Concerning using a “one name” eligible list

Concerning using a “one name” eligible list

Matter of Horowitz, 70 AD2d 854

By Executive Order, the employer followed a “rule of one” in appointment from the appropriate eligible list instead of the more common “rule of three”.

After the agency obtained an “exemption” from the Executive Order which would have otherwise required the only passed candidate to be appointed, it told the eligible that he was not to be appointed because “he was not competent to perform the work demanded by the higher title position”.

The agency then appointed two employees who had taken but failed the test to the higher title provisionally.

As the reason for non-appointment was based essentially on alleged lack of competency, under the facts of this case the Court held that such a “passing over” stigmatized the employee and required a hearing in accordance with due process so that the candidate could be heard to refute the “charge of incompetence”.

Police officers receiving GML §207-c benefits not eligible to accrue leave credits unless such accruals are specifically provided for in the collective bargaining agreement

Police officers receiving GML §207-c benefits not eligible to accrue leave credits unless such accruals are specifically provided for in the collective bargaining agreement

Matter of Incorporated Vil. of Floral Park v Floral Park Police Benevolent Assn.. 2011 NY Slip Op 07840, Appellate Division, Second Department

A Village of Floral Park Police Officer was injured in the line of duty and was provided with benefits pursuant to General Municipal Law §207-c.

When the Village told the officer that he could not accrue any holiday or termination pay, or personal, sick, or vacation days during the disability period. the officer filed a grievance pursuant to the collective bargaining agreement between the Village and the Floral Park Police Benevolent Association.

The Village denied the grievance and the PBA filed a demand for arbitration contending that the underlying issue was a matter of contract interpretation. The Village then commenced an Article 75 proceeding seeking a court order to permanently stay arbitration.

Supreme Court ultimately granted the Village’s petition, which decision the Appellate Division affirmed.

The Appellate Division held that the benefits provided to a police officer pursuant to General Municipal Law §207-c are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits. Thus, said the court, “unless a collective bargaining agreement expressly provides for compensation or benefits to disabled officers in addition to those provided by General Municipal Law §207-c, there is no entitlement to such additional compensation.”*

Despite PBA's contention to the contrary, the Appellate Division found that the controlling collective bargaining agreement did not expressly provide that leave time accrues during the period that a disabled officer is not working and is receiving benefits pursuant to General Municipal Law §207-c. In the words of the court: “Had the parties intended to allow disabled officers to continue to accrue leave time during their period of disability, they could have inserted such language into Article XVI, Section 4, [of the collective bargaining agreement] but they did not do so. Under such circumstances, the dispute is not arbitrable.”

* Chalachan v City of Binghamton, 81 AD2d 973; 55 NY2d 989, considers a similar claim by Binghamton firefighters who were receiving disability benefits under Section 207-a of the General Municipal Law. The firefighters had contended that in addition to those benefits, they were entitled to vacation benefits under their collective bargaining agreement. The Appellate Division dismissed the claim holding that "if every benefit provided active fire fighters in the collective bargaining agreement was intended to include disabled firefighters covered by Section 207-a...the contract should contain language to so provide...(the) contention that they are members of their union...entitled to each and every fringe benefit for which active firefighters work daily is without merit. They do not work to earn vacation pay. They are already paid 52 weeks each year and their construction of the agreement to give them pay for 56 weeks (per year) is rejected".

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Provisional employee gets “name clearing hearing”

Provisional employee gets “name clearing hearing”

Matter of Brathwaite, Appellate Division, 70 AD2d 810

Although agreeing that provisional employees have no property right in a particular position and, therefore, are not entitled to a pre-termination hearing under the Civil Service Law, the Court ordered a “name clearing hearing” on the claim that the employee’s “good name, reputation, honor or integrity is at stake”. The reason given for the discharge, disclosing confidential material that the employer alleged was disseminated by the employer.

The employee, a teacher, denied the allegation but was nevertheless separated.

The Court held that the alleged dissemination adversely reflected on her record as a teacher and diminished her ability to secure similar employment. The opportunity to be heard was deemed essential to due process.

N.B. Should an individual prevail in a "name-clearing" hearing, all that he or she is entitled to is a "cleared name" and his or her success does not automatically result in his or her reinstatement to his or her former position.

Contracting for custodial services

Contracting for custodial services

Matter of Conlin, Court of Appeals, 49 NY2d 713

There is no Constitutional or Civil Service Law bar to contracting for the custodial care of schools if the contract was not merely to circumvent the Civil Service Law.

Limitations on sick leave

Limitations on sick leave

Economico v. Village of Pelham, 50 NY2d 120

Notwithstanding a contract provision providing for “unlimited sick leave with pay” for police officers unable to work due to non-service related disabilities, the State Court of Appeals held that a police officer so disabled could be terminated pursuant to Section 73 of the Civil Service Law. The Court distinguished this case (Economico v. Village of Pelham) from the Yonkers teacher case (Matter of Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268) where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement.

The State’s interest in maintaining the efficiency and continuity of its civil service was held a substantial one and Section 73 limits the employee’s right to be continued on the payroll without limitation if triggered by the sound discretion of the appointing authority, even in the face of a contract provision to the contrary. The Court, in another case decided the same day (Dolan v. Whalen) held that a hearing in connection with termination pursuant to Section 73 is required if there is “some factual dispute impacting upon the employer’s right to discharge” the employee.

Of course the police officer injured in the line of duty is entitled to unlimited sick leave under the General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases. In this latter case, the employee cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptroller’s Opinion noted that “a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his disability.”