Termination pay permitted

Termination pay permitted

Op. St. Comp 642

The State Comptroller advised a school district that it may negotiate a contract provision with the teacher union involved providing for a lump sum termination payment upon resignation.

The provision in question apparently provided for such payment when a teacher having fifteen or more years of service resigned. However it would appear that such a payment could be authorized by the contract regardless of the amount of service, in an amount mutually agreed upon. The parties, of course, could provide for a “sliding scale” based on the number of years of service with the district at the time of resignation.

Use of volunteer workers by the State

Use of volunteer workers by the State

9 NYCRR 141.0

In addition to employment in State service in a position in the Classified Service or the Unclassified Service, an individual serving as a volunteer may be deemed to be an “employee” of the State for certain purposes.

9 NYCRR 141.0 authorizes the use of volunteer workers by the State, declaring that it is “the policy of the State that the use of volunteer workers be consistent with the needs and requirements of sound and orderly administration of State government." 9 NYCRR 141.0 further provides that "It is also the policy of the State that the protection of workmen's compensation coverage be provided to all volunteer workers donating their services to the State.”

However, the use of volunteer workers by a State Department or agency is subject to the prior approval of the Director of the Budget. [see 9 NYCRR 141.1.]

The application submitted to the Director of the Budget for approval to accept the services of volunteers is to include the reasons why the use of volunteer workers is necessary, what will be accomplished by using volunteer workers and an estimate of the number of volunteer workers required.

Significantly, Public Officers Law §17* covers such “approved” volunteers, providing for their defense and indemnification in any civil action or proceeding “in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his [or her] public employment or duties” including actions alleging unlawful discrimination within the meaning of 42 USC 1981 and 42 USC 1983.

The duty to provide for a defense, however, is not available to the individual “where such civil action or proceeding is brought by or on behalf of the State.”

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* Public Officers Law §17, in pertinent part, provides that “the term ‘employee’ shall mean … a volunteer expressly authorized to participate in a state-sponsored volunteer program …” Similarly, Public Officers Law §18, which provides for the “Defense and indemnification of officers and employees of public entities,” includes within its definition of the term “employee,” an individual serving as “a volunteer expressly authorized to participate in a publicly sponsored volunteer program.”

Public officer refused reimbursement for legal costs

Public officer refused reimbursement for legal costs

Corning v. Laurel Hollow, 48 NY2d 348

Although initially represented by the County Attorney’s Office, public officials being sued in their personal rather than an official capacity for an act performed in connection with official duties dismissed the attorney provided by the County and engaged a private attorney to represent them. When they later sought reimbursement for their legal fees and expenses (they won the case) payment was denied on the basis that it would constitute an unlawful gift of public monies.

The decision also suggests that as the dispute was “private” the providing of a public staff attorney might not be in order.

In a dissenting opinion, the view that the legal expenses but not the attorney fees were reimbursable was expressed but this distinction was rejected by the majority. The majority view was that in the absence of a statute authorizing the Village to provide for a defense, the State Constitution prohibited it from reimbursing the officials for any expense incurred in defending themselves when sued in a personal capacity.

Tape recording of PERB hearing not permitted

Tape recording of PERB hearing not permitted

Town of Shelter Island v. PBA, Cases U-3538; 3569

A PERB Hearing Officer ruled that a PERB improper practice charge hearing could not be taped when a newspaper and television reporters came to the hearing at the invitation of the employer. On appeal, PERB found the employer’s reliance on the State’s Open Meetings Law “misplaced” as Section 103 of the Public Officers Law exempts quasi-judicial.

In contrast, the Court in People v. Ystueta, 99 Misc 2d 1105, held that the State Comptroller’s Opinion (78 Op St Comp 457) allowing local governments to prohibit the recording of its “regular meetings” on a tape recorder is not binding on the Court, indicating that such a prohibition violates public policy and the principles underlying Section 95 of the Public Officers Law.

Exclusion of the public from collective bargaining sessions conducted pursuant to the Taylor Law, however, is permitted (Section 100, Public Officers Law).

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”.