Provisional employee loses bid for permanent appointment

Provisional employee loses bid for permanent appointment

Haynes v. Chautauqua County, 55 NY2d 814

In Haynes the court held that reachable for appointment from the eligible list does not serve to give a provisional employee any right to selection for the permanent appointment.

Haynes had been removed from the position about a month following the certification of the list and had sued for reinstatement.

The decision indicated that Section 65.3 of the Civil Service Law permitted termination of a provisional within two months and contrasted the situation with that in Roulett v. Hempstead, 40 AD2d 611, where a provisional employee, eligible for permanent appointment, was retained in the absence of a three name eligible list in excess of the probationary period for the position.

The Court also noted that Haynes did not become a “probationary employee” by operation of law and could be removed without notice and hearing.

In contrast, the Court of Appeals reversed a lower court and held that a provisional employee does have a right to a permanent appointment. In LaSota v. Green, 53 NY2d 491 ruling that unlike Haynes, LaSota, a provisional for more than nine months and first on the eligible list, obtained a permanent appointment by operation of law when he was retained as a provisional after the establishment of the list. 

The distinction here was that in LaSota there was no mandatory list while in Haynes the list consisted of more than three candidates interested in the position. 

Accordingly, in LaSota the provisions of Civil Service Law Section 65.4 rather than 65.3, applied. 

Thus the LaSota determination, although extending Roulett [see 40 AD2d 611], is consistent the determination in Haynes. The Court took special note of the nine-month limitation on provisional appointments contained in Section 65.2 of the Civil Service Law.

Governor Cuomo and PBA of New York State announce tentative contract agreement

Governor Cuomo and PBA of New York State announce tentative contract agreement

Source: Office of the Governor

Governor Andrew M. Cuomo and Manuel M. Vilar, President of the Police Benevolent Association of New York State, on December 23, 2011 announced a contract agreement between the state and the labor union representing New York State's University Police, Park Police, EnCon Officers and Forest Rangers.

The agreement resolves outstanding wage and contractual issues dating to 2005 and provides the officers with a retroactive wage increase adjustment, ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The agreement provides for zero percent wage increases for 2011-2013, a 2% increase in 2014, 9 days of deficit reduction leave, and adjustments to the health insurance premium.


The Agency Law Enforcement Services Unit (ALES) is composed of University police, Park Police, EnCon Officers and Forest Rangers. They have not had a contract since 2005 and were in arbitration for the years 2005-2007.

Highlights of the tentative agreement, which will require ratification by the full PBANYS membership, include:

· Zero percent wage increases for 2011-2013, a 2% increase in 2014,

· A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year

· Deficit Reduction Leave of five days this fiscal year and four days next fiscal year

· Retroactive payments that are scheduled to be paid in two installments -- one this fiscal year and one next fiscal year before the end of the calendar year.

· Health insurance premium share increase by 6% for both individual and families, making the share 16% for individuals and 31% for family premiums.

· Random drug testing and drug testing for probationary employees in addition to reasonable suspicion testing.

· A labor/management committee to review all leave taken by officers, including annual, personal, sick, workers compensation, and the manner of such use. Recommendations will be made to the President of the Union and the GOER Director for implementation.

· A health plan opt out so officers can opt out through a spouse/partner to a non-State health plan. Under the opt out, participants would receive $1,000 individual/$3,000 family

· Officers will receive broad layoff protection. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

Arbitrator’s disciplinary decision must be sustained by the court if there is a rational basis for, and sufficient evidence to support, the determination

Arbitrator’s disciplinary decision must be sustained by the court if there is a rational basis for, and sufficient evidence to support, the determination

Matter of Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 2011 NY Slip Op 08601, Appellate Division, Second Department

The §3020-a hearing officer sustained a charge of misconduct against the teacher and directed the placement of a counseling memo in her personnel file as the penalty to be imposed.

The charges filed against the teacher followed her participation in a teachers' union action involving approximately 15 teachers who parked their cars along the street in front of the school just before the start of the school day. The Board alleged that this "resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard."

In response to Article 75 petitions filed, respectively, by the teacher and the Board, Supreme Court granted the teacher’s petition to vacate the penalty portion of the hearing officers determination and denied the Board’s petition to vacate the award on the ground that the penalty imposed was too lenient. Supreme Court decided that the hearing officer's fact-findings did not support his finding of culpability, and thus, there was no rational basis for finding the teacher guilty of the disciplinary charges.

The Appellate Division modified the lower court’s ruling, explaining that where the parties are compelled to engage in arbitration by statute (see Education Law § 3020-a[5]), "judicial review under CPLR Article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record." Accordingly, to be sustained, the arbitrator’s award "must have evidentiary support and cannot be arbitrary and capricious."

Here, the hearing officer concluded that the undisputed "arrangement of cars in which [the teacher] participated created a safety hazard. Many students . . . could not be dropped off at curbside. Instead, the cars had to stop in the middle of the road and students had to walk in the road to enter the school."

Under these circumstances, said the court, there was a rational basis for, and sufficient evidence to support, the hearing officer's conclusion that the petitioner was culpable of the charge preferred against her. Accordingly, “Supreme Court erred in granting the [teacher’s] petition to vacate the determination on the basis that it was arbitrary and capricious.

Further, the Appellate Division said that Supreme Court should not have denied the Board’s petition on the grounds that it was “moot” but, rather, should have denied it on the merits as the penalty imposed by the arbitrator, placing a counseling memo in the teacher’s personnel file was within the arbitrator's power and did not violate public policy.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08601.htm

PERB determinations

PERB determinations

Use of automobiles

The Public Employment Relations Board has ruled that the use of automobiles is an item subject to mandatory negotiations. In a case involving the City of Buffalo (Case U-4473). PERB held that the City could not unilaterally restrict employees from using their automobiles in connection with their work as such action was a “unilateral discontinuation of a past practice.” Buffalo had stopped permitting certain employees to charge for the use of their car in connection with travel on the job and offered “bus fare” instead. In another case, PERB held that Nassau County could not stop its “past practice” of assigning certain workers County owned vehicles on a 24 hour basis without first negotiating the matter with the Union.

No smoking areas

The Steuben-Alleganay BOCES had designated certain areas as smoking areas for its employees, prohibiting smoking in other parts of the building. When the Union challenged the work rule, PERB affirmed a hearing officer’s ruling that the employer could not unilaterally restrict employees to smoking in specific areas of a building, as employee smoking is a mandatory item of negotiations under the Taylor Law (Case U-4259)

Two different complaints; two different forums

Two different complaints; two different forums

Gondola v. Center Moriches Union Free School District, 80 A.D.2d 600

When an employee attempted to maintain a complaint before the Division of Human Rights based on alleged discrimination and at the same time sue the employer for alleged breach of contract, the Supreme Court held that Section 297.9 of the Executive Law prohibited the employee from seeking relief on a single discriminatory grievance in two forums.

The Appellate Division reversed, pointing out that Section 296.9 “cannot be employed to bar an aggrieved person from maintaining a proceeding before the State Division of Human Rights based upon a discrimination complaint, while contemporaneously maintaining an action in the courts based on the alleged breach of an employment contract”, citing Matter of Richardson Employment Agency, 40 AD2d 585.