Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances

Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances

2014 NY Slip Op 04252, Appellate Division, First Department

The Appellate Division, finding that the disciplinary determinations were supported by substantial evidence and the penalty imposed by the appointing authority, termination of employment, did not shock its sense of fairness, dismissed the appeal of the petitioner.

The court said that the record demonstrated that in addition to the petitioner's misconduct in purchasing cocaine while on duty, he had, on two separate occasions, carried out his job responsibilities in a manner that involved health and safety risks, and that, in fact, resulted in actual physical injury to others.

Although the petitioner “had an otherwise unblemished work history” the Appellate Division indicated that this did not constitute “mitigation” sufficient to warrant a different determination.

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Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement

Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement

Non-instruction Adm'rs & Supervisors Retirees Assn. v School Dist. of City of Niagara Falls, 2014 NY Slip Op 04299, Appellate Division, Fourth Department

18 retired employees of School District of City of Niagara Falls (District), and their retirees association commenced a breach of contract/declaratory judgment action seeking a declaration that the individual retirees are entitled to the health insurance benefits provided in the collective bargaining agreement (CBA) in effect at the time each individual retired.

Supreme Court granted the District's motion to dismiss the complaint and the retirees appealed. The Appellate Division modified the Supreme Court’s ruling in part, declaring that the individual retirees are not entitled to the health insurance coverage provided in the CBA in effect at the time each individual retired.

The Appellate Division agreed with the District that the language in the CBAs at issue is clear and unambiguous and thus that extrinsic evidence may not be considered.

The contract provision at issue stated: The District "shall assume the full cost of health insurance coverage and major medical . . . for each employee in the negotiating unit covered by this Agreement lawfully retiring in the future." The CBAs further state that "[t]he coverage so provided shall be the same type that the employee would have had if he/she had continued employment.When the retiree reaches his/her sixty-fifth (65th) birthday and qualifies for Medicare . . . , the type of health insurance and major medical coverage shall be changed to cover his/her new circumstances" (emphasis by the court).

The retirees contended that this provision provided that retirees are "entitled to the benefits they received at the time they each retired" (emphasis added by the court). Such an interpretation, said the court, “contravenes the plain meaning of the contractual language.”

The Appellate Division concluded that the plain meaning of the language set out in the collective bargaining agreement is that, upon retirement, a retiree will receive health insurance coverage of the same type received by active employees at that point in time. Thus, if health insurance for active employees changes over the years based on rising health care costs and successive collective bargaining agreements, the health insurance provided to retirees also will change because the health insurance of the retirees would be subject to the same changes if they had continued employment.

The Appellate Division explained that “Rather than fixing retiree coverage as of the date of retirement, the use of the word "would," a conditional verb indicating the consequence of an imagined or theoretical event or situation, expressly contemplates that the coverage provided to retirees will mirror the coverage provided to active employees.”

A retiree of the District is therefore entitled to the type of health insurance that he or she would have had if the retiree had never left the District's employ, i.e., the health insurance coverage negotiated by the active employees and the District at any given point in time 

As the retirees conceded that the individual retirees receive the same health insurance coverage as active employee, the Appellate Division concluded that they were receiving the health care benefits to which they were contractually entitled.
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New York State Comptroller Thomas P. DiNapoli announced today that his office has identified more than $5 million in unclaimed funds for local governments across the state.

New York State Comptroller Thomas P. DiNapoli announced today that his office has identified more than $5 million in unclaimed funds for local governments across the state.

Source: NEWS From the Office of the New York State Comptroller Thomas P. DiNapoli

Posted June 18, 2014.

After reaching out and alerting officials from counties, cities, towns and villages of this lost money, DiNapoli’s office has returned more than $1.5 million so far. DiNapoli’s office oversees the state’s 31 million unclaimed funds accounts, valued at more than $13 billion.

“Every dollar owed to local governments should be collected and put to good use to help provide essential services for New Yorkers and to relieve the burden on taxpayers around the state,” DiNapoli said. “My office has returned more than $1.5 million in unclaimed funds to local governments in the last few weeks, but $3.5 million is still waiting to be claimed. I encourage local government officials to work with my office so that we can return the money as soon as possible.”

DiNapoli’s office identified nearly 10,000 unclaimed funds accounts valued at $5,023,246 by matching the names of 1,600 local governments against the state’s unclaimed funds database. The search found 6,592 accounts valued at $3.8 million owed to counties (including New York City’s five boroughs), 800 accounts valued at $317,232 owed to cities, 1,552 accounts valued at $636,232 owed to towns and 798 accounts valued at $262,908 owed to villages. 

Representatives from DiNapoli’s office sent letters to financial officers of local governments that appear in the unclaimed funds database and asked them to confirm ownership in order to process the claims and return the money. Ownership is verified by demonstrating a connection to the address or the account associated with the funds. 

Click hereto view a chart showing the number of outstanding accounts in the name of local governments, and the values, by region.

It often requires a bit of imagination to find an entity as the names reported in Comptroller's listing may differ substantially from the agency's or organization's "official name" as the example for “Board of Education” listed 23 jurisdictions while Bd of Ed listed 13 districts and high school listed 29 names.

Using generic names such as the following produced the number of  "hits" indicated:

County of                    108

County Clerk             81

Town of                       411

Town Clerk                 2

Village of                    165

Village Clerk              1

Police Dept                 4

SUNY                          187

BOCES                       31

Central School             8

CSD                            13

Union Free School      5

Employee organizations reported by the Comptroller include the following

Faculty Asso               3

CSEA Local                6

PEF                        6

State and local governments and other organizations can search the Comptroller's site via the “Search for Organization” link on the Office of Unclaimed Funds’ website or by calling the call center toll-free at 1-800-221-9311.

Alternative disciplinary procedures

Alternative disciplinary procedures

2014 NY Slip Op 04293, Appellate Division, Fourth Department, Motion for leave to appeal granted, Motion No: 2013-804, 2013 NY Slip Op 88892. 

A tenured teacher [Teacher] filed a petition in Supreme Court pursuant to CPLR Article 78 seeking a court order annulling two disciplinary actions taken against her by the school district that resulted in her being suspended without pay for two days with respect to one disciplinary action and suspended for five days without pay for the other.

The Appellate Division held that Supreme Court erred in denying Teacher’s petition to annul the school district's actions, explaining that Teacher “was entitled to choose whether to be disciplined under the procedures set forth in the [collective bargaining agreement] or those set forth in [Education Law §] 3020-a," as the school district incorrectly denied Teacher's written request for a §3020-a hearing," citing it’s earlier ruling in Kilduff v Rochester City School District, 107 AD3d 1536.

This will not be the first time that the Court of Appeals will be asked to address the issue of an employee choosing between alternatives disciplinary procedures. In Antinore v State, 40 NY2d 6, the Court sustained a ruling by the Appellate Division* holding that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure as long as the alternate disciplinary procedure provided administrative due process protections at least equivalent to those provided by the statutory procedure.

The initial collective bargaining agreements negotiated by the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA, provided that an individual in the negotiating unit served with administrative disciplinary charges could elect either the “contract disciplinary procedure,” whereby the charges would be heard by an arbitrator, or, in the alternative, elect to have the matter considered pursuant to the relevant statutory disciplinary procedure, in this instance Civil Service Law §75.

The issue in Antinore: Antinore initially elected the contract disciplinary procedure and when he was found guilty by the arbitrator, claimed that he was now entitled to administrative due process which required that he now be given another disciplinary hearing pursuant to Civil Service Law §75. The Appellate Division rejected Antinore’s theory, which decision was sustained by the Court of Appeals, holding that if the negotiated alternative to the §75 disciplinary procedure afforded the accused individual the at least equivalent administrative due process, his or her Constitutional right to due process was satisfied.

* Donald Antinore v. State New York et al, 49 A.D.2d 6.

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Notices required to be given to probationary employees

Notices required to be given to probationary employees

A NYPPL reader asks: “Is there a requirement (law or rule) that requires a specific action on part of the Appointing Authority to notify a recently promoted employee he/she completed or failed to complete a probationary period?”

NYPPL’s response: Yes and no, depending on the circumstances.

As to the notice that the appointing authority is required to give to a probationary employee, Subdivision 2 of §63 of the Civil Service Law, Probation, provides as follows: “The state civil service commission and municipal civil service commissions shall, subject to the provisions of this section, provide by rule for the conditions and extent of probationary service.” These rules typically set out the “notice requirements” to be provided to probationary employees by the appointing authority.

With respect to employees of the State as the employer and employees of public entities for which the New York State Department of Civil Service administers the Civil Service Law, 4 NYCRR 5.3(b)(5)(i) provides: “(5)(i) An appointment, promotion or transfer shall become permanent upon the retention of the probationer after his or her completion of the maximum period of service or upon earlier written notice following completion of the minimum period that his or her probationary term is successfully completed or, in the case of a transferee, upon written notice that the appointing authority has elected to waive the serving of the probationary term.”

Clearly written notice that the probationary employee has attained tenure in the position is required only in the event the appointing authority elects to grant the probationer tenure after he or she has completed the minimum period of probation and prior to his or her completion of the maximum period of probation for the position or the appointing authority elects to waive the probationary period for a “transferee.

Requiring such a writing to validate an appointing authority's exercising its discretion to waive or truncate an employee's probationary period avoids the situation considered by the court in Snyder v Civil Service Commission, 72 NY2d 981, a case involving a temporary appointee's claim to contingent permanent appointment status pursuant to Civil Service Law Section 64.4. The court ruled that an individual must specifically appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority. A writing would clearly demonstrate such an action on the part of the appointing authority.


In any event, it is good personnel practice to notify the probationary employee that he or she has successfully completed his or her probationary period even if not so required by rule or regulation.

With respect to employees of the State as the employer and employees of public entities for which the New York State Department of Civil Service administers the Civil Service Law, 4 NYCRR 5.3(b)(5)(iii) in relevant part provides: (iii) “A probationer whose services are to be terminated for unsatisfactory service shall receive written notice at least one week prior to such termination and, upon request, shall be granted an interview with the appointing authority or his representative” [emphasis supplied]. Municipal Civil Service Commissions and Personnel Officers have adopted similar rules or regulations.*

In the event a probationary employee is continued in the position beyond the maximum period of his or her probation and is not given timely notice that he or she has not satisfactorily completed the required probationary period, or that his or her probationary period has been extended as permitted by rule or regulation, he or she is deemed attained tenure by estoppel,** also referred to as “tenure by acquisition.” In the event the appointing authority wishes to terminate the services or otherwise discipline an employee who has attained tenure by estoppel or acquisition, the employee is entitled to administrative due process, including notice and hearing, as provided by §75 of the Civil Service Law or the disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, the “Taylor Law.”

What constitutes “timely notice” that the individual has failed to satisfactorily complete his or her probationary employee? The required notice of the termination is to be delivered to the employee before close of business on the last day permitted by the controlling rule or regulation even if the employee's actual removal from the payroll may be effective after this date. In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that as long as the termination of a probationer in the classified service is effected within a reasonable time after the last day of his or her probationary period, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel or acquisition because of his or her continuation on the payroll beyond the last day of his or her probationary period.

On occasion the date of appointment to the position becomes a critical issue. Such was the case in Mallon v Parness, 167 A.D.2d 614. “Mallon contended that he had been promoted to Sergeant, subject to a twenty-six week probationary period, effective July 18, 1988. He claimed that he thus completed his probationary period on January 18, 1989. He offered an affidavit from the former Mayor of Suffern supporting his claim of appointment effective July 18. The employer, on the other hand, submitted documentary evidence showing that Mallon had been promoted to the Sergeant position effective October 26, 1988 in support of its claim that he had not yet completed his probationary period when he was terminated from the Sergeant position. To further complicate the matter, the records of the Rockland County Personnel Office indicated that Mallon was appointed Sergeant effective June 1, 1988.***The Appellate Division remanded the matter to Supreme Court for its determination as to which was the “official” effective date of Mallon’s promotion to Sergeant.

* In Vetter v Board of Educ., Ravena-Coeymans-Selkirk Cent. School Dist., 14 NY3d 729, the Court of Appeals observed that Education Law §3019-a requires school authorities to give probationary teachers written notice of termination at least 30 days before the effective date of termination.

** See, for example, Wamsley v East Ramapo Central School District, 281 A.D.2d 633.

*** In the event there is a conflict as to the effective date of appointment to a position in the Classified Service, typically the date of such appointment recorded in the records of the Civil Service Commission, Department or Personnel Officer having jurisdiction would control.

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