Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Source: Office of the Governor

In his 2012-2013 Executive Budget and Reform Plan, Governor Cuomo stated that in  2011-12 the State started the process of merging and consolidating State agencies to achieve efficiencies and reduce redundancies.

The Governor indicated that “This process continues ... with consolidations, ... resulting in better, streamlined services." 

Among the proposed mergers set out in the 2012-2013 proposed budget: merging the Department of Civil Service and the Governor’s Office of Employee Relations "to provide the State with a single entity responsible for a strategic approach to workforce management, including recruiting, training, promoting, and developing a best in class workforce for the people.”

The Governor's 2012-2013 Executive Budget and Reform Plan is posted on the Internet at:

http://publications.budget.ny.gov/eBudget1213/fy1213littlebook/BriefingBook.pdf

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Rogan v Nassau County Civ. Serv. Commn, 2012 NY Slip Op 00217, Appellate Division, Second Department

A candidate in Nassau County”s Police Officer Examination No. 7000 failed to attain a passing score on the physical fitness screening test.

The candidate sue, contending that the Commission acted irrationally or arbitrarily and capriciously in relying upon a proctor's assessment that the candidate failed to complete the number of sit-ups required to pass the physical fitness screening test promulgated by the State’s Municipal Police Training Council.

Supreme Court denied his petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division, noting that “An appointing authority* has wide discretion in determining the fitness of candidates,” explained that such discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

A court, said the Appellate Division, “may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, [it] may not annul it.”

* Although this decision may give the reader the impression that the Commission was the appointing authority with respect to police officers, a Civil Service Commission is the agency responsible for determining the eligibility of candidates seeking appointment to positions in the competitive class of the classified service by examination and then certifying those found eligible and qualified to the appointing authority for selection for appointment to the position. [People v Gaffney, 201 NY 535]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00217.htm

Will the next NYSERS retirement tier be based on defined contributions?

Will the next NYSERS retirement tier be based on defined contributions?

A NYPPL comment*

It is expected that there will be yet another “membership tier” grafted onto the New York State Employees’ Retirement System [ERS] and possibly the New York State Teachers’ Retirement System [TRS]. The question to be resolved is whether the next “Tier” will be a modification of the existing model – i.e., a defined benefit plan -- or whether the legislation will go in a new direction and provide that this new tier will be a Defined Contribution Plan [DCP].

The key elements of a viable DCP plan would provide that:

1. All new members would join a DCP;

2. Employer and employee contributions would be negotiated through collective bargaining;

3. Employees would “vest” immediately;

4. Current members of a public retirement system would be permitted to elect to become members of the appropriate DCP; and

5. ERS and TRS, respectively, would administer their DCP plans by essentially expand the existing “employee contribution” operations of the Systems, with, perhaps, a variable annuity option made available to interested members.

Since 1965 the State University’s Optional Retirement Plan, a retirement plan based on defined contributions rather than defined benefits, has been available to certain employees of the State University of New York, the Statutory Contract Colleges at Cornell and Alfred Universities, and the community colleges.** Further, since 1968 the City University of the City of New York has offered certain of its employees the opportunity to elect to participate in an optional DCP retirement program as well.***

The model for such legislation may well be the State University’s DCP, which is set out in Education Law §390, et seq. The State Education Department Optional Retirement Program is set out in §180 of the Education Law.

* GOVERNOR CUOMO'S 2012-13 EXECUTIVE BUDGET, presented on January 17, 2012, included the following proposal:

Enact pension reform: Next to Medicaid, pension costs are the most significant burden on local governments. The Governor called for a new tier in the State pension system that will save the State and local governments outside of New York City $83 billion and New York City $30 billion over the next 30 years. The new pension plan would have progressive contribution rates between 4% and 6% with shared risk/reward for employees and employers to account for market volatility. It includes a voluntary option for Defined Contribution following the TIAA-CREF model. Employees taking this Defined Contribution will vest in this system after one year. This option will be portable. No current employees will be affected by the Governor's pension reform plan. 

** Since 1968 the State Department of Education has offered its DCP Optional Retirement Program to eligible employees.

*** See Article 125-A of the Education Law

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

Clark v Schriro, 2012 NY Slip Op 00118, Appellate Division, First Department

Jesse Clark filed a CPLR Article 78 petition “in the nature of mandamus” seeking to compel the New York City Office of Administrative Trials and Hearings [OATH] to hold a disciplinary hearing on charges that had been filed against him by the NYC Department of Correction. Supreme Court dismissed Clark’s petition and the Appellate Division affirmed the lower court’s decision.

In the words of the Appellate Division, “Supreme Court properly found that since respondents were not required to provide [Clark] with a hearing within a specifically prescribed period, but only within a "reasonable time" (New York City Charter §1046[c]), their failure to do so for more than a year after charging [Clark] with misconduct did not constitute failure to fulfill a nondiscretionary duty or perform a purely ministerial act.”

Should an employee be suspended from his or her position without pay upon his or her being served with disciplinary charges, however, typically the individual must be restored to the payroll after a specified period of time if such action is mandated by law [see, for example, Civil Service Law §75.3] or as required by a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00118.htm

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record 

Rauschmeier v Village of Johnson City, 2012 NY Slip Op 00158, Appellate Division, Third Department

The Village of Johnson City filed disciplinary charges against an employee pursuant to Civil Service Law §75. Following a disciplinary hearing, the Hearing Officer recommended that employee be found not guilty of the charges filed against him and that he be reinstated to his position with full back pay, benefits and seniority.

The Mayor of the Village, with support of the Village Board of Trustees, rejected the Hearing Officer's recommendation, found the employee guilty of misconduct and dismissed the employee from service.

Contending that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, the employee sued, seeking, among other things, an annulment of the penalty imposed by the Mayor. 

Although Supreme Court rejected the employee’s claim that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, a determination sustained by the Appellate Division,* another issue, whether the Mayor’s decision to reject the Hearing Officer's recommendation was supported by substantial evidence, was referred to, and considered by, the Appellate Division.

Addressing the Mayor’s decision to reject the Hearing Officer's recommendation, the Appellate Division said that its review of such a determination was limited to whether it is supported by substantial evidence.

When, however, the appointing authority, rejects a disciplinary recommendation made by a hearing officer after a hearing, the appointing authority must set forth in its decision "findings of fact based on competent proof contained in the record and then employ those findings to arrive at conclusions that are supported by substantial evidence."

The Appellate Division said that the Mayor, in rejecting the Hearing Officer's recommendation, referred to testimony of certain witnesses given at the hearing, but did not specify what in their testimony supported his conclusion.

More is required said the court, “especially since the other evidence introduced at the hearing – all of which is uncontradicted and not in dispute — supports the Hearing Officer's determination.”

Accordingly, the Appellate Division ruled that the Mayor’s “conclusion to the contrary was not supported by substantial evidence,” and thus his determination must be annulled and the employee reinstated to his position with full back pay and benefits.

* The Appellate Division also rejected the employee’s contention that the Mayor acted beyond his legal authority, pointing out that Civil Service Law §75(2) provides that an employee disciplinary proceeding shall be conducted "by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose" and where such a designation is made, the person so designated is to make a record of the hearing  and a recommendation as to the penalty to be imposed in the event the individual is found guilty of one or more charges. The record of the hearing and the recommendation is then to "be referred to [the appointing authority] for review and decision."