Negotiating "for cause" termination protection for officers and employees serving in positions in the Exempt Class

Certain civil service positions in the classified service are placed in the "exempt" class reflecting the duties of the position are of a confidential nature and requires personal qualities that cannot practicably be tested by an examination. Subject to certain exceptions set out in §75.1(b) of the Civil Service Law, incumbents of positions in the Exempt Class are terminable at will. 

The issue before the court: A challenge to a provision in the relevant collective bargaining agreement that, in the words of the Court of Appeals, "purports to provide for-cause termination protection to certain exempt class employees."*

The Court held that provision in the agreement unenforceable to the extent it granted such protections to officers and employees in the Exempt Class except as otherwise provided by §75.1(b) of the Civil Service Law.

*Although not all exempt class employees are officers of the entity, all exempt class officers of the entity are employees of the entity.

 Click HERE to access the decision of the Court of Appeals posted on the Internet.

Accidental Disability Retirement application rejected

 

Supreme Court denied Plaintiff's petition to vacate a determination of Respondents, which denied Plaintiff's application for World Trade Center Accidental Disability Retirement (WTC ADR) benefits, and dismissing the proceeding brought pursuant to CPLR article 78. The Court of Appeals unanimously affirmed the lower court's ruling, without costs.

The Court of Appeals noted this was the third CPLR Article 78 proceeding brought by Plaintiff' seeking to vacate the denial of her application for WTC ADR benefits, based on her failure to demonstrate that she engaged in rescue, recovery and cleanup operations at the statutorily defined WTC site during the statutory period. The Court of Appeals had affirmed the denial of those benefits by Respondents in connection with the evidence submitted on her first two applications, Matter of Salerno v Kelly, 139 AD3d 516.

In support of her third attempt, Plaintiff submitted the affidavit of a retired colleague, stating that at the time of the terrorist attack, he was stationed with Plaintiff at the offices of the Internal Affairs Bureau. However, the location so identified "was outside the qualifying area." 

Accordingly, said the Court, Respondents had a rational basis for denying Plaintiff's application, and for concluding that the colleague's affidavit was not persuasive, in light of the other contrary evidence, including overtime slips signed by Plaintiff indicating that she worked at IAB and/or command and control during the relevant period.

Click HERE to access the decision of the Court of Appeals posted on the Internet.

Applying the ""inherent risk" principle in evaluating an employee's application for accidental disability retirement benefits

The Comptroller denied a State Trooper's [Petitioner] application for accidental disability retirement benefits. Petitioner had filed an application for accidental disability retirement alleging that he was permanently disabled due to, among other things, posttraumatic stress disorder resulting from an incident in which Petitioner shot a suspect who was driving a car at a high rate of speed towards the Petitioner.

Citing Matter of McGoey v DiNapoli, 194 AD3d 1296, the Appellate Division noted that the applicant, here the Petitioner, bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law, and the Comptroller's determination on that point will be sustained "if supported by substantial evidence in the record as a whole substantial evidence."

In this instance, said the court, substantial evidence supports the Comptroller's determination that Petitioner's use of deadly force to protect himself from imminent danger, "although not typical, and certainly a traumatic experience, was inherent in his duties and training."

Applying the "inherent risk" principles set out by the Court of Appeals in Kelly v DiNapoli, 30 NY3d 674 and applied in Matter of Kowal v DiNapoli, 145 AD3d 1152, the Appellate Division opined that the Comptroller's determination that the incident at issue "did not constitute an accident within the meaning of Retirement and Social Security Law §63-bb will not be disturbed."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Selected bills introduced in the New York State Senate addressing certain public personnel situations on or before May 19, 2023

S23 by Daniel G. Stec 45th Senate District : Concerning the villages of Malone, Saranac Lake and Tupper Lake, in the county of Franklin, employing retired former members of the division of state police as part-time village police officers

 

S4087 by Pamela Helming 54th Senate District : Authorizes Michael Telesca to take the competitive civil service examination and be placed on the eligible civil service list for employment as a full-time police officer for the county of Livingston

 

S4811B by Andrew Gounardes 26th Senate District : Relates to increasing certain special accidental death benefits

 

S5015 by Andrew Gounardes 26th Senate District : Addresses the appointment and promotion of certain personnel of the sanitation department of the city of New York

 

S5361 by John W. Mannion 50th Senate District : Grants retroactive membership with Tier IV status in the New York state teachers' retirement system to Peter Guarino

 

S5494 by Robert Jackson 31st Senate District : Provides for crediting of probationary service

 

S5605 by Lea Webb 52nd Senate District : Authorizes the city of Binghamton to offer an optional twenty-five year retirement plan to firefighter Scott Pavlick

 

S6054 by Robert Jackson 31st Senate District : Relates to retirement benefits for certain employees

 

S6188 by Steven D. Rhoads 5th Senate District :Would provided for retroactive Tier V membership in the NY State and Local Employees' Retirement System to Daniel Miller

 

S6343 by Andrew Gounardes 26th Senate District : Relates to the limitation of overtime compensation in final average salary calculations

 

S6477 by Robert Jackson 31st Senate District : Provides home addresses of certain employees to employee organizations

 

S6482A by John W. Mannion 50th Senate District : Allows an individual with disabilities or a disabled veteran to hold full-time or part-time positions for purposes of eligibility for recruitment for state employment

 

S6861 by Robert Jackson 31st Senate District : Would provides for the automatic enrollment of employees of the City of New York eligible to join the New York City Board of Education Retirement System other than individuals provisional appointed

 

S6862 by Robert Jackson 31st Senate District : Provides for a line of duty presumption for disabilities of fire alarm dispatchers in certain cities

 

 S6976 by Robert Jackson 31st Senate District : Would grant eligibility of certain participants in the New York City Employees Retirement System to opt into the twenty-five year retirement program for EMT members

 

Imposing a reasonable disciplinary penalty under the circumstances

Petitioner was served with a notice of discipline setting out six charges of misconduct alleging violations of the agency's rules, regulations and code of conduct. Petitioner denied the charges and demanded a hearing pursuant to Civil Service Law §75. The Employer withdrew one of the six charges after the §75 disciplinary hearing. The Hearing Officer subsequently found Petitioner guilty of the five remaining charges and recommended that the Petitioner be terminated from his position. The Appointing Authority reviewed the record and Hearing Officer's recommendation, found Petitioner guilty of the five remaining charges of misconduct and terminated his employment. Petitioner appealed the Appointing Authority's decision.

The Appellate Division, opining that the five charges were supported by substantial evidence, explained:

1. New York State's Civil Service Law §75(1) provides an employee in the classified service of a public employer covered by the statute "shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges"; and

2. "The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence."

Turning to Petitioner's challenging the penalty imposed, of termination of his employment, as "excessive", the Appellate Division said in determining whether an imposed disciplinary penalty is excessive, "this Court must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offenses as to shock one's sense of fairness",* citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317.

The court, recognizing that Petitioner had been employed by the Appointing Authority "for nearly 25 years with no prior disciplinary issues and that he submitted 15 letters by individuals acclaiming their belief in his good character," said "sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.'"

Noting that the record "establishes numerous incidents of sexual harassment" by Petitioner, the Appellate Division said: it "cannot conclude that the penalty of termination was so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness".

* A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court decisions addressing disciplinary penalties imposed on employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For more information click HERE. 

Click HERE to access the full text of the Appellate Division's ruling summarized above.