New York State Offers New Exam For State Employment Opportunities

New York State Offers New Exam For State Employment Opportunities Source: New York State Department of Civil Service

New York State’s Department of Civil Service has announced a new examination program for job seekers with Bachelor’s degrees.  The examination will be used to fill over one hundred entry-level professional titles in a range of disciplines.  College seniors expecting to earn a Bachelor’s degree by September 1, 2014 are also encouraged to apply. The PCO exam qualifies job seekers for general administrative titles.  Job seekers can further establish their eligibility for select titles in areas such as health and human services, environmental conservation, science and finance by identifying concentrations of study or experience. “The new application and questionnaire process expedites establishing minimum qualifications for a significant number of State employment opportunities,” said Civil Service Commissioner Jerry Boone.  “We have eliminated the need for numerous specific exams by creating one test that will qualify candidates for a host of general positions.  Candidates may also qualify for more specialized positions based on individual educational or work experience.” After applying on-line, qualified job seekers will be scheduled to take the written PCO exam on either March 22nd or 23rd 2014.  Applications must be entered on-line by Wednesday, February 5th.  An application fee of $35 is required.   To view the introductory video, questionnaire and application, visit www.cs.ny.gov and click on “Check out Professional Career Opportunities.”

The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy

The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy

Pines, et. al. v State of New York, 2014 NY Slip Op 00335, Appellate Division, Second Department

In deciding an action initiated by Emily Pines and other judges, Supreme Court that held that “the compensation of judges and justices of the Unified Court System of the State of New York was duly increased pursuant to the Laws of 2009, Chapter 51, §3, and that the [State] is obligated to pay the judges and justices of the Unified Court System of the State of New York in accordance therewith retroactive to April 1, 2009."

After conceding that “more than a decade had passed since the plaintiffs and their colleagues in the New York State judiciary had received a pay raise authorized by the Legislature,” and setting out the relevant history leading to Pines’ initiating this litigation, the Appellate Division recognized that “members of this Court have a pecuniary interest in this case and will be affected by the outcome of this appeal.”

The court then explained that "The participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions" and “in order to ensure the dignity of the judiciary and maintain the integrity of the administration of justice, [o]rdinarily, when a judge has an interest in litigation, recusal is warranted."

That said, the Appellate Division noted that "[t]he Rule of Necessity provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard." 

Here, said the court, "the self-interest implicated by the issues raised on appeal would provide grounds for disqualifying not only the justices of this Court, but any other judicial body which might replace it." As “the recusal of the members of this Court, and those of every other court in the Unified Court System, would leave the plaintiffs without a legal remedy, the ‘Rule of Necessity’ compels us to decide this appeal on the merits, notwithstanding our personal stake in the litigation.”

The Appellate Division then explained that, notwithstanding Supreme Court's conclusion to the contrary, “there is no language in the statute that adjusts the salary schedules of the various judges and justices of this state. As in prior years, the plain language of the statute merely directs that a certain sum necessary for adjusting judicial compensation be set aside—what has previously been recognized as a ‘dry appropriation.'"

Rejecting Pines’ position is that the statute must have adjusted the rates of judicial compensation because it referenced the purpose of the appropriation, the court concluded that this argument is not actually based on the plain language of the statute but rather “rests on an inference drawn from a reference to the appropriation's purpose.” In the words of the Appellate Division, … the plaintiffs' plain language argument would require us to interpret the statute in a manner that would render it unconstitutional.”

Further, the court noted that in deciding this appeal under the "Rule of Necessity," it is  “constrained to discern and apply the will of the elected members of the Legislature and not our own perceptions of what might be equitable,” quoting Alexander Hamilton writing in The Federalist, "[i]t can be of no weight to say that the courts . . . may substitute their own pleasure to the constitutional intentions of the legislature" (Hamilton, Federalist No. 78).”

Without addressing “the wisdom of the Legislature's decision or the manner in which it was carried out,” the Appellate Division concluded that the Legislature did not adjust judicial compensation through the enactment of the Laws of 2009, Chapter 51, §3” and reversed the Supreme Court’s ruling “on the law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00335.htm
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Returning to work following a voluntary absence due to illness or disability

Returning to work following a voluntary absence due to illness or disability

Source: New York State Department Of Civil Service, State Personnel Management Manual, Advisory Memorandum #14-01 dated January 22, 2014

Mark F. Worden, Associate Attorney, New York State Department of Civil Service, has distributed a memorandum, Advisory Memorandum #14-01, addressing “Return to Work Evaluations and Civil Service Law Section 72 Due Process Procedures.”

Mr. Worden explains that the New York State Court of Appeals decided two cases, Sheeran v. New York State Department of Transportation* and Birnbaum v. New York State Department of Labor (18 NY3d 61) in which it ruled that the procedural safeguards set out in Civil Service Law (CSL) §72 apply when an employee who is voluntarily on leave due to personal illness or a disability that is not work-related within the meaning of the Workers’ Compensation Law is prevented from returning to work by the appointing authority. Such a refusal to allow the employee to return to work converts his or her  voluntary leave into an involuntary leave. Accordingly, the appointing authority is then required to follow the procedures set out in CSL §72.1 or CSL §72.5, as the case may be, with respect to such an employee..

N.B. The Memorandum cautions that "It is essential that any employee denied a return to duty pending a hearing be provided with written notice that such action is being taken pursuant to CSL §72(5) and notified of the reasons for such action."

Mr. Worden also advises that “… all appointing authorities must review their return to work procedures to ensure that they are consistent with these Court of Appeals decisions” and follow the guidelines set out in Advisory Memorandum #14-01**

Although Mr. Worden’s memorandum is addressed to State Department and Agency “Personnel and Human Resources Directors,” and Sheeran and Birnbaum were employed by State Departments at the time they voluntarily placed themselves on leave, it is instructive to appointing authorities of political subdivisions of the State as well.

* NYPPL’s summary of the Sheeran and Birnbaum decisions is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/2011/11/procedural-safeguards-set-out-in-civil.html

** Mr. Worden’s  memorandum Advisory Memorandum # 14-01 is posted on the Internet at: http://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Advisory%20Memo%2014-01.htm

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Recent decisions reported by the New York City Office of Administrative Trials and Hearings

Recent decisions reported by the New York City Office of Administrative Trials and Hearings [OATH]

Issued during January 2014 [Click on text highlighted in color to access the text of the decision.]

OATH Administrative Law Judges making findings of fact and recommendations as to the disposition of the matter.

 

Correction officer was arrested as a result of a drug bust operation. After criminal charges against the officer were dismissed, Department of Correction (DOC) brought a disciplinary proceeding against the officer accusing him of knowingly driving a family friend to a drug transaction and subsequently possessing cocaine in his car. ALJ Kevin F. Casey found that DOC failed to prove that the officer knew he was driving a family friend to purchase drugs or that the officer knowingly possessed the drugs later found in his car. ALJ Casey recommended the dismissal of the charge.

OATH Index No. 265/14 [Comm’r Decision - pending] http://archive.citylaw.org/oath/13_Cases/14-265.pdf

Correction officer admitted to using excessive force by stomping on an inmate's head after the inmate had been subdued with his face to the floor and his hands cuffed behind his back. Respondent's actions caused the inmate to sustain lacerations to his chin and loss of a front tooth. As mitigation, respondent asserted that on his way to work, he learned that his best friend had been murdered, and that this news upset his equilibrium. Finding that neither disruptive behavior by the subdued inmate nor the murder of respondent's friend, if true, was mitigation for respondent's conduct, ALJ Ingrid M. Addison recommended termination of his employment.

OATH Index No. 156/14, Comm'r Decision - adopted, http://archive.citylaw.org/oath/13_Cases/14-156.pdf

The Department of Environmental Protection brought disciplinary charges against a project manager for working longer than his 7-hour shift, reporting late to a storehouse, and falsely stating that he made a vehicle damage report. ALJ John B. Spooner found that respondent worked longer than a 7-hour day and recommended a one-day suspension. ALJ Spooner dismissed the other charges, noting that petitioner’s counsel displayed some animus toward respondent and his efforts to defend himself. ALJ Spooner noted that discipline of one of respondent's witnesses for appearing early at the tribunal on the day of her testimony was “extraordinary” and may have been intended to punish the witness or to discourage her from testifying.

OATH Index No. 181/14, Comm’r Decision - rejected in part, (adopting sustained charge, rejecting dismissal of other charges, and increasing penalty to 30-day suspension without pay). http://archive.citylaw.org/oath/14_Cases/14-181.pdf
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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 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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Apportioning liability for workers’ compensation benefits among the claimant’s various employers

Apportioning liability for workers’ compensation benefits among the claimant’s various employers
2013 NY Slip Op 07244, Appellate Division, Third Department

In some situations it becomes necessary for the Workers’ Compensation Board to consider the issue of apportionment of liability among a claimant's prior employers in accordance with Workers' Compensation Law §44.*.

The employee [Employee] began working for the Town in 2002. Prior to that, she had performed secretarial services for various employers, since 1966. In 2004 Employee sought medical treatment, complaining of pain in her hands and a weak grip, and she was diagnosed with carpal tunnel syndrome.

In 2007, Employee filed a claim for workers' compensation benefits. Her claim was initially established as an occupational disease of the left wrist, with a date of disablement of October 1, 2007 and was subsequently amended to include bilateral elbows and right carpal tunnel syndrome.

Employee was awarded a 25% schedule loss of use of the left hand in 2010 and the Town workers' compensation carrier sought apportionment of responsibility for liability of the claim with claimant's two most recent prior employers, covering the years between 1987 and 2002.

A Workers' Compensation Law Judge denied the carrier's request, finding no medical evidence that Employee had contracted her condition during her prior employment, and the Workers' Compensation Board affirmed upon administrative review. The Town and its carrier appealed.

The Appellate Division sustained the Board ruling, explaining that "In determining whether a claim should be apportioned between previous employers in the same field, the relevant focus is whether the claimant 'contracted an occupational disease while employed by that employer.'"

In support of the Board’s determination, the court said that Employee had testified that she had experienced some symptoms of pain in her wrists during her previous employments. but did not seek or receive medical treatment for her condition until 2004. Although an independent medical examiner opined that "there appears to be a cause for apportionment" and recommended that the claim should be apportioned 75% to the Town and 25% to Employee's previous employers, the medical examiner [1] “did not opine as to when [Employee] contracted her condition” and [2] “offered no objective medical proof in support of his findings.”

* §44. Liability of employer. The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease, except silicosis or other dust disease and compressed air illness or its sequelae [sic - any abnormal condition that follows], was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section, may appeal to the board for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employee was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation. If the board finds that any portion of such compensation is payable by an employer prior to the employer who is made liable for the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07244.htm