Retiree health insurance benefits
Aeneas McDonald PBA v City of Geneva, App. Div., 245 A.D.2d 1042, Affirmed, 92 N.Y.2d 326
The elimination or modification of a public retiree’s health insurance coverage by a former employer has been the subject of a number of recent litigations. The latest rulings suggest that the resolution of the issue will turn on whether or not the retirees have a contractual right to such benefits.
For instance, in the Della Rocco v. City of Schenectady and Andriano v. City of Schenectady cases, decided August 28, 1997, New York State Supreme Court Justice Robert E. Lynch wrote that City of Schenectady police and fire department retirees were entitled to fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the benefits had been negotiated and set out in a Taylor Law agreement. Justice Lynch ruled that it was not relevant that the particular Taylor Law agreement under which the individual retired was no longer operative.
The Appellate Division recently applied the same reasoning in a suit filed by the Aeneas McDonald Police Benevolent Association, Inc., whose members include all current and retired members of the Geneva Police Department. The PBA sued to annul the City’s decision to unilaterally change the health insurance plan it provided for its retired police officers.
In a split decision, the Appellate Division ruled that the City of Geneva could change the health insurance it provided its retired police officers because the retirees’ health insurance coverage benefits were not protected by the terms of a collective bargaining agreement, either currently operative or expired.
The background: In 1972 the City adopted a resolution, Resolution 33, providing for the payment of health insurance benefits to retired City employees. The City simultaneously discontinued its membership in the State’s Employees’ Health Plan, electing to provide coverage through the Genesee Valley Medical Health Care Plan. Later the City replaced the Genesee Plan with the Blue Million Health Plan.
The City told its retirees that they would be covered by the Blue Million Health Plan until December 31, 1996, and that effective January 1, 1997 their coverage would be changed to the Blue Choice Extended Plan. The union sued. What proved to be critical in determining the rights of Geneva’s retired police officers was the fact that the City’s retirees’ benefits were being provided pursuant to a resolution adopted by the City rather than under the terms of a collective bargaining agreement.
Although New York State Supreme Court Justice Harvey held that Geneva’s decision to change the health insurance benefits of retirees violated the parties’ past practice of providing a certain level of benefits to retirees, the Appellate Division ruled that this was incorrect.
The Appellate Division pointed out that none of the previous collective bargaining agreements between the City and the bargaining units that represent active police officers addressed the issue of health insurance benefits for retired police officers. Consequently, said the Court, the union’s retired members “are not now nor have they at any time in the past been beneficiaries of a negotiated labor agreement that provides health insurance benefits during the period of their retirement.”
In contrast to the situation in the Schenectady case, the Court concluded in the Geneva case that (1) the retired union members never had any contractual rights with respect to health insurance benefits during retirement and (2) Resolution No. 33 did not give the retirees any vested rights to any particular health insurance benefits during retirement. In other words, unless the provision is deemed a “contractual” obligation, a legislative body may amend, or repeal, a law, rule, regulation, ordinance or resolution changing health insurance benefits for retirees. In addition, the Appellate Division said that the City was not required to negotiate its unilateral change in the health insurance benefits it provided its retirees and dismissed the union’s petition.
What about the State Constitution’s prohibition against “diminishing or impairing” a retirement benefit? The simple answer is that health insurance benefits are not “retirement benefits” within the meaning of the State’s Constitution. Unless there is some “contractual right” to health insurance benefits in retirement, the employer may unilaterally change the plan, contribution rates or other elements of a retiree’s health insurance.
The leading case involving this issue is Lippman v Sewanhaka Central High School District, 66 NY2d 313. The Court of Appeals said that a school board could change the rates of its employer contributions for retiree health insurance premiums that had been adopted pursuant to an earlier school board resolution where “the retirees had no contractual right” to the continuation of those contributions.
Those involved in the public schools or BOCES should note that school retirees have special rights. Under temporary legislation, state law requires school districts and BOCES to provide their respective retirees with the same health insurance benefits that they provide for their active employees [Chapter 80 of the Laws of 1997 extended Chapter 729 of the Laws of 1994 for one additional year]. Retirees of other municipal employers are seeking similar legislative protection against changes in their health insurance coverage by their former employers.
The text of the decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/retiree-health-insurance-benefits.html
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Sep 13, 2010
Retaliating against employees for political activity
Retaliating against employees for political activity
Richardson v Saratoga Springs, App Div, 246 A.D.2d 900
Scott Richardson, one of two “city electricians” employed by the Saratoga Springs Department of Public Works, supported his brother-in-law in a political race against the City’s incumbent Commissioner of Public Works. After the incumbent won, Richardson sued, alleging that the City had retaliated against him for his political activities by:
1. Transferring some of his duties to a co-worker, Vincent Arpey; and
2. Discontinuing his de facto status as supervisor of the entire electrical crew.
He cited Section 107 of the Civil Service Law, which provides, in pertinent part, that political opinions or affiliations may not be a consideration in the “appointment or selection to or removal from an office or employment” (or in the discharge or promotion or reduction, or in any manner change in the official rank or compensation) of an individual whose position is subject to the Civil Service Law.”
The Appellate Division agreed, holding a jury trial was needed to determine whether Saratoga Springs violated this section of the law when it made a personnel decision that was “affected or influenced by” an employee’s political opinion or affiliation. “[A] reasonable factfinder could conclude that [Richardson] was discriminated against because of his political activities outside of working hours.”
The Court said discrimination could explain why Richardson’s was denied “a promotion and concomitant salary increase -- ‘for constitutionally impermissible reasons,’ namely, because of his off-duty political activities.” The fact that an independent consultant actually recommended the reclassification was, according to the ruling, of little significance “where, as here, it can be inferred that those actions were the direct consequence of the changes in the electricians’ work duties “affected or influenced by” the Commissioner.”
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Richardson v Saratoga Springs, App Div, 246 A.D.2d 900
Scott Richardson, one of two “city electricians” employed by the Saratoga Springs Department of Public Works, supported his brother-in-law in a political race against the City’s incumbent Commissioner of Public Works. After the incumbent won, Richardson sued, alleging that the City had retaliated against him for his political activities by:
1. Transferring some of his duties to a co-worker, Vincent Arpey; and
2. Discontinuing his de facto status as supervisor of the entire electrical crew.
He cited Section 107 of the Civil Service Law, which provides, in pertinent part, that political opinions or affiliations may not be a consideration in the “appointment or selection to or removal from an office or employment” (or in the discharge or promotion or reduction, or in any manner change in the official rank or compensation) of an individual whose position is subject to the Civil Service Law.”
The Appellate Division agreed, holding a jury trial was needed to determine whether Saratoga Springs violated this section of the law when it made a personnel decision that was “affected or influenced by” an employee’s political opinion or affiliation. “[A] reasonable factfinder could conclude that [Richardson] was discriminated against because of his political activities outside of working hours.”
The Court said discrimination could explain why Richardson’s was denied “a promotion and concomitant salary increase -- ‘for constitutionally impermissible reasons,’ namely, because of his off-duty political activities.” The fact that an independent consultant actually recommended the reclassification was, according to the ruling, of little significance “where, as here, it can be inferred that those actions were the direct consequence of the changes in the electricians’ work duties “affected or influenced by” the Commissioner.”
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Sep 10, 2010
School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums
School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums
Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., Supreme Court, Broome County, 2010 NY Slip Op 20360, Decided on September 3, 2010, Supreme Court, Broome County, Judge Philip R. Rumsey
The Chenango Forks Central School District discontinued reimbursing its Medicare-eligible retirees and their dependents participating in its health insurance plan the premiums they were required to pay for participating in Medicare.
The District’s Health Insurance Plan was underwritten by “Blue Cross/Blue Shield” [Plan] that did not require that eligible individuals enroll in Medicare. However, the Plan would not cover services that would be provided to a Medicare recipient by Medicare even if an eligible individual or his or her covered dependent failed to enroll in Part B.*
Theodora Q. Bryant and a number of other school district retirees or the survivors of such retirees brought an Article 78 action in an effort to annul the School District’s failure to reimburse them for the Medicare premiums that were required to pay for their Medicare coverage. Bryant contended that the District’s action violated the statutory moratorium against reducing the health insurance benefits of school district retirees, or the contributions made to obtain such benefits, in the absence of a similar decrease in benefits or contributions for active employees.**
All petitioners are 65 years of age, or older, and are eligible to receive Medicare benefits, including Part B, which provides coverage for physician and outpatient services. A monthly premium for Part B coverage is deducted from the Social Security benefits payable to an enrolled individual. In 1987 and 1988, in accordance with a collective bargaining agreement, respondent provided health insurance to teachers and eligible retirees through NYSHIP, New York’s health insurance plan for State officers and employees and the officers and employees of political subdivisions of the State electing to become “participating employers.”
NYSHIP required Medicare-eligible individuals to enroll in Medicare as NYSHIP but reimburse the Medicare premiums that they were required to pay in accordance with the provisions of Civil Service Law §167-a.
In 1988, the collective bargaining agreement between the District and the Chenango Forks Teachers Association replaced NYSHIP with a Blue Cross/Blue Shield Plan (Plan), which does not require that eligible individuals enroll in Medicare. However the Plan did not provide benefits services that would be provided to a Medicare recipient in the event a Medicare-eligible participant failed to enroll in Medicare. Although the new collective bargaining agreement was silent with respect to the District reimbursing Medicare premiums to the Medicare-eligible participants, the District reimbursed such retirees for their Medicare premiums continuously since at least 1980.
The District discontinued making such reimbursements effective July 1, 2003.
Bryant, however, contended that the Moratorium precluded any diminution in health insurance benefits provided to retirees or their dependents, or contributions made toward the payment of retiree health benefits, "unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees, [emphasis Judge Rumsey's]. Judge Rumsey agreed and, annulling the District’s discontinuing it practice of reimbursing Medicare-eligible retirees their Medicare premiums and directed it to pay Bryant and her co-litigants “the amounts of such premiums that would have been so reimbursed, in the absence of the challenged determination.”
* The State’s NYSHIP health insurance plan incorporates a similar limitation in that its health insurance plan does not pay for those services that would be otherwise paid by Medicare on behalf of a Medicare-eligible individual thereby requiring such an individual and his or her dependents to enroll in Medicare and pay the premiums required for such Medicare coverages in order to have such coverages.
** Initially enacted in 2003 (see Chapter 48 of the Laws of 2003), the prohibition was periodically extended and made permanent in 2009 [Chapter 504, Laws of 2009, §14(b)].
The Byrant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20360.htm
For additional information concerning the issues concerning reimbursing Medicare-eligible retirees for their Medicare premiums, please go to:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
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Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., Supreme Court, Broome County, 2010 NY Slip Op 20360, Decided on September 3, 2010, Supreme Court, Broome County, Judge Philip R. Rumsey
The Chenango Forks Central School District discontinued reimbursing its Medicare-eligible retirees and their dependents participating in its health insurance plan the premiums they were required to pay for participating in Medicare.
The District’s Health Insurance Plan was underwritten by “Blue Cross/Blue Shield” [Plan] that did not require that eligible individuals enroll in Medicare. However, the Plan would not cover services that would be provided to a Medicare recipient by Medicare even if an eligible individual or his or her covered dependent failed to enroll in Part B.*
Theodora Q. Bryant and a number of other school district retirees or the survivors of such retirees brought an Article 78 action in an effort to annul the School District’s failure to reimburse them for the Medicare premiums that were required to pay for their Medicare coverage. Bryant contended that the District’s action violated the statutory moratorium against reducing the health insurance benefits of school district retirees, or the contributions made to obtain such benefits, in the absence of a similar decrease in benefits or contributions for active employees.**
All petitioners are 65 years of age, or older, and are eligible to receive Medicare benefits, including Part B, which provides coverage for physician and outpatient services. A monthly premium for Part B coverage is deducted from the Social Security benefits payable to an enrolled individual. In 1987 and 1988, in accordance with a collective bargaining agreement, respondent provided health insurance to teachers and eligible retirees through NYSHIP, New York’s health insurance plan for State officers and employees and the officers and employees of political subdivisions of the State electing to become “participating employers.”
NYSHIP required Medicare-eligible individuals to enroll in Medicare as NYSHIP but reimburse the Medicare premiums that they were required to pay in accordance with the provisions of Civil Service Law §167-a.
In 1988, the collective bargaining agreement between the District and the Chenango Forks Teachers Association replaced NYSHIP with a Blue Cross/Blue Shield Plan (Plan), which does not require that eligible individuals enroll in Medicare. However the Plan did not provide benefits services that would be provided to a Medicare recipient in the event a Medicare-eligible participant failed to enroll in Medicare. Although the new collective bargaining agreement was silent with respect to the District reimbursing Medicare premiums to the Medicare-eligible participants, the District reimbursed such retirees for their Medicare premiums continuously since at least 1980.
The District discontinued making such reimbursements effective July 1, 2003.
Bryant, however, contended that the Moratorium precluded any diminution in health insurance benefits provided to retirees or their dependents, or contributions made toward the payment of retiree health benefits, "unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees, [emphasis Judge Rumsey's]. Judge Rumsey agreed and, annulling the District’s discontinuing it practice of reimbursing Medicare-eligible retirees their Medicare premiums and directed it to pay Bryant and her co-litigants “the amounts of such premiums that would have been so reimbursed, in the absence of the challenged determination.”
* The State’s NYSHIP health insurance plan incorporates a similar limitation in that its health insurance plan does not pay for those services that would be otherwise paid by Medicare on behalf of a Medicare-eligible individual thereby requiring such an individual and his or her dependents to enroll in Medicare and pay the premiums required for such Medicare coverages in order to have such coverages.
** Initially enacted in 2003 (see Chapter 48 of the Laws of 2003), the prohibition was periodically extended and made permanent in 2009 [Chapter 504, Laws of 2009, §14(b)].
The Byrant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20360.htm
For additional information concerning the issues concerning reimbursing Medicare-eligible retirees for their Medicare premiums, please go to:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
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Appealing an administrative determination by the State Department of Education
Appealing an administrative determination by the State Department of Education
Appeal of Dean F. Goewey, Decisions of the Commissioner of Education, Decision #16,135
The State Education Department’s Office of School Personnel Review and Accountability denied Dean F. Goewey’s request for a change in venue with respect to a hearing to be held pursuant to Part 83* of the Commissioner’s Regulations [8 NYCRR 83]. Goewey filed an appeal with the Commissioner of Education in an effort to overturn the Department’s decision not to change the venue of the hearing.
The Commissioner dismissed Goewey’s appeal, explaining that a §310 appeal is not the appropriate forum to review either the determination of the hearing officer or the determinations of OSPRA staff. The Commissioner also noted that he had appointed the hearing officer “to conduct a Part 83 moral character hearing” on his behalf."
The Commissioner said that the proper forum to challenge such administrative actions is via “a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.”
As to the administrative proceeding itself, the Commissioner said that Goewey could appeal the administrative determination as provided by §83.5 of the Commissioner’s Regulations [8 NYCRR 83.5] within 30 days after receipt of notification of the findings and recommendations of the hearing panel.**
* Part 83 of the Commissioner's Regulations addresses “Determination of Good Moral Character” and, as a first step, requires that any information “indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the [Education] department.”
** 8 NYCRR 83.5 (a) addresses, in pertinent part, the right to appeal. It provides that “The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.”
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16135.htm
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Appeal of Dean F. Goewey, Decisions of the Commissioner of Education, Decision #16,135
The State Education Department’s Office of School Personnel Review and Accountability denied Dean F. Goewey’s request for a change in venue with respect to a hearing to be held pursuant to Part 83* of the Commissioner’s Regulations [8 NYCRR 83]. Goewey filed an appeal with the Commissioner of Education in an effort to overturn the Department’s decision not to change the venue of the hearing.
The Commissioner dismissed Goewey’s appeal, explaining that a §310 appeal is not the appropriate forum to review either the determination of the hearing officer or the determinations of OSPRA staff. The Commissioner also noted that he had appointed the hearing officer “to conduct a Part 83 moral character hearing” on his behalf."
The Commissioner said that the proper forum to challenge such administrative actions is via “a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.”
As to the administrative proceeding itself, the Commissioner said that Goewey could appeal the administrative determination as provided by §83.5 of the Commissioner’s Regulations [8 NYCRR 83.5] within 30 days after receipt of notification of the findings and recommendations of the hearing panel.**
* Part 83 of the Commissioner's Regulations addresses “Determination of Good Moral Character” and, as a first step, requires that any information “indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the [Education] department.”
** 8 NYCRR 83.5 (a) addresses, in pertinent part, the right to appeal. It provides that “The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.”
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16135.htm
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Exhausting the contract grievance procedure is not always a condition precident to challenging a disciplinary action
Exhausting the contract grievance procedure is not always a condition precident to challenging a disciplinary action
Mancuso v Crew, NYS Supreme Court, [Not selected for publication in the Official Reports]
If a collective bargaining agreement contains a “contract grievance procedure,” must an employee who has been disciplined exhaust the contract grievance procedure before he or she may challenge the disciplinary action pursuant to Section 75 of the Civil Service Law?
As the Mancuso case demonstrates, the answer can be no, but only if the collective bargaining agreement does not provide a contract disciplinary procedure in place of Section 75.
“(A) union is free to bargain away its members’ statutory rights when that bargain is expressly stated in the agreement,” a state Supreme Court Justice ruled in the Mancuso case. But the mere existence of a grievance procedure is insufficient to prove that the union had negotiated an alternative to Section 75. When the employer took disciplinary action against employees, it could not avoid challenges under Section 75, even though none of the employees involved had used the grievance procedure past the second step.
Nicholas Mancuso sued the New York City Board of Education on behalf of 20 School Safety Officers whom the board had suspended without pay, or terminated, for such misconduct as a drug-related arrest, sexual misconduct or excessive absenteeism. The employees all held positions in the non-competitive class. There was no question that the employees were protected by Section 75 since all had served at least five continuous years in nonpolicy-making positions. [See Civil Service Law Section 75.1(c)]
Mancuso claimed the school board violated the due process rights of the employees in the disciplinary process. He contended that the employees had been suspended more than 30 days -- the maximum period permitted by Section 75 pending a disciplinary hearing and determination of the charges. [Section 75.3] Mancuso argued that the employees were entitled to back pay for any period of suspension in excess of this 30-day statutory period to the extent that the employees themselves did not cause any delay in the disciplinary proceeding.
The Board of Education, on the other hand, argued that Mancuso’s petition had to be dismissed because “10 of the 20 named petitioners utilized the grievance procedure provided by their collective bargaining agreement [CBA] to Step I or Step II, but did not complete Step III or Step IV, and thus have failed to exhaust their administrative remedies, as have [the 10] who did not pursue the grievance procedures at all.”
State Supreme Court Justice Belen found that there was no requirement that the employees use or complete the grievance procedures contained in their agreement before they were entitled to the benefits of Section 75. The contract did not purport to alter or supersede Civil Service Law Section 75, Belen said. In other words, the contract did not set out a contract disciplinary procedure in lieu of Section 75.
Justice Belen observed that the contract provided “nothing contained herein shall be construed to deny any employee his rights under Section 15 of the New York Civil Rights Law or under applicable civil service laws and regulations.”
In addition, the decision noted, “there is no provision in the agreement that states that an employee must utilize and exhaust the grievance procedure prior to utilizing his remedies provided by the Civil Service Law.”
The Court said that the employees including those “who were found guilty of the charges and whose employment was terminated,” are still entitled to payment for the period of any suspension in excess of 30 days and remanded the matter to the Board of Education for “the purpose of providing petitioners with the Civil Service Law Section 75(3) hearings where appropriate and for the computation of payment for any suspension that exceeded the statutory period.
Section 76 of the Civil Service Law, authorizes Taylor Law negotiations concerning a “contract disciplinary procedure” in lieu of the statutory disciplinary procedure otherwise applicable. A parallel provision is contained in Section 3020-a of the Education Law, the Section 75 equivalent for teachers and school administrators. In contrast, a “contract grievance procedure” typically is used to deal with an alleged failure to implement or the violation of the terms of a collective bargaining agreement.
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Mancuso v Crew, NYS Supreme Court, [Not selected for publication in the Official Reports]
If a collective bargaining agreement contains a “contract grievance procedure,” must an employee who has been disciplined exhaust the contract grievance procedure before he or she may challenge the disciplinary action pursuant to Section 75 of the Civil Service Law?
As the Mancuso case demonstrates, the answer can be no, but only if the collective bargaining agreement does not provide a contract disciplinary procedure in place of Section 75.
“(A) union is free to bargain away its members’ statutory rights when that bargain is expressly stated in the agreement,” a state Supreme Court Justice ruled in the Mancuso case. But the mere existence of a grievance procedure is insufficient to prove that the union had negotiated an alternative to Section 75. When the employer took disciplinary action against employees, it could not avoid challenges under Section 75, even though none of the employees involved had used the grievance procedure past the second step.
Nicholas Mancuso sued the New York City Board of Education on behalf of 20 School Safety Officers whom the board had suspended without pay, or terminated, for such misconduct as a drug-related arrest, sexual misconduct or excessive absenteeism. The employees all held positions in the non-competitive class. There was no question that the employees were protected by Section 75 since all had served at least five continuous years in nonpolicy-making positions. [See Civil Service Law Section 75.1(c)]
Mancuso claimed the school board violated the due process rights of the employees in the disciplinary process. He contended that the employees had been suspended more than 30 days -- the maximum period permitted by Section 75 pending a disciplinary hearing and determination of the charges. [Section 75.3] Mancuso argued that the employees were entitled to back pay for any period of suspension in excess of this 30-day statutory period to the extent that the employees themselves did not cause any delay in the disciplinary proceeding.
The Board of Education, on the other hand, argued that Mancuso’s petition had to be dismissed because “10 of the 20 named petitioners utilized the grievance procedure provided by their collective bargaining agreement [CBA] to Step I or Step II, but did not complete Step III or Step IV, and thus have failed to exhaust their administrative remedies, as have [the 10] who did not pursue the grievance procedures at all.”
State Supreme Court Justice Belen found that there was no requirement that the employees use or complete the grievance procedures contained in their agreement before they were entitled to the benefits of Section 75. The contract did not purport to alter or supersede Civil Service Law Section 75, Belen said. In other words, the contract did not set out a contract disciplinary procedure in lieu of Section 75.
Justice Belen observed that the contract provided “nothing contained herein shall be construed to deny any employee his rights under Section 15 of the New York Civil Rights Law or under applicable civil service laws and regulations.”
In addition, the decision noted, “there is no provision in the agreement that states that an employee must utilize and exhaust the grievance procedure prior to utilizing his remedies provided by the Civil Service Law.”
The Court said that the employees including those “who were found guilty of the charges and whose employment was terminated,” are still entitled to payment for the period of any suspension in excess of 30 days and remanded the matter to the Board of Education for “the purpose of providing petitioners with the Civil Service Law Section 75(3) hearings where appropriate and for the computation of payment for any suspension that exceeded the statutory period.
Section 76 of the Civil Service Law, authorizes Taylor Law negotiations concerning a “contract disciplinary procedure” in lieu of the statutory disciplinary procedure otherwise applicable. A parallel provision is contained in Section 3020-a of the Education Law, the Section 75 equivalent for teachers and school administrators. In contrast, a “contract grievance procedure” typically is used to deal with an alleged failure to implement or the violation of the terms of a collective bargaining agreement.
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Eligibility for unemployment insurance between school years depends on the absence of an “assurance of reemployment”
Eligibility for unemployment insurance between school years depends on the absence of an “assurance of reemployment”
Aljandari v Buffalo Bd. of Education, App. Div., 245 A.D.2d 647
[Decided with Smith v Buffalo Board of Education]
Often temporary teachers seek unemployment insurance benefits during a school district’s summer recess. Key to their eligibility is the absence of any assurance of “next semester” employment by the District.
In the Aljandari case the Appellate Division sustained a determination by the Unemployment Insurance Appeals Board that Aljandari and other “totally unemployed” teachers were entitled to unemployment insurance benefits during the school’s 1995 summer recess.
Although Aljandari and the others were covered by a Taylor Law agreement between the School District and the union, the Appellate Division found that the agreement did not specifically define “the duration of their employment.”
Their employment, said the Court, was established by a letter of employment sent to these temporary teachers at the beginning of the academic year advising them that their appointment was for as long as their services were needed “but in no case beyond the [current] school” and that their assignment was strictly temporary.
This clear language did not provide the teachers with any assurance of reemployment following the summer recess period. The Court sustained the Board’s ruling that the teachers were eligible for unemployment insurance benefits for the period of their summer unemployment.
The Appellate Division said that the fact that some of the teachers “were eligible for fringe benefits during the summer and elected to have their salary prorated to extend during this time” did not “compel the conclusion” that they were not totally unemployed during the summer.
In effect, the Court ruled that it was the term of the teacher’s “professional obligation” rather than his or her payroll mode [21 pay periods or 26 pay periods] that was the critical element.
Aljandari v Buffalo Bd. of Education, App. Div., 245 A.D.2d 647
[Decided with Smith v Buffalo Board of Education]
Often temporary teachers seek unemployment insurance benefits during a school district’s summer recess. Key to their eligibility is the absence of any assurance of “next semester” employment by the District.
In the Aljandari case the Appellate Division sustained a determination by the Unemployment Insurance Appeals Board that Aljandari and other “totally unemployed” teachers were entitled to unemployment insurance benefits during the school’s 1995 summer recess.
Although Aljandari and the others were covered by a Taylor Law agreement between the School District and the union, the Appellate Division found that the agreement did not specifically define “the duration of their employment.”
Their employment, said the Court, was established by a letter of employment sent to these temporary teachers at the beginning of the academic year advising them that their appointment was for as long as their services were needed “but in no case beyond the [current] school” and that their assignment was strictly temporary.
This clear language did not provide the teachers with any assurance of reemployment following the summer recess period. The Court sustained the Board’s ruling that the teachers were eligible for unemployment insurance benefits for the period of their summer unemployment.
The Appellate Division said that the fact that some of the teachers “were eligible for fringe benefits during the summer and elected to have their salary prorated to extend during this time” did not “compel the conclusion” that they were not totally unemployed during the summer.
In effect, the Court ruled that it was the term of the teacher’s “professional obligation” rather than his or her payroll mode [21 pay periods or 26 pay periods] that was the critical element.
Creating new negotiating units
Creating new negotiating units
Erie County v PERB, Appellate Division, 247 A.D.2d 671
The Erie County v PERB case suggests that PERB has become more flexible regarding splitting sheriff’s department employees into separate collective bargaining units.
In Erie County Teamsters Local 264 represented a single large negotiating unit that included both Deputy Sheriff-criminal [“criminal deputies”] and Deputy Sheriff-officer [“officer deputies”] positions. The criminal deputies were primarily engaged in law enforcement activities while the “officer deputies” were assigned as guards at the County’s holding center and courts.
The Erie County Sheriff’s Police Benevolent Association [PBA] petitioned PERB seeking to establish a separate negotiating unit for the criminal deputies.
Ultimately PERB approved the establishment of this new “fragmented” unit for criminal deputies and certified the PBA as the exclusive negotiating representative for the new unit. In so doing, PERB reversed a finding by its Director of Public Employment Practices and Representation that “a separate and distinct law enforcement community of interest ... had not been established.”
The County and Local 264 appealed in an effort to have PERB’s determination [26 PERB 3069] annulled.
The Appellate Division said that although PERB had initially held that “deputy sheriffs are not appropriately fragmented from existing units which include other sheriff department employee,” citing County Association of Patrol Officers, 25 PERB 3062, it noted that PERB had reconsidered its earlier rulings on this issue.
The Court noted that in Dutchess County Sheriffs PBA, 26 PERB 3069, PERB “suggested that ‘the law enforcement responsibilities and duties of deputy sheriffs and other sheriff’s department employees may be sufficient to warrant the establishment of a separate unit of deputy sheriffs.’“
The Appellate Division sustained the establishment of a separate negotiating unit for the criminal deputies, holding that PERB ruling in Erie was “nothing more than a logical extension of its prior decision in Dutchess.”
The Court noted with approval PERB’s view that an analysis of the duties of positions warranted the establishment of separate negotiating unions. Here, it said, “even a cursory review” reveals the “distinguishing features of the class, training, typical work activities and the knowledge, skills and minimum qualifications required.”
The Court adopted PERB’s analysis, commenting that the documentary and testimonial evidence adduced at the hearing with respect to the differences in the Deputy Sheriff-criminal and Deputy Sheriff-officer title series fully supported PERB’s determination that only those employed in the Deputy Sheriff-criminal series “have criminal law enforcement as the exclusive or primary attribute of his or her employment.”
Nothing in the Appellate Division’s opinion, however, suggests that PERB applied the “community of interest” standard in determining negotiating units as set out in Section 207 of the Civil Service Law [the Taylor Law].
Section 207, in the pertinent part, provides that for the purposes of resolving disputes concerning representation status, PERB shall define the appropriate employer-employee negotiating units taking into account a standard that provides that: the definition of the unit shall correspond to a community of interest among the employees to be included in the unit. Nothing in Section 207 refers to determining negotiating units on the basis of “the respective job descriptions” of positions.
Erie County v PERB, Appellate Division, 247 A.D.2d 671
The Erie County v PERB case suggests that PERB has become more flexible regarding splitting sheriff’s department employees into separate collective bargaining units.
In Erie County Teamsters Local 264 represented a single large negotiating unit that included both Deputy Sheriff-criminal [“criminal deputies”] and Deputy Sheriff-officer [“officer deputies”] positions. The criminal deputies were primarily engaged in law enforcement activities while the “officer deputies” were assigned as guards at the County’s holding center and courts.
The Erie County Sheriff’s Police Benevolent Association [PBA] petitioned PERB seeking to establish a separate negotiating unit for the criminal deputies.
Ultimately PERB approved the establishment of this new “fragmented” unit for criminal deputies and certified the PBA as the exclusive negotiating representative for the new unit. In so doing, PERB reversed a finding by its Director of Public Employment Practices and Representation that “a separate and distinct law enforcement community of interest ... had not been established.”
The County and Local 264 appealed in an effort to have PERB’s determination [26 PERB 3069] annulled.
The Appellate Division said that although PERB had initially held that “deputy sheriffs are not appropriately fragmented from existing units which include other sheriff department employee,” citing County Association of Patrol Officers, 25 PERB 3062, it noted that PERB had reconsidered its earlier rulings on this issue.
The Court noted that in Dutchess County Sheriffs PBA, 26 PERB 3069, PERB “suggested that ‘the law enforcement responsibilities and duties of deputy sheriffs and other sheriff’s department employees may be sufficient to warrant the establishment of a separate unit of deputy sheriffs.’“
The Appellate Division sustained the establishment of a separate negotiating unit for the criminal deputies, holding that PERB ruling in Erie was “nothing more than a logical extension of its prior decision in Dutchess.”
The Court noted with approval PERB’s view that an analysis of the duties of positions warranted the establishment of separate negotiating unions. Here, it said, “even a cursory review” reveals the “distinguishing features of the class, training, typical work activities and the knowledge, skills and minimum qualifications required.”
The Court adopted PERB’s analysis, commenting that the documentary and testimonial evidence adduced at the hearing with respect to the differences in the Deputy Sheriff-criminal and Deputy Sheriff-officer title series fully supported PERB’s determination that only those employed in the Deputy Sheriff-criminal series “have criminal law enforcement as the exclusive or primary attribute of his or her employment.”
Nothing in the Appellate Division’s opinion, however, suggests that PERB applied the “community of interest” standard in determining negotiating units as set out in Section 207 of the Civil Service Law [the Taylor Law].
Section 207, in the pertinent part, provides that for the purposes of resolving disputes concerning representation status, PERB shall define the appropriate employer-employee negotiating units taking into account a standard that provides that: the definition of the unit shall correspond to a community of interest among the employees to be included in the unit. Nothing in Section 207 refers to determining negotiating units on the basis of “the respective job descriptions” of positions.
Sep 9, 2010
School district advised to comply with the Commissioner’s regulations as to staffing or obtain approval for an alternate staffing arrangement
School district advised to comply with the Commissioner’s regulations as to staffing or obtain approval for an alternate staffing arrangement
Sharon Kennedy-Frost And United Federation Of Teachers, Local 2, American Federation Of Teachers, AFL-CIO, Decisions of the Commissioner of Education 16,130
A number of a library media specialist [LMS] employed by the New York City Department of Education and their collective bargaining representative contended that the Department failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations.
The Department’s defense: it was in “substantial compliance with the regulation” and thus its actions were legal, proper, and reasonable.
However, said the Commissioner, the Department admitted to being only “substantial” compliance with the regulation and the record reflects that they have failed to staff certain secondary schools with the required number of personnel or provide an alternative staffing arrangement approved by the Commissioner. The Commissioner then “advised” the Department to either [1] staff its schools appropriately or [2] obtain the Commissioner’s approval for an alternate arrangement as provided in §91.2 of the Commissioner’s regulations.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16130.htm
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Sharon Kennedy-Frost And United Federation Of Teachers, Local 2, American Federation Of Teachers, AFL-CIO, Decisions of the Commissioner of Education 16,130
A number of a library media specialist [LMS] employed by the New York City Department of Education and their collective bargaining representative contended that the Department failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations.
The Department’s defense: it was in “substantial compliance with the regulation” and thus its actions were legal, proper, and reasonable.
However, said the Commissioner, the Department admitted to being only “substantial” compliance with the regulation and the record reflects that they have failed to staff certain secondary schools with the required number of personnel or provide an alternative staffing arrangement approved by the Commissioner. The Commissioner then “advised” the Department to either [1] staff its schools appropriately or [2] obtain the Commissioner’s approval for an alternate arrangement as provided in §91.2 of the Commissioner’s regulations.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16130.htm
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Alcoholism as a defense in a disciplinary action
Alcoholism as a defense in a disciplinary action
Murolo v Safir, Appellate Division, 246 A.D.2d 653, Leave to appeal denied, 91 N.Y.2d 813
In McEniry v Landi, 84 NY2d 554, the Court of Appeals said that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [Section 292.21, Executive Law]. A New York City firefighter, David Murolo, challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had overcome. He claimed that his firing violated the Human Rights Law, citing the McEniry decision.
Disciplinary action began after Murolo called in a false alarm. While his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. After admitting at a disciplinary hearing that he had called in the false alarm and had taken the money, Murolo testified that:
1. He had been drinking heavily prior to the incident and “was not thinking straight.”
2. He had entered a counseling program for his alcohol problem as directed by the Department and had begun to attend Alcoholics Anonymous meetings.
The hearing officer determined that his status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.
Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination.
The Appellate Division distinguished the situation in McEniry from Murolo’s.
In McEniry the issue was whether alcoholism prevented the officer from satisfactorily performing his duties. The Court of Appeals held that if an individual establishes a prima facie case that his discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.
Murolo v Safir, Appellate Division, 246 A.D.2d 653, Leave to appeal denied, 91 N.Y.2d 813
In McEniry v Landi, 84 NY2d 554, the Court of Appeals said that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [Section 292.21, Executive Law]. A New York City firefighter, David Murolo, challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had overcome. He claimed that his firing violated the Human Rights Law, citing the McEniry decision.
Disciplinary action began after Murolo called in a false alarm. While his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. After admitting at a disciplinary hearing that he had called in the false alarm and had taken the money, Murolo testified that:
1. He had been drinking heavily prior to the incident and “was not thinking straight.”
2. He had entered a counseling program for his alcohol problem as directed by the Department and had begun to attend Alcoholics Anonymous meetings.
The hearing officer determined that his status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.
Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination.
The Appellate Division distinguished the situation in McEniry from Murolo’s.
In McEniry the issue was whether alcoholism prevented the officer from satisfactorily performing his duties. The Court of Appeals held that if an individual establishes a prima facie case that his discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.
Determining the compensation of the officers of a town
Determining the compensation of the officers of a town
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957
Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.
After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.
Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”
On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”
Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.
Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:
1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and
2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”
Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957
Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.
After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.
Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”
On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”
Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.
Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:
1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and
2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”
Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.
Determining the compensation of the officers of a town
Determining the compensation of the officers of a town
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957
Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.
After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.
Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”
On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”
Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.
Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:
1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and
2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”
Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957
Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.
After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.
Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”
On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”
Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.
Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:
1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and
2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”
Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.
Public entities are immune from negligence claims arising out of the performance of its governmental functions absent proof of a special relationship
Public entities are immune from negligence claims arising out of the performance of its governmental functions absent proof of a special relationship
Zeitlin v NYC Board of Education, NYS Supreme Court [Not selected for publication in the Official Reports]
Pupils assaulting teachers has become an occupational hazard in a number of school districts. What is a school district’s liability if a student assaults a teacher?
In the Zeitlin case New York State Supreme Court Justice Solomon considered a schoolteacher’s demand for compensatory and punitive damages based on his school district’s alleged failure to protect him from student assaults.
Citing Miller v State of New York, 62 NY2d 506, Justice Solomon described the basic law in such situations as follows:
Public entities are immune from negligence claims arising out of the performance of their governmental functions unless the injured person establishes a special relationship with that entity underlying a specific duty to protect that individual and reliance on the performance of that duty by the individual.
What is involved in establishing such a “specific duty?” According to the ruling, such a duty comes into being only where all four of the following elements are satisfied:
1. Assumption: An assumption by a municipality or municipal agency, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;
2. Knowledge: Knowledge on the part of the municipality’s agents that inaction could lead to harm;
3. Direct Contact: Direct contact between the municipality’s agents and the injured party; and
4. Justifiable reliance: The injured party’s justifiable reliance on the municipality’s undertaking.
In the Zeitlin case the Court concluded that although providing security against physical attack from third parties was a governmental function, “Zeitlin fails to meet the first element [assumption] of a claimed special duty of protection and for that reason alone, his claim must fail” and dismissed his complaint. In other words, Zeitlin was unable to demonstrate a critical element -- that the District has assumed any responsibility for his safety at the work site.
This “four element” test is not usually applied in cases involving the safety of students, however. As the Appellate Division said in Foster v New Berlin Central School District, 246 AD2d 880, “school districts are under a duty to adequately supervise students in their care and will be liable for foreseeable injuries proximately related to the absence of adequate supervision.”
Zeitlin v NYC Board of Education, NYS Supreme Court [Not selected for publication in the Official Reports]
Pupils assaulting teachers has become an occupational hazard in a number of school districts. What is a school district’s liability if a student assaults a teacher?
In the Zeitlin case New York State Supreme Court Justice Solomon considered a schoolteacher’s demand for compensatory and punitive damages based on his school district’s alleged failure to protect him from student assaults.
Citing Miller v State of New York, 62 NY2d 506, Justice Solomon described the basic law in such situations as follows:
Public entities are immune from negligence claims arising out of the performance of their governmental functions unless the injured person establishes a special relationship with that entity underlying a specific duty to protect that individual and reliance on the performance of that duty by the individual.
What is involved in establishing such a “specific duty?” According to the ruling, such a duty comes into being only where all four of the following elements are satisfied:
1. Assumption: An assumption by a municipality or municipal agency, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;
2. Knowledge: Knowledge on the part of the municipality’s agents that inaction could lead to harm;
3. Direct Contact: Direct contact between the municipality’s agents and the injured party; and
4. Justifiable reliance: The injured party’s justifiable reliance on the municipality’s undertaking.
In the Zeitlin case the Court concluded that although providing security against physical attack from third parties was a governmental function, “Zeitlin fails to meet the first element [assumption] of a claimed special duty of protection and for that reason alone, his claim must fail” and dismissed his complaint. In other words, Zeitlin was unable to demonstrate a critical element -- that the District has assumed any responsibility for his safety at the work site.
This “four element” test is not usually applied in cases involving the safety of students, however. As the Appellate Division said in Foster v New Berlin Central School District, 246 AD2d 880, “school districts are under a duty to adequately supervise students in their care and will be liable for foreseeable injuries proximately related to the absence of adequate supervision.”
Unit exclusivity
Unit exclusivity
CSEA and Warrensburg CSD, 30 PERB 3056
Suffolk Co Corrections Officers Assoc v PERB, App. Div., 246 A.D.2d 660
Exclusivity is an important issue to a collective bargaining unit. It sets out those tasks that may be performed only by unit members to the exclusion of all others. An employer violates its duty to negotiate under Section 209-a.1(d) of the Civil Service Law if it unilaterally transfers work “established and maintained exclusively by a collective bargaining unit” to non-unit workers.
In the Warrensburg case, CSEA Local 857 charged that the Warrensburg Central School District violated Section 209-a.1(d) when it assigned chaperoning duties at plays and concerts to employees represented by the Warrensburg Teachers Association [Association], a different negotiating unit.
The District contended that under a memorandum of understanding, members of the Teachers Association had “the right of first refusal in chaperoning all school events.”
PERB sustained its administrative law judge’s finding that District administrators regularly served in a chaperoning capacity at these events and thus CSEA did not have exclusivity with respect to performing such duties.
PERB said that collective bargaining agreements between the Association and the District dating back to 1982 specifically covered “chaperoning duties and rights,” while Local 857 agreements were silent with respect to such activities.
PERB rejected Local 857’s argument that it had “exclusivity” with respect to concerts conducted at the high school while Association members regularly chaperoned elementary school concerts, commenting that “the location of a concert, being unrelated to chaperoning duties, cannot form any discernible boundary within which to test exclusivity.”
A similar case involved the Suffolk County Court, First District, located in Hauppauge, which employed 18 correction officers who were responsible for the care and custody of detainees being held there.
In 1992 the Court was moved to Central Islip from Hauppauge and the 18 correction officers were reassigned to the Suffolk County Maximum Security facility in Riverhead. Deputy sheriffs were assigned to take care of the detainees at the Court’s Central Islip facility.
The Suffolk County Correction Officers Association [SCCOA], filed an improper practice charge against the County with PERB, contending that the County’s unilateral transferring the responsibility for District Court detainees to deputy sheriffs violated Section 201.a[1](d) and (e) of the Civil Service Law. SCCOA argued that the Taylor Law required that “prior negotiations” be undertaken before such a change could be implemented.
A PERB administrative law judge [ALJ] determined that SCCOA did not prove that its unit members had previously performed the duties reassigned to the deputy sheriffs exclusively. After PERB affirmed the ALJ’s ruling, SCCOA appealed. The Appellate Division affirmed PERB’s determination.
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CSEA and Warrensburg CSD, 30 PERB 3056
Suffolk Co Corrections Officers Assoc v PERB, App. Div., 246 A.D.2d 660
Exclusivity is an important issue to a collective bargaining unit. It sets out those tasks that may be performed only by unit members to the exclusion of all others. An employer violates its duty to negotiate under Section 209-a.1(d) of the Civil Service Law if it unilaterally transfers work “established and maintained exclusively by a collective bargaining unit” to non-unit workers.
In the Warrensburg case, CSEA Local 857 charged that the Warrensburg Central School District violated Section 209-a.1(d) when it assigned chaperoning duties at plays and concerts to employees represented by the Warrensburg Teachers Association [Association], a different negotiating unit.
The District contended that under a memorandum of understanding, members of the Teachers Association had “the right of first refusal in chaperoning all school events.”
PERB sustained its administrative law judge’s finding that District administrators regularly served in a chaperoning capacity at these events and thus CSEA did not have exclusivity with respect to performing such duties.
PERB said that collective bargaining agreements between the Association and the District dating back to 1982 specifically covered “chaperoning duties and rights,” while Local 857 agreements were silent with respect to such activities.
PERB rejected Local 857’s argument that it had “exclusivity” with respect to concerts conducted at the high school while Association members regularly chaperoned elementary school concerts, commenting that “the location of a concert, being unrelated to chaperoning duties, cannot form any discernible boundary within which to test exclusivity.”
A similar case involved the Suffolk County Court, First District, located in Hauppauge, which employed 18 correction officers who were responsible for the care and custody of detainees being held there.
In 1992 the Court was moved to Central Islip from Hauppauge and the 18 correction officers were reassigned to the Suffolk County Maximum Security facility in Riverhead. Deputy sheriffs were assigned to take care of the detainees at the Court’s Central Islip facility.
The Suffolk County Correction Officers Association [SCCOA], filed an improper practice charge against the County with PERB, contending that the County’s unilateral transferring the responsibility for District Court detainees to deputy sheriffs violated Section 201.a[1](d) and (e) of the Civil Service Law. SCCOA argued that the Taylor Law required that “prior negotiations” be undertaken before such a change could be implemented.
A PERB administrative law judge [ALJ] determined that SCCOA did not prove that its unit members had previously performed the duties reassigned to the deputy sheriffs exclusively. After PERB affirmed the ALJ’s ruling, SCCOA appealed. The Appellate Division affirmed PERB’s determination.
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Sep 8, 2010
Court vacates hearing officer’s disciplinary determination after finding that it was arbitrary and capricious
Court vacates hearing officer’s disciplinary determination after finding that it was arbitrary and capricious
Trupiano v Meadow Union Free School Dist., 2010 NY Slip Op 32264(U), August 10, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]
From September 2004 through March 2007, the East Meadow UFSD teachers engaged in numerous activities to protest the fact that they did not have a successor collective bargaining agreement in place,* including picketing the School District's school buildings.
East Meadow, pursuant to Education Law §3020-a, preferred disciplinary charges on one of its teachers, Gina Trupiano, alleging that Trupiano “intentionally created a health and safety risk by purposefully situating her vehicle alongside the curb … in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard.”
Hearing Officer Howard C. Edelman found that although Trupiano “did not knowingly and purposely park her vehicle alongside the curb … he concluded that by doing so, Trupiano "created a safety hazard to children” and sustained the charge. The penalty imposed: Trupiano received a counseling memo as the penalty.
Judge Woodward vacated the hearing officer’s award, finding that, in this instance, the Hearing Officer s decision that Trupiano is culpable of the charge preferred against her is not "amply supported by the evidence."
In the words of the court, “While the Hearing Officer s decision is indeed thoughtful, the irony is that the Hearing Officer therein repeatedly acknowledges that Trupiano broke no laws on March 2, 2007, was engaged in a constitutionally protected form of free speech and that she "obviously... did not wish harm to any child."
Accordingly, the court ruled that the disciplinary determination was "arbitrary or capricious."
* The terms and conditions addressing mandatory subjects of collective bargaining set out in the expired collective bargaining agreement are continued in effect pending the successor agreement in accordance with PERB’s so-called “Triborough Doctrine” promulgated in 1972.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32264.pdf
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Trupiano v Meadow Union Free School Dist., 2010 NY Slip Op 32264(U), August 10, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]
From September 2004 through March 2007, the East Meadow UFSD teachers engaged in numerous activities to protest the fact that they did not have a successor collective bargaining agreement in place,* including picketing the School District's school buildings.
East Meadow, pursuant to Education Law §3020-a, preferred disciplinary charges on one of its teachers, Gina Trupiano, alleging that Trupiano “intentionally created a health and safety risk by purposefully situating her vehicle alongside the curb … in order to preclude children from being dropped off at curbside. The action resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard.”
Hearing Officer Howard C. Edelman found that although Trupiano “did not knowingly and purposely park her vehicle alongside the curb … he concluded that by doing so, Trupiano "created a safety hazard to children” and sustained the charge. The penalty imposed: Trupiano received a counseling memo as the penalty.
Judge Woodward vacated the hearing officer’s award, finding that, in this instance, the Hearing Officer s decision that Trupiano is culpable of the charge preferred against her is not "amply supported by the evidence."
In the words of the court, “While the Hearing Officer s decision is indeed thoughtful, the irony is that the Hearing Officer therein repeatedly acknowledges that Trupiano broke no laws on March 2, 2007, was engaged in a constitutionally protected form of free speech and that she "obviously... did not wish harm to any child."
Accordingly, the court ruled that the disciplinary determination was "arbitrary or capricious."
* The terms and conditions addressing mandatory subjects of collective bargaining set out in the expired collective bargaining agreement are continued in effect pending the successor agreement in accordance with PERB’s so-called “Triborough Doctrine” promulgated in 1972.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32264.pdf
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Some procedural basics in perfecting an appeal to the Commissioner of Education
Some procedural basics in perfecting an appeal to the Commissioner of Education
Kathleen Vendel, et al., v the Board of Education of the Marion Central School District, Decisions of the Commissioner of Education, Decision #16,134
The decision of the Commissioner of Education in Vendel sets out a number of procedural elements that must be satisfied in order to perfect an appeal to the Commissioner. Significantly, a party's failure to comply with one or more of these requirements could prove fatal to the Commissioner's considering the merits of the appeal.
Some 100 residents of the Marion Central School District appealed the School Board decision concerning the public's participation at board meetings. The Board had adopted a policy limiting non-members of the Board interested in speaking at its meetings to three minutes. Also in Vendel's submission to the Commissioner was an appeal involving "certain interactions with the community” by the Board and an application seeking “the removal of various individuals” from the Board.
The Commissioner dismissed Vendel's appeal and application without considering the merits of the allegations, explaining:
1. The individuals filing an appeal must have standing. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Merely having status as a resident and a taxpayer in a school district is not sufficient to confer standing to challenge school board policies.
Except with respect to Vendel’s allegations concerning alleged harassment, said the Commissioner, “there has been no showing that any of the petitioners are personally aggrieved by the board policy or actions complained of.” The appeal, therefore, was dismissed for lack of standing, except with respect to Vendel’s claims relating to the harassment complaint.
2. Verification of the appeal. The appeal was defective as “neither the petition nor petitioners’ reply are properly verified.”
The Commissioner noted that 8 NYCRR §275.5 of the Commissioner's Regulations require all pleadings in an appeal to the Commissioner be verified.*
3. Failure to name a necessary party. To the extent that the petition seeks removal of individual board members petitioners have failed to join them as parties.
The Commissioner pointed out that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.**
4. Jurisdiction of the Commissioner. As to the “propriety of the actions of the Trooper” in the course of events leading to the appeal, the Commissioner said that the Trooper is not an officer or employee of the School District and thus is not subject to the jurisdiction of the Commissioner of Education.
5. Statute of limitations to file an appeal. The Commissioner commented that the petitioners challenge any actions in relation to the July 13, 2009 board meeting but was not commenced until September 1, 2009.
Citing 8 NYCRR §275.16, the Commissioner said that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”
The Commissioner did make one observation concerning one of the issues presented by Vendel “for the benefit of the parties” -participation of individuals at board meetings.
Regarding taxpayers and residents of a school district participating in board meetings, the Commissioner said that a board of education should, whenever possible and appropriate, consider public input on matters under consideration. However, the Commissioner also noted that a school board has the right to control the agenda at board meetings and “there is no statutory mandate that requires a board to permit public input at its meetings.”
* The affidavit of verification was stated to have been made “on the oath of Carol Moranz” but was signed by Vendel. Moranz was not a petitioner in this appeal and the Commissioner’s regulations require the petition to be verified under oath of at least one of the petitioners (see 8 NYCRR §275.5).
** Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and the petition so as to inform the individual that he or she should respond to the petition and enter a defense.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16134.htm
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Kathleen Vendel, et al., v the Board of Education of the Marion Central School District, Decisions of the Commissioner of Education, Decision #16,134
The decision of the Commissioner of Education in Vendel sets out a number of procedural elements that must be satisfied in order to perfect an appeal to the Commissioner. Significantly, a party's failure to comply with one or more of these requirements could prove fatal to the Commissioner's considering the merits of the appeal.
Some 100 residents of the Marion Central School District appealed the School Board decision concerning the public's participation at board meetings. The Board had adopted a policy limiting non-members of the Board interested in speaking at its meetings to three minutes. Also in Vendel's submission to the Commissioner was an appeal involving "certain interactions with the community” by the Board and an application seeking “the removal of various individuals” from the Board.
The Commissioner dismissed Vendel's appeal and application without considering the merits of the allegations, explaining:
1. The individuals filing an appeal must have standing. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Merely having status as a resident and a taxpayer in a school district is not sufficient to confer standing to challenge school board policies.
Except with respect to Vendel’s allegations concerning alleged harassment, said the Commissioner, “there has been no showing that any of the petitioners are personally aggrieved by the board policy or actions complained of.” The appeal, therefore, was dismissed for lack of standing, except with respect to Vendel’s claims relating to the harassment complaint.
2. Verification of the appeal. The appeal was defective as “neither the petition nor petitioners’ reply are properly verified.”
The Commissioner noted that 8 NYCRR §275.5 of the Commissioner's Regulations require all pleadings in an appeal to the Commissioner be verified.*
3. Failure to name a necessary party. To the extent that the petition seeks removal of individual board members petitioners have failed to join them as parties.
The Commissioner pointed out that a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.**
4. Jurisdiction of the Commissioner. As to the “propriety of the actions of the Trooper” in the course of events leading to the appeal, the Commissioner said that the Trooper is not an officer or employee of the School District and thus is not subject to the jurisdiction of the Commissioner of Education.
5. Statute of limitations to file an appeal. The Commissioner commented that the petitioners challenge any actions in relation to the July 13, 2009 board meeting but was not commenced until September 1, 2009.
Citing 8 NYCRR §275.16, the Commissioner said that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”
The Commissioner did make one observation concerning one of the issues presented by Vendel “for the benefit of the parties” -participation of individuals at board meetings.
Regarding taxpayers and residents of a school district participating in board meetings, the Commissioner said that a board of education should, whenever possible and appropriate, consider public input on matters under consideration. However, the Commissioner also noted that a school board has the right to control the agenda at board meetings and “there is no statutory mandate that requires a board to permit public input at its meetings.”
* The affidavit of verification was stated to have been made “on the oath of Carol Moranz” but was signed by Vendel. Moranz was not a petitioner in this appeal and the Commissioner’s regulations require the petition to be verified under oath of at least one of the petitioners (see 8 NYCRR §275.5).
** Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and the petition so as to inform the individual that he or she should respond to the petition and enter a defense.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16134.htm
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Full evidentiary hearing required before discontinuing GML Section 207-a benefits
Full evidentiary hearing required before discontinuing GML Section 207-a benefits
Giorgio v Bucci, Appellate Division, 246 A.D.2d 711, Motion to appeal denied, 91 N.Y.2d 814
Thomas Giorgio, a Binghamton firefighter, began receiving disability benefits pursuant to Section 207-a effective January 13, 1996 based on his claim of a work-related injury on that date. On May 23, 1996 Binghamton told Giorgio that his benefits were being terminated, alleging that there was “newly discovered evidence that his condition predated the January 13, 1996 incident.”
Giorgio sued, but withdrew that action when the City agreed to continue his benefits and give him a “pre-termination hearing.” The City upheld the original decision to deny him Section 207-a benefits on the grounds that Giorgio’s injury was not the result of a work-related incident. Again Giorgio sued, seeking reinstatement to the payroll, restoration of his leave credits and a declaration that the administrative procedure used by the City was unconstitutional.
On the merits of Giorgio’s “due process claims,” the Appellate Division said that he had been denied “the right to a full evidentiary hearing prior to the termination of his benefits.” Why? Because, said the Court, Giorgio had not been allowed to confront and cross-examine witnesses or to offer evidence on his own behalf.
The lesson here is that when an employer holds a hearing to determine whether Section 207-a [and, presumably, Section 207-c] benefits should be discontinued, it must be a full evidentiary hearing, complying with all the requirements of administrative due process.
Giorgio v Bucci, Appellate Division, 246 A.D.2d 711, Motion to appeal denied, 91 N.Y.2d 814
Thomas Giorgio, a Binghamton firefighter, began receiving disability benefits pursuant to Section 207-a effective January 13, 1996 based on his claim of a work-related injury on that date. On May 23, 1996 Binghamton told Giorgio that his benefits were being terminated, alleging that there was “newly discovered evidence that his condition predated the January 13, 1996 incident.”
Giorgio sued, but withdrew that action when the City agreed to continue his benefits and give him a “pre-termination hearing.” The City upheld the original decision to deny him Section 207-a benefits on the grounds that Giorgio’s injury was not the result of a work-related incident. Again Giorgio sued, seeking reinstatement to the payroll, restoration of his leave credits and a declaration that the administrative procedure used by the City was unconstitutional.
On the merits of Giorgio’s “due process claims,” the Appellate Division said that he had been denied “the right to a full evidentiary hearing prior to the termination of his benefits.” Why? Because, said the Court, Giorgio had not been allowed to confront and cross-examine witnesses or to offer evidence on his own behalf.
The lesson here is that when an employer holds a hearing to determine whether Section 207-a [and, presumably, Section 207-c] benefits should be discontinued, it must be a full evidentiary hearing, complying with all the requirements of administrative due process.
Claiming drug abuse as a disability under the Americans with Disabilities Act
Claiming drug abuse as a disability under the Americans with Disabilities Act
D’Amico v Bruno, CA2, 132 F.3d 145
Vito D’Amico, a New York City firefighter, complained that the Department violated the Rehabilitation Act of 1973 (an anti-discrimination law that applies to federally-funded employers) when it dismissed him from his position with the Fire Department of the City of New York (NYFD) because of his use of illegal drugs. The U.S. Circuit Court of Appeals affirmed the federal district court’s dismissal of D’Amico charges. In so doing the Court set out a comprehensive summary of the various factors considered by the federal courts in such cases.
D’Amico joined NYFD in 1982. In April 1988, D’Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the NYFD referred D’Amico to counseling within the NYFD.
In September 1988, the NYFD received an anonymous letter accusing D’Amico of using and selling cocaine. NYFD ordered D’Amico to submit to a urine test on December 13, 1988. D’Amico tested positive for cocaine and NYFD suspended him without pay. The suspension was lifted in January 1989, pending the outcome of disciplinary action taken against him. D’Amico, meanwhile, had entered an inpatient drug treatment program on April 17, 1989, which it was reported that he had successfully completed on May 15, 1989.
OATH Administrative Law Judge Ray Fleischhacker presided over the disciplinary hearing held on June 23, 1989 and found D’Amico guilty of 4 of the 5 charges filed against him. The Commissioner accepted the ALJ’s findings and recommendations and terminated D’Amico effective September 5, 1989. The Commissioner said that “[i]n light of the grave responsibilities entrusted to a firefighter, [D’Amico’s] continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.”
Under the Rehabilitation Act, the plaintiff bears the initial burden of establishing a prima facie case. In a case where the employer relies on the plaintiff’s handicap as the reason for the adverse employment decision, the employer may rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.
The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he or she is qualified for the position despite his or her disability.
D’Amico had to establish a prima facie case by proving that: (1) he is an individual with a disability; (2) he was otherwise qualified for a position; (3) he was denied that position on the basis of his disability, and (4) NYFD receives federal funds.
Although it was conceded that D’Amico satisfied items (3) and (4), NYFD contended that D’Amico was neither an “individual with a disability,” nor “otherwise qualified” to be a firefighter.
Substance abuse is a recognized disability for purposes of the Rehabilitation Act, and an employer may violate the Act by taking an adverse employment action against an employee who has overcome past substance abuse problems but the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs.
According to the Circuit Court, the critical issue was whether D’Amico was a “current substance abuser” is the time of his discharge. The court said the actual date of discharge was not critical but serves “rather as a guidepost from which to determine whether the employer acted with justification.” The Court defined a “current substance abuser” as an individual whose substance abuse problem is severe and recent enough that the employer is justified in believing that the employee is unable to perform the essential duties of his job.
The employer must therefore evaluate (1) the level of responsibility entrusted to the employee, (2) the employer’s applicable job and performance requirements, (3) the level of competence ordinarily required to perform the task in question, and (4) the employee’s past performance record. Further, it must consider both the type of position for which the plaintiff claims to be otherwise qualified and the consequences of a potential mishap.
The Circuit Court pointed out with approval that in DiPompo v West Point Military Academy, 770 F. Supp. 887, Federal District Court Judge Michael B. Mukasey said “[W]hat may be a reasonable risk for a postal worker ... whose job generally does not pose great hazards to those who perform it or to the public they serve, is not necessarily a reasonable risk for a firefighter, whose job is defined at almost every turn by the potential for disaster to himself and others.”
Concluding that D’Amico’s history of cocaine addiction, together with the NYFD’s judgment as to the possibility of, and the risks inherent in, a relapse, the Circuit Court said that NYFD was justified in terminating D’Amico’s employment as a firefighter.
D’Amico v Bruno, CA2, 132 F.3d 145
Vito D’Amico, a New York City firefighter, complained that the Department violated the Rehabilitation Act of 1973 (an anti-discrimination law that applies to federally-funded employers) when it dismissed him from his position with the Fire Department of the City of New York (NYFD) because of his use of illegal drugs. The U.S. Circuit Court of Appeals affirmed the federal district court’s dismissal of D’Amico charges. In so doing the Court set out a comprehensive summary of the various factors considered by the federal courts in such cases.
D’Amico joined NYFD in 1982. In April 1988, D’Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the NYFD referred D’Amico to counseling within the NYFD.
In September 1988, the NYFD received an anonymous letter accusing D’Amico of using and selling cocaine. NYFD ordered D’Amico to submit to a urine test on December 13, 1988. D’Amico tested positive for cocaine and NYFD suspended him without pay. The suspension was lifted in January 1989, pending the outcome of disciplinary action taken against him. D’Amico, meanwhile, had entered an inpatient drug treatment program on April 17, 1989, which it was reported that he had successfully completed on May 15, 1989.
OATH Administrative Law Judge Ray Fleischhacker presided over the disciplinary hearing held on June 23, 1989 and found D’Amico guilty of 4 of the 5 charges filed against him. The Commissioner accepted the ALJ’s findings and recommendations and terminated D’Amico effective September 5, 1989. The Commissioner said that “[i]n light of the grave responsibilities entrusted to a firefighter, [D’Amico’s] continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.”
Under the Rehabilitation Act, the plaintiff bears the initial burden of establishing a prima facie case. In a case where the employer relies on the plaintiff’s handicap as the reason for the adverse employment decision, the employer may rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.
The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he or she is qualified for the position despite his or her disability.
D’Amico had to establish a prima facie case by proving that: (1) he is an individual with a disability; (2) he was otherwise qualified for a position; (3) he was denied that position on the basis of his disability, and (4) NYFD receives federal funds.
Although it was conceded that D’Amico satisfied items (3) and (4), NYFD contended that D’Amico was neither an “individual with a disability,” nor “otherwise qualified” to be a firefighter.
Substance abuse is a recognized disability for purposes of the Rehabilitation Act, and an employer may violate the Act by taking an adverse employment action against an employee who has overcome past substance abuse problems but the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs.
According to the Circuit Court, the critical issue was whether D’Amico was a “current substance abuser” is the time of his discharge. The court said the actual date of discharge was not critical but serves “rather as a guidepost from which to determine whether the employer acted with justification.” The Court defined a “current substance abuser” as an individual whose substance abuse problem is severe and recent enough that the employer is justified in believing that the employee is unable to perform the essential duties of his job.
The employer must therefore evaluate (1) the level of responsibility entrusted to the employee, (2) the employer’s applicable job and performance requirements, (3) the level of competence ordinarily required to perform the task in question, and (4) the employee’s past performance record. Further, it must consider both the type of position for which the plaintiff claims to be otherwise qualified and the consequences of a potential mishap.
The Circuit Court pointed out with approval that in DiPompo v West Point Military Academy, 770 F. Supp. 887, Federal District Court Judge Michael B. Mukasey said “[W]hat may be a reasonable risk for a postal worker ... whose job generally does not pose great hazards to those who perform it or to the public they serve, is not necessarily a reasonable risk for a firefighter, whose job is defined at almost every turn by the potential for disaster to himself and others.”
Concluding that D’Amico’s history of cocaine addiction, together with the NYFD’s judgment as to the possibility of, and the risks inherent in, a relapse, the Circuit Court said that NYFD was justified in terminating D’Amico’s employment as a firefighter.
Sep 7, 2010
Removing a public officer of a town from his or her position
Removing a public officer of a town from his or her position
Public Officers Law Section 36
Unhappy with their Town Supervisor, a number of residents of a town wrote to New York Governor David Paterson and asked him to remove the official from office.
According to a newspaper report,* Governor Paterson’s attorney, Peter J. Kiernan, Esq., advised the residents that “state law only provides the governor with power to remove some town officials, and town supervisors aren’t on the list.”
In any event, with respect to the removal of a town officer from his or her public office, §36 of the Public Officers Law, in pertinent part, provides as follows:
Any town… officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town … or by the district attorney of the county in which such town … is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town …. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here:
http://thedisciplinebook.blogspot.com/
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Public Officers Law Section 36
Unhappy with their Town Supervisor, a number of residents of a town wrote to New York Governor David Paterson and asked him to remove the official from office.
According to a newspaper report,* Governor Paterson’s attorney, Peter J. Kiernan, Esq., advised the residents that “state law only provides the governor with power to remove some town officials, and town supervisors aren’t on the list.”
In any event, with respect to the removal of a town officer from his or her public office, §36 of the Public Officers Law, in pertinent part, provides as follows:
Any town… officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town … or by the district attorney of the county in which such town … is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town …. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.
* Schenectady Gazette, Saturday, September 4, 2010
============================================If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here:
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Employment-at-will status may be tempered by provisions in the employer’s policy manual or personnel handbook under certain conditions
Employment-at-will status may be tempered by provisions in the employer’s policy manual or personnel handbook under certain conditions
Pearce v Clinton Community College, 246 A.D.2d 775
New York State is an “employment-at-will” state. This means that unless there is some statutory or contractual right to due process, an employee may be terminated without notice and a hearing.
However, sometimes courts will deem the contents of an employer’s policy manual or personnel handbook a “contract” insofar as processing the termination of an employee is concerned. Lisa J. Pearce attempted to persuade the Appellate Division that the Clinton County Community College’s [CCC] Policy and Procedures Manual [Manual] was part of the employment contract between her and CCC following her termination by the College.
Pearce signed a letter appointing her assistant bursar at CCC for the period October 18, 1995 through August 31, 1996. According to the ruling, this position was “within the category of management confidential personnel.” Aside from some details concerning fringe benefits, Pearce’s letter of appointment did not include any statements concerning any other “terms and conditions of employment.”
About four months later CCC terminated Pearce. Pearce was awarded unemployment insurance benefits based on a finding by Workers’ Compensation that she “was discharged for incompetence and failure to meet the standards of her payroll specialist position.”
Subsequently Pearce sued CCC, contending that it had wrongfully terminated her and that it had “breached her contract” with respect to certain provisions in the Manual. Was the Manual part of Pearce’s contract of employment? The Appellate Division decided that it was not part of any contract of employment between the parties.
Further, while the Manual indicated that CCC “generally endorses progressive discipline” and provides that “management confidential personnel” may receive annual performance reviews, the Court commented that there was nothing in the Manual setting out a policy with respect to a termination for cause prior to the completion of a specified term of employment.
The Court decided that: (1) The letter of appointment was sufficiently specific to constitute a contract between the parties; (2) CCC’s Policy and Procedures Manual was not “engrafted upon this contract;” and (3) “it is only where a plaintiff can show the existence of an express written agreement limiting the employer’s right to summarily terminate an employee that the principles governing employment at will are inapplicable”. Accordingly, the Court sustained the Supreme Court’s order denying her motion for partial summary judgment.
Pearce v Clinton Community College, 246 A.D.2d 775
New York State is an “employment-at-will” state. This means that unless there is some statutory or contractual right to due process, an employee may be terminated without notice and a hearing.
However, sometimes courts will deem the contents of an employer’s policy manual or personnel handbook a “contract” insofar as processing the termination of an employee is concerned. Lisa J. Pearce attempted to persuade the Appellate Division that the Clinton County Community College’s [CCC] Policy and Procedures Manual [Manual] was part of the employment contract between her and CCC following her termination by the College.
Pearce signed a letter appointing her assistant bursar at CCC for the period October 18, 1995 through August 31, 1996. According to the ruling, this position was “within the category of management confidential personnel.” Aside from some details concerning fringe benefits, Pearce’s letter of appointment did not include any statements concerning any other “terms and conditions of employment.”
About four months later CCC terminated Pearce. Pearce was awarded unemployment insurance benefits based on a finding by Workers’ Compensation that she “was discharged for incompetence and failure to meet the standards of her payroll specialist position.”
Subsequently Pearce sued CCC, contending that it had wrongfully terminated her and that it had “breached her contract” with respect to certain provisions in the Manual. Was the Manual part of Pearce’s contract of employment? The Appellate Division decided that it was not part of any contract of employment between the parties.
Further, while the Manual indicated that CCC “generally endorses progressive discipline” and provides that “management confidential personnel” may receive annual performance reviews, the Court commented that there was nothing in the Manual setting out a policy with respect to a termination for cause prior to the completion of a specified term of employment.
The Court decided that: (1) The letter of appointment was sufficiently specific to constitute a contract between the parties; (2) CCC’s Policy and Procedures Manual was not “engrafted upon this contract;” and (3) “it is only where a plaintiff can show the existence of an express written agreement limiting the employer’s right to summarily terminate an employee that the principles governing employment at will are inapplicable”. Accordingly, the Court sustained the Supreme Court’s order denying her motion for partial summary judgment.
Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law
Eleventh Amendment immunity lost should a state adopt the Fair Labor Standards Act as state law
Mueller v Thompson, CA7, 133 F.3d 1063
In Seminole Tribe v Florida, 517 US 44, the U.S. Supreme Court held that Congress did not have the power to void a state’s Eleventh Amendment immunity from suit in the federal courts by enacting legislation pursuant to the Commerce Clause.
In its ruling, the 7th Circuit pointed out that the Supreme Court said states were immune from FLSA under the Tenth Amendment [National League of Cities v Usery, 427 US 909] only to overrule that decision in Garcia v San Antonio Metropolitan Transit Authority [469 US 528]. However, in Garcia the Supreme Court said the FLSA applied to the states with respect to their performing “non-traditional” governmental functions, here a public transportation system.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, has it lost its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA? This was the question presented to the U.S. Circuit Court of Appeals, 7th Circuit, by the Mueller case.
The Court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.”
In 1971 Wisconsin copied the federal FLSA and made it part of its state law. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions.
On this legislative history, said the Court, there is “little reason” to concluded that Wisconsin waived its immunity by adopting a state FLSA applicable to public employees as Congress had not yet authorized suing states in federal court for alleged violations of the FLSA.
New York State, in contrast, adopted overtime provisions for state workers in an effort to comply with the overtime mandates of the FLSA after Congress made the FLSA applicable to the states. Accordingly, it could be argued that New York State, as an employer, “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court.
Mueller v Thompson, CA7, 133 F.3d 1063
In Seminole Tribe v Florida, 517 US 44, the U.S. Supreme Court held that Congress did not have the power to void a state’s Eleventh Amendment immunity from suit in the federal courts by enacting legislation pursuant to the Commerce Clause.
In its ruling, the 7th Circuit pointed out that the Supreme Court said states were immune from FLSA under the Tenth Amendment [National League of Cities v Usery, 427 US 909] only to overrule that decision in Garcia v San Antonio Metropolitan Transit Authority [469 US 528]. However, in Garcia the Supreme Court said the FLSA applied to the states with respect to their performing “non-traditional” governmental functions, here a public transportation system.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, has it lost its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA? This was the question presented to the U.S. Circuit Court of Appeals, 7th Circuit, by the Mueller case.
The Court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.”
In 1971 Wisconsin copied the federal FLSA and made it part of its state law. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions.
On this legislative history, said the Court, there is “little reason” to concluded that Wisconsin waived its immunity by adopting a state FLSA applicable to public employees as Congress had not yet authorized suing states in federal court for alleged violations of the FLSA.
New York State, in contrast, adopted overtime provisions for state workers in an effort to comply with the overtime mandates of the FLSA after Congress made the FLSA applicable to the states. Accordingly, it could be argued that New York State, as an employer, “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court.
Sep 6, 2010
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Sep 3, 2010
NYS Common Retirement Fund employer contribution rates to increase in 2012
NYS Common Retirement Fund employer contribution rates to increase in 2012
Source: Office of the State Comptroller
On September 2, 2010 State Comptroller Thomas P. DiNapoli announced increases over the previous year in the 2011-12 employer contribution rates for the New York State Common Retirement Fund. At the same time DiNapoli announced that he accepted the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates.*
The average contribution rate for the Employee Retirement System will increase from 11.9 percent of salaries to 16.3 percent. The average contribution for the Police and Fire Retirement System is increasing from 18.2 percent 21.6 percent.
Comptroller DiNapoli commented that “Unfortunately, it takes the economy a lot longer to climb out of a hole than it takes to fall in it. The markets are still recovering from the 2008-09 financial meltdown, and that recovery continues to be volatile. We handled the meltdown better than most pension funds, but we’re still feeling the impact, and, as I have consistently cautioned, the employer contribution rates I’m announcing today will reflect the impact of the financial crisis.”
The Retirement System actuary by law reviews many actuarial assumptions for the Retirement System, including: the mortality rate for members and retirees, the expected investment rate of return on pension fund investments, the rate of inflation and anticipated salary scales. The actuary prepares a report with recommendations, which is presented to an independent actuarial advisory committee.
The Retirement System’s new assumption for its investment rate of return is more fiscally conservative than the national average for public pension funds and more conservative than the average for the top 100 private U.S. pension funds, according to Milliman’s 10th annual Pension Funding Study.
The Comptroller noted that a new law was enacted earlier in 2010 that will allow a political subdivision of the State to elect to participate in a program that would allow it to budget a portion of their increased pension fund payments over ten years.**
This “employer contribution payment plan” will help those localities electing to participate to mitigate the impact the increase in costs could have on local taxpayers. Those localities opting into the plan must also build reserve accounts during periods of decreasing pension contribution rates, which reserve accounts would be used to protect taxpayers from future rate spikes.
DiNapoli characterized the program as being similar to a household utility budget plan that enables homeowners to pay one level payment throughout the year rather than payments that spike at different times of the year.
* Click on "contribution rates" for the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates: contribution rates
** See Retirement and Social Security Law §19-a, Employer contributions for the two thousand ten - two thousand eleven fiscal year and subsequent fiscal years.
.
Source: Office of the State Comptroller
On September 2, 2010 State Comptroller Thomas P. DiNapoli announced increases over the previous year in the 2011-12 employer contribution rates for the New York State Common Retirement Fund. At the same time DiNapoli announced that he accepted the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates.*
The average contribution rate for the Employee Retirement System will increase from 11.9 percent of salaries to 16.3 percent. The average contribution for the Police and Fire Retirement System is increasing from 18.2 percent 21.6 percent.
Comptroller DiNapoli commented that “Unfortunately, it takes the economy a lot longer to climb out of a hole than it takes to fall in it. The markets are still recovering from the 2008-09 financial meltdown, and that recovery continues to be volatile. We handled the meltdown better than most pension funds, but we’re still feeling the impact, and, as I have consistently cautioned, the employer contribution rates I’m announcing today will reflect the impact of the financial crisis.”
The Retirement System actuary by law reviews many actuarial assumptions for the Retirement System, including: the mortality rate for members and retirees, the expected investment rate of return on pension fund investments, the rate of inflation and anticipated salary scales. The actuary prepares a report with recommendations, which is presented to an independent actuarial advisory committee.
The Retirement System’s new assumption for its investment rate of return is more fiscally conservative than the national average for public pension funds and more conservative than the average for the top 100 private U.S. pension funds, according to Milliman’s 10th annual Pension Funding Study.
The Comptroller noted that a new law was enacted earlier in 2010 that will allow a political subdivision of the State to elect to participate in a program that would allow it to budget a portion of their increased pension fund payments over ten years.**
This “employer contribution payment plan” will help those localities electing to participate to mitigate the impact the increase in costs could have on local taxpayers. Those localities opting into the plan must also build reserve accounts during periods of decreasing pension contribution rates, which reserve accounts would be used to protect taxpayers from future rate spikes.
DiNapoli characterized the program as being similar to a household utility budget plan that enables homeowners to pay one level payment throughout the year rather than payments that spike at different times of the year.
* Click on "contribution rates" for the Retirement System actuary’s recommendations for the assumptions used in calculating employer contribution rates: contribution rates
** See Retirement and Social Security Law §19-a, Employer contributions for the two thousand ten - two thousand eleven fiscal year and subsequent fiscal years.
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A difference between judicial and administrative hearings
A difference between judicial and administrative hearings
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Here is another case from Patty Salkin (Albany) on her Law of the Land blog, "FL Appeals Court holds that Neighboring Landowners in a Quasi Judicial Hearing Are Not Entitled to Cross-Examine Witnesses".
Petitioners, Carillon Community Residential Association, Inc., and its President, sought second-tier certiorari review of a circuit court order upholding the approval by the County Board of County Commissioners [BCC] of an amendment to the Carillon Planned Unit Development which allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to be built on two parcels of land adjacent to Petitioners’ subdivision.
The Court concluded that the circuit court afforded Petitioners procedural due process and did not depart from the essential requirements of law when the Board denied their request to cross-examine witnesses at the quasi-judicial hearing in which the amendment was approved.
The Court said that Florida law does not require that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses.
The Court states, that “land use hearings are not in the same form as traditional adversarial hearings during which opposing parties are clearly delineated and those entitled to cross-examine witnesses can be clearly identified.
Rather, land use hearings are public hearings during which any member of the public has a right to participate. At the hearing in question, in addition to the witnesses for the developers and the petitioners, twenty-five community members spoke at the hearing. It would be impractical to grant each interested party the right to cross-examine the witnesses at such a hearing, especially in light of the fact that the BCC provides a procedure by which the witnesses can be questioned.”
An administrative hearing is not a trial - not strictly speaking an adversarial procedure but rather an inquisitorial procedure. Due process does not require that the agency follow the rules of evidence or the procedures mandated by due process in litigation or criminal proceedings. Absent specific statutory requirements, we get notice and an opportunity to be heard.
Edward M. “Ted” McClure
.
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Here is another case from Patty Salkin (Albany) on her Law of the Land blog, "FL Appeals Court holds that Neighboring Landowners in a Quasi Judicial Hearing Are Not Entitled to Cross-Examine Witnesses".
Petitioners, Carillon Community Residential Association, Inc., and its President, sought second-tier certiorari review of a circuit court order upholding the approval by the County Board of County Commissioners [BCC] of an amendment to the Carillon Planned Unit Development which allows a mixed-use development, including a four-story, 600 bed University of Central Florida student housing complex, to be built on two parcels of land adjacent to Petitioners’ subdivision.
The Court concluded that the circuit court afforded Petitioners procedural due process and did not depart from the essential requirements of law when the Board denied their request to cross-examine witnesses at the quasi-judicial hearing in which the amendment was approved.
The Court said that Florida law does not require that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses.
The Court states, that “land use hearings are not in the same form as traditional adversarial hearings during which opposing parties are clearly delineated and those entitled to cross-examine witnesses can be clearly identified.
Rather, land use hearings are public hearings during which any member of the public has a right to participate. At the hearing in question, in addition to the witnesses for the developers and the petitioners, twenty-five community members spoke at the hearing. It would be impractical to grant each interested party the right to cross-examine the witnesses at such a hearing, especially in light of the fact that the BCC provides a procedure by which the witnesses can be questioned.”
An administrative hearing is not a trial - not strictly speaking an adversarial procedure but rather an inquisitorial procedure. Due process does not require that the agency follow the rules of evidence or the procedures mandated by due process in litigation or criminal proceedings. Absent specific statutory requirements, we get notice and an opportunity to be heard.
Edward M. “Ted” McClure
.
Fear of AIDS
Fear of AIDS
Barbara S. v Nassau County, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]
Emergency service personnel who believe that they have been exposed to HIV in the course of their employment may claim to have developed a fear of Acquired Immune Deficiency Syndrome [AIDS]. The Barbara S. case summaries how New York courts treat such claims.
An emergency room nurse at the Massapequa General Hospital, Barbara S. was stuck with a needle while caring for a patient. She and her husband sued, contending that the needle, which had been allegedly used to start an IV in a patient being transported to the hospital, had been negligently and improperly left on the stretcher by the Nassau County employees.
Barbara contended that she was fearful that she would contract Acquired Immune Deficiency Syndrome (AIDS) as a result of the puncture despite the fact that she has tested negative for AIDS in three tests administered over a 12-month period. The County asked Justice Joseph dismiss her claim on the grounds that she had not shown that she had been actually exposed to blood or fluid seropositive for HIV, citing Brown v New York City Health and Hospital Corporation, 225 AD2d 36.
Justice Joseph said that New York courts have repeatedly dealt with the elements required to establish a cause of action for negligence based on the fear of contracting AIDS. In order to maintain a cause of action for damages due to the fear of contracting AIDS, an individual who has not tested positive for AIDS must offer proof of “actual exposure.” Requiring proof of actual exposure insures that there is a genuine basis for the individual’s fear of developing the disease and that the fear is not based on public misconceptions about AIDS.
The Court said that although Barbara did posit a scientifically accepted method of transmission of the virus, i.e. the needle puncture, she failed to establish with either documentary evidence or testimony that the needle had ever been in contact with any blood or fluid of the patient or that the patient had AIDS.
Justice Joseph characterized Barbara’s claims as “an unsubstantiated allegation that the needle was used for the patient’s treatment” which was not supported by the record. The Court granted the County’s motion for summary judgment, dismissing her AIDS-related claims. However, Barbara’s action concerning her claim of a physical injury resulting from the needle puncturing her hand survived, since the County conceded that she had suffered such an injury.
Barbara S. v Nassau County, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]
Emergency service personnel who believe that they have been exposed to HIV in the course of their employment may claim to have developed a fear of Acquired Immune Deficiency Syndrome [AIDS]. The Barbara S. case summaries how New York courts treat such claims.
An emergency room nurse at the Massapequa General Hospital, Barbara S. was stuck with a needle while caring for a patient. She and her husband sued, contending that the needle, which had been allegedly used to start an IV in a patient being transported to the hospital, had been negligently and improperly left on the stretcher by the Nassau County employees.
Barbara contended that she was fearful that she would contract Acquired Immune Deficiency Syndrome (AIDS) as a result of the puncture despite the fact that she has tested negative for AIDS in three tests administered over a 12-month period. The County asked Justice Joseph dismiss her claim on the grounds that she had not shown that she had been actually exposed to blood or fluid seropositive for HIV, citing Brown v New York City Health and Hospital Corporation, 225 AD2d 36.
Justice Joseph said that New York courts have repeatedly dealt with the elements required to establish a cause of action for negligence based on the fear of contracting AIDS. In order to maintain a cause of action for damages due to the fear of contracting AIDS, an individual who has not tested positive for AIDS must offer proof of “actual exposure.” Requiring proof of actual exposure insures that there is a genuine basis for the individual’s fear of developing the disease and that the fear is not based on public misconceptions about AIDS.
The Court said that although Barbara did posit a scientifically accepted method of transmission of the virus, i.e. the needle puncture, she failed to establish with either documentary evidence or testimony that the needle had ever been in contact with any blood or fluid of the patient or that the patient had AIDS.
Justice Joseph characterized Barbara’s claims as “an unsubstantiated allegation that the needle was used for the patient’s treatment” which was not supported by the record. The Court granted the County’s motion for summary judgment, dismissing her AIDS-related claims. However, Barbara’s action concerning her claim of a physical injury resulting from the needle puncturing her hand survived, since the County conceded that she had suffered such an injury.
Payment of hazardous duty pay while receiving GML Section 207-c benefits
Payment of hazardous duty pay while receiving GML Section 207-c benefits
Town of Carmel v PERB, Appellate Division, 246 A.D.2d 791
Prior to January 1995, Town of Carmel police officers assigned to “light duty” pursuant to Section 207-c of the General Municipal Law performed desk duty. Such light duty personnel wore “Class D uniforms,” did not carry a weapon and were assisted by a full-status officer, fully armed, dressed in a “Class A” uniform, at all times.
The Town changed this policy in January 1995, requiring officers on light duty status to wear a Class A uniform, including weapon and to perform desk duty unassisted by a “full-status” officer.
The Town of Carmel PBA, contending that this change adversely affected the safety of officers, both those on light duty status as well as those in full-status, demanded that the Town negotiate “safety stipends” for both the light duty and full-status officers. When the Town refused, the PBA filed an improper practice charge with PERB.
The PBA sought $100 a day for light duty officers serving without assistance; $15 an hour for full-status officers responsible for a prisoner while a light duty officer was the only other officer present and $10 an hour for a full-service officer assigned to desk duty when only a light duty officer was present.
A PERB administrative law judge [ALJ] dismissed the charge, finding that the additional compensation demanded for light duty officers “did not comport with the legislative scheme of General Municipal Law Section 207-c,” and thus constituted a prohibited subject of negotiations. PERB disagreed and reversed the ALJ’s ruling.
PERB decided that the salary demands advocated by the PBA were mandatory subjects for collective bargaining “not unlike hazardous duty pay.” The Town appealed, contending that it could not be compelled to negotiate wages to be paid an officer assigned to light duty above the amount to which he or she would have been entitled were he or she able to perform “regular duties.”
The issue to be resolved: did the demand for a safety stipend constitute a term and condition of employment, thus making it mandatorily negotiable, or did it constitute salary or wages in excess of that which are provided for under the clear and plain language of the Section 207-c.
The Appellate Division agreed with a lower court’s affirmation of PERB’s decision, concluding that the PBA’s demand involved a term and condition of employment since it directly relates to safety issues arising as a result of the change in policy. Further, said the Appellate Division, nothing in Section 207-c makes the PBA’s demand a prohibited subject of negotiations.
According to the decision, while the legislature intended to insure that Section 207-c police officers assigned light duty would receive an uninterrupted salary, “it did not simultaneously intend to prevent those same officers from bargaining for what they may perceive to be job-related risks.”
N.B. An Internal Revenue Service private letter opinion [#0104.02.00] advised that if an individual is assigned light duty, any compensation paid pursuant to Sections 207-a or 207-c is fully taxable.
Town of Carmel v PERB, Appellate Division, 246 A.D.2d 791
Prior to January 1995, Town of Carmel police officers assigned to “light duty” pursuant to Section 207-c of the General Municipal Law performed desk duty. Such light duty personnel wore “Class D uniforms,” did not carry a weapon and were assisted by a full-status officer, fully armed, dressed in a “Class A” uniform, at all times.
The Town changed this policy in January 1995, requiring officers on light duty status to wear a Class A uniform, including weapon and to perform desk duty unassisted by a “full-status” officer.
The Town of Carmel PBA, contending that this change adversely affected the safety of officers, both those on light duty status as well as those in full-status, demanded that the Town negotiate “safety stipends” for both the light duty and full-status officers. When the Town refused, the PBA filed an improper practice charge with PERB.
The PBA sought $100 a day for light duty officers serving without assistance; $15 an hour for full-status officers responsible for a prisoner while a light duty officer was the only other officer present and $10 an hour for a full-service officer assigned to desk duty when only a light duty officer was present.
A PERB administrative law judge [ALJ] dismissed the charge, finding that the additional compensation demanded for light duty officers “did not comport with the legislative scheme of General Municipal Law Section 207-c,” and thus constituted a prohibited subject of negotiations. PERB disagreed and reversed the ALJ’s ruling.
PERB decided that the salary demands advocated by the PBA were mandatory subjects for collective bargaining “not unlike hazardous duty pay.” The Town appealed, contending that it could not be compelled to negotiate wages to be paid an officer assigned to light duty above the amount to which he or she would have been entitled were he or she able to perform “regular duties.”
The issue to be resolved: did the demand for a safety stipend constitute a term and condition of employment, thus making it mandatorily negotiable, or did it constitute salary or wages in excess of that which are provided for under the clear and plain language of the Section 207-c.
The Appellate Division agreed with a lower court’s affirmation of PERB’s decision, concluding that the PBA’s demand involved a term and condition of employment since it directly relates to safety issues arising as a result of the change in policy. Further, said the Appellate Division, nothing in Section 207-c makes the PBA’s demand a prohibited subject of negotiations.
According to the decision, while the legislature intended to insure that Section 207-c police officers assigned light duty would receive an uninterrupted salary, “it did not simultaneously intend to prevent those same officers from bargaining for what they may perceive to be job-related risks.”
N.B. An Internal Revenue Service private letter opinion [#0104.02.00] advised that if an individual is assigned light duty, any compensation paid pursuant to Sections 207-a or 207-c is fully taxable.
Sep 2, 2010
Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion
Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion
Matter of Kaefer v New York State Off. of Parks Recreation & Historical Preserv., 2010 NY Slip Op 51503(U), Decided on July 16, 2010, Supreme Court, Nassau County, Judge Ute Wolff Lally, [Not selected for publication in the Official Reports]
Robert Kaefer had been employed as a “seasonal temporary” lifeguard for 18 years* by Jones Beach State Park [Parks].
Returning from an absence following surgery performed by a Dr. Halpern, Kaefer was told that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, Kaefer handed in a false doctor's note allegedly written by a Dr. Persaud, which he had obtained with the help of another lifeguard, James Green.** Subsequently Kaefer obtained an appropriate doctor’s note from Dr. Halpern.
Dr. Persaud's note, however, had raised some suspicion and Kaefer was told to provide evidence verifying its accuracy. Kaefer, in response, submitted “another bogus note from Dr. Persaud.”
Parks allowed Kaefer to continue serving as a lifeguard for the rest of the swim season.***
Thereafter Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 disciplinary hearing concerning the first bogus note -- the first formal step in the process taking disciplinary action against a lifeguard. The hearing, however, was adjourned to but prior to the rescheduled date Kaefer received a letter advising him that the step 1 hearing "has been postponed and will be rescheduled at a future date to be determined".
No notification of a rescheduled or cancelled Step 1 hearing was ever sent to Kaefer.
Ultimately Kaefer was refused reemployment as a lifeguard and he filed an Article 78 petition seeking a court order setting aside Parks decision banning from serving as a lifeguard, contending that the decision was arbitrary and capricious because:
1. Parks failed to adhere to its own policies and procedures; and
2. Parks imposed a different penalty than it has applied its prior determinations on essentially the same alleged acts of misconduct by barring him from employment as a life guard.
Judge Lally rejected Parks’ argument that Kaefer’s petition should be dismissed because he had “failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled," holding that the duty of providing for the rescheduling and notifying Kaefer of such a hearing was Parks'.
In contrast, Judge Lally ruled that Kaefer had the burden of proving that his punishment — a lifetime bar from employment as a lifeguard -- was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious.
In this regard, said the court, Kaefer failed to meet his burden as, except for James Green, Kaefer was unable to point to any lifeguard who was found guilty of submitting a bogus doctor's note. Further, Judge Lally said that he would not substitute his judgment for that of Parks, finding that there was no abuse of discretion as a matter of law in Parks’ treatment of Kaefer compared to its treatment of other lifeguards convicted of crimes.
As to Parks’ argument that it had merely exercised its discretion to terminate a “seasonal temporary” lifeguard pursuant to its authority to do so "for any reason without prior notice," Judge Lally ruled that it could not now rely on such discretion to excuse its failure to follow through with the disciplinary procedure it earlier initiated. In the words of the court, “Having invoked its authority [to discipline Parks] was obliged to comply with it. [Parks] scheduled, rescheduled and then canceling the rescheduled hearing with a promise to provide a new date."
In effect, "once initiated, [Parks] was required to complete the disciplinary process in accordance with the provisions set out in the collective bargaining agreement and by failing to do so it violated its own policies and procedures, which deprived Kaefer of any opportunity to explain his action and/or to plead his case."
In determining the appropriate redress to be given Kaefer to cure Parks’ “abuse of discretion in violating its policies and procedures,” Judge Lally said that he must consider the particular circumstances of Kaefer’s employment.
The court explained that although hired for numerous seasons, Kaefer consistently had been an employee for a fixed term for each season and he had no right to be rehired. However, in barring Kaefer from “taking the new hire test without having afforded him a Step 1 hearing,” Parks had, essentially, made a disciplinary decision without giving Kaefer the benefit of such a hearing.
Accordingly, Judge Lally directed Parks “to provide to [Kaefer] the hearings he is entitled to” and to permit him to take “the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.”
Significantly, the court, noting that Parks had “wrongfully prohibited” Kaefer from taking the new hire tests, commented that “there is no certitude that [Kaefer] would have passed same or that an opening existed.” Accordingly, Judge Lally declined to award Kaefer “lost wages.”
In contrast, however, as the prevailing party, the court said that Kaefer was entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR §8601).
* "Seasonal Appointment Letters" sent to Kaefer stated that "You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice...."
** James Green, Kaefer's co-conspirator in obtaining the bogus doctor's notes, had agreed as part of a plea bargain to a lifetime ban of employment as a lifeguard at Parks.
*** Subsequently Kaefer was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, submitting a false instrument for filing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51503.htm
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Matter of Kaefer v New York State Off. of Parks Recreation & Historical Preserv., 2010 NY Slip Op 51503(U), Decided on July 16, 2010, Supreme Court, Nassau County, Judge Ute Wolff Lally, [Not selected for publication in the Official Reports]
Robert Kaefer had been employed as a “seasonal temporary” lifeguard for 18 years* by Jones Beach State Park [Parks].
Returning from an absence following surgery performed by a Dr. Halpern, Kaefer was told that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, Kaefer handed in a false doctor's note allegedly written by a Dr. Persaud, which he had obtained with the help of another lifeguard, James Green.** Subsequently Kaefer obtained an appropriate doctor’s note from Dr. Halpern.
Dr. Persaud's note, however, had raised some suspicion and Kaefer was told to provide evidence verifying its accuracy. Kaefer, in response, submitted “another bogus note from Dr. Persaud.”
Parks allowed Kaefer to continue serving as a lifeguard for the rest of the swim season.***
Thereafter Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 disciplinary hearing concerning the first bogus note -- the first formal step in the process taking disciplinary action against a lifeguard. The hearing, however, was adjourned to but prior to the rescheduled date Kaefer received a letter advising him that the step 1 hearing "has been postponed and will be rescheduled at a future date to be determined".
No notification of a rescheduled or cancelled Step 1 hearing was ever sent to Kaefer.
Ultimately Kaefer was refused reemployment as a lifeguard and he filed an Article 78 petition seeking a court order setting aside Parks decision banning from serving as a lifeguard, contending that the decision was arbitrary and capricious because:
1. Parks failed to adhere to its own policies and procedures; and
2. Parks imposed a different penalty than it has applied its prior determinations on essentially the same alleged acts of misconduct by barring him from employment as a life guard.
Judge Lally rejected Parks’ argument that Kaefer’s petition should be dismissed because he had “failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled," holding that the duty of providing for the rescheduling and notifying Kaefer of such a hearing was Parks'.
In contrast, Judge Lally ruled that Kaefer had the burden of proving that his punishment — a lifetime bar from employment as a lifeguard -- was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious.
In this regard, said the court, Kaefer failed to meet his burden as, except for James Green, Kaefer was unable to point to any lifeguard who was found guilty of submitting a bogus doctor's note. Further, Judge Lally said that he would not substitute his judgment for that of Parks, finding that there was no abuse of discretion as a matter of law in Parks’ treatment of Kaefer compared to its treatment of other lifeguards convicted of crimes.
As to Parks’ argument that it had merely exercised its discretion to terminate a “seasonal temporary” lifeguard pursuant to its authority to do so "for any reason without prior notice," Judge Lally ruled that it could not now rely on such discretion to excuse its failure to follow through with the disciplinary procedure it earlier initiated. In the words of the court, “Having invoked its authority [to discipline Parks] was obliged to comply with it. [Parks] scheduled, rescheduled and then canceling the rescheduled hearing with a promise to provide a new date."
In effect, "once initiated, [Parks] was required to complete the disciplinary process in accordance with the provisions set out in the collective bargaining agreement and by failing to do so it violated its own policies and procedures, which deprived Kaefer of any opportunity to explain his action and/or to plead his case."
In determining the appropriate redress to be given Kaefer to cure Parks’ “abuse of discretion in violating its policies and procedures,” Judge Lally said that he must consider the particular circumstances of Kaefer’s employment.
The court explained that although hired for numerous seasons, Kaefer consistently had been an employee for a fixed term for each season and he had no right to be rehired. However, in barring Kaefer from “taking the new hire test without having afforded him a Step 1 hearing,” Parks had, essentially, made a disciplinary decision without giving Kaefer the benefit of such a hearing.
Accordingly, Judge Lally directed Parks “to provide to [Kaefer] the hearings he is entitled to” and to permit him to take “the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.”
Significantly, the court, noting that Parks had “wrongfully prohibited” Kaefer from taking the new hire tests, commented that “there is no certitude that [Kaefer] would have passed same or that an opening existed.” Accordingly, Judge Lally declined to award Kaefer “lost wages.”
In contrast, however, as the prevailing party, the court said that Kaefer was entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR §8601).
* "Seasonal Appointment Letters" sent to Kaefer stated that "You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice...."
** James Green, Kaefer's co-conspirator in obtaining the bogus doctor's notes, had agreed as part of a plea bargain to a lifetime ban of employment as a lifeguard at Parks.
*** Subsequently Kaefer was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, submitting a false instrument for filing.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51503.htm
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Employee terminated after refusing to accept reassignment to another location
Employee terminated after refusing to accept reassignment to another location
Dippell v Hammons, 246 A.D.2d 450
Dagmar Dippell, an attorney employed by the New York City Human Resources Administration, refused to report to her new assignment in Queens. This resulted in Dippell’s demotion following a disciplinary hearing.
When she continued to refuse to report to the new location, a second hearing was conducted and she was terminated. Dippell appealed, contending that the determinations by the two Administrative Law Judges [ALJs] were not supported by substantial evidence.
Commenting on the hearings that preceded Dippell’s dismissal, the Appellate Division cited the “obey now, grieve later” principle. The Court said that the first ALJ had ample grounds to conclude that Dippell had no basis for disregarding that principle. Although Dippell’s physician had recommended a “non-stressful job” for her, that, standing alone, “was inadequate to establish that the reassignment would be unduly debilitating to her health.”
The ALJ found that Dippell’s testimony lacked credibility and that she came across as “stubborn and misguided.” According to the decision, the ALJ credited the testimony of a department witness that Dippell was reassigned because of her failure to return from a Florida vacation on time and her “longstanding poor relationship with her immediate supervisor.”
The second proceeding was held before a different ALJ. The Appellate Division noted that Dippell failed to appear at that hearing. The Appellate Division said that the second ALJ “properly concluded” that dismissal was the only appropriate penalty, because Dippell had previously been demoted for similar misconduct.
Dippell v Hammons, 246 A.D.2d 450
Dagmar Dippell, an attorney employed by the New York City Human Resources Administration, refused to report to her new assignment in Queens. This resulted in Dippell’s demotion following a disciplinary hearing.
When she continued to refuse to report to the new location, a second hearing was conducted and she was terminated. Dippell appealed, contending that the determinations by the two Administrative Law Judges [ALJs] were not supported by substantial evidence.
Commenting on the hearings that preceded Dippell’s dismissal, the Appellate Division cited the “obey now, grieve later” principle. The Court said that the first ALJ had ample grounds to conclude that Dippell had no basis for disregarding that principle. Although Dippell’s physician had recommended a “non-stressful job” for her, that, standing alone, “was inadequate to establish that the reassignment would be unduly debilitating to her health.”
The ALJ found that Dippell’s testimony lacked credibility and that she came across as “stubborn and misguided.” According to the decision, the ALJ credited the testimony of a department witness that Dippell was reassigned because of her failure to return from a Florida vacation on time and her “longstanding poor relationship with her immediate supervisor.”
The second proceeding was held before a different ALJ. The Appellate Division noted that Dippell failed to appear at that hearing. The Appellate Division said that the second ALJ “properly concluded” that dismissal was the only appropriate penalty, because Dippell had previously been demoted for similar misconduct.
Participating in an arbitration may bar extrication from the process
Participating in an arbitration may bar extrication from the process
Suffolk County v Faculty Asso. of SCCC, App. Div., 247 A.D.2d 472
Suppose a party appears at a grievance arbitration but later decides that it didn’t have to. May it ask to have the arbitration award vacated?
This was the significant issue in the Suffolk County case. The Appellate Division indicated that once a party has appeared in an arbitration and a decision had been rendered, it may be too late for the party to extricate itself the process.
Suffolk County participated in a grievance arbitration proceeding involving the Faculty Association of Suffolk County Community College. The county challenged the arbitration and won a court order vacating the award made by the arbitrator after persuading a New York State Supreme Court justice that “there was no agreement to arbitrate the grievance in question” between the parties.
The Faculty Association appealed and the Appellate Division reversed the lower court’s ruling, reinstating the award. The Court said, “the absence of an agreement to arbitrate is not a basis upon which a party who participated in the arbitration may seek to have the resulting award vacated.”
The Court also rejected the County’s alternative argument, in which it contended that the arbitration award violated public policy, on a technical ground. Why? Because, said the Court, the County did not raise the “public policy” argument in its motion to vacate the arbitration award at the Supreme Court level. Accordingly, the County’s “public policy” theory was not properly before it on appeal.
Suffolk County v Faculty Asso. of SCCC, App. Div., 247 A.D.2d 472
Suppose a party appears at a grievance arbitration but later decides that it didn’t have to. May it ask to have the arbitration award vacated?
This was the significant issue in the Suffolk County case. The Appellate Division indicated that once a party has appeared in an arbitration and a decision had been rendered, it may be too late for the party to extricate itself the process.
Suffolk County participated in a grievance arbitration proceeding involving the Faculty Association of Suffolk County Community College. The county challenged the arbitration and won a court order vacating the award made by the arbitrator after persuading a New York State Supreme Court justice that “there was no agreement to arbitrate the grievance in question” between the parties.
The Faculty Association appealed and the Appellate Division reversed the lower court’s ruling, reinstating the award. The Court said, “the absence of an agreement to arbitrate is not a basis upon which a party who participated in the arbitration may seek to have the resulting award vacated.”
The Court also rejected the County’s alternative argument, in which it contended that the arbitration award violated public policy, on a technical ground. Why? Because, said the Court, the County did not raise the “public policy” argument in its motion to vacate the arbitration award at the Supreme Court level. Accordingly, the County’s “public policy” theory was not properly before it on appeal.
Sep 1, 2010
Selected bills recently signed into law
Selected bills recently signed into law
Source: New York State Legislature
Chapter 423 of the Laws of 2010: Provides that employers who provide funeral leave for family members of deceased shall not deny such leave for same-sex committed partners of the deceased.
Chapter 426 of the Laws of 2010: Requires New York City school districts to notify parents of bedbug infestations.
Chapter 430 of the Laws of 2010: Relates to health insurance coverage for surviving spouses or domestic partners of members of the New York City Department of Correction.
Chapter 480 of the Laws of 2010: Relates to the residence of peace officers employed as fire protection inspectors, urban park rangers and traffic enforcement agents level IV by a city with a population over one million [i.e., the City of New York].
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Source: New York State Legislature
Chapter 423 of the Laws of 2010: Provides that employers who provide funeral leave for family members of deceased shall not deny such leave for same-sex committed partners of the deceased.
Chapter 426 of the Laws of 2010: Requires New York City school districts to notify parents of bedbug infestations.
Chapter 430 of the Laws of 2010: Relates to health insurance coverage for surviving spouses or domestic partners of members of the New York City Department of Correction.
Chapter 480 of the Laws of 2010: Relates to the residence of peace officers employed as fire protection inspectors, urban park rangers and traffic enforcement agents level IV by a city with a population over one million [i.e., the City of New York].
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State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored
State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored
Source: Office of the State Comptroller, Audit 2009-S-42
The State Comptroller’s auditors found that the Office of Mental Health (OMH) had 819 state-funded contracts for personal and miscellaneous services during a three-year audit period totaling $61.7 million.
The focus of the audit: Was OMH adequately justifying the need to initially contract out for such services and then periodically reassessing whether such contracts could be deferred, eliminated or reduced. The report indicates that “this was not adequately done.”
A sample of 50 of the 819 Service Contracts was selected for study. The auditors reviewed available documentation to determine whether the need for the services and the decision to contract for services was justified with supporting documentation.
According to the Comptroller’s report, OMH was able to demonstrate that it had formally evaluated and justified the need for only 15 of these 50 contracts totaling $13.5 million. The Department did not produce documentation showing that it formally evaluated the justification for the remaining 35 contracts, which totaled $48.2 million.
Although OMH officials agreed that all of the decisions pertaining to contracting for Services were not documented, they indicated that "this is not a feasible task, as decisions are made at many levels in many forms." OMH said that it believe it had effectively communicated the intent of the relevant budget bulletins to all OMH divisions and facilities. The auditors, in contrast, said they “did not find sufficient evidence that OMH had contracted out only when there was a clearly documented need for the services.”
The contracts involved providing for mental health services, information technology, maintenance, and security services.
The full text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093010/09s42.pdf
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Source: Office of the State Comptroller, Audit 2009-S-42
The State Comptroller’s auditors found that the Office of Mental Health (OMH) had 819 state-funded contracts for personal and miscellaneous services during a three-year audit period totaling $61.7 million.
The focus of the audit: Was OMH adequately justifying the need to initially contract out for such services and then periodically reassessing whether such contracts could be deferred, eliminated or reduced. The report indicates that “this was not adequately done.”
A sample of 50 of the 819 Service Contracts was selected for study. The auditors reviewed available documentation to determine whether the need for the services and the decision to contract for services was justified with supporting documentation.
According to the Comptroller’s report, OMH was able to demonstrate that it had formally evaluated and justified the need for only 15 of these 50 contracts totaling $13.5 million. The Department did not produce documentation showing that it formally evaluated the justification for the remaining 35 contracts, which totaled $48.2 million.
Although OMH officials agreed that all of the decisions pertaining to contracting for Services were not documented, they indicated that "this is not a feasible task, as decisions are made at many levels in many forms." OMH said that it believe it had effectively communicated the intent of the relevant budget bulletins to all OMH divisions and facilities. The auditors, in contrast, said they “did not find sufficient evidence that OMH had contracted out only when there was a clearly documented need for the services.”
The contracts involved providing for mental health services, information technology, maintenance, and security services.
The full text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093010/09s42.pdf
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Politically motivated removals from public employment
Politically motivated removals from public employment
Coogan v Smyers, et al, CA2, 134 F.3d 479
In a series of rulings concerning the removal of public employees for political reasons, the U.S. Circuit Court of Appeals, Second Circuit [New York] set out a number of tests and guidelines it uses to determine if a particular termination is Constitutionally permissible. The Coogan case involved the termination of a City Clerk by a City Council.
James A. Coogan, who had served as Tonawanda’s City Clerk for five consecutive two-year terms, sued members of the City of Tonawanda after the new Republican council majority decided not to reappoint him for another two-year term.
According to Coogan, the Council’s action was motivated by his political activities on behalf of the Democratic Party. Claiming that his civil rights were violated, Coogan filed his action pursuant to 42 USC 1983 and argued that the Council’s action violated his First and Fourteenth Amendments rights.
The Circuit Court of Appeals reversed a federal District Court judge’s dismissal of Coogan’s petition and remanded the matter to the lower court for its further consideration. The Circuit Court pointed out that:
1. As a general rule, a public employee is protected from adverse employment decisions based upon the employee’s exercise of his or her First Amendment rights.
2. Political patronage or party affiliation is impermissible reasons for dismissing government employees absent a showing that “party affiliation is an appropriate requirement for the effective performance of the public office involved.”
3. While there is no property interest or entitlement to be reappointed to a government position, failure to reappoint solely because of party affiliation is impermissible.
Ironically, the Tonawanda City Clerk’s position historically has been one filled through political patronage. While the Court conceded that Coogan himself may have enjoyed a patronage appointment, this fact is irrelevant: a history of patronage does not render the practice Constitutional.
Coogan claimed that the only legal way to take away his job was to have reasons relating to his job performance. The Circuit Court said this was simply incorrect. The only Constitutional limit placed on a city council’s appointment power is that it may not make employment decisions based upon an employee’s protected conduct.
In cases of this type, courts frequently use a “burden-shifting” test. This requires that the individual first establish, by a preponderance of the evidence, that:
(1) his or her political activities constituted a substantial or motivating factor in the employment decision; and
(2) his or her conduct on behalf of a particular political party was constitutionally protected. If the individual is able to do this, the burden of going forward shifts to the employer, which must prove by a preponderance of the evidence that it would have made the same employment decision notwithstanding the individual’s protected conduct.
A critical element in this case was the parties’ stipulation that the City Clerk’s position is a non-policymaking and non-confidential government position. Therefore, political party affiliation could not be required for effective service as City Clerk. On this point the Court referred to the U.S. Supreme Court’s decision in Branti v Finkel, 445 U.S. at page 518.
Also, the Court emphasized the significance of the fact that the City Clerk’s position was not tenured -- it carried a two-year term. Coogan was merely a “prospective employee” and he had no property right or entitlement to the position or reappointment to it.
Accordingly, the Council was not required to “show cause” for failing to reappoint him. The Constitutional prohibition on patronage dismissal “does not give a permanent appointment to the City Clerk.” The legislative body is always free to dismiss or fail to rehire the Clerk for legitimate, apolitical reasons.
However, if a nontenured employee like Coogan shows there was unlawful political motivation in the failure to reappoint, the burden shifts to the legislative body to show a lawful reason for its decision. The Circuit Court said that if a public employer has two reasons for an employment decision, one lawful (e.g. incompetence) and one unlawful (e.g. removing a person because of some Constitutionally protected speech he or she made), the employment decision may be upheld on the basis of the lawful reason. The Court called this the “dual-motive” test.
The Circuit Court agreed with the District Court that Coogan’s political activity and affiliation were “a substantial or motivating factor” in the Council’s decision not to reappoint him.
But the Circuit Court disagreed with the District Court’s conclusion that the Council “presented sufficient evidence to demonstrate that they would not have reappointed Mr. Coogan regardless of his active participation in the Democratic Party.”
The Circuit Court decided that “the present record is inadequate” to enable it determine if the Coogan would have been denied reappointment regardless of his political affiliation or activity. Therefore, it remanded the case for further findings of fact by the trial court. The District Court was directed to analyze the reasons underlying the reasons given by the individual Council members for their votes concerning Coogan’s reappointment.
In another decision handed down by the U.S. Circuit Court of Appeals, Second Circuit, Danahy v. Buscaglia, 134 F.3d 1185, the Court said that a public employer was entitled to a qualified immunity from law suit for patronage dismissals if the employer was reasonable in making its decision with respect to whether or not the employees terminated qualified as “the kind of policymaking and confidential employees who may be lawfully dismissed because of their political views.”
The case involved the dismissal of seven former employees of the Attorney General’s Medicaid Fraud Unit who claimed that their terminations were politically motivated in violation of their First Amendment Rights.
The full text of the decision may be found at:
http://nypublicpersonnellawarchives.blogspot.com/ [Registration required]
Coogan v Smyers, et al, CA2, 134 F.3d 479
In a series of rulings concerning the removal of public employees for political reasons, the U.S. Circuit Court of Appeals, Second Circuit [New York] set out a number of tests and guidelines it uses to determine if a particular termination is Constitutionally permissible. The Coogan case involved the termination of a City Clerk by a City Council.
James A. Coogan, who had served as Tonawanda’s City Clerk for five consecutive two-year terms, sued members of the City of Tonawanda after the new Republican council majority decided not to reappoint him for another two-year term.
According to Coogan, the Council’s action was motivated by his political activities on behalf of the Democratic Party. Claiming that his civil rights were violated, Coogan filed his action pursuant to 42 USC 1983 and argued that the Council’s action violated his First and Fourteenth Amendments rights.
The Circuit Court of Appeals reversed a federal District Court judge’s dismissal of Coogan’s petition and remanded the matter to the lower court for its further consideration. The Circuit Court pointed out that:
1. As a general rule, a public employee is protected from adverse employment decisions based upon the employee’s exercise of his or her First Amendment rights.
2. Political patronage or party affiliation is impermissible reasons for dismissing government employees absent a showing that “party affiliation is an appropriate requirement for the effective performance of the public office involved.”
3. While there is no property interest or entitlement to be reappointed to a government position, failure to reappoint solely because of party affiliation is impermissible.
Ironically, the Tonawanda City Clerk’s position historically has been one filled through political patronage. While the Court conceded that Coogan himself may have enjoyed a patronage appointment, this fact is irrelevant: a history of patronage does not render the practice Constitutional.
Coogan claimed that the only legal way to take away his job was to have reasons relating to his job performance. The Circuit Court said this was simply incorrect. The only Constitutional limit placed on a city council’s appointment power is that it may not make employment decisions based upon an employee’s protected conduct.
In cases of this type, courts frequently use a “burden-shifting” test. This requires that the individual first establish, by a preponderance of the evidence, that:
(1) his or her political activities constituted a substantial or motivating factor in the employment decision; and
(2) his or her conduct on behalf of a particular political party was constitutionally protected. If the individual is able to do this, the burden of going forward shifts to the employer, which must prove by a preponderance of the evidence that it would have made the same employment decision notwithstanding the individual’s protected conduct.
A critical element in this case was the parties’ stipulation that the City Clerk’s position is a non-policymaking and non-confidential government position. Therefore, political party affiliation could not be required for effective service as City Clerk. On this point the Court referred to the U.S. Supreme Court’s decision in Branti v Finkel, 445 U.S. at page 518.
Also, the Court emphasized the significance of the fact that the City Clerk’s position was not tenured -- it carried a two-year term. Coogan was merely a “prospective employee” and he had no property right or entitlement to the position or reappointment to it.
Accordingly, the Council was not required to “show cause” for failing to reappoint him. The Constitutional prohibition on patronage dismissal “does not give a permanent appointment to the City Clerk.” The legislative body is always free to dismiss or fail to rehire the Clerk for legitimate, apolitical reasons.
However, if a nontenured employee like Coogan shows there was unlawful political motivation in the failure to reappoint, the burden shifts to the legislative body to show a lawful reason for its decision. The Circuit Court said that if a public employer has two reasons for an employment decision, one lawful (e.g. incompetence) and one unlawful (e.g. removing a person because of some Constitutionally protected speech he or she made), the employment decision may be upheld on the basis of the lawful reason. The Court called this the “dual-motive” test.
The Circuit Court agreed with the District Court that Coogan’s political activity and affiliation were “a substantial or motivating factor” in the Council’s decision not to reappoint him.
But the Circuit Court disagreed with the District Court’s conclusion that the Council “presented sufficient evidence to demonstrate that they would not have reappointed Mr. Coogan regardless of his active participation in the Democratic Party.”
The Circuit Court decided that “the present record is inadequate” to enable it determine if the Coogan would have been denied reappointment regardless of his political affiliation or activity. Therefore, it remanded the case for further findings of fact by the trial court. The District Court was directed to analyze the reasons underlying the reasons given by the individual Council members for their votes concerning Coogan’s reappointment.
In another decision handed down by the U.S. Circuit Court of Appeals, Second Circuit, Danahy v. Buscaglia, 134 F.3d 1185, the Court said that a public employer was entitled to a qualified immunity from law suit for patronage dismissals if the employer was reasonable in making its decision with respect to whether or not the employees terminated qualified as “the kind of policymaking and confidential employees who may be lawfully dismissed because of their political views.”
The case involved the dismissal of seven former employees of the Attorney General’s Medicaid Fraud Unit who claimed that their terminations were politically motivated in violation of their First Amendment Rights.
The full text of the decision may be found at:
http://nypublicpersonnellawarchives.blogspot.com/ [Registration required]
Sick building syndrome
Sick building syndrome
Knapp v Vestal CSD, App Div, 247 A.D.2d 667,
From time to time there are reports of individuals becoming ill because of the quality of a building’s environment. This can result in the filling of a workers’ compensation claim.
Donna K. Knapp, a music teacher employed by the Vestal Central School District, filed such a complaint. She claimed that her health began to deteriorate after working in the Vestal Central School District’s African Road School for about a year.
Knapp said that her symptoms included “aches and pains, headaches and memory and hearing loss.” Initially diagnosed as suffering from “sick building syndrome,” she was later diagnosed as having “multiple chemical sensitivity.”
Contending that the African Road School was a “sick building,” Knapp applied for workers’ compensation benefits. Ultimately the Workers’ Compensation Appeals Board disallowed Knapp’s claim, ruling that the record did not demonstrate any “unusual workplace hazard” to support her application for accidental injury due to a hazardous exposure. The Board said that there was “no evidence presented to support a recognizable link between [Knapp’s] multiple chemical sensitivity and her occupation as a teacher.”
The Appellate Division affirmed the Board’s determination. The Court observed that to prevail Knapp had to establish an unusual environmental condition or something extraordinary which caused an accidental injury even if she could not pin-point the exact date on which the event occurred.
Concluding that Knapp failed to show that she sustained an accidental injury, the Court dismissed her appeal. In so doing, the Appellate Division commented that Knapp’s theory that the African Road School was “a sick building” was undercut by the fact that she admitted that she experienced similar symptoms at other locations.
In contrast, the Appellate Division ruled that the Workers’ Compensation Board’s decision that New York City school teacher Morris Palevsky suffered a “posttraumatic stress disorder” as a result of his being injured in the course of a fight between students at a school for emotionally disturbed children was supported by evidence in the record and dismissed the City’s appeal from urging a reversal of the Board’s ruling [Palevsky v New York City Board of Education, 246 AD2d 836, lv to appeal dismissed, 92 NY2d 876, lv denied, 93 NY2d 818) ].
Knapp v Vestal CSD, App Div, 247 A.D.2d 667,
From time to time there are reports of individuals becoming ill because of the quality of a building’s environment. This can result in the filling of a workers’ compensation claim.
Donna K. Knapp, a music teacher employed by the Vestal Central School District, filed such a complaint. She claimed that her health began to deteriorate after working in the Vestal Central School District’s African Road School for about a year.
Knapp said that her symptoms included “aches and pains, headaches and memory and hearing loss.” Initially diagnosed as suffering from “sick building syndrome,” she was later diagnosed as having “multiple chemical sensitivity.”
Contending that the African Road School was a “sick building,” Knapp applied for workers’ compensation benefits. Ultimately the Workers’ Compensation Appeals Board disallowed Knapp’s claim, ruling that the record did not demonstrate any “unusual workplace hazard” to support her application for accidental injury due to a hazardous exposure. The Board said that there was “no evidence presented to support a recognizable link between [Knapp’s] multiple chemical sensitivity and her occupation as a teacher.”
The Appellate Division affirmed the Board’s determination. The Court observed that to prevail Knapp had to establish an unusual environmental condition or something extraordinary which caused an accidental injury even if she could not pin-point the exact date on which the event occurred.
Concluding that Knapp failed to show that she sustained an accidental injury, the Court dismissed her appeal. In so doing, the Appellate Division commented that Knapp’s theory that the African Road School was “a sick building” was undercut by the fact that she admitted that she experienced similar symptoms at other locations.
In contrast, the Appellate Division ruled that the Workers’ Compensation Board’s decision that New York City school teacher Morris Palevsky suffered a “posttraumatic stress disorder” as a result of his being injured in the course of a fight between students at a school for emotionally disturbed children was supported by evidence in the record and dismissed the City’s appeal from urging a reversal of the Board’s ruling [Palevsky v New York City Board of Education, 246 AD2d 836, lv to appeal dismissed, 92 NY2d 876, lv denied, 93 NY2d 818) ].
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Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard.
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