Only educators holding valid New York State teacher’s certificate are entitled to Jarema service credit in meeting probationary service requirements

Only educators holding valid New York State teacher’s certificate are entitled to Jarema service credit in meeting probationary service requirements
Goldberg and the NYC Department of Education, Decisions of the Commissioner of Education 15763

A per diem substitute teacher and worked for a total of 12 days pursuant to a temporary license allowing him to teach while at the same time working toward certification. The teacher was subsequently assigned to a regular, full-time substitute teaching position and ultimately received a provisional certificate from the State Department of Education as an English teacher.

He was then appointed to a probationary teaching and was given one year of credit towards his probationary period for the two complete terms in which he served as a regular substitute.

The teacher was given an unsatisfactory rating in his annual review and was notified that his services as a probationer would be discontinued. He appealed his termination, claiming that he acquired tenure by estoppel and could not be terminated after that point without a due process hearing held in accordance with Education Law §§3020 and 3020-a. He also argued that that his substitute service qualified for credit of approximately one year, three months and 18 days, and thereby reduced his probationary period as a teacher with the Department pursuant to Education Law §2573(1).

Rejecting the teacher’s appeal the Commissioner of Education cited Education Law §2573(1)(a), which states, in pertinent part, “Teachers ... shall be appointed ... for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years ... the probationary period shall be limited to one year;....”

In addition, the Commissioner noted that “Parallel provisions are found in Education Law §§2509(1)(a) and 3012(1)(a).”

Thus, a teacher can apply service as a “regular substitute” toward completion of the three-year probationary term required for tenure – commonly referred to as “Jarema credit.”

In order to earn Jarema credit, however, a teacher must serve as a regular substitute continuously for at least one school term immediately proceeding the probationary period. The Commissioner also noted, “Jarema credit cannot be given to a regular substitute who does not possess a valid New York State teacher’s certificate.”

Off-duty police officer not acting in the performance of his or her duties at the time of his or her injury not eligible for General Municipal Law §207-c benefits

Off-duty police officer not acting in the performance of his or her duties at the time of his or her injury not eligible for General Municipal Law §207-c benefits

Martin v Clarkstown, 2012 NY Slip Op 51482(U), Supreme Court, Rockland County [Not selected for publications in the Official Reports]

Daniel Martin, a Clarkstown police officer, was injured in the line of duty and was approved for certain benefits pursuant to General Municipal Law Section §207-c.

Section §207-c provides, in relevant part, that “Any . . . member of a police force of any county, city of less than one million population, town or village … so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness….”

Martin returned to work after recovering from the injury. He, however, later suffered a second injury that prevented him from performing the duties of his position. This injury occurred at his home while Martin was off-duty. Martin contended that his second injury was the result of his having suffered his earlier job-related injury.

When his request for §207-c benefits in consideration of this second injury was denied by the Department, Martin filed an Article 78 petition challenging the Department’s decision. In support of his petition, he submitted a number of documents from physicians indicating his second injury was related to the first injury to Supreme Court.

Martin contended that “because the second injury was related to the first injury, he should have received benefits pursuant to §207-c.” Essentially Martin argued that his second injury was a "reoccurrence of his acknowledged GML §207-c injury."

Clarkstown disagreed, arguing that §207-c benefits are not available with respect to injuries suffered by an off-duty police officer who was not acting in the performance of his or her duties at the time of his or her injury.

Supreme Court rejected Martin’s petition, holding that it was well settled that in order to demonstrate entitlement to §207-c a claimant must prove a direct causal relationship between his or her job duties and the resulting illness or injury, citing Brunner v. Bertoni, 91 AD3d 1100. In Brunner the Appellate Division said §207-c benefits were not available to an individual if his or her performing the duties of the position were not a direct cause of the injury or disease.

Sustaining the Department’s administrative determination, Supreme Court ruled that because Martin had not suffer his second injury while he was engaged in “the performance of his duties" he was not entitled to §207-c benefits. Further, the court found that the Department’s determination with respect to Martin’s second injury had a rational basis and was neither arbitrary nor capricious.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_51482.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Workers’ Compensation benefits for injury as a participant in an “off-duty athletic event” depends of the nature of the employer’s sponsorship

Workers’ Compensation benefits for injury as a participant in an “off-duty athletic event” depends of the nature of the employer’s sponsorship
Huff v Department of Corrections, 52 AD3d 1003

Cheryl Huff, a correction officer, was employed at the Greene Correctional Facility in Greene County. She was injured while practicing volleyball for the employer's "Olympics," while playing on a team representing another correctional facility.

The Workers' Compensation Board approved Huff’s application for workers’ compensation benefits, ruling that her injury arose out of and in the course of her employment. The employer and its Workers’ Compensation Insurance carrier appealed the Board’s ruling.

Initially the Appellate Division noted that where an employee is neither required nor compensated to participate in an off-duty athletic-related activity, an injury attributable to such participation is compensable only when the employer "otherwise sponsors the activity," citing Section 10.1 of the Workers' Compensation Law.

As to what constitutes sponsorship, the court said sponsorship has been found when there is an affirmative act or overt encouragement by the employer for the employee to participate in the activity.

The problem, here, however, was that the Workers’ Compensation Appeals Board's finding that Huff was eligible for workers’ compensation benefit for the injury that she sustained in the course of training for the Olympics for another Corrections facility’s team was contrary to a previous Board decision having almost identical facts.

The Appellate Division pointed out that the Board had previously ruled that a corrections employee's injury while training to represent the facility in a statewide athletic competition was not compensable because the employer did not sponsor or encourage participation in the activity.

In such situations the Appellate Division said that is was incumbent on the administrative body to “set forth a rational explanation for doing so or such determination will be deemed arbitrary and capricious.”

Holding that the Board has not provided a rational basis for departing from its own precedent, the Appellate Division vacated its ruling and remitted the matter to the Workers' Compensation Board “for further proceedings not inconsistent with this Court's decision.”

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position
New York State Off. of Mental Health v New York State Div. of Human Rights, 53 AD3d 887

Former Section 5.4(d) of the State Civil Service Commission's Rules for the Classified Service [4 NYCRR 5.4(d)] provided that an employee who was absent without permission and without explanation for ten or more days would be deemed to have resigned from his or her position effective the first day of such unauthorized absence. 4 NYCRR 5.4(d) was held to violate due process. [See, for example, Bernstein v Industrial Commissioner, 57 AD2 767] and was subsequently repealed.

However, this type of provision may survive in collective bargaining agreements, as demonstrated in this action.

An individual began working as a safety officer for the Office of Mental Health and subsequently entered an inpatient rehabilitation program for alcohol abuse. However the individual did not report back to work, but made several telephone calls to his supervisor, informing him that he would not be returning to work for various reasons, including an injury to his leg.

The personnel office then sent a letter to the employee stating that, pursuant to the collective bargaining agreement (CBA) between the State and Purse's union, the individual was deemed to be absent from duty without authorization and he would be terminated from the position by a specified date unless he provided a satisfactory explanation for his absence since his release from the program.

Ultimately the individual was removed from the payroll and he thereafter filed a verified complaint with the State Division of Human Rights (SDHR) charging OMH with an unlawful discriminatory practice based on his status as a recovering alcoholic. SDHR determined that it had jurisdiction and after a number of hearings before an Administrative Law Judge determined, that OMH had engaged in a discriminatory practice and awarded the complainant $5,000 for emotional distress and in addition awarded Purse $385,750 for back pay.

The Appellate Division commenced its analysis of the case by noting that it “accords considerable deference to the determinations of SDHR due to its expertise in evaluating discrimination claims, and we will uphold such if supported by substantial evidence.”

Further, said the court, "[a] determination may not be set aside 'merely because the opposite decision would have been reasonable and also sustainable” and upheld SDHR's determination that OMH engaged in an unlawful discriminatory practice.

Referring to the CBA, the Appellate Division noted that it, in relevant part, that "[a]ny employee absent from work without authorization for ten consecutive workdays shall be deemed to have resigned from his [or her] position if he [or she] has not provided a satisfactory explanation for such absence on or before the eleventh workday following the commencement of such unauthorized absence." 

Here, the court noted, the record demonstrates that, after failing to report to work, OMH was contacted by telephone and put on notice of the employee’s medically excused absence, followed with telephone calls, during the last of which OMH was advised that the individual would be absent for an indefinite period of time.

Further, said the court, OMH placed the individual in “a holding status” until he furnished the proper documentation, which he submitted in the form of medical reports substantiating his absence.

This, said the court, provides substantial evidence to support SDHR's determination that OMH's proffered reason for terminating the employee was a pretext; that OMH engaged in an unlawful discriminatory practice; and that employee was entitled to an award of $5,000 for emotional distress.

The Appellate Division, however, rejected SDHR's determination that the individual was entitled to an award for back pay.

The purpose of back pay, said the court, is to make a person whole and redress the economic injury that has resulted from unlawful employment discrimination. Thus, where losses in salary are attributable to disability and not the result of discrimination, as is here the case based on the individual’s own explanation of his absence, an award of back pay should not be made.

Further, said the court, the record demonstrates that the individual was removed from OMH’s payroll and, as the result of a retroactive award, began receiving disability benefits effective on that same day. Thus, said the court, “we find that SDHR erred in making the determination that the individual was entitled to a back pay award.”

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/deeming-individuals-absence-without.html

Payments in contemplation of retirement excluded in determining an individual’s final average salary for purposes of retirement

Payments in contemplation of retirement excluded in determining an individual’s final average salary for purposes of retirement
Franks v DiNapoli, 53 AD3d 897

The Employees’ Retirement System member commenced service with the Town and served as its police chief from 1996 until his retirement in 2002. His first contracts as police chief provided for “executive longevity increments” that ranged from one-half day of pay per two-week pay period in 1996 to two days of pay per pay period in 2000.

A second contract as chief included executive longevity payments of executive longevity payments of 5½ days of pay per pay period for the first year and eight days of pay per pay period during the second year. The contract also specified that in the event the Chief continue his employment as chief beyond July 2002, his executive longevity increments would revert back to two days of pay per pay period effective August 1, 2002. The Chief served out the full term of his contract, retiring effective August 1, 2002.

When the Chief filed his application for retirement with State and Local Police and Fire Retirement System notified him that it had calculated his retirement benefits based on a final average annual salary of $166,463.40 which included only executive longevity payments equal to two days of pay per payroll period. If the amounts for the remaining six days were included, it would have increase the Chief’s annual salary to $237,114.18, significantly increasing his “final average salary” for retirement purposes.

The Retirement System said that including more than “two days per pay period of executive longevity payments” would constitute the inclusion of “compensation in anticipation of retirement,” the inclusion of which was barred by Section 302.9(d) of the Retirement and Social Security Law.

The Appellate Division rejected the Chief’s challenge of the Systems’ decision to include only “two executive longevity days per pay period” in determining his final average salary for the purposes of calculating his retirement allowance.

Retirement and Social Security Law Section 302.9(d) provides that the salary base used to compute retirement benefits "shall not include any form of termination pay or compensation paid in anticipation of retirement.” The courts said that “Regardless of the labels attached to compensation by the parties, the substance of the transaction and payments controls,” and the System’s determination in this instance is supported by substantial evidence.

In the words of the Appellate Division, “The contract dramatically increased the longevity payments compared to [the Chief’s] prior years as chief….” Although the Chief testified that the large increase in his “executive longevity payments” was negotiated in exchange for a waiver of overtime rights, the court said that the contract “does not mention such an exchange” and the Chief’s testimony in this regard “created a credibility issue which [the Retirement System] was free to resolve.”

Under the circumstances, said the court, substantial evidence supports Retirement System’s determination that the executive longevity increments in excess of two days of pay per payroll period constituted compensation in anticipation of retirement, which is properly excluded when calculating an employee's salary for the purpose of determining an individual’s retirement allowance.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/payments-in-contemplation-of-retirement.html