The timeliness an unfair practice charge measured from the date on which the party adversely affected learned [or should have known] of the event

The timeliness an unfair practice charge measured from the date on which the party adversely affected learned [or should have known] of the event
Levi Mcintyre And Middle Island Administrators Association and Longwood Central School District, ALJ Blassman, U-27349

A PERB ALJ dismissed a charge alleging that the Association violated of its duty of fair representation §209a.2(c) of the Act in breach as untimely.

The Association agreed to a collectively negotiated agreement that gave Levi McIntyre a lower total wage increase than other unit employees during the life of the agreement. McIntyre advanced two arguments with respect to his contention that his charge was timely: (1) that timeliness did not begin to run until he learned of the retirement of the Association's president, who was the only other unit employee who was similarly situated to McIntyre under the agreement or, in the alternative, the statute of limitations not begin to run until the second year of the agreement, which was when McIntyre alleged he was first negatively impacted by the agreement.

The ALJ ruled that McIntyre was adversely affected by the agreement when the Association agreed to it and thus his time to file a charge began to run from the date he learned of its provisions and how they affected him.

[See, also, Police Benevolent Association of Elmira, New York, Inc. and City Of Elmira, U-27466, in which the Board affirmed the decision of its ALJ dismissing an improper practice charge as untimely after determining that the PBA had actual knowledge of the triggering event more than four months before it filed its improper practice charge and failed to demonstrate that Elmira was equitably estopped from asserting its timeliness defense.]

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440, Appellate Division, Third Department

The issue in this action: Does Retirement and Social Security Law §110* insulate the retirement benefits from a public retirement system of this State from “the broad reach of the Son of Sam Law, which does not expressly exempt pension funds?”**

The Appellate Division held that such retirement benefits are not exempt from the Son of Sam Law.

Steven C. Raucci, a former employee of the Schenectady City School District, was sentenced to a lengthy prison term upon his conviction of numerous crimes arising out of his alleged detonation and attempted detonation of explosive devices at two of his victims' homes. Raucci began receiving a retirement allowance from the New York State and Local Employees' Retirement System of approximately $5,800 per month.

The New York State Office of Victim Services sought a preliminary injunction prohibiting the withdrawal or transfer of those funds from Raucci’s inmate account. Raucci, and his spouse as “an interested person,” argued that RSSL §110 exempts the pension funds from garnishment or any other legal process.

Noting that prior to its amendment in 2001, the Son of Sam Law permitted victims to recover only "profits from a crime," i.e., property or income generated from the crime itself, the Legislature "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source."

Accordingly, said the Court,  “The current version of the statute thus permits crime victims to commence an action ‘within three years of the discovery of any profits from a crime or funds of a convicted person’ broadly defined as "all funds and property received from any source by a person convicted of a specified crime (Executive Law § 632-a [1] [c]” [emphasis added by the court].

The Appellate Division said that only two categories of a convicted person's funds are not recoverable by crime victims: the first $1,000 in the convicted person's account and the first 10% of compensatory damages obtained by the convicted person in a civil judgment, less counsel fees.

* The decision summaries the provisions of §110 as follows: Retirement and Social Security Law §110 protects public employee pensions, providing that "[t]he right of a person to a pension . . . or a retirement allowance . . . to the return of . . . the pension . . . or retirement allowance itself . . . and the monies in [those] funds . . . [s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever, and . . . [s]hall be unassignable."

** The decision refers to both a “pension” and a “retirement allowance.” A retirement allowance consists of a “pension portion” determined by the employee’s final average salary and his or her “years of member service,” which is funded by employer contributions plus an “annuity portion” based on the actuarial value of the employee’s contributions, or contributions made on his or her behalf as of the date of his or her retirement.

NYPPL comments: This decision raises a number of questions that may have to be addressed by the courts or the legislature such as [1] Is a retirement allowance being received by a surviving beneficiary or beneficiaries of a retired public employee of this State subject to the Son of Sam Law? and [2] Is a retirement benefit being received by an individual or his or her beneficiary or beneficiaries from a retirement program or plan other than a public retirement system of this State subject to the Son of Sam Law?

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04440.htm

The Doctrine of Primary Jurisdiction explained

The Doctrine of Primary Jurisdiction explained 

Razzano v Remsenburg-Speonk UFSD, 2012 NY Slip Op 04178, Appellate Division, Second Department

The Board of Education of Remsenburg-Speonk UFSD reclassified Janice Razzano’s from a full-time position to a part-time position. Razzano filed a CPLR Article 78 petition seeking a court order compelling Board to reinstate Razzano to her former full-time position.

Razzano alleged that the reclassification of her position from full-time to part-time was undertaken in retaliation for various complaints she had made regarding alleged hazardous health conditions in the school building in which she worked. She also contended that school district improperly attempting to circumvent tenure rules by engaging the services of “an outside contractor to undertake the job responsibilities that she had previously undertaken” when she was employed full-time.*

Supreme Court dismissed Razzano’s on the ground that primary jurisdiction over the dispute lies with the Commissioner of the New York State Department of Education. The Appellate Division reversed the lower court’s ruling and remitted the matter to the Supreme Court, Suffolk County, for further proceedings.

Supreme Court had based its denial of the petition and dismissed the proceeding, pursuant to the doctrine of primary jurisdiction, i.e., (1) the Commissioner has the specialized knowledge and expertise necessary to resolve the factual question of whether an independent contractor assumed some of the responsibilities of Razzano, who held tenure in the position, and (2) whether the school district's conduct in reclassifying Razzano‘s full-time position to a part-time position was undertaken in good faith.

The Appellate Division ruled that Supreme Court erred in dismissing Razzano’s petition on basis of the doctrine of primary jurisdiction. The court explained that "The doctrine of primary jurisdiction provides that [w]here the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 35.

The doctrine, said the court, is applied whenever a claim is originally cognizable in the courts, and comes into play “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” In such situations the judicial process is suspended, rather than being dismissed, pending referral of such issues to the administrative body for its views.

In this instance, said the Appellate Division, the crux of Razzano’s threshold claim is that the reclassification and subsequent "excessing" of her employment from her full-time position and her “reinstatement” to a part-time position was undertaken in bad faith in that it was effected in retaliation for her engagement in a protected activity, in violation of the New York State Public Sector Whistleblower Law (see Civil Service Law §75-b).

In addition, Razzano contended that the school district’s "purported rationale was a fiction, and was not an issue within the Commissioner's special competence.”

The Appellate Division agreed, ruling that in light of the nature of Razzano’s allegations, Supreme Court should have retained jurisdiction to decide her claim of retaliation. Thus, said the court, the matter must be remitted to the Supreme Court for further proceedings on that branch of the petition alleging that the reclassification of Razzano’s position was undertaken in bad faith and, thus, constituted an abuse of discretion as a matter of law.

As to next steps, the Appellate Division explained that:

1. If the Supreme Court ultimately determines that Razzano’s employment was reclassified in bad faith, she is entitled to reinstatement.

2. If the Supreme Court ultimately determines that Razzano’s position was not reclassified in bad faith, then it would be proper for the Supreme Court to refer the remaining issues raised by the petition to the Commissioner for determination of questions arising under Education Law §3012, pursuant to the doctrine of primary jurisdiction.

* Razzano had also filed administrative petitions with the Commissioner of the New York State Department of Education pursuant to Education Law §310 challenging the district's decision to reclassify her position as a part-time position.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04178.htm

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Serving notices by mail

Serving notices by mail

Cook v Village of Greene, 2012 NY Slip Op 04264, Appellate Division, Third Department

This decision by the Appellate Division sets out a number of points concerning effectively serving a notice to an individual to appear for a General Municipal Law §50-h when sending such a notice by mail.

The Village of Greene served a demand for examination by certified mail to the address verified by Wayne C. Cook in his notice of claim as his address. Cook failed to appear for the examination, but subsequently commenced an action against the Village and others. The Village moved to dismiss the action asserting, among other things, Cook's failure to attend the General Municipal Law §50-h examination.

The Appellate Division said that complying with a proper request for an examination pursuant to General Municipal Law §50-h is a condition precedent and failure to comply, absent exceptional circumstances, generally is a ground for dismissal of the action.

General Municipal Law §50-h [2] provides that certified mail is authorized manner of notifying a litigant not represented by an attorney to appear for an examination and the Village’s motion papers included a duly executed affidavit of service. The court noted that "A properly executed affidavit of service raises a presumption that a proper mailing occurred."

The Village, however, did not send the notice with a return receipt requested. Although the Appellate Division commented that a “return receipt” is not required by the statute as a general rule sending the notice "certified mail, return receipt requested" or "registered mail, return receipt requested," is viewed as appropriate and desirable.

Other provisions of law may authorize the delivery of certain notices by mail.

For example, Civil Service Law §76.1 provides that a §75 disciplinary determination is to be delivered “personally or by registered mail to the last known address of such person” while Education Law §3020-a provides that disciplinary charges shall be served on an educator “by certified or registered mail, return receipt requested or by personal delivery to the employee.”

The decision if posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04264.htm

Selected Rulings posted by PERB – A question of jurisdiction

Selected Rulings posted by PERB – A question of jurisdiction

United Federation of Teachers and the Board Of Education of the City School District of the City of New York, PERB U-28996

Although the Board dismissed exceptions filed by the employee after finding that she did not timely serve her exceptions upon UFT and the School District pursuant §213.2(a) of the Rules of Procedure, it noted that had it addressed the merits of her exceptions it would have dismissed them as PERB “does not have authority to determine alleged violations of Education Law §3020-a, or alleged violations of the terms of an unexpired agreement.”