Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Triborough Bridge and Tunnel Authority v Beverly, OATH Index No. 2238/15

The Triborough Bridge and Tunnel Authority filed disciplinary charges pursuant to §75 of the Civil Service Law against Bruce Beverly, a Bridge and Tunnel Officer, alleging incompetency due to his excessive absenteeism from work. In rebuttal, Beverly alleged that his absences were caused by a long-term disability and sought a one-year leave of absence for ordinary disability pursuant to §72 of the Civil Service Law.

ALJ Alessandra F. Zorgniotti found that Beverly, who had an absenteeism rate of 100% in 2015 and 54% in 2014, was excessively absent and ruled that even if an employee’s  absences are caused by a disability, an employer may discipline the employee for incompetence pursuant to §75 of the Civil Service Law when the absences are excessive and have a burdensome effect on the employer. .

In addition, Judge Zorgniotti ruled that Beverly was not entitled to a one-year leave pursuant to §72 of the Civil Service Law as there was insufficient proof that “he is currently unfit to perform his duties due to a disability.”

In support of her decision, Judge Zorgniotti cited the following decisions:

1. Brockman v. Skidmore, 39 N.Y.2d 1045 rev’g 43 A.D. 2d 572, in which the Court of Appeals reversed a finding that a government agency must treat an employee’s time–and-leave violations pursuant to CSL §72 rather than as a disciplinary matter under CSL §75 when there is evidence of a disability;

2. Garayua v. Board of Education, 248 A.D.2d 714, where the court rejected an assistant custodian’s claim that her physical incapacity and “nonwillful absenteeism” entitled her to leave pursuant to §72, rather than subjecting her to disciplinary action pursuant to §75; and

3. Romano v. Town Board of Colonie, 200 A.D.2d 934, holding that an agency may terminate an employee for excessive absence regardless of whether valid reasons existed for the absences or whether they were authorized, concluding that even if an employee’s absences are caused by a physical or mental disability, the employer may discipline and, if appropriate, terminate the employee for incompetence pursuant to CSL §75 when the absences are excessive and they have a burdensome effect upon the employer.

Considering Beverly’s “egregiously poor attendance over the past two years,” the ALJ recommended that he be terminated from employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2238.pdf

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Selected Reports issued by the Office of the State Comptroller during the week ending January 23, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 23, 2016

Click on text highlighted in color to access the full report

Non-profit organization executive convicted of theft of public monies

Comptroller Thomas P. DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Mark Peters announced that Dorothy Ogundu, a nonprofit executive convicted for pocketing taxpayer dollars intended for public services and capital improvements in New York City, was sentenced to one to three years in state prison. A multi-agency investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $300,000 in public funds provided by New York state, the New York City Council, and federal earmark grants. On October 22, 2015, a jury convicted Dorothy Ogundu on 29 counts, including Grand Larceny in the Second Degree.

http://www.osc.state.ny.us/press/releases/jan16/012216.htm?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012216release

Retiree alleged to have fraudulently obtained retirement benefits

Noting that the charge contained in the Indictment is merely an accusation and the defendant is presumed innocent unless and until proven guilty, Thomas P. DiNapoli, New York State Comptroller, Preet Bharara, United States Attorney for the Southern District of New York, and Diego Rodriguez, the Assistant Director-in-Charge of the New York Field Office of the Federal Bureau of Investigation (FBI) announced the indictment of Michael J. Vatter, the Chief of the Newburgh Fire Department, charging him with fraudulently obtaining approximately $95,000 in pension benefits by failing to report his return to work in the public sector to the New York State and Local Police and Fire Retirement System. Under New York State law, a public sector retiree who is receiving a pension and who returns to public service cannot receive both pension payments and a public sector paycheck. The law permits public sector retirees to earn up to $30,000 per year from public sector employment before their pension benefits are cut off for that year.

www.osc.state.ny.us/press/releases/jan16/012016a.htm?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012016arelease

New Tax Cap Calculations

Property tax levy growth for school districts will be capped at 0.12 percent above current levels for the 2016-17 fiscal year, according to data released by State Comptroller Thomas P. DiNapoli. The latest calculation affects the tax cap calculations for 677 school districts as well as 10 cities, including the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers.

http://www.osc.state.ny.us/press/releases/jan16/012016.htm?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012016release

Municipal Audits published

Gloversville Housing Authority – Selected Financial Operations

http://www.osc.state.ny.us/localgov/audits/publicauth/2016/gloversvillehousing.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

Mechanicville Housing Authority – Tenant Rents

http://www.osc.state.ny.us/localgov/audits/publicauth/2016/mechanicvillehousing.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

Village of Old Brookville – Cash Receipts

http://www.osc.state.ny.us/localgov/audits/villages/2016/oldbrookville.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

Town of Pamela – Financial Management

http://www.osc.state.ny.us/localgov/audits/towns/2016/pamelia.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

Tompkins County Public Library – Financial Management

http://www.osc.state.ny.us/localgov/audits/libraries/2016/tompkinsco.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

School Audits published

East Greenbush Central School District– Claims processing

http://www.osc.state.ny.us/localgov/audits/schools/2016/eastgreenbush.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

East Rockaway Union Free School District– Purchasing

http://www.osc.state.ny.us/localgov/audits/schools/2016/eastrockaway.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Honeoye Central School District – Payroll

http://www.osc.state.ny.us/localgov/audits/schools/2016/honeoye.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Jefferson Central School District – Fund balances

http://www.osc.state.ny.us/localgov/audits/schools/2016/jefferson.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Keene Central School District – Claims Processing

http://www.osc.state.ny.us/localgov/audits/schools/2016/keene.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Lansing Central School District – Financial Management

http://www.osc.state.ny.us/localgov/audits/schools/2016/lansing.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Otego-Unadilla Central School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2016/otegounadilla.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Royalton-Hartland Central School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2016/royaltonhartland.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Appeal of Ling Ling Chou from a disciplinary proceeding brought pursuant to Education Law §3020. Decisions of the Commissioner of Education, Decision No. 16,861

Carmen Fariña, Chancellor of the New York City Department of Education, implemented the arbitrator’s decision to suspend Ling Ling Chou from her position as principal of P.S. 184M without pay.  The Commissioner, in dismissing the appeal, addressed a number of issues, including the following:

Opening the arbitration hearing to the public:

With regard to the conduct of the hearing, Ms. Chou claimed that the hearing officer erred in closing the hearing after she had elected to have a public hearing, pursuant to Education Law §3020-a(3)(c)(i)(C). 

The Commissioner noted that in his decision, the hearing officer explained that the hearing was subsequently closed to the public, in part, due to “potential and actual” violations of the federal Family Educational Rights and Privacy Act.  She then said the “Even if I were to determine that closure of the hearing to the public was not proper, under these circumstances, Ms. Chou has alleged no harm or prejudice resulting therefrom and, in any case, such error would not be a basis for overturning the suspension imposed upon Ms. Chou.”  

Refusal to hear “pertinent testimony”

Ms. Chou alleged that the arbitrator refused to hear “pertinent witness testimony. However, in  an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. 

Here, said the Commissioner, Ms. Chou asserted her claim in a conclusory fashion and did not set forth what, if any, “pertinent witness testimony” was precluded nor did she establish how such testimony would have impacted her case.  Other than her conclusory assertion, Ms. Chou, the Commissioner said that she failed to set forth facts or citations in the record on which to establish her claim.  Consequently, the Commissioner ruled that Ms. Chou failed to meet her burden of proof in this regard.

Failure to follow the §3020-a disciplinary process

Ms. Chou, said the Commissioner, contended that the New York City Department of Education “inexcusably did not follow the process defined in §3020-a(4)(D)(i-a)(A) for bringing charges of incompetence based solely on a pattern of ineffectiveness. Instead, a full disciplinary hearing was implemented by [the Department] without giving petitioner an opportunity to develop a correction plan for alleged inefficiencies, as statutorily required.” 

The Commissioner explained that Education Law §3020-a(3)(D)(i-a)(A) was the statutory provision relating to expedited hearings on charges of incompetence based solely on a pattern of ineffectiveness that existed prior to July 1, 2015, not Education Law §3020-a(4)(D)(i-a)(A) as erroneously cited by Ms. Chou.  That former provision was deleted by section three of Subpart G of Part EE of Chapter 56 of the Laws of 2015, though it was in effect at the time of petitioner’s hearing.  

In any event, to the extent that Ms. Chou argued that she was entitled to an expedited hearing because she was charged with incompetence based solely on a pattern of ineffectiveness, the Commissioner decided that the record did not support any such claim. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16861 

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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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The test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

The test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

Cook v New York State Comptroller, 2016 NY Slip Op 00236, Appellate Division, Third Department

Brent J. Cook Jr., a police lieutenant employed by the Nassau County Police Department as an administrative supervisor, was injured in a motor vehicle accident while on duty. When Cook returned to work on or about March 30, 2010, he was placed on restricted-duty status, i.e., he "was no longer allowed to perform patrol function[s]" and instead was limited to working in a clerical capacity.

In February 2011, Cook applied for accidental disability retirement benefits alleging that he was permanently incapacitated from the performance of his duties due to certain neck and back injuries sustained in the accident.

The NYS Employees’ Retirement System rejected Cook’s application and he requested a hearing and redetermination. The Hearing Officer found that Cook failed to establish that he was permanently incapacitated from the performance of his duties and upheld the denial of his application for benefits. The State Comptroller, in turn, adopted the Hearing Officer's findings and recommendation and Cook sued challenging the Comptroller’s decision.

Citing 2 NYCRR 364.3[a], the Appellate Division noted that “Where, as here, the applicant ‘has been assigned to light, limited or restricted duties for less than two years prior to the date [upon which the] application for disability retirement benefits was filed with [respondent,] . . . the issue of permanent incapacity [shall be determined] on the basis of the duties and job requirements of such previous full duty assignment.’”

Cook had testified, without contradiction, that he never returned to full-duty status as a lieutenant during the less than one year that elapsed between the date of his return to work and the date upon which he applied for accidental disability retirement benefits. The Department’s Chief of Patrol for the Department confirmed that the full duties of the position entailed performing patrol functions, which included, among other things, entering and exiting a patrol vehicle, responding to an emergency, making an arrest and engaging in heavy lifting.

Significantly, said the court, “Although numerous individuals offered various estimates as to what percentage of [Cook’s] actual duties were administrative versus patrol in nature, the fact remains that petitioner's full duties entailed performing patrol functions — tasks that he was not allowed to resume after he returned to work on restricted-duty status.”

Although it is true that the State Comptroller “is vested with the exclusive authority to weigh [conflicting medical] evidence and credit the opinion of one medical expert over another" here the Appellate Division ruled that Comptroller’s expert opinion upon which he relied, “misses the mark.”

The court explained that “The dispositive inquiry for purposes of determining disability is not whether [Cook] is capable of indefinitely performing the clerical tasks assigned to him while on restricted duty but, rather, whether he is capable of performing the full duties of a police lieutenant.” The court then said that “the record as a whole clearly establishes that [Cook] is incapable of returning to full-duty status,” and concluded that the Comptroller’s determination “cannot be said to be supported by substantial evidence.”

The Appellate Division annulled the Comptroller’s determination and remanded the matter “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00236.htm

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The Disability Benefits E-book: - This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Reliance on case law relating to a provision of a law alleged to be analogous may be misplaced where the issue under consideration is governed by a different statute

Reliance on case law relating to a provision of a law alleged to be analogous may be misplaced where the issue under consideration is governed by a different statute

Gandin v Unified Ct. Sys. of State of N.Y., 2016 NY Slip Op 00186, Appellate Division, Second Department

David Gandin commenced employment as a confidential law secretary to an Acting Justice of the Supreme Court, at a salary grade of JG-531. He resigned from that position in 2008, at which time his salary grade was JG-531, with his rate of pay reflecting annual salary increments based upon his two years of service.

More than four years later Gandin returned to the employ of the New York State Unified Court System [UCS] and was appointed as a principal law clerk at a hiring rate salary grade of JG-531. Gandin then requested salary increment credit for the annual salary increments he had earned during his two years of prior service. In a letter dated July 22, 2013, Gandin was advised that his request had been denied by UCS and the Office of Court Administration [OCA].

Gandin sued USC and OCA and Supreme Court granted petition and annulled the UCS and OCA determination and directed that Gandin be paid a salary reflecting a credit for previously earned annual salary increments, and back pay and benefits retroactive to January 2, 2013.

The Appellate Division explained that although "An administrative agency's interpretation of the statute it is charged with implementing is entitled to varying degrees of judicial deference depending upon the extent to which the interpretation relies upon the special competence the agency is presumed to have developed in its administration of the statute" when the interpretation of a statute is one of " pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency' and the legal interpretation is ultimately the court's responsibility." Further, said the court, “in attempting to effectuate the intent of the Legislature, ‘the best evidence . . . is the plain language of the statute.’"

Turning to the relevant statute, Judiciary Law §37(7), the court noted that §37(7), in pertinent part, provides that "Appointments, transfers and reinstatements to similar grade positions. If an employee is transferred to a similar position, or is appointed or reinstated to a position in the same salary grade . . . [a]n employee so appointed, transferred or reinstated shall be eligible to receive the increments in the schedule established for the new position based upon the number of [the employee's] years of service in the new position and in [the employee's] former position" (emphasis supplied by the Appellate Division).

§37, said the court, does not require that an employee have continuous or uninterrupted employment with the State in order to obtain such salary increment credit and “a fair reading of the language of Judiciary Law §37(7) leads to the conclusion that the [Gandin] was eligible to receive the appropriate salary increment credit when he was appointed to a position in the same salary grade as that which he held when he was previously employed by UCS.

UCS and OCA had contend that a similar, but not identical, provision set out in Civil Service Law §131(4) had been interpreted to require "continuous service" in order for an employee to be eligible for a salary increment credit.

The Appellate Division agreed with the Supreme Court’s rejection of that argument, holding that UCS/OCA’s reliance on case law relating to what was claimed to be an analogous provision in the Civil Service Law was misplaced as “this matter was governed by the Judiciary Law” and dismissed the appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00186.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 

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