The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence

The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence

Michel v City of Lackawanna, 2018 NY Slip Op 02070, Appellate Division, Fourth Department

James L. Michel, Jr. commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order reinstating "the compensation and benefits" to which he claim he was entitled pursuant to a contract between the parties. Subsequently Michel moved for summary judgment on the ground that he was unlawfully denied the procedural protections due to him under §75 of the Civil Service Law.

Section 75 provides that certain civil servants "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges."

Supreme Court denied Michel's motion for summary judgment and he appealed the court's decision. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained that "[i]t is well settled" that §75 of the Civil Service Law "prescribes the procedures for removal of a protected employee charged with delinquencies in the performance of his [or her] job."

Citing NYS Office of Children and Family Services v Lanterman, 14 NY 3d 275, the Appellate Division said that it is undisputed that Michel "did not engage in any conduct that would have subjected him to allegations of incompetence or misconduct" and concluded that §75 of the Civil Service Law was inapplicable in his situation.

In Lanterman the Court of Appeals held that the grievances brought by two employees, Lanterman's and Ortiz's, challenging their dismissal from their respective positions were not subject to arbitration because Lanterman's and Ortiz's dismissals were not for disciplinary reasons but because the employees' lacked the qualifications necessary for their respective positions. 

In addition, the  Court of Appeals noted it "approved the distinction made by the Appellate Division in Mandelkern v City of Buffalo, 64 AD2d 279, between issues of 'job performance, misconduct or competency,' which are subject to Civil Service Law disciplinary procedures, and 'a qualification of employment,' which is not."

The Michel decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02070.htm

The Lanterman decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2010/2010_02432.htm

Employee terminated for using department vehicle for non-work related purposes

Employee terminated for using department vehicle for non-work related purposes

Dep’t of Transportation v. Mirhosseini, OATH Index No. 916/18

A civil engineer with the New York City Department of Transportation was charged with repeatedly using a Department van for non-work related purposes; altering trip log sheets; misrepresenting his use of the vehicle by omitting entries on the trip log sheets; and failing to follow the directives of his supervisor.

OATH Administrative Law Judge Kara J. Miller did not credit employee’s claim that his supervisor had given him permission to use the van to run his personal errands and sustained those charges.

Judge Miller, however, found that the appointing authority did not prove that the employee falsified his time records or that he fraudulently received compensation for time he did not work.

The ALJ recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests

Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests

Rockland Co. Correction Officers BA and Rockland Co., 30 PERB 3019

The Correction Officers' Benevolent Association of Rockland County filed an unfair labor practice charge with PERB complaining that the Rockland County Sheriff had issued a directive that unilaterally ended a procedure under which all written leave requests were routinely approved regardless of the number of officers on leave from the same shift.

The Association also charged that for the first time "a quota" on the number of officers permitted to take certain types of leave simultaneously was unilaterally imposed.

PERB sustained the administrative law judge's dismissal of the charge. It noted that the relevant collective bargaining agreement provided that "personal leave may be drawn only upon written request ... at a time convenient to and approved by the Sheriff; provided, however, that personal leave allowed for religious observance shall be granted on the days and hours required, insofar as the same may be granted without interference with the proper conduct of government functions."

PERB said that the contract gave the Sheriff broad discretion to grant or deny leaves based on his convenience and the proper conduct of government functions and that the Association had waived its right to complain about the Sheriff's exercising his discretion.

PERB concluded that the directive issued represented the exercise of a negotiated right, it was bilateral in nature and did not violate the employer's duty to bargain, which had been previously satisfied by agreement.

Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties

Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties

Brown v Bratton, 2018 NY Slip Op 07541, Appellate Division, First Department

Subdivision 1 of §72 of the Civil Service Law, Leave for ordinary disability, provides, in pertinent part, that "[w]hen in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction. Written notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position shall be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

Supreme Court denied Lisa Brown's petition seeking to annul and vacate New York Police Department's [NYPD] decision to refer her for a fitness-for-duty evaluation that ultimately resulted in Brown's suspension without pay for 58 days for "disobeying orders to sign Health Insurance Portability and Accountability Act [HIPAA] releases."

Brown alleged that NYPD had required her "to submit to a fitness-for-duty evaluation without complying with Civil Service Law §72." Supreme Court ruled that NYPD's actions were not arbitrary and capricious and Brown's allegations were not supported by substantial evidence.

The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division decided that Brown failed to show that §72 was implicated in the New York Police Department [NYPD] decision to refer her for a fitness-for-duty evaluation. Although noting that §72 clearly states that "its procedural protections are triggered when an employer has determined that an employee is unfit for duty, at which point the employee is entitled to written notice of the grounds for the determination and an opportunity to challenge those grounds at a hearing," the Appellate Division said that witnesses for the NYPD had testified that, at the time Brown was referred for evaluation, NYPD [1] had not reached this threshold determination and [2] that the purpose of the evaluation was to insure, Brown's "worrisome on-the-job conduct notwithstanding", that she remained fit for duty.

The Appellate Division said that NYPD could not have provided Brown with the written notice to which she claims she was entitled because "it had neither adjudged her unable to perform her duties nor placed her on leave."

In any event, §72.1 vests such decision making in "a medical officer selected by the civil service department or municipal commission having jurisdiction," and requires the appointing authority to provide "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position ... be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

§72.1 further provides that "[i]f, upon such medical examination, such medical officer shall certify that such employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority shall notify such employee that he or she may be placed on leave of absence. An employee placed on leave of absence pursuant to this section shall be given a written statement of the reasons therefor. Such notice shall contain the reason for the proposed leave and the proposed date on which such leave is to commence, shall be made in writing and served in person or by first class, registered or certified mail, return receipt requested, upon the employee. Such notice shall also inform the employee of his or her rights under this procedure. An employee shall be allowed ten working days from service of the notice to object to the imposition of the proposed leave of absence and to request a hearing."

In contrast, §72.5 provides that "if 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 operations, it may place such employee on involuntary leave of absence immediately."

As to suspending an employee "for disobeying orders to sign HIPAA releases," it would appear that such an offense would result were the employee to decline to sign a HIPAA release requested by the medical officer selected by the civil service department or municipal commission having jurisdiction to evaluate the employee.

The Appellate Division found that NYPD's orders "were tailored to receive information from the medical providers that [Brown] had identified and, moreover, were further limited by subsequent agreement."

NYPD, said the court, "showed that the disclosure they ordered [Brown] to provide was appropriate in light of public safety considerations in view [of Brown's position as a] Supervisor Police Communication Technician, insuring that emergency 911 calls were immediately and accurately routed to the appropriate emergency responders, implicated public safety issues, giving the NYPD an interest in the records sufficient to outweigh [Brown's] privacy rights," citing O'Connor v Pierson, 426 F3d 187.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07541.htm

Waiving a teacher's right to tenure

Waiving a teacher's right to tenure

Costello v East Islip UFSD, 250 A.D.2d 846

Is tenure for teachers an anachronism? A number of school districts have considered eliminating it. Thus far the courts have declined to allow them to do so.

In Conetta v Patchogue-Medford Union Free School District, 165 Misc.2d 329, a New York State Supreme Court ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period because it believed that "that tenure at the elementary and secondary school level was essentially guaranteed job security ... coupled with automatic salary increases."

Apparently mindful of the Conetta ruling, a Board of Education decided to take a different tack in an effort to avoid having to give newly hired teachers tenure upon their satisfactory completion of probation: the East Islip Union Free School District's Board adopted a resolution providing that all new teachers hired by the School District were to be employed under individual contracts providing for specified terms of employment.

These contracts specified that the newly appointed teachers were employed "in non-tenure-bearing positions." To emphasis the point, the contracts also included provisions intended to constitute "waivers" of the probation and disciplinary rights provided to teachers in the Education Law.

Lynn Costello and a number of other newly appointed teachers had signed these agreements. They subsequently decided to challenge these terms in their contracts and asked a State Supreme Court judge to do three things:

 (1) Annul the contracts that they had signed;

(2) Issue an order compelling the District to appoint them as probationary teachers pursuant to Education Law §3012; and

(3) Enjoin the District from "requiring teaching candidates to execute waivers of tenure and other statutory rights as a condition of employment."

The Court granted the teachers' petition in its entirety.

In so doing, the Court rejected the District's argument that the teachers' waivers were valid because the teachers had signed their respective agreements "knowingly and voluntarily."

On the issue of whether the waiver was "voluntary" or not, the Court said that under the circumstances, the contention that the waivers were voluntary was questionable since there is no indication that any teacher who refuses to agree to such a waiver will be hired.

While the District cited Feinerman v BOCES, 48 NY2d 491, in support of its position, the Court ruled that the Feinerman decision did not control under the facts of this case.

Finding that the Feinerman case involved one teacher of adult education in a BOCES program, the Court decided that it was not applicable to the Costello situation because the contracts at issue involve all teachers of children that were to be hired in a union free school district. 

Also, in Yastion v Mills, the  Appellate Division decided that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

Commenting that the Board's stated purpose in promulgating its resolution was to improve education by removing the District and its teachers from the purview of the Education Law's tenure provisions, the Court said that "this goal can be achieved only by the Legislature's amendment of the Education Law, and not by an act of a local Board of Education.

The Appellate Division agreed, explaining although the Board of Education of the East Islip Union Free School District correctly contends that a teacher's rights with respect to tenure are waivable when the waiver is freely, knowingly, and openly arrived at without the taint of coercion or duress, this does not operate to give the Board the authority to eliminate the tenure system altogether. Indeed, observed the court, the tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal.

Characterizing  the system proposed by the Board, i.e., tenure by contract terminating automatically at the expiration of the contract, as the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence, the Appellate Division opined that the resolution implementing this system was improper and the petition was properly granted.

In the Conetta case, State Supreme Court Judge Lockman suggested that under certain circumstances it might be possible to eliminate tenure. The Court said that if a school district wishes to stop granting tenure, it could make such a demand in the course of collective negotiations.

Judge Lockman stated that "the Taylor Law allows negotiations for the inclusion of a 'no tenure' clause in the collective bargaining agreement." Judge Lockman also decided that a school board "could not withhold tenure at the end of the probationary period because of fiscal concerns unrelated to the qualifications of the teacher seeking such status."

Judge Lockman's full opinion follows is set out below:

The petition of Lynn Costello and the other petitioners pursuant to CPLR Article 78, seeks a judgment annulling the respondent's July 3, 1996, resolution and the petitioner-teachers' individual contracts executed pursuant to the resolution, compelling the respondents to appoint the petitioner-teachers as probationary teachers pursuant to Education Law 3012, and enjoining the respondent from requiring teaching candidates to execute waivers of tenure and other statutory rights as a condition of employment. The petition is granted in its entirety.

  The resolution at issue provides that all new teacher hirees of the East Islip Union Free School District will be employed pursuant to individual contracts providing for specified terms of employment in non-tenure-bearing positions. The contracts signed by the various petitioner-teachers contain a waiver of rights as set forth in, inter alia., Education Law §§3012, 313 and 3020, that provide for probation, tenure and certain procedures for dismissal.

The respondents' (and the amicus curiae's) reliance upon Mtr. of Feinerman v. BOCES, 48 NY2d 491 (1979) for the assertion that a waiver of the Education Law's protection is valid if it is knowingly and voluntarily made is misplaced. The Feinerman case involved one teacher of adult education in a BOCES program and is not applicable to the instant proceeding where the contracts at issue involve all teachers of children that were to be hired in a union free school district. The respondent's stated purpose in promulgating the resolution was to improve education by removing the the respondent and *its teachers from the purview of the Education Law's tenure provisions, however, this goal can be achieved only by the Legislature's amendment of the Education Law, and not by an act of a local Board of Education. There is no ruling of any Court offered by the respondent that supports the blanket eradication of the safeguards provided in the Education Law that the respondent seeks. Further, the characterization of the waiver as "voluntary" is questionable since there is no indication that any teacher who refuses to agree to such a waiver will be hired.

In view of the above, the respondent's arguments concerning the standing of certain petitioners need not be addressed.

  Submit judgment on notice.