The Retired Public Employees Association, Inc., asks State Supreme Court Justice George Ceresia, Jr. to rule that the decrease in the State’s percentage of its contribution towards the health insurance premiums paid by State retirees unlawful

The Retired Public Employees Association, Inc., asks State Supreme Court Justice George Ceresia, Jr. to rule that the decrease in the State’s percentage of its contribution towards the health insurance premiums paid by State retirees unlawful

Source: RPEA e-mail

The Retired Public Employees Association, Inc. [RPEA], referring to a front page article captioned “Did the State Legislature give away its power to control how much money state employees pay toward their health care?” by Rick Karlin that appeared in the Albany Times-Union dated Thursday, May 24, 2012, reports that on Wednesday, May 23, 2012 it asked  State Supreme Court Justice George Ceresia, Jr. to find that the State’s reduction of the percentage of its contribution towards the health insurance premiums paid by pre-October 1, 2011 retired State employee violates Civil Service Law §167.1(a).

Essentially RPEA argued:

1. This action was brought by RPEA on behalf of those individuals who retired from the State as the employer prior to the effective of date of regulations promulgated by the President of the New York State Civil Service Commission [October 1, 2011] under color of the 2011 amendment to CSL Section 167.8. 

2. The 2011 amendment to Civil Service Law Section 167.8 must be applied in a manner consistent with the doctrine of legislative equivalency, whereby the provisions of Section 167.1(a) control except as otherwise specifically authorized to reflect a term and condition of employment set out in a collective bargaining agreement. City of Plattsburgh v Local 788, 108 AD2d 1045 is an example of the application of the doctrine. In Plattsblurgh the Appellate Division held that the procedure for determining an individual’s seniority for the purposes of layoff as set out in §80.1 of the Civil Service Law can neither be diminished nor impaired by the terms of collective bargaining agreements in contrast to the Legislature’s amending §80 providing for an alternate means of determining such seniority with respect to police officers employed in certain police departments as set out in subdivisions 1-a through 1-d of §80.* 

3. Prior to its 2011 amendment, Section 167.8 authorized extending any “negotiated increases” in the State’s cost of premium or subscription charges for health insurance to employees then in active service not subject to a collective bargaining agreement - i.e., unrepresented employees in the Executive, Legislative and Judicial branches of government. Significantly said Section 167.8 specifically provided that such “negotiated increases” shall not be provided to State employees already retired nor upon the retirement of any said unrepresented employees and, unless otherwise specifically otherwise provided in the collective bargaining agreement, employees in the relevant collective bargaining unit retiring during the life of the collective bargaining agreement. The State’s contribution rates to be made on behalf of all such retirees was, and continues to be, set out in Civil Service Law Section 167.1(a). 

4. The 2011 amendment to Civil Service Law Section 167.8 provided that a collective bargaining agreement between the State and an employee organization could modify such State costs – i.e., the State’s cost could be either increased or decreased – and the President of the State Civil Service Commission, with the approval of the Director of the Budget, could extend the modified state cost of premium or subscription charges for employees or retirees not subject to such an agreement and was authorized to promulgate the necessary rules or regulations to implement this provision with respect to employees in service on or after the effective date of such regulation. 

5. It is well settled that any employee of the State as the employer who retired prior to the effective date of any such agreement is not an individual within the relevant collective bargaining unit and would not be subject to any negotiated terms and condition of employment set out therein.** Accordingly, at best the only individuals to whom the provisions of Civil Service Law Section 167.8 as amended could apply with respect to the State’s contributions for health insurance are [1] employees of the State in the relevant collective bargaining unit currently in active service; [2] unrepresented employees of the State to whom the provisions of the collective bargaining agreement modifying the State’s contributions have been extended at the discretion of the President of the Civil Service Commission with the approval of the Director of the Budget currently in active service; and [3] employees of the State described in [1] and [2] above who retired, or become retired, during the life of the relevant collective bargaining agreement. In contrast, State’s contribution for health insurance on behalf of employees of the State who retired from State service prior to the effective date of said Regulations are set out in Civil Service Law Section 167.1(a), which provision have not been amended by the State Legislature. 

6. Any effort by the State to amend the provisions of Section 167.1(a) insofar as individual who retired from the State as the employer prior to October 1, 2011, the effective date of a regulation implementing the terms and conditions of a collective bargaining agreement with respect to the State’s contributions towards health insurance premiums and subscription charges, is a nullity insofar as such retirees are concerned as a rule or regulation may not amend provisions of law set out in a statute but may merely provide for its lawful administration and application. So said the Court of Appeals in Torre v County of Nassau, 86 NY2d 421, wherein the court, noting the doctrine of legislative equivalency, held that a position created by a legislative act can be abolished only by a correlative legislative act. Applying the doctrine in this instance means that the State's rates of contributions for health insurance, having been set out in Civil Service Law Section 167.1(a) by the State Legislature, may only be changed by a legislative act by the State Legislature. Such was the case when the Legislature so acted in 1983*** and amended Civil Service Law Section 167.1(a) mandating a lower rate of contributions by the State for individual coverage on behalf of State employees retiring on or after January 1, 1983.

N.B. In Bransten v State of New York, 40 Misc 3d 512 , an action involving the impact of Section 167.8 as amended on compensation of judges, the court, in part, held: "... More importantly, while the terms of the agreement giving rise to plaintiffs' increase in contributions were negotiated between the State and the union, plaintiffs are unrepresented, and not eligible for collective bargaining, and were, like the judges affected by the Social Security tax in Hatter [U.S. v Hatter (532 US 577], left without a choice and required to contribute. That the Legislature did not single out judges for special treatment in order to influence them is thus irrelevant (see Hatter, 532 US at 577).

“Moreover, defendant negotiated its reduction in contributions in order to avoid the layoffs of thousands of State employees, none of which include judges or justices, because Judges and Justices are not subject to "layoffs." Thus, the increased cost of health insurance borne by plaintiffs bears no relation to the purpose of the State's reduction in its contributions.”

A similar argument could be advanced with respect to non-judicial retirees of the State as the employer, i., in  increasing the cost of Health Insurance to retirees of the State as the employer by decreasing the percentage of the State's contribution on behalf of such retirees bears no relation to the stated purpose of the State's reduction of its percentage of its contributions on behalf of its active employees – to avoid layoffs.

* Legislation extending similar procedures to certain members of other police agencies in the event of a layoff is pending in the Assembly [A9887-2011] and in the Senate [S7075-2011]. See http://publicpersonnellaw.blogspot.com/2012/04/legislation-proposed-to-provide-for-new.html for a NYPPL summary of these bills.

** http://publicpersonnellaw.blogspot.com/2012/04/health-insurance-benefit-enjoyed-by.html summarizes a  State Supreme Court decision in which the court held that health insurance benefits enjoyed by retired individuals are not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties [DiBattista v County of Westchester, 35 Misc3d 1205].

*** Chapter 14, Laws of 1983, retroactive to December 15, 1982 to accommodate the premiums due effective January 1, 1983.

Mr. Karlin’s article is posted on the Internet at:

Read more:  http://www.timesunion.com/local/article/State-retirees-ask-judge-to-roll-back-health-3581516.php#ixzz1vn6qcyB7

A complainant alleging unlawful discrimination must set out a prima facie case of discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action

A complainant alleging unlawful discrimination must set out a prima facie case of discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action

This Article 78 proceeding challenged a determination by the Commissioner of the New York State Division of Human Rights [DHR] in which the Commissioner adopted the recommendations and findings of an Administrative Law Judge that the employer had violated Executive Law §296(1)(a) by discriminating against the complainant on the basis of her military status. The complainant was awarded compensatory damages in the amount of $15,000 and $10,880 in back pay.

The Appellate Division granted the employer’s appeal and annulled the Commissioner’s decision and dismissed the administrative complaint.

The court explained that judicial review of a determination of the DHR made after a hearing is limited to whether the determination is supported by substantial evidence. Here, said the court, the DHR's determination was not supported by substantial evidence.

To establish liability under Executive Law §296(1)(a) arising from the termination of employment, a complainant must establish, before the DHR, a prima facie case of discrimination by a preponderance of the evidence by showing that the complainant is

1. A member of a class protected by the statute;

2. Was actively or constructively discharged;

3. Was qualified to hold the position from which he or she was terminated; and

4. Was terminated under circumstances which give rise to an inference of discrimination.

The burden of establishing a prima facie showing has been described as "de minimus" and once such a showing has been made, the burden shifts to the employer to rebut the individual's prima faciecase by providing a legitimate, nondiscriminatory reason for the individual's termination.

In response to such a rebuttal, the complainant must show by a preponderance of the evidence that the employer's reasons for the challenged termination were pretextual and the complainant having the burden of persuasion on the ultimate issue of discrimination.

The Appellate Division founds that the complainant had met her burden of demonstrating a prima facie case of discrimination based on her military status by demonstrating that the employer terminated her for being late on days which included days she served on military duty and that the employer had remarked that he was tired of dealing with issues relating to her military status, which gave rise to an inference of discrimination.

However, said the court, in response to the complainant's prima facie showing, the employer demonstrated that he terminated her for a legitimate, nondiscriminatory reason which was not based on her military status.

The Appellate Division said that the complainant's time cards support the employer’s contention that he terminated the complainant's employment because she continued to be late after being placed on probation for lateness, including the day her employment was terminated, for reasons having nothing to do with her military status.

The court also ruled that the employer’s argument that he did not discharge the complainant because of her military status was further supported by the fact that “he hired the complainant after a single interview, with full knowledge of her regularly scheduled reserve obligations, which he accommodated by not scheduling her to work on the first weekend of any month.”

Concluding that the employer had met his burden before the DHR of demonstrating that he terminated the complainant's employment for a legitimate, nondiscriminatory reason and that the complainant failed to show that this reason was pretextual, the Appellate Division found that “DHR's determination was not supported by substantial evidence in the record and must, thus, be annulled.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03841.htm

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

Employee terminated for cause entitled to back pay for the period she was suspended without pay in excess of 30 days

The Westchester County Health Care Corporation adopted the recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the employee guilty of certain charges of misconduct and insubordination. It then terminated the individual from its employ.

Te Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary termination of an employee with respect to the merits of the appeal. The court held that contrary to the individual’s contention, Westchester’s determination that the individual was guilty of certain charges of misconduct and insubordination was supported by substantial evidence in the record.

The court also rejected the individual’s claim that she was denied a fair hearing due to the alleged bias of the hearing officer as being without merit, finding that there was no evidence in the record to support her contention that the hearing officer was biased.

As to the penalty imposed, dismissal, the court ruled that termination was “not so disproportionate to the offenses committed by the petitioner as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

Although the Appellate Division sustained Supreme Court’s dismissal of an Article 78 petition challenging the disciplinary action, the court remanded the matter to the lower court for its determination regarding any back pay due the dismissed individual.

Here, said the court, the individual “correctly contends that she is entitled to back pay for the period she was suspended without pay in excess of 30 days, excluding delay, if any, occasioned by her, and less unemployment insurance benefits received for that period, if any,” citing Civil Service Law §75[3].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03839.htm

Voluntary separation to avoid discipline disqualifies employee for unemployment insurance benefits

Voluntary separation to avoid discipline disqualifies employee for unemployment insurance benefits

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2012, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Kean v. Commissioner of Labor, ___A.D.3d___(3d Dep't. March 15, 2012), is an interesting case as it discusses voluntary separations in relation to entitlement to unemployment. As the court explains:

 "Voluntarily separating from one's employment to accept a severance or early retirement package when continuing work remains available has been held not to constitute good cause for leaving employment" (Matter of Lucht [Commissioner of Labor], 49 AD3d 1048, 1049 [2008]; see Matter of Cammisa [Commissioner of Labor], 38 AD3d 1146 [2007]). Here, claimant testified that she was capable of working, had not been threatened by her employer and had not been advised by a physician to leave her job.

Even if claimant quit because she assumed that she might be terminated in the future, leaving a job in anticipation of discharge is not considered to be a departure for good cause under these circumstances (see Matter of Carcaterra [Association for Computing Machinery, Inc.—Commissioner of Labor], 90 AD3d 1389, 1390 [2011]).

Inasmuch as there is substantial evidence supporting the Board's ruling, it will not be disturbed (see Matter of Cammisa [Commissioner of Labor], 38 AD3d at 1146).

NYPPL comments:

N.B. Submitting a resignation in anticipation of, or in lieu or settlement of, a disciplinary action may have other unintended consequences. For example, typically applications for competitive examination for  employment with the State or a political subdivision of the State include the following questions:

Yes [ ] No [ ]  Were you ever discharged from any employment except for lack of work for funds, disability or medical condition?

Yes [ ] No [ ]  Did you ever resign from any employment rather than face discharge?

If you answered YES to any of these questions, provide details under REMARKS on Page 3. Your failure to answer any of these questions or to provide details will significantly delay any determination concerning your qualifications and may deprive you of potential employment opportunities.

The State Department of Civil Service or a local civil service commission may disqualify an individual seeking an appointment to a position in competitive class of the classified service pursuant to Civil Service Law §50.4 subdivisions (e), (f) or (g), which subdivisions are set out below:

(e) who has been dismissed from a permanent position in the public service upon stated written charges of incompetency or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has otherwise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation or termination resulted from his incompetency or misconduct, provided, that in cases of dismissal, resignation or termination after written charges of incompetency, the examination or certification in question be for a position that requires the performance of a duty or duties which are the same as or similar to the duty or duties of the position from which the applicant has been dismissed, resigned or terminated on account of incompetency; [emphasis supplied] or

(f)  who has intentionally made a false statement of any material fact in his application; or

(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01845.htm

Board of Education’s decision concerning the discontinuing of the services of the school superintendent sustained by the Commissioner of Education

Board of Education’s decision concerning the discontinuing of the services of the school superintendent sustained by the Commissioner of Education

Decision of the Commissioner of Education, Decision No. 16,352

The contract of employment between the school board and its superintendent included a provision entitled “Termination” wherein it provided that the employment relationship between the superintendent and the board could be terminated for any of the following reasons:

1. Disability of the superintendent;

2. Written resignation of the superintendent;

3. Termination upon agreement; or

4. Discharge for cause.

When the board and the superintendent entered into an agreement entitled “Separation Agreement, Release and Waiver” providing for a payment of $89,500 in full satisfaction of the district’s financial obligations to the superintendent and the superintendent’s agreement to resign from the position and forfeit all claims against the District, an individual filed an appeal with the Commissioner of Education challenging the execution of such an agreement.

Essentially the appeal argued that the superintendent should be terminated for cause without compensation, alleging various acts of misconduct on the part of the Superintendent. 

In addition, the appeal alleged that the Board “wilfully neglected its duty and misused district funds by offering to buy out the superintendent’s employment contract and by failing to investigate [the petitioner's] allegations and take corrective action.” The redress requested: the Commissioner should remove members of the Board from their positions and appoint a new board to serve until a special election is held and appoint or oversee the process to appoint a new superintendent.

After noting a number of procedural omissions requiring dismissal of certain allegations advanced by the individual, the Commissioner turned to turn to the merits of the remaining claims.

Citing Education Law §§1709(13) and (33), and 1804(1), the Commissioner said that a board of education has broad powers “concerning the superintendence, management, and control of a central school district.” In addition, noted the Commissioner, “a board of education has the authority to enter into an employment contract with a superintendent including provisions regarding termination, citing Education Law §§1711 and 1804[1]. 

Finding that in this instance the Board had entered into an employment agreement with the Superintendent that contained several options with respect to termination, the Commissioner dismissed the appeal commenting that “I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable law.”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. 

The Commissioner decided that “On the record before me, petitioner has failed to meet her burden,” explaining that “The terms of the contract specifically permit termination by mutual agreement, and [the Board’s] answer indicates that [the Board] carefully considered the issues, including weighing the costs of discharge for cause versus a negotiated agreement.”

Although the Commissioner noted that the petitioner disagreed with the Board’s decision not to dismiss the superintendent for cause, the Commissioner said that “she has submitted no reply to refute the board’s statements that it reviewed its options and determined that a separation agreement was more responsible than a protracted dismissal for cause” and dismissed the appeal."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16352.html