A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

Smeraldo v Rater, 55 AD3d 1298

Timothy J. Smeraldo brought an Article 78 proceeding challenging the penalty of termination of his employment with the Jamestown Police Department after he was found guilty of conduct that was disrespectful of a superior officer. Smeraldo contended that the penalty of termination is so disproportionate to the offense as to be shocking to one's sense of fairness. In addition, Smeraldo alleged that the Hearing Officer improperly relied upon facts that were not in evidence.

The Appellate Division rejected Smeraldo’s claim that penalty imposed was “shocking to one’s sense of fairness. The court said that it is well established that courts must uphold the disciplinary penalty imposed by an appointing authority unless, as a law, it is an abuse of discretion, citing Kelly v Safir, 96 NY2d 32.

The Appellate Division said that "A police force is a quasi-military organization demanding strict discipline" and "great leeway” must be accorded to “determinations concerning the appropriate punishment, for it is the [Chief of Police] . . . who is accountable to the public for the integrity of the Department."

In this instance the Hearing Officer found that Smeraldo had made a remark in front of several other officers that was disrespectful of a superior officer. Further, said the court, “the record establishes that [Smeraldo] has a prior disciplinary record, including a 30-day suspension and a demotion in rank that occurred less than one year prior to the present offense. In addition, the decision reports that Smeraldo that settlement agreement with the Department for the charge resulting in that suspension and demotion, Smeraldo expressly stated that "he will endeavor not to violate any other Department policy in the future" and that there was evidence at the hearing that he had previously been counseled on the issue of making inappropriate comments, including comments that demonstrated insubordination.

Noting that the settlement agreement was received as evidence in the course of the disciplinary hearing, the Appellate Division concluded that there was no basis for Smeraldo’s claim that the Hearing Officer improperly relied upon facts not in evidence.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07336.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Independent contractors not entitled to retirement benefits or other fringe benefits

Independent contractors not entitled to retirement benefits or other fringe benefits
Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516

Michael Araneo was the owner, president, and sole employee of a corporation: Michael Araneo, Inc. In 1970 Araneo began performing work for the Town of Clarkstown at the Town dump and on September 15, 1997, on behalf of the corporation, signed an agreement with the Town providing that the corporation would perform certain services at the Town's solid waste facility and other facilities.

This contract expressly provided that the corporation and its employees would be acting as independent contractors and were not to be considered employees of the Town.

Araneo submitted vouchers to the Town Comptroller for payment and the payment was generally made to the corporation. The Town did not withhold taxes or insurance, and that the corporation paid the requisite taxes and insurance on behalf of Araneo. In addition, the corporation carried liability insurance, maintained its own offices, and that the Town paid the corporation more than an individual employee would have been paid for the same work. Further, Araneo used “many of his own tools” in performing his work and “was not instructed on how to perform the work he did for the Town.”

On January 8, 2002, Araneo sued the Town, for a judgment declaring that effective July 3, 1978 and through and including January 14, 2005, he was a Town employee entitled to all benefits enjoyed by such employees, including but not limited to, pension rights, health care, vacation time, sick leave, and personal time.

The Appellate Division said that “The determination of whether one is an employee or an independent contractor requires examination of all aspects of the arrangement between the parties,” although "the critical inquiry . . . pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results." Other elements include “assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule." Significantly, the court said “the fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive.

In this instance, said the court, the record plainly establishes that, at all times at issue, Araneo was an independent contractor to the Town and not a Town employee. Consequently, Araneo was held not to be an employee of the Town of Clarkstown at any time from July 3, 1978, to January 14, 2005.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07599.htm

Creditable medical evidence trumps presumption that a disease of the heart was incurred in the performance of police officer duties

Creditable medical evidence trumps presumption that a disease of the heart was incurred in the performance of police officer duties

Goodacre v Kelly, 2012 NY Slip Op 05096, Appellate Division, First Department

Supreme Court, granted the Article 78 petition filed by a New York City police officer, Charles Goodacre, seeking, among other things, to annul the determination by the Trustees of the Retirement System denying his application for accident disability retirement (ADR) benefits to which he claimed he was entitled pursuant to General Municipal Law §207-k (the Heart Bill)*. Although Supreme Court found that the officer was “entitled to such benefits as a matter of law,” the Appellate Division reversed the lower courts ruling.

§207-k sets out the rebuttable presumption that a police officer or firefighter suffering an  impairment of health “caused by diseases of the heart, resulting in total or partial disability or death … who successfully passed a physical examination on entry into the service … which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty….” The presumption may be rebutted by competent evidence to the contrary.

Citing Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the Appellate Division said that Supreme Court “exceeded the scope of its review,” which is to determine “whether ‘some credible evidence’ supported the Medical Board's determination as to disability.”

In this instance Supreme Court concluded, “contrary to findings of the Medical Board,” that although there were conflicting submissions, as a matter of law, Goodacre’s hypertension “… constituted a stress-related condition warranting ADR benefits.”

Such a determination, however, “was the sole province of the Medical Board and the Board of Trustees, not the court.” The Board and the Trustees were to resolve conflicts in the medical evidence. Having reviewed all of the medical reports and, in its most recent decision, recognizing the conflicting evidence, the Medical Board determined that although Goodacre had hypertensive heart disease, he did not have a stress related disability because there was insufficient evidence…. "

Accordingly, the Appellate Division ruled that the statutory presumption of §207-k was overcome by this credible evidence of Goodacre's disabling congenital heart condition.

Contrary to Goodacre's contention, and the Supreme Court's conclusion, the Appellate Division ruled that “it cannot be said as a matter of law that the cause of [Goodacre's] disability is job related stress” and the Medical Board's decision was supported by credible evidence. Further, said the court, the Board sufficiently set forth the reasons for its conclusions.

The Appellate Division then reversed the Supreme Court’s decision and denied Goodacre’s Article 78 petition.

* N.B.There are two “General Municipal Law Section 207-Kaddressing “Disabilities of policemen and firemen in certain cities.” The first sets out an expiration date of July 1, 1973; the second, 207-K*2, set out an expiration date of July 1, 1995. However, Retirement and Social Security Law §480.a extends certain temporary benefits and supplementation programs otherwise “scheduled to expire or terminate at any time” during the period January 1, 1974 through and including December 31, 2011, including the so-called Heart Bill.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05096.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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Exercising licensing and regulatory authority

Exercising licensing and regulatory authority

Noel v NYC Taxi and Limousine Commission, USCA, Second Circuit, Docket 12-41-cv

Justia posted the following summary of a decision by the U.S. Court of Appeals, Second Circuit:

“Two people who use wheelchairs and organizations that represent persons with disabilities brought a class action against the New York City Taxi and Limousine Commission and the TLC Commissioner for violation of Parts A and B of Title II of the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the New York City Human Rights Law.

"The district court granted plaintiffs partial summary judgment as to liability on the ADA claim and entered a temporary injunction, requiring that all new taxi medallions and street-hail livery licenses be limited to vehicles that are wheelchair accessible until the TLC proposes and the district court approves a comprehensive plan to provide meaningful access to taxi service for wheelchair-bound passengers.

"The Second Circuit vacated the temporary injunction as improvidently granted.

"Although the TLC exercises pervasive control over the taxi industry in New York City, defendants were not required by Title II(A) to deploy their licensing and regulatory authority to mandate that persons who need wheelchairs be afforded meaningful access to taxis.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/60f3e1db-935e-46f7-85dd-1def5568b7b3/4/doc/12-41_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/60f3e1db-935e-46f7-85dd-1def5568b7b3/4/hilite/

Court rules that the appointing authority made its appointments consistent with the requirements of Section 61.1 of the Civil Service Law

Court rules that the appointing authority made its appointments consistent with the requirements of Section 61.1 of the Civil Service Law

Cherry v New York State Civ. Serv. Commn, 55 AD3d 604

When New York State Civil Service Commission, in effect, affirmed a decision of the New York State Division of Housing and Community Renewal to promote certain individuals to the position of Rent Examiner 2, declining to promote Bruce Cherry to the title, Cherry sued seeking a court order compelling his selection for the position, claiming that he had been “passed-over” in violation of Section 61.1 of the Civil Service Law.

Section 61.1 sets out the so-called “Rule of Three,” requiring the appointing authority wishing to fill a position in the competitive class for which an appropriate eligible list exists “to selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion….”

Supreme Court denied his Article 78 petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division held that each of the selections for promotion by the Division was made from one of the three individuals certified with the highest scores on the eligible list who were willing to accept the appointment. Accordingly, the determination of the New York State Civil Service Commission, which, in effect, affirmed the decision to promote these individuals, was neither arbitrary nor capricious.

The Cherry decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07660.htm

NYPPL comments concerning The Rule of Three 

The Rule of Three has been the subject of much litigation. The decision by the Court of Appeals in Professional, Clerical, Technical Employees Association v Buffalo Board of Education [2 Rulings, #64 and #65], 90 N.Y.2d 364, provides some important insights as to the application of this concept.

The Association case arose when the Buffalo City School District "passed over" Melvin Cross, the highest-scoring candidate on a promotion examination eligible list for Associate Account Clerk and appointed three lower ranking eligibles to fill three Associate Account Clerk vacancies. The union claimed that the School District had agreed to be bound by the "rule of one" under a contract negotiated pursuant to the Taylor Law. The School District argued that such a contract provision need not be honored because doing so would violate strong public policy.

Before addressing the court’s ruling in Association, some historical background might be helpful.

Prior to 1900 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission. In 1900 the "rule of one" was struck down by the Court of Appeals as unconstitutional. The Court ruled that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power [People v Mosher, 163 NY 32].

This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law. Section 61.1, as earlier noted, permits the appointing authority to select from among the three candidates who stand highest on the eligible list and are interested in the appointment. The rule of three was held valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.

In applying the Rule of Three, tie scores can allow the appointing authority to make its selection from among far more than three eligibles. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 eligibles will be deemed "reachable for appointment." On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority could only select from among the "top 60" eligibles and may not consider either of the two lower scoring eligibles for the appointment.

Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a "mandatory list" -- a list consisting of at least three qualified candidates willing to accept the position.

In contrast, the "rule of one" is mandated in situations involving reinstatement from a preferred list. Where a preferred list is certified, the appointing authority must appoint the most senior individual on the list willing to accept the appointment or keep the position vacant.

Although courts have ruled that a civil service commission cannot mandate a rule of one, the appointing authority itself may decide to be bound by such a rule. This has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise discretion with respect to selecting candidates for appointment.

In the Buffalo case, the issue was similar: Could an arbitrator require the Buffalo Board of Education to promote the highest-scoring bargaining unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement?

The Board argued that such an award violated public policy "in that it restricts the statutory discretion vested in the appointing authority under Civil Service Law 61 to select one of the three highest-ranked candidates on an eligible list."

The Court of Appeals concluded that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain members of an eligible list where a probationary period precedes their permanent appointment.

This decision means that a rule of one can be agreed to in a collective bargaining agreement for positions in the competitive class and for both interdepartmental and intradepartmental promotions. Section 63 of the Civil Service Law provides that "every original appointment to a position in the competitive class and every interdepartmental promotion ... shall be for a probationary term." In addition, Section 61 authorizes appointing authorities to require "probationary service upon intradepartmental promotion" by rule.

Because certain employment rights are based on seniority under the Civil Service Law, determining an employee's "original date of permanent appointment" can be vital.

In Buffalo the Court of Appeals stated that the employee is deemed "permanently appointed" as of the effective date of his or her appointment from the eligible list. Except with respect to temporary appointments from an eligible list [Section 64.2, Civil Service Law], a probationary period precedes an individual's attaining "tenure status." Thus an individual's original date of permanent appointment is deemed to be the effective date of his or her initial, and uninterrupted, permanent appointment from the eligible list rather than from the date he or she attained "tenure" following the successful completion of his or her probationary period some months or years later.

In the grievance arbitration in Buffalo, the arbitrator found that the minutes of a series of labor-management meetings held in 1981, 1985 and 1986 reflected the parties' agreement to promote the first unit member on the eligible list. The arbitrator ruled that the "explicit agreement of the parties became part of their contractual agreement...." The arbitrator also determined that the Board violated a provision in the agreement that gave employees on the eligible list the opportunity to choose an assignment preference from among the available positions, "in order of their placement on the list." The remedy ordered by the arbitrator: Cross was to be appointed to the position Associate Account Clerk, with back salary and benefits, and, in addition, Cross was to be given the opportunity to select his assignment preference for one of the three positions in question.

The Court of Appeals said that Section 204 of the Civil Service Law --- the Taylor Law -- empowers and, in fact, requires a public employer to negotiate collectively with employee organizations and enter into written agreements governing the terms and conditions of employment. Additionally, the Court noted, public policy in this State favors arbitral resolution of public sector labor disputes.

Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court upheld the arbitrator award, ruling that: “The promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law.”

The Court decided that the use of preferences in making a selection for promotion involves a term or condition of employment and thus is a proper subject for collective bargaining and subsequent arbitral resolution. Finding no prohibition in statutory or decisional law, nor any countervailing public policy, the Court of Appeals rejected the School Board's contention that "the discretion it is granted under Civil Service Law 61(1), which permits an appointing authority to select one of the three top-scoring candidates on a promotional eligible list, is a prohibited subject of bargaining". 

The Court concluded that there is nothing in the State's Constitution, the Civil Service Law or decisional law that prohibits an appointing authority from agreeing through collective negotiations on the manner in which it will select one of the top three qualified candidates from an eligible list for promotion.