ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

December 08, 2011

Human Rights may assume jurisdiction after another administrative body acts


Human Rights may assume jurisdiction after another administrative body acts
Jainchill v. NYS Human Rights Appeals Board, 83 A.D.2d 665

After having her appeal that the examiners had improperly rated her oral test because of her sex denied by the Civil Service Commission, Jainchill filed the same complaint with the State Division of Human Rights.

After initially rejecting the complaint because she had previously commenced an administrative action relating to the same grievance, the Division decided that it had jurisdiction after all.

The Appellate Division agreed, stating that the Division cannot consider matters pending before another administrative body but could take jurisdiction once the other administrative agency proceeding was completed.

N.B. The court also noted that if Jainchill had commenced a proceeding seeking judicial review of the Civil Service Commission’s determination, there would have been a permanent barrier to her filing the same complaint with the Division of Human Rights thereafter.

Passing the test is not enough


Passing the test is not enough
Kirchgessner v. Hurlbut, 81 A.D.2d 958

Although number 3 on the eligible list for Senior Caseworker, Kirchgessner was disqualified because she did not have the specified training and experience required for the position.

When her appeal to the County Personnel Officer was denied, she sued to have her name restored to the eligible list.

Kirchgessner claimed experience as a Social Welfare Examiner satisfied the “social work” requirement for Senior Caseworker (See 18 NYCRR 680.14 for the qualifications).

The Appellate Division ruled that while the descriptions of Senior Caseworker and Senior Social Welfare Examiner (See 18 NYCRR 680.14) by broad interpretation could be viewed as “generally similar,” the Personnel Director was not arbitrary in his determination that Kirchgessner’s work experience did not fulfill statutory criteria and dismissed the appeal.

The court also noted that Hurlbut had consulted with the State Civil Service Commission to confirm his interpretation.

December 07, 2011

Challenging a disciplinary termination

Challenging a disciplinary termination
Matter of Matter of Roberts v Board of Collective Bargaining of the Off. of Collective Collective Bargaining, 2011 NY Slip Op 08807, Appellate Division, First Department

District Council 37, AFSCME, AFL-CIO, challenged the penalty of dismissal imposed on one of its unit member. The employee was terminated from his position following a hearing before the New York City’s Office of Administrative Trials and Hearings. The administrative law judge had found the individual guilty of certain charges and had recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

Although the employee appealed the appointing officer decision to the New York City Civil Service Commission, the Commission dismissed the appeal.

Noting that "The express provisions of Civil Service Law §§75 and 76 limit the appealability of a final agency determination to an article 78 proceeding or an appeal to the Civil Service Commission," the Appellate Division said that the employee failed to file a timely Article 78 “challenging that determination.”

The Appellate Division also sustained a ruling by the City’s Office of Collective Bargaining's Board of Collective Bargaining in which it declined to order the rescission and expungement of employee’s termination.

Although the challenge related only to the alleged improper charge of misuse of confidential information, the Appellate Division said that the employee’s termination was based on a number of sustained charges that were not found to be the product of improper anti-union practices.

The court held that the reinstatement of an employee in the context of an improper practice petition before OCB’s Board of Collective Bargaining “is only warranted where anti-union animus” was the “substantially motivating cause of [of the employee’s dismissal] and not merely one of the reasons therefor.”

The decision is posted on the Internet at:

Individual has no right to have another position created should the program in which he or she served is discontinued


Individual has no right to have another position created should the program in which he or she served is discontinued
Niroomand v. St. Lawrence County Board of Legislators, 82 A.D.2d 939

When the County Laboratory System was discontinued, hospitals using the service were expected to obtain laboratory service elsewhere or provide their own.

The former Director of the County Laboratory was not hired by any of the hospitals. She then attempted to compel the County to grant her permanent Civil Service status, retroactively, and then appoint her to an appropriate position pursuant to Section 70 of the Civil Service Law, or place her on a preferred list (Section 80, CSL).

The Appellate Division decided that there was no transfer of functions that would serve to entitle the former employee to a Section 70 transfer, noting that the closing of the Laboratory was to save money and avoid a duplication of services.

Holding the question of granting permanent civil service status academic, the court observed that even if Niroomand held such status, she was neither entitled to employment by any of the hospitals nor to placement on a preferred list because “it is unlikely that a County Laboratory will be re-established and there is no one whom [Niroomand] can displace”.

Significantly, the court indicated that the hospitals involved do not have to create a position for her.

N.B. Placement on a preferred list flows from a right created by Section 80 of the Civil Service Law, not whether placement pursuant to Section 81 of such law is expected or materializes.

Supervisor terminated for staging plot to “fool” employees

Supervisor terminated for staging plot to “fool” employees
Keith v NYS Thruway Authority, ;517 N.Y.S.2d 334

What might start as a “practical joke” may result in disciplinary action being taken against a supervisor or an employee if the consequences of such a “joke” adversely affect employees or the agency. A recent ruling by the Appellate Division, illustrates just such a situation.

Bertram Keith, an employee of the NYS Thruway Authority, was overseeing the installation of a new heating system in a toll plaza when some employees were apparently exposed to asbestos. The employees were granted sick leave and Keith reprimanded for “failing to take proper safety precautions.”

Believing that the employees had fabricated their illness, Keith, with the aid of his subordinates, created the appearance that asbestos removal at another location had commenced without appropriate precautions having been taken. In fact, the removal work had not yet been started. His scheme succeeded, producing worker panic and union threats of pulling all toll workers off the job.

As a result, charges of misconduct were filed against Keith alleging he had led employees to believe that their health was in danger and his actions placed the Thruway in a position where its tollbooths would be unmanned. A hearing officer found Keith guilty of the charges and recommended his termination.

When the Authority adopted the findings and recommendation of the hearing officer, Keith appealed, arguing that he should not have been terminated as “nobody was in actual peril.”

The Appellate Division affirmed Keith’s dismissal

The Appellate Division found that there was substantial evidence that Keith orchestrated a plot to simulate asbestos removal and that the deception resulted in worker panic and nearly caused the employees to abandon their workstations.

“Such conduct by a public employee in a position of supervision cannot be countenanced or lightly disregarded” said the Court. The fact that no employee had been exposed to asbestos was of no concern to the court as “the alarming situation created was precisely the result sought by (Keith)” and it was for that action that disciplinary charges were filed.

The Court than refused to modify the penalty stating that “in light of the egregious nature of (Keith’s) actions and resulting hysteria which flowed naturally and foreseeable therefrom, we cannot say that the penalty imposed by the agency was inconsistent with the notions of fairness.”

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com