Resolving ties in seniority in the event of a layoff

Resolving ties in seniority in the event of a layoff

Decisions of the Commissioner of Education, Decision 16,584

In this appeal concerning the appointment and preferred eligibility rights involving two teachers of Spanish the Commission reviewed the events leading to their respective appointments and determined that both teachers “had the same amount of full-time service in the foreign language tenure area.”

As to a school board’s resolving “ties” in seniority to determine which of two or more teachers were to be excessed, the Commissioner said that “the board may use an objective means to break the tie in determining seniority.”

In this instance the school board elected to determine which one of the two teachers to retain in service by considering their names in alphabetical order.

The Commissioner concluded that this method was “objective” and ruled that board’s decision to retain the teacher whose last name started with “A” rather than the teacher whose last name started with the letter “G” was not arbitrary and capricious.

Other means of breaking seniority ties in the event of a reduction of staff include: one teacher was "certified” in a second tenure area that “could be beneficial to the district in the future;" it would be "cost effective" to terminate the teacher having the higher rate of compensation consistent with the district's efforts to reduce its expenditures; the date of a school board's resolution appointing the individuals; the date of receipt of the application; the individual’s date of birth; a lottery system.

Although a collective bargaining agreement negotiated pursuant to the Taylor Law [Article 14 of the Civil Service Law] may provide for the determination of certain benefits based on seniority such as shift selection or priority in scheduling vacation,such provisions may not be used to defeat certain rights based on seniority set by law. For example, the rights of an individual in layoff situations in the classified service set out in §§80 and 80-a of the Civil Service Law are based on seniority which rights may not be adversely affected by the terms of a collective bargaining agreement [see City of Plattsburgh v Local 788, 108 AD2d 1045].

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16584.pdf

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An employee in a non-competitive class position designated as confidential or policy-influencing not within the ambit of Civil Service Law §75

An employee in a non-competitive class position designated as confidential or policy-influencing not within the ambit of Civil Service Law §75

2014 NY Slip Op 00659, Appellate Division, Second Department

A former employee [Petitioner] of the New York City Transit Authority [NYCTA] filed an Article 78 action challenging [1] NYCTA terminating him without a formal hearing pursuant to Civil Service Law §75 and [2] rejecting of his request for a lump sum payment for unused leave “based on his election to retire in response to an investigation into certain timekeeping violations which he subsequently was found to have committed.”

Supreme Court, Kings County dismissed the Article 78 proceeding and the Appellate Division affirmed the lower court’s ruling.

Addressing Petitioner’s claim that he was denied due process as a result of NYCTA’s failing to provide him with a pre-termination disciplinary hearing, the Appellate Division explained that NYCTA had demonstrated that Petitioner was an employee to whom the provisions of Civil Service Law §75 did not apply as he was employed in a non-competitive class position that had been designated as confidential or policy-influencing.

§75 applies to certain persons holding permanent appointment in the Classified Service and, in pertinent part, provides that a person holding a position by permanent appointment in the non-competitive class of the classified civil service in “other than a position designated in the rules of the state or municipal civil service commission as confidential or requiring the performance of functions influencing policy….” *

Turning to Petitioner’s claim that NYSTA could not deny his request for a lump sum payment without first affording him a formal disciplinary hearing pursuant to Civil Service Law §75,**the Appellate Division ruled that the Authority’s action “was not improper.”

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division dismissed this branch of Petitioner’s appeal noting that NYCTA's determination denying Petitioner's request for a lump sum payment for his unused vacation credits was in accordance with its established policy and was neither arbitrary and capricious nor so disproportionate to the offense as to be shocking to one's sense of fairness.

* See §75.l[c]

** See 4 NYCRR 23.1, which applies to employees of the State as the employer and provides for payment of leave accruals upon separation. 4 NYCRR 23.1, in pertinent part, provides that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.” Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00659.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 8, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 8, 2014

Click on text highlighted in color to access the full report

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on Tuesday, February 4, 2014, announced his office completed audits of

the Village of Allegany;

the Baldwin Public Library;

the Town of Charleston;

the Comsewogue Public Library;

the Endwell Fire District;

the Lily Dale Volunteer Fire Company;

the Town of Oneonta Fire District; and

the Warsaw Fire Department

DiNapoli: Funds Dedicated for Highway & Bridge Capital Projects Continue to be Diverted for Operating and Debt Costs

Money in the Dedicated Highway and Bridge Trust Fund continues to be diverted for non–capital purposes, leaving critical highway and bridge projects at increased risk as the state faces fiscal challenges and shrinking debt capacity, according to a reportissued on Wednesday, February 5, 2014, by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: ‘Early Warning’ System Finds 15 Villages in Fiscal Stress

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified 15 villages in New York in some level of fiscal stress. DiNapoli’s office evaluated 535 villages with fiscal years ending on May 31, 2013.

DiNapoli: Audit Cites East Clinton Fire District for Improper Gifts

Officials in Dutchess County’s East Clinton Fire District improperly paid nearly $35,000 in personal expenses for members, including rent, cable television and college fees, according to an audit released on Tuesday, February 4, 2014, by State Comptroller Thomas P. DiNapoli. The findings of the Comptroller’s audit and investigation were referred to Dutchess County District Attorney William V. Grady.

DiNapoli, Stringer Lead Investors Calling on Olympic Sponsors to End Their Silence, Defend Russian LGBT Rights

State Comptroller Thomas P. DiNapoli, as trustee of the $160.7 billion New York State Common Retirement Fund, along with New York City Comptroller Scott Stringer and a coalition of 19 investors, on Wednesday, February 5, 2014 released letterswritten to four major corporate sponsors of the upcoming Winter Olympic Games in Sochi, Russia that failed to respond to an earlier request they use their influence to ensure the protection of the human rights of Russian citizens, as well as athletes and visitors to the Olympics.
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State employer entitled to reimbursement by the Workers’ Compensation Board for personal leave credits used by State employee injured on the job

State employer entitled to reimbursement by the Workers’ Compensation Board for personal leave credits used by State employee injured on the job

2014 NY Slip Op 00153, Appellate Division, Third Department

A guard [Guard] at a State psychiatric center [Employer] suffered a work-related injury and his claim for workers' compensation benefits was approved. Guard was awarded benefits for the period July 2 until September 7. During that period Guard received his full salary, which included payment for five days of absence charged to his personal leave credits.

The Employer then requested reimbursement at the workers' compensation benefit rate for the advance payment of compensation* it paid to Guard during his disability, including for the time Guard charged against his personal leave credits. The Workers' Compensation Board ultimately ruled that Employer was not entitled to reimbursement related to Guard's use of personal leave credits and Employer appealed.

Here, said the court, personal leave credits, in contrast to sick leave credits, may not be accrued from year to year or converted into cash or retirement credits. In the opinion of the Appellate Division, Guard’s use of his personal leave time during his absence for disability did not result in a permanent benefit to Employer or a net detriment to Guard as Guard did not surrender "valuable vested rights" in return for the payment of full wages.

Rather, said the court, the denial of reimbursement for Employer’s payments related to personal leave credits would result in Guard receiving both full wages and compensation benefits for the time in question. Such a result is disfavored and requires that Employer be reimbursed for the personnel leave credits used by Guard.

The Appellate Division reversed the Board’s decision and remitted the matter  “to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.”

* Workers' Compensation Law §25(4)(a) provides that, "[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid installment or installments of compensation due." Citing Houda v Niagara Frontier Hockey, 16 AD3d 926, the decision notes that, "[a]n employer can be reimbursed for compensation paid to a claimant even if that compensation was paid in accordance with a contract or a collective bargaining agreement" and reimbursement must be awarded to the employer "unless such reimbursement would achieve a disproportionate result, either to the employer or employee"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00153.htm
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Grounds for vacating the arbitrator’s award

Grounds for vacating the arbitrator’s award

Sheriff Officers Assn., Inc. v Nassau County, 2014 NY Slip Op 00108, Appellate Division, Second Department

The Sheriff Officers Association, Inc., on behalf of one of its members, [Member], filed a grievance with the County on the ground that the County violated the terms of the parties' collective bargaining agreement when it "unilaterally sent Member to an Independent Medical Examiner" and asked him to opine as to whether Member’s medical condition prevented Member from returning to full-time restricted duty.

The County denied the grievance and the Association demanded that the matter be submitted to arbitration.

The arbitrator determined that the County properly directed that Member be examined by the independent medical examiner since Member had, in effect and by her conduct, disputed certain portions of a police surgeon's report relating to her ability to work full time. The arbitrator further determined that the County properly asked the independent medical examiner to opine as to whether Member was capable of working full-time restricted duty, since this issue comprised the parties' dispute.

The arbitrator concluded that the County had not violated the terms of the collective bargaining agreement and upheld the County's denial of the Association's grievance.

The Association then filed a petition pursuant to Article 75 of the CPLR article 75 seeking to vacate the arbitrator's determination on the ground that the arbitrator exceeded his authority in concluding that the County had not violated the terms of the collective bargaining agreement.

Although Supreme Court had concluded that the arbitrator had exceeded his authority, granting the Association's petition and vacated the arbitrator's determination the Appellate Division reversed the lower court’s decision, explaining that "[J]udicial review of arbitration awards is extremely limited" whereby "the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute." Accordingly, said the court, "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached"

Further, the Appellate Division noted that the Court of Appeals has recognized "three narrow grounds that may form the basis for vacating an arbitrator's award: [1] that it violates public policy; [2] that it is irrational, or [3] that it clearly exceeds a specifically enumerated limitation on the arbitrator's power" 

The Appellate Division said that "as relevant here, an arbitrator exceeds his or her power if the award 'g[ives] a completely irrational construction to the provisions in dispute and, in effect, ma[kes] a new contract for the parties.'"

The Appellate Division found that in this instance the arbitrator had not exceed his power in concluding that the County had not violated the terms of the collective bargaining agreement. Under the terms of the collective bargaining agreement,said the court, the arbitrator was permitted to resolve a grievance, which is defined as "any dispute . . . with respect to the meaning, interpretation or application of a provision of [the] Agreement." Thus the arbitrator had the authority to determine whether the County's actions violated the terms of the collective bargaining agreement, and his determination of that issue did not exceed a specifically enumerated limitation on his power.

As to the Association’s argument that the arbitrator misinterpreted the terms of the collective bargaining agreement, the court said that such an argument constituted a challenge to the merits of the arbitrator's determination.

In that regard, finding that the arbitrator's determination was not "completely irrational" the Appellate Division held that the Association’s challenge to the merits of the arbitrator's determination did not provide a ground for vacating that determination.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00108.htm
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