Designation of managerial employees within the meaning of the Taylor Law

Designation of managerial employees within the meaning of the Taylor Law

Matter of Civil Serv. Employees Assn. Inc. Local 1000 AFSCME AFL-CIO v New York State Pub. Empl. Relations Bd., 34 AD3d 884

The Civil Service Employees Association, Inc. [CSEA] sued the Public Employment Relations Board [PERB], challenging a PERB determination designating eight New York State Dormitory Authority [DASNY] employees as managerial within the meaning of Civil Service Law §201(7)(a), the Taylor Law.*

The Appellate Division stated that the scope of its review was limited to determining if PERB’s determination was arbitrary and capricious. It then pointed out that in Lippman v Public Empl. Relations Bd., 263 AD2d 891, it had ruled that courts may defer to PERB's exposition of the terms "management" and "confidential" as they are employed in Civil Service Law §201(7)(a).

A PERB decision clarified the meaning of the phrase "formulated policy."** That ruling indicated that the phrase “formulated policy” must be "sufficiently broad" to include "persons who regularly participate in and influence a process by which the employer makes decisions regarding its mission and the means by which those policy goals and objectives can be best achieved."

The Appellate Division concluded that in this instance PERB's determination designating the eight employees as managerial was neither unreasonable nor arbitrary, noting that all of the job titles at issue were within the Office of Construction, one of the five main divisions headed by managing directors that report directly to the Authority’s executive officers and board.

Consistent with PERB's conclusion that "the organizational structure of DASNY promotes participation in the decision-making process that is more than mere technical advice to single decision-makers," the Appellate Division ruled that although "exclusions for managerial . . . employees are an exception to the Taylor Law's strong policy of extending coverage to all public employees," given the evidence presented PERB's classification of the employees as managerial was neither arbitrary nor capricious.

* Employees designated as either managerial or confidential are excluded from the definition of "public employees" and, as such, are not afforded various benefits provided under the Taylor Law (see Civil Service Law §200 et seq.) with respect to representation for the purposes of collective bargaining. Civil Service Law §201(7)(a) provides: "Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment."

** Matter of Public Empls. Fedn., AFL-CIO v State of New York, 36 PERB ¶ 3029

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_07936.htm

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Audits of public entities recently issued by New York State's Comptroller Thomas P. DiNapoli

Audits of public entities recently issued by New York State's Comptroller Thomas P. DiNapoli

The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.] 

Town of Alexandria – Non-Payroll Cash Disbursements and Fuel Inventory (Jefferson County)
The town’s non-payroll cash disbursements were not always properly authorized, adequately supported or in compliance with statutory requirements. The former supervisor improperly paid 20 claims totaling $19,919 without the audit and approval of the board. Auditors also found internal controls over fuel inventories need to be improved. Records show from June 2011 through December 2011 nearly 4,500 gallons of fuel valued at about $14,600 were not accounted for.

Village of Bolivar – Financial Condition of Water and Sewer Funds (Allegany County)
The village board has not adequately monitored the financial condition of the water and sewer funds. The water and sewer funds do not presently have sufficient resources to repay interfund loans owed to the village general fund without affecting their operations. This lack of available funds resulted from village officials not monitoring and adjusting water and sewer rates to ensure resources were adequate to repay the loans.

Town of Coldspring – Town Clerk Operations (Cattaraugus County)
The town clerk did not issue press-numbered duplicate receipts for cash collected, accurately record all transactions, remit moneys due to the town supervisor and other entities in a timely manner, or deposit cash receipts intact or in a timely manner. Auditors found a shortage in the clerk’s account totaling $1,400 which is primarily due to money owed to the town supervisor, unrecorded checks, and unpaid liabilities.

City of Glens Falls – Financial Condition (Warren County)
The city council adopts realistic budgets, and along with the mayor and city controller, continually monitors the budgets throughout the year and will initiate and approve any necessary budget amendments.  Although the city is not considered to be in fiscal stress at this time, low levels of unexpended surplus funds in the general fund and declining balances in the water and sewer funds are concerning. City officials indicate they are carefully monitoring the funds.

Grahamsville Fire District – Internal Controls Over Financial Operations (Sullivan County)
The district board has not properly developed annual budgets. From 2009 through 2011, actual expenditures exceeded budget estimates each year by an average of 22 percent. In addition, the district has not formally established reserve funds and has not adopted formal policies on how they are to be funded and how they will be used.

Town of Kendall – Justice Court (Orleans County)
Auditors found significant control deficiencies with the justice court’s operations. Justices did not ensure that all court fines, fees, and surcharges were properly accounted for. Although monthly reports were submitted to the justice court fund in a timely manner, they were not always complete and accurate. Further, the justices did not ensure that cases were properly reported to the state Department of Motor Vehicles.

Mastic-Moriches-Shirley Community Library – Claims Processing (Suffolk County)
Library officials have established adequate controls over the claims processing function that allow claims to be audited in a timely manner and ensure the claims are properly supported. The account clerk and/or director reviews invoices for department head approvals before printing checks and a schedule of claims to present to the board, which then audits the claims before signing the checks. Finally, the claims auditor performs a post-audit of the claims paid.

Roosevelt Fire District – Financial Operations and Information Technology (Nassau County)
The district board needs to improve its oversight of financial operations. Auditors found the treasurer submits monthly financial reports to the board that contain incomplete information, and the district’s financial records have not been audited by an independent public accountant since the 2010 fiscal year. In addition, internal controls over information technology are not appropriately designed or operating effectively.

Schuyler County Sheriff’s Department – Payroll, Civil Fees and Bail (2013M-120)
The county entered into an improper contract for security services with Watkins Glen International (WGI), a private entity. Over the last two years, the county has paid 351 individuals $233,840 for providing law enforcement services to WGI in connection with events at the Watkins Glen racetrack.  In these cases, the county improperly pays these individuals as if they were independent contractors by check based on completed vouchers and issues them an IRS 1099 form at the end of the year.  As a result, no taxes are reported or withheld, and no information is reported to the state retirement systems.

Steuben County Soil and Water Conservation District – Internal Controls Over Cash Receipts and Disbursements (2013M-97)
The conservation district board has not adopted policies and procedures for cash receipts and disbursements to ensure that cash is properly safeguarded. Auditors found 116 receipts totaling $47,443 were not deposited on a timely basis, 14 disbursements totaling $23,943 never appeared on a warrant for board approval, and 151 disbursements totaling $532,322 cleared the bank prior to the board’s audit and approval for payment.

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Authority to designate a hearing officer to conduct a Civil Service Law §75 disciplinary hearing

Authority to designate a hearing officer to conduct a Civil Service Law §75 disciplinary hearing 

34 AD3d 814

An individual [Employee] was served with disciplinary charges pursuant to §75 of the Civil Service Law. He was dismissed from his employment after being found guilty of charges of misconduct and insubordination.

Employee sued, contending that the designation of the §75 hearing officer was not made by an officer or body having the power to remove him from his position as required by Civil Service Law §75(2). Consequently, he contended, the report of the hearing officer was a nullity and the determination based upon it was arbitrary. The Appellate Division agreed. It granted Employee's petition and annulled his dismissal.

The court pointed out that in the absence of a specific designation of the body or individual vested with the power to remove an individual from his or her position," the power to remove is a function of the power to appoint."

Employee argued that here the body with the power to remove him, i.e., the appointing authority, was the Board of Education and not the school superintendent. In this instance the hearing officer had been designated by the superintendent rather than the board as mandated by §75(2).

The Appellate Division concluded that on the basis of the record before it, “the designation of the hearing officer was not by an officer or body having the power to remove [Employee] as required by Civil Service Law §75(2).” Accordingly, the report of the hearing officer was a nullity and the determination based upon it arbitrary.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08989.htm
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Probationer has the burden of proving his or her termination resulted from his or her engaging in a protected union activity

Probationer has the burden of proving his or her termination resulted from his or her engaging in a protected union activity

34 AD3d 484

It is well settled that as a probationary employee, an individual could be terminated for any reason, as long as the termination was not made in bad faith, was not for a constitutionally impermissible reason, or was not in violation of statutory or decisional law.

The petitioner in this appeal was dismissed from his position with a New York City department before completing his probationary period. He challenged his termination, contending he was dismissed “in retaliation for his filing of a union grievance.” If true, this would constitute an impermissible reason for terminating an individual during his or her probationary period.

However, the individual has the burden of proving (a) that he or she was engaged in protected union activity, (b) that the appointing authority had knowledge of the activity, and (c) that he or she would not have been discharged from employment but for the activity.

The Supreme Court determined that the petitioner in this action established a prima facie case of improper motivation, thereby shifting “the burden of persuasion” to the appointing authority to establish that its actions were motivated by a legitimate business reason. Supreme Court ultimately found that the appointing authority failed to meet this burden.

The Appellate Division agreed with the tests applied by the Supreme Court in making its ruling. It affirmed the Supreme Court’s finding that the appointing authority had failed to meet its “burden of persuasion” and ruled that Supreme Court properly annulled the appointing authority's decision to terminate the petitioner.

In addition, the Appellate Division affirmed Supreme Court’s order directing the reinstatement of the petitioner to his former  position with the agency, with full back pay and benefits.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2006/2006_08135.htm

Appointing authority's reliance on the findings of the disciplinary hearing officer

Appointing authority's reliance on the findings of the disciplinary hearing officer

34 AD3d 1219

The petitioner challenged the decision of the School Board to terminate his employment with the school district, contending that the Board’s action was arbitrary and capricious because it did not set out the factual reasons for its action.

The President of the Board, however, had submitted an affidavit to the court indicating that the Board, after reviewing the findings and recommendations of the hearing officer, had adopted both the hearing officers's findings as to guilty and the penalty recommended by the hearing officer.

The Appellate Division said that since the petitioner failed to produce any evidence that the Board (1) failed to make an independent appraisal of the evidence and (2) failed to reach independent conclusion, it “declined to disturb the Board's determination, ” under the circumstances, the Board was entitled to rely on and adopt the findings of fact and the recommendation of the Hearing Officer who conducted petitioner’s hearing pursuant to §75 of the Civil Service Law.

The court then dismissed the petitioner’s appeal, rejecting his claim that that [1] the Hearing Officer's findings of fact and recommendations were not based on substantial evidence and [2] imposing the penalty of termination was shocking to one's sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_08383.htm

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