Return to work evaluations and Civil Service Law Section 72 Due Process procedures

Return to work evaluations and Civil Service Law Section 72 Due Process procedures

Source: New York State Department of Civil Service

The New York State Department of Civil Service has issued its Advisory Memorandum #12-01 which addresses processing employees seeking to return from leaves of absences not related to injury or disease incurred on the job [Workers' Compensation Leave situations] in consideration of the recent ruling by the Court of Appeals in Matter of Sheeran v New York State Dept.of Transp., 18 NY3d 61, [Decided with Birnbaum v NYS Department of Labor].

NYPPL’s summary of Sheeran is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2011/11/procedural-safeguards-set-out-in-civil.html

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The Department of Civil Service’s advisory reads as follows:

To: Department and Agency Personnel, Human Resources Directors

From: Mark F. Worden, Acting Counsel

Subject: Return to Work Evaluations and Civil Service Law Section 72 Due Process Procedures

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On November 17, 2011, the New York State Court of Appeals decided two cases, Sheeran v. New York State Department of Transportation, and Birnbaum v. New York State Department of Labor (__NY3d __) which held that the procedural safeguards provided in Civil Service Law (CSL) section 72 apply when an employee who is voluntarily on leave due to personal illness is prevented from returning to work by the appointing authority. The Court held that a refusal to allow the employee to return to work converts a voluntary leave to an involuntary leave, which requires the appointing authority to follow the procedures under CSL section 72. Accordingly, all appointing authorities must review their return to work procedures to ensure that they are consistent with these Court of Appeals decisions and the following guidance.

Appointing authorities may continue to have any employee seeking to return to work from a voluntary leave due to personal illness evaluated by the Employees Health Service (EHS) to verify the employee's fitness for duty, consistent with section 21(e) of the Attendance Rules, the applicable collective bargaining agreements and the Family and Medical Leave Act (FMLA). (*An employee seeking to return to duty from an approved FMLA leave may be prevented from returning to work only in exceptional circumstances. Please refer to your FMLA guidance).

If a return to work evaluation results in a recommendation from EHS that the employee is not fit to return to duty and the appointing authority determines that it will seek to place the employee on an involuntary leave, the appointing authority must send that employee written notice that the agency proposes to place him or her on involuntary leave under CSL section 72(1) and the employee must be allowed to return to work pending a hearing on the issue of fitness for duty. Unless there is probable cause to believe that returning the employee to duty would represent a potential danger to persons or property or would severely interfere with agency operations, consistent with section 72(5), the employee must be returned to duty.

It is essential that any employee denied a return to duty pending a hearing be provided with written notice that such action is being taken pursuant to CSL section 72(5) and notified of the reasons for such action.

The effect of these court decisions is to give an employee seeking to return from a voluntary leave for illness or injury the same due process rights as an employee who is at work and referred for a section 72 evaluation by the appointing authority.

Appointing authorities should follow the procedures, as outlined below:

A. Written notice to employee of agency intent to place employee on involuntary §72 leave based on the determination of EHS that the employee is unfit to perform the duties of his or her position. Notice should include the employee's right to return to work pending a hearing on the issue of unfitness for duty (or that the agency will keep the employee out of work pursuant to CSL §72(5) if there is probable cause to believe that a return to duty would pose a potential danger or disrupt agency operations); served in person or by first class, registered or certified mail, return receipt requested.
B. Agency provides EHS with copy of the written notice to the employee. EHS provides agency with all data supporting certification of unfitness (diagnoses, test results, observations, etc.) which must be transmitted to employee or representative.
C. Due process hearing conducted by mutually agreed upon independent hearing officer. (If parties are unable to agree, the hearing officer must be selected by lot from a list established by the Department of Civil Service.) Employee has right to be represented by counsel or recognized employee organization and may present medical experts and other witnesses. Burden of proof is on person alleging unfitness. Technical rules of evidence shall not be followed. Record of hearing and recommendations to be provided to employee and to agency. Upon request, employee is to be given free copy of transcript.	Must be afforded within 30 calendar days of employee's receipt of notice.
D. Written notice to employee of agency's final decision with notice of right to appeal to Civil Service Commission.	Within 10 working days of receipt of hearing officer's report, * but no later than 75 calendar days from receipt of appeal.
E. Pursuant to CSL section 72(5), involuntary leave begins upon employee's receipt of notice if section 72(5) is invoked.

The following is a Sample Notice for use in such situations. This may be modified to fit the particular circumstances applicable to any specific case:

Sample Notice of Conversion to Involuntary Leave for Ordinary Disability

Dear _________

EHS) has advised that, in their opinion, you are not fit to perform the essential duties of your position. Accordingly, pursuant to section 72 of the Civil Service Law, this agency proposes to convert your present leave status to an involuntary leave based on the results of such medical evaluation(s). We propose to convert your leave to an involuntary leave effective on (date at least 10 working days from service of the Notice).

You have the right to object to this proposed involuntary leave and are entitled to request a hearing to contest this determination. If you object to the proposed leave, you also have the right to be immediately returned to duty pending the hearing and a final determination. You have the right to be represented at the hearing by an attorney or a representative of a recognized employee organization. To object, request a hearing and be immediately returned to duty, you must apply in writing to this office at (ADDRESS, PHONE#) within 10 working days of receiving this letter. A copy of the medical report on which this determination is based will be forwarded to you or your representative if you file a timely objection. (ANY OTHER RECORDS ON WHICH A REFUSAL TO RESTORE TO DUTY WAS BASED SHOULD ALSO BE INCLUDED).

As required by the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (HRL), it is policy of this agency to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability. If you are an individual with a disability as defined by the HRL, you may be entitled to an accommodation to enable you to perform the essential duties of your position. If you believe you would be able to perform the duties of your position with a reasonable accommodation, please contact this office at the address noted above for an application for requesting such an accommodation or for further information concerning the ADA or the HRL.

A copy of Civil service Law section 72 is attached for your information. If you have any questions, please feel free to contact this office at - ADDRESS -, - PHONE.

(Note: If an appointing authority proposes to place the employee on an immediate involuntary leave pursuant to CSL section 72(5), the notice must be altered to comply with that provision).

In addition to this update to the SPMM, the Department will be modifying the Attendance and Leave Manual to reflect the changes resulting from these Court decisions. If you have any questions regarding the new procedures, please feel free to contact the Attendance and Leave Unit of the Department of Civil Service at (518) 457-2295.

Employee found to have violated employer's domiciliary policy terminated

Employee found to have violated employer's domiciliary policy terminated
Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division, Fourth Department

Roxanne Adrian sued to annul the School Board’s determination terminating her employment with Niagara Falls City School District based on her failure to comply with the District's residency policy. The District’s policy required District employees to be domiciliaries of the City of Niagara Falls.

The Appellate Division vacated Supreme Court’s granting Adrian’s petition, stating that . “it is well established that a "domicile means living in [a] locality with intent to make it a fixed and permanent home. "

The court said that the evidence presented to the Board was sufficient to establish that Adrian was not a domiciliary of the City but rather was domiciled in Williamsville.

The evidence considered by the Board included proof that Adrian maintained a phone line at the Williamsville residence but not at the Niagara Falls residence that Department of Motor Vehicles records indicated that she lived at the Williamsville address.*

The court also noted that “a surveillance company observed petitioner on six separate occasions, during different time periods, and found that [Adrian] she never went to the Niagara Falls residence and always left from and returned to the Williamsville residence.

While Adrian submitted some evidence “demonstrating that the Niagara Falls residence may have been her domicile” such as her voter registration card, rent payment receipts, driver's license and cable statements, that evidence was not so overwhelming as to support Supreme Court's determination granting Adrian’s petition.

The Appellate Division, citing O’Connor v Board of Education, Niagara Falls City School District, 48 AD3d 1254, leave to appeal dismissed 10 NY3d 928, also rejected Adrian’s claim the District improperly failed to conduct a hearing before terminating her, explaining that such a hearing was not required by law.

In Gigliotti v Bianco, 82 AD3d 1636, the court said that assuming that the District had provided Gigliotti with an opportunity, in contrast to a hearing, to show that the educator satisfied the District’s requirement regarding domicile, the court disagreed with the District’s conclusion that Gigliotti was not domiciled in Niagara Falls.

Significantly, the court commented that although the District did not conduct a hearing before terminating Gigliotti’s employment, such a hearing was not "required by statute or law," citing Colton v Berman, 21 NY2d 322

Typically courts have viewed employees who lack required licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. In
Adrian failing to meet the school district’s domiciliary requirements apparently was similarly viewed.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time. New York courts and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (Matter of Newcomb, 192 NY 238 at 250 [1908]

The Adrian decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

Robida v Ziemba, 2012 NY Slip Op 01041, Appellate Division, Fourth Department

Town of Cheektowaga police officer David K. Robida was served with disciplinary charges pursuant to both Civil Service Law §75 and Town Law §155. A hearing was held in accordance with those statutes.

Ultimately the Town Board adopted a resolution that terminated Robida pursuant to Town Law §155.

Town Law §155 specifically provides that a CPLR Article 78 proceeding to review a determination pursuant to the statute must be commenced within 30 days of the determination; §76 of the Civil Service Law provides that such a proceeding must be commenced within four months after the determination becomes final. *

The Appellate Division said that it was undisputed that Robida commenced his action more than 30 days after the Town Board's determination. Accordingly, said the court, “it is time-barred.”

The court rejected Robida’s argument that the time limits set out in §75 controlled and thus his petition was timely, ruling that “the 30-day limitations period set forth in Town Law §155 is not limited to those disciplinary proceedings that were brought solely pursuant thereto.”

The Appellate Division explained that the statute of limitations for a CPLR Article 78 proceeding pursuant to which Robida sought to annul th Board's determination is governed by CPLR §217(1), which provides that, "u]nless a shorter time is provided in the law authorizing the proceeding," the proceeding must be commenced within four months after the determination to be reviewed becomes final.

As in this instance the "shorter time" was set out in Town Law §155, which authorized the disciplinary proceeding, Robida was required to file his petition challenging the Town’s determination within 30 days of the Board's decision becoming final.

* §76.1 of the Civil Service Law provides that an appeal from an adverse disciplinary decision made pursuant to §75 of the Civil Service Law may be made to the civil service commission having jurisdiction within twenty days after service of written notice of the determination to be reviewed or in accordance with the provisions of Article 78 of the CPLR. An even shorter statute of limitations is set out in §3020-a.5 of the Education Law for appealing a disciplinary arbitration decision pursuant to Article 75 of the CPLR – 10 days. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01041.htm

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Refusal to accept assignments ruled misconduct

Refusal to accept assignments ruled misconduct

NYC Transit Authority v Alday, OATH Index #475/12

The New York City Transit Authority charged a civil engineer with insubordination after he had repeatedly refused to accept work reassignments given to him by his supervisor despite his subsequently complying with the supervisor’s directive after being order to do so by a higher level superior.

Rejecting the employee’s defense that he wanted to make sure it was "the official management decision” as he did not believe his temporary supervisor had the authority to “reassign people just like that,” OATH Administrative Law Judge Tynia D. Richard held that employee’s repeated refusals to accept the reassignments given to him by his temporary supervisor constituted misconduct.

Dismissing two other charges of alleged misconduct filed against the employee, Judge Richard, in consideration of the individual's “nearly clean record of discipline and 28-year tenure with the City,” recommended the Department imposed the penalty of a reprimand rather than the 15-day suspension without pay proposed by the Transit Authority.

The ALJ explained that the lesser penalty was being recommended as two of the three charges of alleged misconduct had been dismissed as the agency had “failed to prove” them.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-475.pdf

Children permitted to testify as witnesses in a disciplinary arbitration

Children permitted to testify as witnesses in a disciplinary arbitration

Stergiou v New York City Dept. of Educ., 2012 NY Slip Op 50291(U), Supreme Court, New York County, Justice Shlomo S. Hagler

One of the issues in this Article 75 of the Civil Practice Law appeal from an adverse disciplinary arbitration award was the arbitrator’s permitting 8-year old third grade students to testify in a disciplinary hearing “because she believed that they were competent witnesses.” The arbitrator excluded the accused teacher from the hearing room while the students were testifying but permitted the teacher’s attorney to cross-examine them.

Justice Hagler, noting that under Education Law §3020-a the parties are subject to compulsory arbitration, said that the arbitration award must satisfy the tests set out in Article 75 and, in addition, also satisfy further judicial scrutiny in that it "must have evidentiary support and cannot be arbitrary and capricious."

Addressing the teachers argument that the arbitrator permitted incompetent witnesses to testify and failed to let her “confront the witnesses,” Justice Hagler said that the “courts are the gate-keepers in ensuring that only competent witnesses may testify under oath” and children may testify “after a preliminary examination gauging the capacity and intelligence of the child, the appreciation of the difference between right and wrong, and the obligations of taking an oath.”

The court then quoted United States Supreme Court Justice Brewer’s statement in Wheeler v United States, 159 US 523, that "The decision of this question rests primarily with the trial judge [or hearing officer], who sees the proposed [child] witness, notices his manner, his apparent possession or lack of intelligence, as well as his understanding of the obligations of an oath."

Justice Hagler found that the arbitrator conducted an adequate voir dire or preliminary examination into each witnesses’ competency and was able to gauge their level of understanding, ability to tell the truth and to take an oath. In addition, said the court, the arbitrator’s “line of inquiry was satisfactory” and the teacher’s counsel “did not seek any voir dire whatsoever into the minor witnesses competency.”

Further, Justice Hagler held that “Even assuming arguendo that the [arbitrator] did not have a proper foundation for children's testimony, the [she] was not bound by the strict rules of evidence and was permitted to elicit such testimony that she believed would be just and proper under the circumstances.”

As to the teacher’s claim that she was denied her due process rights to hear the testimony or confront the eight (8) year old witnesses, the court said that she “did not have an absolute right to do so in the context of an arbitration/administrative disciplinary hearing,” citing Matter of Abdur-Raheem v Mann, 85 NY2d 113.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_50291.htm