Positions in the public service may not be abolished in bad faith

Matter of Weimer, 74 AD2d 574

Although the consultant recommended the creation of a new position of “business manager.” to report to the Assistant Superintendent for Business Affairs, the School Board abolished the Assistant Superintendent position in favor of the creation of two new positions: an “Administrator of Operations” and a “Business Manager”. The incumbent of the Assistant Superintendent position, George C. Weimer, Jr., was terminated from his position and two other individuals were appointed to the newly created positions.

The Court held that the duties of the Assistant Superintendent position were merely transferred to two new positions and therefore the abolishment of the Assistant Superintendent position was not made in good faith as the grounds. The decision indicates that Weimer’s tenure rights could not be summarily. The Court also noted that the School Superintendent had earlier suggested to the School Board that “the duties of the (Assistant) position be gradually reduced until the (Assistant) would leave of his own accord.”

The Appellate Division ruled that Weimer had discharged duties substantially similar in nature to the duties assigned to the new positions. He was thus entitled to be granted relief under the provisions of §2510 of the Education Law.*

Weimer, however, indicated in his brief that he has obtained other employment in another school district. Accordingly, the Appellate Division remitted the matter to Supreme Court “for the sole purpose of determining the amount of salary due [Weimer], less the amount of the earnings from other employment and any unemployment [Weimer] may have received.”

* In the words of the court: ”Just as under the provisions of the Civil Service Law, a municipality may not abolish a position by subterfuge (Switzer v Sanitary Dist. No. 7, Town of Hempstead, 59 A.D.2d 889, app dsmd 43 N.Y.2d 845; Matter of Wipfler v Klebes, 284 NY 248; Wood v City of New York, 274 NY 155; Ann., 87 ALR3d 1165, 1184), a school board under the provisions of the Education Law may not abolish a position by subterfuge (Matter of Amos v Board of Educ., 54 A.D.2d 297, 301, affd 43 N.Y.2d 706; cf. Matter of Abramovich v Board of Educ., 46 N.Y.2d 450, 454; Education Law, §2510.“

The decision is posted on the Internet at:

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19800204_0040515.NY.htm/qx

At least one part of an examination for a position in the competitive class must be competitive

At least one part of an examination for a position in the competitive class must be competitive

Informal Opinions of the Attorney General, January 8, l980

A selection procedure for employment in the competitive class consisting of a qualifying written test and a ranked (competitive) physical agility test complies with the constitutional and statutory requirements for a competitive examination of merit and fitness for the position “where practicable.”

Further the Civil Service Commission has the discretion to determine the appropriate selection devices. 

When it has been determined that a competitive examination is practicable, that test may be a written tests, an oral test or a performance test, or any combination thereof, so long as some part of the test can be scored and the candidates ranked on the basis of their scores.

The Opinion also observed that “All that is necessary is that the test selected be objective in nature and the scoring procedures reviewable.

Retirement and Social Security Law excludes “large raises having the effect of inflating the members final average salary” in determining the member’s retirement allowance

The Retirement and Social Security Law excludes “large raises having the effect of inflating the members final average salary” in determining the member’s retirement allowance
Chichester v DiNapoli, 2013 NY Slip Op 05283, Appellate Division, Third Department

Gilbert L. Chichester was employed as the Executive Director of the Montgomery-Otsego-Schoharie Solid Waste Management Authority (MOSA) from December 1, 1993 through December 2004 pursuant to a series of employment contracts.

In December 2004, Chichester's then-current employment contract expired without a new agreement in place. MOSA's Board and Chichester entered into an oral agreement providing for Chichester’s continued employment and compensation pending further contract negotiations.

No agreement had been reached as of January 2006 and MOSA's Board adopted a resolution imposing retroactive salary increases for Chichester for 2004, 2005 and 2006. Negotiations, however, continued and, on August 20, 2009, Chichester and MOSA entered into a written employment contract covering the period from January 1, 2005 to August 31, 2009. That contract “retroactively increased Chichester's annual base salary and resulted  in certain lump-sum payments being made to Chichester.* The same day Chichester and MOSA entered into a separate agreement indicating Chichester's intention to resign from his position effective August 31, 2009 and to thereafter retire.

When Chichester submitted his application for service retirement effective September 23, 2009 to the New York State and Local Employees' Retirement System, the System advised him that the retroactive lump-sum payments he received in August 2009 (covering the period from September 1, 2006 to August 31, 2009) would not be included in the calculation of his final average salary for purposes of determining the pension portion of his retirement allowance.

The Retirement System explained that “such payments were not annual compensation but, rather, represented either a form of termination pay or additional compensation paid in anticipation of [Chichester’s] retirement.”

Chichester challenged that administrative decision and following a hearing, the Hearing Officer concluded that the "lump-sum" payments should be included in Chichester’s final average salary. The Comptroller disagreed and excluded such payments from Chichester’s retirement benefit calculation and Chichester filed a petition pursuant to CPLR article 78 challenging the Comptroller’s determination.

The Appellate Division said that its case law makes clear that "the Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld" even if other evidence in the record could support a contrary result.

The Retirement and Social Security Law [RSSL] provides that a member's pension benefit is based upon his or her final average salary, i.e., "the average salary earned by such . . . member during any three consecutive years which provide the highest average salary." However, RSSL §431further provides that to avoid the artificial inflation of that such calculation must exclude "any form of termination pay" or "any additional compensation paid in anticipation of retirement."

The Appellate Division then observed that "In determining what constitutes termination pay or compensation paid in anticipation of retirement, [it] must look to the substance of the transaction and not to what the parties may label it."

Although, noted the court, the arguments advanced by Chichester “arguably militates in favor of a finding that the lump-sum payments at issue indeed were regular salary payments,” the Appellate Division said that it could not overlook the fact that “the underlying employment agreement expired by its own terms as of August 31, 2009 — a mere 11 days after it was signed by [Chichester] and MOSA's chair — and, more to the point, was executed the same day that [Chichester] and MOSA entered into an agreement relative to Chichester's resignation (effective August 31, 2009) and retirement” and, the retroactive salary increases were disproportionate to the salary increases previously enjoyed by Chichester.

Here, said the court, "the timing of [Chichester’s] large raise[s] … had the effect of inflating [Chichester’s] final average salary." Accordingly the Appellate Division ruled that the Comptroller's exclusion of such sums from Chichester‘s final average salary and corresponding retirement benefit calculation was supported by substantial evidence.

* Chichester‘s base salary was increased incrementally from $73,254 as of August 31, 2006 to $115,000 as of August 31, 2009.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05283.htm

Employee’s claim that employer discharged the employee because of his disability rejected where the record showed that employee had falsified his time sheets

Employee’s claim that employer discharged the employee because of his disability rejected where the record showed that employee had falsified his time sheets

2013 NY Slip Op 02689, Appellate Division, First Department

The New York State Division of Human Rights denied a former employee’s allegation the employer had engaged in “disability discrimination” in terminating his employment. 

The Appellate Division dismissed the individual’s Article 78 petition. The court said that the Division’s determination that there was no probable cause to believe that individual was subjected to disability-based discrimination was rationally based.

According to the decision, the record showed that the individual had falsified his time sheets to show that he was working during times when he was absent from the office. Citing Costello v St. Francis Hosp., 258 F Supp 2d 144, 155 [ED NY 2003, the Appellate Division noted that "(a)n employee's falsification of a time sheet can constitute a legitimate, nondiscriminatory reason for terminating an employee."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02689.htm

Personality problem held a valid ground for dismissal under the circumstances

Personality problem held a valid ground for dismissal under the circumstances

112 Misc. 2d 10, reversed, 89 A.D.2d 778 

From time to time it becomes necessary for an employer to attempt to resolve what it views as a chronic personality difficulty with an employee. Is discipline appropriate in such a case?

Yes, according to a decision of the Appellate Division.

The employee had been told on many occasions that his conduct and attitude disrupted and interfered with the work of his subordinates, the teaching staff of the school and the administrative staff of the District.

Eventually charges were brought against the employee pursuant to §75 of the Civil Service Law and he was terminated.

Although Supreme Court ruled that the penalty imposed, dismissal, was excessive because the charges only involved matters of personal relationships with other employees and staff members of the School District, the Appellate Division reversed that holding.

The Appellate Division commented that the penalty did not shock its sense of fair treatment and upheld the dismissal of the employee, explaining that although the employee “had a long record of competent service unblemished except for this continuing personality problem and the incidents ... are relatively minor ... they assume an importance out of all proportion because of the disruptive effect such behavior had on the harmonious operation of the school”.

The decision notes that the principal of the school where the employee served was “required to spend a substantial and inordinate amount of time resolving personnel problems arising because of [the employee’s] attitude and conduct”.