Contract between State and NYSCOPBA law enforcement members ratified

Contract between State and NYSCOPBA law enforcement members ratified

Source: Office of the Governor

On March 2, 2012 Governor Andrew M. Cuomo and New York State Correctional Officers and Police Benevolent Association (NYSCOPBA) President Donn Rowe announced the ratification of the contract between the state and NYSCOPBA law enforcement membership. The contract was ratified by NYSCOPBA members by a vote of 996 to 62.

The contract includes zero percent wage increases for 2011-2013, ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for a 2% increase in both 2014 and 2015, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

"The contract that was overwhelmingly ratified by NYSCOPBA ensures competitive benefits and protects the jobs of New Yorkers in law enforcement, all while helping to secure the financial future of our state," Governor Cuomo said. "By continuing to work together, we will emerge from these difficult financial times with a stronger New York. I congratulate NYSCOPBA for the success of the contract ratification and I thank President Rowe for his leadership."

Donn Rowe, President, New York State Correctional Officers and Police Benevolent Association, Inc. (NYSCOPBA), said, "Our law enforcement members perform some of the most dangerous jobs in New York, and they have never asked for more than their fair share. The overwhelming vote in favor of this contract clearly shows that these members also recognize New York's fiscal situation. Governor Cuomo deserves credit for acknowledging the difficult job our law enforcement members have and the valuable service they perform for the public everyday."

NYSCOPBA represents over 26,000 New York State employees and retirees from the Security Services Unit. The contract applies to law enforcement members who are not eligible for arbitration.

The agreement follows the pattern of contracts negotiated over the past year and includes:

· Zero percent wage increases for 2011-2013, a 2% increase in both 2014 and 2015
· The agreement includes 3% and 4% wage increases for 2009-2010, the same pattern as other units; these increases were previously reserved for in the state financial plan
· 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, saving $4.3 million; the total deduction for the days comes from the retro pay for 2009-11
· Employees will be repaid the value of 4 days in equal installments starting at the end of the contract term
· Retroactive payments that are scheduled to be paid in two installments next fiscal year
· A 2% increase in health insurance premium contributions for Grade 9 employees and below, making the share 12% for individuals and 27% for family premiums; and 6% increase for Grade 10 employees and above, making the share 16% for individuals and 31% for family premiums
· A health plan opt-out so officers can opt-out through a spouse/partner to a non-state health plan
· All changes to health benefits, including premium shifts, will save $8.2 million over the contract period and $2 million annually after 2016
· 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 NYSCOPBA and the GOER Director for implementation
· 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

If there is no statutory, constitutional or public policy bar to arbitrating a contract grievance, the arbitrator decides whether the grievance is arbitrable

If there is no statutory, constitutional or public policy bar to arbitrating a contract grievance, the arbitrator decides whether the grievance is arbitrable

Mariano v Town of Orchard Park, 2012 NY Slip Op 01026, Appellate Division, Fourth Department

Supreme Court denied the Town of Orchard Park's motion to stay the arbitration of a grievance filed by the Orchard Park Police Benevolent Association [PBA] that alleged that the Town’s changing health care coverage for retired Town police officers was a violation of the relevant collective bargaining agreement.

In opposing the PBA's motion to compel arbitration of a grievance it had filed on behalf of the affected retired members; the Town argued that as the retired members were no longer members of the PBA they had no right to file a grievance, much less seek to arbitrate the grievance.

Supreme Court denied the Town’s cross-motion to stay the arbitration and the Appellate Division affirmed the lower court decision.

The Appellate Division said that when determining whether a claim is arbitrable in the public sector, courts must conduct a two-step inquiry.

First, a court must determine "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If it decides that there is no such bar, the court then determines if the parties agreed, by the terms of their particular arbitration clause, to refer their dispute to arbitration.

Finding that the question had passed the first test, the court, in applying the second test, held that the fact that the retirees are not members of the PBA or represented by it in collective bargaining negotiations “is not determinative in a threshold arbitrability analysis.”

Rather, said the court, “issues concerning the PBA's relationship to retired employees, issues concerning whether retirees are covered by the grievance procedure, and issues concerning whether the clauses of the contract support the grievance are matters involving the scope of the substantive contractual provisions and, as such, are for the arbitrator” to determine.

Commenting that New York's public policy encourages arbitration of labor disputes involving public employees, the Appellate Division decided that Supreme Court “ did not err in granting [the Union’s] cross motion to compel arbitration.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01026.htm

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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