Relying on the continuing wrong doctrine to determine if an Article 78 petition was timely filed

CPLR Article 78 requires that a challenge to an administrative determination be commenced within four months of the time the determination becoming "final and binding upon the petitioner." An administrative determination becomes final and binding for the purpose of trigging the running of the statute of limitations when the determination "has its impact" on the petitioner.

In this instance the petitioner [Plaintiff] commenced her CPLR Article 78 action seeking judicial review an administrative determination by her employer [Town] that classified her as an employee hired after December 31, 2014. This determination made her subject to a 15% health insurance premium contribution requirement set out in the controlling Taylor Law collective bargaining agreement.

Town moved to dismiss Plaintiff's petition as untimely, well as for other reasons. The court concurred with the Town's argument that as its administrative decision was made, in effect, on December 31, 2014, Plaintiff's Article 78 action  commenced more than two years later was untimely and dismissed her petition. Plaintiff appealed the court's ruling.

The Appellate Division opined that an administrative determination regarding payment of salary or pay adjustments is final and binding, and a challenge thereto accrues, when the employee receives a check or salary payment reflecting the administrative determination, noting that the new, now required 15% health insurance premium contribution was reflected in Plaintiff's first paycheck issued in April 2015, more than two years prior to the commencement of this Article 78 action.*

Addressing Plaintiff's argument that her Article 78 was timely under the "continuous wrong doctrine," the Appellate Division, citing Selkirk v State of New York, 249 AD2d 818, indicated that the continuing wrong doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct." In other words, courts distinguish between a single wrong that has continuing effects or impacts and [2] "a series of independent, distinct wrongs" in order to determine if the continuing wrong doctrine is viable under the facts alleged in this action.

As the Town had decided that Plaintiff was an employee hired after December 31, 2014, triggering her being required to pay a 15% health insurance premium contribution, Plaintiff first felt the impact of this administrative determination upon receiving her first paycheck issued to her in April 2015, more than two years before Plaintiff filed her Article 78 petition, the Appellate Division opined that "[e]ach subsequent paycheck deduction 'represent[ed] the consequences of [that allegedly] wrongful act in the form of continuing damages,' and was not an independent wrong in itself."

Accordingly, the court ruled that the doctrine "does not apply here to toll the statute of limitation and  sustained the Supreme Court's determination dismissing Plaintiff's petition as untimely.

* The Appellate Division also noted that Plaintiff's untimely filing of a grievance did not toll the running of the statute of limitations which, for the purposes of perfecting her Article 78 action, commenced when, at the latest, Plaintiff received her first paycheck issued in April 2015.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05671.htm

Attaining tenure in a position is conditioned on the appointee being deemed to have completed the required probationary period

The Plaintiff in this CPLR Article 78 action contended that he was entitled to a Civil Service Law §75 pretermination hearing as a condition precedent to his being terminated from his position, Title A. Plaintiff alleged that he had attained tenure in Title A by reason of his having been appointed to a higher level position "in the line of promotion," Title B, while serving as a probationary employee in Title A.

Plaintiff had been appointed to Position B as a temporary employee about 9 weeks after completing the designated minimum period of probation but before the end of his Title A maximum probationary period. Plaintiff was subsequently appointed to the Title B position as a provisional employee. Some 16 months later Plaintiff was advised that he was being terminated from Title B, reinstated to Title A and, on the same day, further advised that [1] he would be terminated from the Title A and [2] was placed on "administrative leave" until the effective date of his dismissal from his Title A position.

The appointing authority had determined that on the effective date of Plaintiff's termination there were 25 days remaining until the end of Plaintiff's maximum period of probation and thus he had not yet attained tenure in Title A. Accordingly, argued the appointing authority, Plaintiff was not entitled to a pretermination hearing pursuant to Civil Service Law §75 or any applicable collective bargaining agreement.

Supreme Court dismissed the petition, finding that Plaintiff was in fact a probationary employee at the time of his discharge and that he failed to make a prima facie showing that the decision to terminate him from his employment in Title A was retaliatory or made in bad faith. Plaintiff appealed the Supreme Court's ruling to the Appellate Division.

As to Plaintiff's status in Title A as a "probationary employee," the Appellate Division said that "A probationary employee's appointment becomes [a tenured appointment] either after the completion of the probationer's maximum period of [probationary] service or upon earlier written notice following the completion of the minimum period of probation."

Noting that "in the discretion of the appointing authority," Plaintiff's service in Title B could be considered as satisfactory probationary service in Title A "and may be counted as such in determining the satisfactory completion of such probationary term," 4 NYCRR 4.5[i] provides that "[a]t any time after the expiration of the minimum period of the probationary term, or the entire probationary term if it be one of fixed duration, the appointing authority shall, on request of such probationer, furnish his [or her] decision in writing as to whether or not service in such higher level position shall be considered as satisfactory probationary service."

Here the court found that the record established that the appointing authority determined, in its discretion, that Plaintiff's temporary and, or, provisional service in Title B would not count toward his completion of his probationary term for the Title A position. Further, said the Appellate Division, "it is undisputed that, after the expiration of his maximum probationary term ... [Plaintiff] ... did not request a determination as to whether his temporary or provisional service would be counted toward his probationary term [in Title A] and, therefore, he did not trigger [the appointing authority's] regulatory obligation to issue a written determination as to how it would exercise its discretion."

Further, opined the court, the appointing authority was not required to advise Plaintiff prior to his discharge that his service in the higher title would not be counted toward the completion of his Title A maximum probationary term.*

Accordingly, although the Appellate Division commented that it was troubled that Plaintiff was terminated after nearly 2½ years of service, the court said that "we are constrained to agree with Supreme Court that, at the time of his termination, [Plaintiff] was still a probationary employee." In the words of the Appellate Division, Plaintiff "was a probationary employee at the time of his termination from employment and ... failed to satisfy [his] burden of showing that [he] was dismissed in bad faith or for an improper or impermissible reason [thus] Supreme Court properly dismissed [his] petition."

As a general rule, an individual appointed to a position on a "permanent basis" attains "permanent status" in the position on the effective date of his or her permanent appointment but does not attain tenure in the title until [1] he or she satisfactorily completes his or her maximum period of probation or [2] acquires tenure by estoppel** or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

In York v McGuire, 63 NY2d 760, the Court set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.” This reflects the view that the individual should be provided with a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. Should the appointing authority elect to dismiss a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to "notice and hearing" otherwise accorded a "tenured employee."

Another element that may be relevant with respect to determining the effective date of a probationary employee attaining tenure in the position is the requirement that, in addition to satisfactorily completing a probationary period,  the individual successfully complete a  required "traineeship." Distinguishing between ""probationary status" and "traineeship status" was a factor in Sergeants v Brooklyn Developmental Center, 56 NY2d 628.

In Sergeants, a number of probationary employees were terminated at the end of their respective probationary periods. They sued for reinstatement contending that they had not been provided with the 200 hours of training required by department regulations. 

Dismissing their appeal, the Court of Appeals first affirmed the principle that "... the employment of a probationary employee may be terminated at the end of the probationary term without a hearing and without specific reasons being stated."

The court then rejected Sergeants' "traineeship argument," commenting that the mandated training involved would not have addressed the particular demonstrations of poor performance leading to their respective terminations. The evidence in the record, said the court, indicated that the poor performance was related "to fitness for the position" rather than job performance elements that the training provided for by regulation could remedy. Among the examples of poor performance cited by the court were sleeping on the job, habitual lateness, unscheduled absence, failure to perform overtime assignments and similar poor work habits. The decision also indicated that the only issue for review was whether the appointing officer acted in good faith in terminating the employee.

As the Appellate Division ruled in Matter of Loren v New York City Dept. of Educ., 126 AD3d 419, an individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee.

In Loren, the appointee [Trainee] had been accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of this seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the appointing authority’s determination to dismiss him from the traineeship. Supreme Court granted the appointing authority’s motion to dismiss Trainee’s petition and Trainee appealed.

Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee, consistent with the limitation set out by the Court of Appeals in York v McGuire, 63 NY2d 760, "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."

The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.” The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her. Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.

The lesson here: Satisfactory completion of probation and satisfactory completion of a traineeship are two different requirements that must be met by the appointee and he or she must satisfy both in order to be continued in service. Where the successful completion of a traineeship is required in order to be continued in service, however, that condition should be communicated to the individual in the examination announcement or in the offer of his or her appointment to the position.

As to the authority for requiring the completion of a traineeship, the rules of the State Civil Service Commission concerning traineeships are set out in 4 NYCRR 4.3 and provide as follows:

Section 4.3 Trainee appointments and promotions. The Civil Service Department may require that permanent appointments or promotions to designated positions shall be conditioned upon the satisfactory completion of a term of service as a trainee in such a position or in an appropriate, lower, training title or the completion of specified training or academic courses, or both. The period of such term of training service shall be prescribed by the department. Upon the satisfactory completion of such training term, and of specified courses if required, an appointee shall be entitled to full permanent status in the position for which appointment was made. Any appointment hereunder shall be subject to such probationary period as is prescribed in [Section 4.5 of] these rules. Also, the employment of such person may be discontinued at the end of the term of training service if his conduct, capacity or fitness is not satisfactory, or at any time if he fails to pursue or continue satisfactorily such training or academic courses as may be required.

Many municipal civil service commissions have adopted similar rules concerning traineeships.

* The Appellate Division noted that "although the Department of Civil Service State Personnel Management Manual places an affirmative duty on [the appointing authority] to inform an employee whether temporary or provisional service in another position will be counted toward his or her probationary term (see State Personnel Management Manual, 2010 Probation, §234[C][1]), such requirement is inconsistent with the governing regulation and, thus, under the Manual's own provisions, the regulation takes precedence (see State Personnel Management Manual, Introduction, §142)."

** See https://publicpersonnellaw.blogspot.com/2013/07/tenure-by-estoppel-tenure-by.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

Determining the date on which the four month statute of limitations for filing a timely CPLR Article 78 action begins to run

The Court of Appeals has defined "final and binding" in terms of completeness and exhaustion of administrative remedies as follows: "[f]irst, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party."*

Petitioner [Plaintiff] commenced this CPLR Article 78 proceeding seeking to compel the New York State Department of Education [DOE] to issue a school building leader certificate for which he had applied in 2014. DOE, contending that Plaintiff had not paid a necessary fee before the applicable deadline, had declined to issue the certificate and issued a notice of uncompleted requirements for certification on July 23, 2014. Plaintiff was also advised that he would be required to meet newly-enacted examination requirements.

In June 2016 inquiry Plaintiff contacted DOE concerning the status of his application. DOE responded, citing its July 2014 notice of uncompleted requirements. Ultimately DOE, in response to Plaintiff additional inquiry and request for "an official appeal," sent Plaintiff two documents dated December 9, 2016 entitled "Notice of Uncompleted Requirements for Certification" explaining that Plaintiff's application had been disapproved and restated that there was "no legal means by which [DOE could] overlook" the initial missed deadline for the required payment.** Plaintiff was also advised that should he wish "to further pursue the certification, he would need to reapply and meet all additional requirements."

DOE moved to dismiss Plaintiff's petition as untimely because the proceeding was commenced on April 28, 2017, more than four months after DOE's issued its December 9, 2016 determination. In rebuttal, Plaintiff contended that the statute of limitations began to run when he received the second, identical, notice dated January 3, 2017. Supreme Court granted DOE's motion to dismiss the petition, and Plaintiff appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining that the definitive position stated in DOE's January 2017 notice is no different from that DOE expressed in its initial December 2016 notice. Further, said the court Plaintiff "does not argue that he was attempting to pursue further administrative remedies or took any additional action after the December 2016 notice was issued."

Accordingly, the Appellate Division ruled that Supreme Court's dismissal of Plaintiff's petition as untimely was correct, noting that DOE's determination became final and binding and the statute of limitations period began to run on December 9, 2016. Further, said the court, although there is a potential for prejudice in a case where a petitioner receives a subsequent, additional notice and then provides that postdated determination to his or her attorney, in this instance the Appellate Division opined "that no such prejudice has been alleged, nor was any justification for petitioner's failure to commence a proceeding based upon the December 2016 notice provided."

* See Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30.

** The Appellate Division's decision notes that "for reasons still unknown and unexplained within the record or briefs," DOE issued the second identical notice dated January 3, 2017.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05610.htm

New York State's Student Intern Program exposes next generation of leaders to careers in public service

The New York State Department of Civil Service announced more than 250 new student internship opportunities currently available for the upcoming fall semester throughout New York State government and reminded students to apply prior to the September 13, 2019 application deadline. Internships are available across a wide array of State agencies and include opportunities in human services, environmental conservation, criminal justice, health care, and engineering.

The Department of Civil Service has created a one-stop website – www.nysinternships.cs.ny.gov– that allows applicants to view job descriptions, create profiles, specify occupational interests, and upload resumes, writing samples, and letters of recommendation.

A list of available internships for the fall 2019 Session is available by visiting:

  www.nysinternships.cs.ny.gov/nnyl/main/viewinternships.cfm.

“Under Governor Cuomo’s leadership, New York State is attracting and developing our future leaders in State government and providing them with valuable skills and hands-on experience that will assist them as they step out into the workplace,” said Lola W. Brabham, Acting Commissioner of the New York State Department of Civil Service. “Today and every day, let us thank our student interns for their valuable contributions to State government and their efforts in building a better and stronger New York for all.”

The Student Intern Program is part of Governor Cuomo’s New New York Leaders Initiative, which focuses on attracting new and highly-skilled individuals to State government through both internship and fellowship programs. Through this program, students are exposed to the work of governing, while gaining valuable hands-on experience serving the people and interacting with government leaders and policy-makers.

Student internships are available to undergraduate and graduate students at colleges and universities throughout New York State, as well as New York residents enrolled elsewhere. Each intern works in a particular area within an Executive Branch agency or department.

Opportunities include both paid and unpaid positions. Academic credit may be given for internships depending on the policy of the intern’s educational institution.

Featured internships for the fall 2019 session include:

Classification & Compensation Intern (Department of Civil Service – Albany): As part of the Department’s Division of Classification and Compensation, interns will gain an exposure to human resource management, division operations, and how budget considerations affect agency operations. Intern duties will consist of a range of activities that include position classification and reclassification, title allocation and reallocation, preparation of Classification Standards, review and analysis of requests for salary differentials, and occupational studies.

Accounting & Investigative Intern (Gaming Commission – New York City): Student interns will work within the Office of the Gaming Inspector General and will assist staff with investigations of allegations of corruption, fraud, criminal activity or abuse in the Commission. Interns will be exposed to a number of different experiences, including attending public meetings, participating in interviews, and preparing data analysis and/or memoranda.

Social Work Intern (Office of Children and Family Services - Rensselaer): Working within the Bureau of Behavioral Health Science, the student intern will learn how to process applications for Medicaid waiver services, and receive supervision to develop a short-term wellness program for staff. In addition, the intern will learn about the process of assessing and treating youth with mental health diagnoses.

Program Services Intern (Department of Corrections and Community Supervision – Gowanda): Student interns will assist staff in completing initial assessments, risk assessments, and participate in the development of treatment plans for inmate clients. In addition, interns will become familiarized with the Criminal Justice System, from courts, to incarceration and release to the community. They will also develop clinical skills and professionalism, while maintaining ethical standards in the field.

N.B. Students Must Apply by September 13, 2019

If a party objects to arbitrating a provision in a Taylor Law collective bargaining agreement courts will require a showing that it is lawful to arbitrate the dispute and that the parties agreed to arbitrate such a dispute

About three months after collective bargaining agreement [CBA] between the School District[District] and the Employee Organization [Local 811] had expired the parties entered into a memorandum of agreement that extended the CBA, with certain modifications, through 2020. These modification included changes with respect to  employee prescription drug benefits. Local 811 subsequently filed a grievance with the District challenging the change to the prescription drug coverage as applied to retirees.

The District denied the grievance, finding that [1] it was untimely; [2] Local 811 did not represent retirees;*and [3] there was nothing in the CBA prohibiting this change. When, ultimately, Local 811 demanded that the grievance be submitted to arbitration, the District initiated a CPLR Article 75 action seeking a court order to permanently stay arbitration.

Supreme Court found that the matter was arbitrable, dismissed the District's petition and the District appealed Supreme Court's ruling to the Appellate Division. The Appellate Division sustained the Supreme Court's ruling.

Explaining that the court's role in reviewing applications to stay arbitration is a limited one, the Appellate Division said that central inquiry is whether the dispute is arbitrable, citing City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273. The Appellate Division then opined that to show that a CBA dispute is arbitrable requires proof that [a] it is lawful to arbitrate the dispute and [b] the parties have agreed to arbitrate such a dispute. In this action, however, the court said that the only question to resolve was [b] -- whether the parties agreed to arbitrate the dispute at issue.

To determine whether parties so agreed requires the court to examine the [CBA] to ascertain whether CBA contains a "broad arbitration clause," and if it does the court will find an "agreement" to arbitrate if "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA." In contrast, specific contentions related to the scope of the CBA or interpretation of its substantive provisions are to be determined by an arbitrator.

In this instance the court found that the CBA's grievance procedure was intended to "establish a more harmonious and cooperative relationship between the non-instructional staff and [the District]" which, in this context said the Appellate Division, mandates that the CBA's provisions to be "liberally construed for the accomplishment of this purpose."

Further, the CBA broadly defines a grievance as "any claimed violation, misinterpretation, or inequitable application of [the CBA] or of any laws, rules, procedures, regulations, administrative order or work rules of the [individual designated by management to review and resolve grievances], or those matters affecting employees' health or safety, physical facilities, materials or equipment furnished to the employees or supervision of employees, or any other matter(s), in which the employee feels he [or she] has been dealt with unfairly." The CBA's grievance procedure provides, as the final step in the processing of a grievance, arbitration of the dispute.

Considering "the breadth of this language, lack of any exception for grievances concerning retirement benefits, and the CBA's provisions expressly addressing [prescription drug] coverage for retirees ..." the Appellate Division concluded that there was a reasonable relationship between the dispute and the subject matter of the CBA such that the dispute was arbitrable.

Although the District sought to read the terms "staff" and "employee" to narrow the ambit of the arbitration clause and specifically to exempt retirees from having the right to bring a grievance, the Appellate Division held that such a specific contention is not relevant to the threshold analysis of arbitrability but, instead, concerns the scope and substance of the CBA. Accordingly, the court ruled that the issue should be "determined by an arbitrator" rather than the court.

* Typically retirees are not in the collective bargaining negotiating unit but may be entitled to certain benefits set out in a collective bargaining agreement where specifically so provided.

The decision is posted on the Internet:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05619.htm