
An employee used his employer’s computer while at work to send e-mails to his attorney. Such use was in violation of his employer’s policy barring the use of work computers for personal business. In addition, the employee was aware of his employer’s policy statement advising workers that company computers were monitored for Internet activity, including e-mail traffic.
As a result, the e-mails to and from his attorney sent using the employer's computers were held not to be confidential communications protected by the attorney-client privilege.
The court ruled that the employee knew, or should have known, about his employer’s Internet monitoring policy. Accordingly, when he disregarded it, his emails to his attorney lost any protection that the doctrine of attorney-client privilege would have otherwise provided such communications.
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CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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New York Public Personnel Law.
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