Benefits upon retroactive promotion following resolution of a pending disciplinary action may differ depending on circumstances

Benefits upon retroactive promotion following resolution of a pending disciplinary action may differ depending on circumstances

Aiello v Bratton, 236 A.D.2d 319

May two individuals be promoted following the resolution of disciplinary action, one with "back salary and seniority" and the other denied "back salary and seniority?" As the Aiello decision indicates, this could be lawful under certain conditions.

Richard J. Aiello and another police officer serving with the New York City Police Department were promoted to lieutenant and detective respectively following the resolution of disciplinary charges that had been filed against them. Their respective appointments had been held up while these disciplinary actions were pending.

The detective was appointed retroactively, with back salary and "retroactive seniority." Aiello, on the other hand, was neither given back salary nor "retroactive seniority" when he was promoted.

Aiello sued, contending that the Department had violated his right to "equal protection" by not making his promotion retroactive and awarding him back salary and seniority as well. The Appellate Division rejected Aiello's arguments and dismissed the appeal.

The Court decided that situation underlying Aiello's  promotion to lieutenant and the other officer's promotion to detective were not exactly the same.   

It seems that Aiello's promotion was made from an eligible list for lieutenant and subject to the "rule of one of three" [§61.1, Civil Service Law]. Accordingly, his appointment was subject to the discretionary authority of the Commissioner of Police. As Aiello did not have a vested right to the promotion, he could not claim that he had any right to back salary or seniority upon his promotion from the eligible list.

The appointment of the police officer to detective, however, was quite different. The Court ruled that officer had "a vested right to his promotion to detective under NYPD Directive #27."

Why was this so? It appears that the officer had performed investigatory duties for more than 26 months and thus became entitled to permanent status in the position in accordance with the provisions of Directive #27. When he was reinstated following the resolution of the disciplinary action, his promotion, which had been "placed on hold," had to be made retroactive and thus he was entitled to back pay and seniority as detective.

The automatic permanent appointment of a police officer to the position of detective by NYPD after the officer performed detective or investigatory service for the minimum period prescribed by Directive #27 was upheld by the Court of Appeals in Scotto v Dinkins, 85 NY2d 209. In contrast, the high Court held unconstitutional a statute, §58.4(c) of the Civil Service Law, mandating automatic promotion to detective in other jurisdictions [see Wood v Irvine, 85 NY2d 238, decided the same day].

Finding that the two individuals were not "similarly situated" insofar as the procedures dealing with their advancement in title and grade were concerned, the Court ruled that Aiello had not been denied equal protection and dismissed the appeal.

Restoration of leave credits used during an involuntary §72.1 leave

Restoration of leave credits used during an involuntary §72.1 leave

Vickery v Sinnott, 238 AD2d 818

§72.1 authorizes an appointing authority to place an employee on leave if a medical officer selected by civil service department or appropriate commission certifies that the employee is not physically or mentally fit to perform the duties of his or her position.

If, however, the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property, or would severely interfere with the operations of the agency, another §-- §72.5 -- allows the employee to be placed immediately on an involuntary leave of absence.

An employee who is placed on leave pursuant to §72.5 may use all of his or her leave credits.

If the individual is later determined not to be physically or mentally unfit for duty, he or she is to be reinstated to the position and leave credits used, or salary lost, is to be restored to the employee, less any compensation he or she may have earned or unemployment benefits received during the period of the §72 leave.

Although one might assume that the restoration of such credits is automatic, the Vickery decision suggests that such is not the case. Here the Appellate Division concluded that if the appointing authority refuses to restore such leave credits, or "lost salary," the employee must commence a timely action to compel it to do so.

On April 20, 1993 Robert Vickery, a parole officer, was told that he was being placed on  leave of absence involuntarily pursuant to §72.5 by the Division of Parole. About six months later Vickery was returned to duty. The Division, however, did not restore Vickery's leave credits to him.

Vickery sued, contending that his reinstatement constituted a de facto determination that he was not physically or mentally unfit to perform his duties and that he was entitled to have the leave credits used to continue him on the payroll restored to him as a matter of law.

The problem here, however, was that despite the fact that the Division wrote to Vickery in March 1994 that he would be required to "charge the time missed from work against his accrued leave credits," he did not initiate litigation challenging that determination until March 1995.

This, said the Appellate Division, meant that even if Vickery was correct that his reinstatement meant that he was not incapacitated from performing his duties, his claim was time-barred. Why was the action time-barred? Because, said the Court, Vickery had to initiate his Article 78 contesting the Division's decision within four months of its final determination. His failure to do so was fatal to his pressing his claim for restoration of his leave credits.

Possible consequences of a police officer volunteering to serve as a defense witnesses in a criminal matter

Possible consequences of a police officer volunteering  to serve as a defense witnesses in a criminal matter

Green v Philadelphia Housing Authority, 105 F.3d 882

Sometimes a police officer is asked to volunteer to be a defense witness at a criminal trial or at a preliminary criminal proceeding. The Green decision explores a number of issues that could arise when a law enforcement officer agrees to serve as a witness for a defendant in a some aspect of a criminal proceeding and the possible consequences of such participation.

Donald Green, a police officer for the Philadelphia Housing Authority, appeared at a bail hearing but did not give testimony. The authority later  transferred Donald Green from special drug enforcement duty to regular patrol duty.

Green contended that his transfer constituted unlawful retaliation for his participating in a protected First Amendment activity. He sued the Authority and a number of his superiors. He failed, however, to persuade the U.S. Circuit Court of Appeal, Third Circuit, that his rights had been violated.

Green had agreed to serve as a character witness for Herbert Keller, the son of a long time friend. He sought and obtained approval to do so from his superiors, provided he participated "during his lunch hour and in civilian clothing." When Green appeared at the hearing, he learned that the charges pending against Keller "included organized crime activity in connection with the Stanfa crime organization."  Green told Keller he could not be associated with the case and left the hearing without testifying.

Conceding that there was no information, or even any suspicion, that Green was involved with organized crime, PHA claimed that his transfer was nonetheless justified. It explained that Green was reassigned "in case there was anything where [the Housing Authority Police Department] might be embarrassed . . ." and because it "was right for the organization."

The Court, applying the "Pickering balancing test" [Pickering v Board of Education, 391 U.S. 563], ruled that Green had to meet the following conditions to prevail:

a. His court appearance must constitute "speech ... on a matter of public concern;" and

b. The public interest favoring his expression "must not be outweighed by any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees."

The Circuit Court decided that a public employee's appearance as a witness, even in the absence of actual testimony, is "speech" under Pickering and that a public employee's speech involves a matter of public concern if it can "be fairly considered as relating to any matter of political, social, or other concern to the community."

Although Green satisfied both of these requirements according to the Court, this did not prove sufficient for him to win his appeal. The question as to whether Green's free speech interest in testifying as a character witness is outweighed by any injury the speech could cause to the interests of the Housing Authority Police Department as the employer proved to be the critical element in the Court's analysis.

On this issue the Court concluded that "if Green's court appearance could potentially disrupt the work of the Housing Authority Police Department, and this potential for injury outweighs the public's interest in Green's speech, then judgment for the Authority is proper." The Court agreed with the district court's ruling in the Authority's favor as a matter of law. The District Court had decided that Green's appearance at the bail hearing injured PHA's interests in minimizing departmental disruption and maintaining an environment of trust and security.

The Circuit Court held that the fact that Green appeared as a witness at a bail hearing in contrast to serving as a witness at a trial was not compelling when compared to the interests of the Housing Authority Police Department as an employer to:

a. fight drugs and crime successfully;

b. protect the safety of its officers and other members of the community;

c. foster trust and confidence among its officers and between its officers and other law enforcement drug units; and

d. protecting the Housing Authority Police Department's reputation.

The Court rejected Green's argument that he should not be held responsible for creating the potential disruption because he followed departmental procedures and testified only after receiving express permission to do so from his superiors.

Significantly, the Circuit Court held that a public employee in a sensitive position like Green's cannot turn a blind eye to the possible consequences of his voluntary testimony. The responsibility must lie with Green to investigate the nature of the criminal charges, and to bear any risks associated with his voluntary court appearance.

Nonmandatory subject of collective bargaining

Nonmandatory subject of collective bargaining

Matter of Village of Buchanan, 29 PERB 3061

One of the items submitted to compulsory interest arbitration by the Buchanan Police Association concerned a demand involving the "minimum time period a floater will work." The demand required a floater to be called in only for full [four day] tours of duty.

PERB affirmed the administrative law judges ruling that this was a nonmandatory subject of collective bargaining as it "interfered with the Village's right to determine the number of police officers on duty at a given time."

Alleging misconduct by an arbitrator

Alleging misconduct by an arbitrator

Security Unit Employees v New York State Correctional Services, 36 AD2d 546

When must a party raise the issue of misconduct by an arbitrator as justification for vacating an arbitration award? If a party waits until the matter is before an appellate body before first raising the question, its apparently too late.

As the Court commented in the Security Unit Employees case, if a party wishes to vacate an arbitrator's award on the ground of misconduct by the arbitrator, the allegation may not be initially raised in the course of an appeal.

The Appellate Division refused to listen to such an allegation in the course of its consideration of the union's appeal seeking to vacate an arbitration award on the grounds of misconduct by the arbitrator.

The union also claimed that the arbitrator failed to issue the arbitration decision within "the contractual time limitation" for issuing awards.

The Appellate Division said that the "short delay" in issuing the award did not prejudice the union and declined to set aside the award for that reason.