Abolishing a position in the public service and the Doctrine of Legislative Equivalency

Abolishing a position in the public service and the Doctrine of Legislative Equivalency

Colabella v Town of Eastchester, 2015 NY Slip Op 07656, Appellate Division, Second Department

Citing Wipfler v Klebes, 284 NY 248, the Appellate Division said that “a public employer may abolish a civil service position when the ‘discontinuance of the position would promote efficiency and economy,’ provided that the employer acts in good faith.”*

In contrast, a public employer may not abolish a position as a subterfuge to avoid statutory or contractual protection afforded civil servants before they are discharged. However, in the event a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law.

In this action the petitioner, Antonietta Colabellachallenged a determination of the Town Board of the Town of Eastchester [Town] abolishing her full-time civil service position as a parking enforcement officer. It was undisputed that in 2011 the Town appointed four new part-time parking enforcement officers. The decisions states that these part-time employees, presumably appointed to positions jurisdictionally classified as positions in the noncompetitive class, were not represented by an employee organization. Colabella’sposition was abolished on January 1, 2012.

The Appellate Division said that “it is undisputed that four new part-time parking enforcement officers were hired in 2011; one of those employees was hired in October 2011” only a month before Colabellawas informed that her position would likely be abolished. 

The decision indicates that the Town failed to submit any evidence as to whether the decision to abolish Colabella’s position was made by Town Board resolution, or by some other means.

Applying the Doctrine of Legislative Equivalency, the Appellate Division said that a  position "created by a legislative act can only be abolished by a correlative legislative act," citing Torre v County of Nassau, 86 NY2d 421. In this instance the court found that the record did not indicate the specific mechanism by which Colabella’s position was abolished and while the Town submitted some evidence showing that it undertook various cost-cutting measures in connection with its 2012 budget, “the record contains no evidence as to any legislative or other deliberations underlying the determination at issue here” -- the abolishment of the position encumbered by Colabells.

Under these circumstances, the Appellate Division held that [1] the evidence raised issues of fact warranting a hearing as to whether Colabella’s position was abolished in a bad faith effort to circumvent the Civil Service Law, and [2] whether her position was abolished in conformity with the Doctrine of Legislative Equivalency."

On another point, the Town contended that Colabella could not “properly raise claims regarding alleged violations of the Taylor Law or as to certain job classification determinations made by the Westchester County Department of Human Resources.” However, said the court, Colabella did not make any such claims in her petition and thus "was not required to exhaust administrative remedies prior to bringing this proceeding, as this case does not involve a matter within the scope of the grievance provisions of the applicable collective bargaining agreement.”

* The Attorney General has opined that there must be an actual abolishment of the position in question in contrast to merely “creating a vacancy as the result of a layoff” in order to trigger the relevant statutory layoff procedures [1976 Opinions of the Attorney General 7].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07656.htm

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After recommending the termination of the employee the Hearing Officer urges the appointing authority to consider imposing a penalty less drastic than termination

After recommending the termination of the employee the Hearing Officer urges the appointing authority to consider imposing a penalty less drastic than termination

Department of Sanitation v Anonymous, OATH Index No. 1853/15

A New York City sanitation worker admitted that he refused to submit to a drug test. As The worker had tested positive in 2003 and again in 2004, but did not violate the policy again until 2014.  However, as this was the worker's third violation, the Department asked that the penalty to be imposed be termination from service.

At the penalty hearing, the individual testified and presented testimony from a supervisor and the director of the Employment Assistance Unit [EAU]. Significantly, the director of EAU recommended that the worker remain with the Department under EAU observation, given the long gap between the second and third violations.

Although OATH Administrative Law Judge Faye Lewis recommended termination of employment, she urged the Department to agree to a less drastic penalty requiring drug and alcohol testing for the rest of the worker's career, explaining that she had found the sanitation worker's testimony to be sincere and the opinion of the EAU head to be worthy of considerable weight.

In the words of the ALJ, “… the charge is sustained. Considering the options available under the Administrative Code, I recommend termination of respondent’s employment. However, based upon the mitigating evidence presented at trial, I urge the Department to consider an alternative penalty involving a period of suspension, substance abuse testing for the duration of respondent’s employment with the Department, compliance with EAU treatment referrals, and any other conditions the Department feels are appropriate.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1853.pdf

Long impasse in collective bargaining could result in a challenge to the Taylor Law

Long impasse in collective bargaining could result in a challenge to the Taylor Law

Source: Buffalo News article

An item in the Buffalo News notes that the impasse in collective bargaining negotiations between the City of Buffalo school district and the Buffalo Teachers Federation since 2004 could result in challenges to the Taylor Law.

The item is posted on the Internet at:

http://www.buffalonews.com/apps/pbcs.dll/article?avis=BN&date=20151020&category=CITYANDREGION&lopenr=151029947&Ref=AR&profile=1414

Absence of any reference to the benefit claimed in the collective bargaining agreement defeats the employee organization's breach of contract allegation

Absence of any reference to the benefit claimed in the collective bargaining agreement defeats the employee organization's breach of contract allegation
Westchester County Corr. Superior Officers Assn. v County of Westchester, 2015 NY Slip Op 07262, Appellate Division, Second Department

The Westchester County Correction Superior Officers Association, together with several individually named retired correction officers, sued Westchester County seeking to recover damages for an alleged breach of the relevant collective bargaining agreement [CBA]. Supreme Court dismissed the Association’s complaint and the Association appealed.

The Association alleged the County had breached the CBA when failed to pay the individually named correction officers benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to a permanent disability.

Citing Westchester County Correction Officers Benevolent Association, 99 AD3 998, the Appellate Division ruled that Supreme Court had properly granted Westchester’s motion for summary judgment dismissing the complaint, explaining that the County had demonstrated, prima facie, that “there is no provision in the CBA requiring [the County] to pay benefits equivalent to those paid pursuant to the Workers' Compensation Law for loss of earning capacity due to permanent disability.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07262.htm

Disclosing information that a "whistle-blower believes constitutes an improper governmental action

Disclosing information that a "whistle-blower believes constitutes an improper governmental action

Gaffney v Addison, 2015 NY Slip Op 07372, Appellate Division, Fourth Department

The chief operator of the water treatment plant for the City of Watertown, Brian D. Gaffney, was served with disciplinary charges alleging that after his supervisor made certain operational decision, Gaffney reported the supervisor’s decision to the New York State Department of Health [DOH] without notifying his supervisor.

Such action allegedly violated prior directives concerning the “chain of command.” Gaffney’s supervisor said that Gaffney “stated that he had intended for DOH to 'intervene' in the operational decision, and that, given the same circumstances, he would take the same action again in reporting the decision to DOH. The disciplinary hearing officer found Gaffney guilty of the charges filed against him and recommended that he be terminated from his position. The City adopted the hearing officer’s findings and recommendation and dismissed Gaffney from his position.

Gaffney then initiated a CPLR Article 78 proceeding seeking a court order annulling the determination finding him guilty of misconduct and his termination from his position. The Appellate Division sustained both the finding that he was guilty of misconduct and the penalty imposed by the City.

The court explained that the determination that Gaffney had engaged in insubordination was supported by substantial evidence.*  In addition, said the court, “substantial evidence supports the finding of the Hearing Officer, which [the City] adopted, that [Gaffney] failed to make a good faith effort to notify the City of the information to be disclosed and, therefore, [Gaffney’s] disclosure to DOH was not protected by Civil Service Law §75-b.”

§75-b of the Civil Service Law, the so-called “whistle-blower law,” provides, in pertinent part, that prior to disclosing information to a governmental body "(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action," the employee shall make a good faith effort "to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.”

While Gaffney contended that “such an effort would have been futile,” the Appellate Division concluded that Gaffney’s testimony to that effect merely raised an issue of credibility that the Hearing Officer was entitled to resolve against him.

Turning to the penalty imposed by Gaffney’s employer, the court said it had concluded that the penalty of termination is not "so disproportionate to the offense as to be shocking to one's sense of fairness and thus does not constitute an abuse of discretion as a matter of law … particularly in light of [Gaffney’s] statement that he would take the same action again if he were placed in the same situation.”

* Substantial evidence was described by the court as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07372.htm

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