Niagara Frontier Transportation Authority (NFTA) police officers alleged to have participated in a “double dipping” scheme
Source: Office of the State Comptroller
An audit report released on September 27, 2010 by State Comptroller Thomas P. DiNapoli's Division of State Government Accountability alleges that “Numerous Niagara Frontier Transportation Authority (NFTA) police officers systematically abandoned their assigned duty posts to go to work at other jobs while being paid by the authority, a practice that was condoned and participated in by high-ranking officers.”
According to the report, 11 NFTA officers practiced “double dipping” over a three-year period by “cheating the public out of a full-day’s work.” In what the report termed an “egregious” example, one NFTA officer claimed he worked 26 hours during a single day.
Division of State Government Accountability auditors found that NFTA officers worked for other employers “while being signed in for their regular scheduled shifts with the Transportation Authority.” Some of the officers, said the auditors, “signed in for overtime” with the Authority while “on the clock as security officers” with another Erie County agency.
NFTA officials were advised that the Division of State Government Accountability referred its findings to the "Office of the State Comptroller’s Division of Investigations for referral to law enforcement for possible criminal prosecution."
The Comptroller’s retirement division is following up on the audit’s findings to make certain that the officers involved “only receive credit for the service and earnings to which they are entitled.”
The Division of State Government Accountability's complete audit [Report 2010-S-26] is posted on the Internet at http://www.osc.state.ny.us/audits/allaudits/093010/10s26.pdf and includes a letter dated September 13, 2010 describing a number "enhanced internal controls" that NFTA has implemented.
N.B. The Comptroller encourages the public to help fight against fraud and abuse. Allegations of fraud, corruption and abuse of taxpayer money may be reported by calling the toll-free fraud hotline at 1-888-672-4555; filing a complaint online at investigations@osc.state.ny.us , or mailing a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.
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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 28, 2010
CPLR Article 75 petitioner has the burden of demonstrating the arbitrator’s alleged misconduct, bias, excess of power, or procedural defects
CPLR Article 75 petitioner has the burden of demonstrating the arbitrator’s alleged misconduct, bias, excess of power, or procedural defects
Matter of Blythe v New York City Bd./Dept. of Educ. 2010 NY Slip Op 32592(U) September 20, 2010, Sup Ct, NY County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]
Kathryn Blythe, a New York City schoolteacher, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] seeking to vacate the opinion and award issued pursuant to Education Law 3020-a by Hearing Officer Arthur Riegel, Esq. The hearing officer had found Blythe guilty of certain charges filed against her* and imposed the penalty of suspension without pay until the end of the 2010-2011 school year.
Blythe argued that Riegel’s award should be vacated on the basis that he committed misconduct, bias and fraud.
Judge Kern, noting that Education Law §3020-a(5) provides that judicial review of a hearing officer’s findings must be conducted pursuant to CPLR 7511, said that such an award may be vacated only upon a showing of "misconduct, bias, excess of power or procedural defects," citing Lackow v Dept. of Education of the City of New York, 51 A.D.3d 563.
Here, said the court, “judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. The party challenging an arbitration determination has the burden of showing its invalidity.”
Holding that Blythe failed to provide any evidence demonstrating misconduct, bias, the exercise of "excess of power," or procedural defects, Judge Kern ruled that “Hearing Officer Riegel’s decision was rational and supported by adequate evidence.”
As to Blythe’s complaint that her due process rights were violated because the New York City Board of Education did not vote on the charges filed against her, Judge Kern ruled that her argument was “without merit” as “Education Law §2590-f( l)(c) … applicable only to the New York City school district … specifically grants community superintendents authority to appoint and discharge all employees.”
Denying Blythe’s request for relief under CPLR Article 75, Judge Kern dismissed Blythe’s petition “in its entirety.”
* Judge Kern said that "Hearing Officer Riegel based his penalty on his finding, after fully considering all of the evidence and arguments presented, that petitioner was excessively absent, had left her students unsupervised in the hallway and in the classroom and had violated Chancellor’s regulation A420 against corporal punishment" but had dismissed all other charges that had been filed against her.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32592.pdf
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Matter of Blythe v New York City Bd./Dept. of Educ. 2010 NY Slip Op 32592(U) September 20, 2010, Sup Ct, NY County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]
Kathryn Blythe, a New York City schoolteacher, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] seeking to vacate the opinion and award issued pursuant to Education Law 3020-a by Hearing Officer Arthur Riegel, Esq. The hearing officer had found Blythe guilty of certain charges filed against her* and imposed the penalty of suspension without pay until the end of the 2010-2011 school year.
Blythe argued that Riegel’s award should be vacated on the basis that he committed misconduct, bias and fraud.
Judge Kern, noting that Education Law §3020-a(5) provides that judicial review of a hearing officer’s findings must be conducted pursuant to CPLR 7511, said that such an award may be vacated only upon a showing of "misconduct, bias, excess of power or procedural defects," citing Lackow v Dept. of Education of the City of New York, 51 A.D.3d 563.
Here, said the court, “judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration. The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. The party challenging an arbitration determination has the burden of showing its invalidity.”
Holding that Blythe failed to provide any evidence demonstrating misconduct, bias, the exercise of "excess of power," or procedural defects, Judge Kern ruled that “Hearing Officer Riegel’s decision was rational and supported by adequate evidence.”
As to Blythe’s complaint that her due process rights were violated because the New York City Board of Education did not vote on the charges filed against her, Judge Kern ruled that her argument was “without merit” as “Education Law §2590-f( l)(c) … applicable only to the New York City school district … specifically grants community superintendents authority to appoint and discharge all employees.”
Denying Blythe’s request for relief under CPLR Article 75, Judge Kern dismissed Blythe’s petition “in its entirety.”
* Judge Kern said that "Hearing Officer Riegel based his penalty on his finding, after fully considering all of the evidence and arguments presented, that petitioner was excessively absent, had left her students unsupervised in the hallway and in the classroom and had violated Chancellor’s regulation A420 against corporal punishment" but had dismissed all other charges that had been filed against her.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32592.pdf
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Tape recording public meetings
Tape recording public meetings
Schuldiner v City Univ. of NY, NYS Sup. Ct., Index No. 8236/98, [Not selected for publication in the Official Reports; referred to in Perez v City University of New York, 195 Misc.2d 16]
Sometime an individual may appear at a public hearing, tape recorder in hand. May an entity subject to the Open Meetings Law prohibit observers from tape-recording a public meeting conducted by the entity?
This was one of the questions raised by Schuldiner after the College of Staten Island Association voted to prohibit observers from tape-recording two of its meetings. Barred from tape-recording at both public meetings held by the Association, Schuldiner sued.
New York State Supreme Court Justice Peter P. Cusick, citing Smith v. City University of New York, 92 NY2d 707, first pointed out that the Association was a “public body” as defined by Section 102(2) of the Public Officers Law and an “agency” as defined by Section 86(3) of that law.* Accordingly, it was subject to both the Open Meetings Law and the Freedom of Information Law.
Considering the Court of Appeals’ conclusion that an entity such as the College of Staten Island Association was a “public body” within the meaning of the Open Meetings Law, Justice Cusick decided that the Association’s blanket prohibition against the use of audio tape recordings of its public meetings violated the public policy embodied in the Public Officers Law.
Citing Mitchell v. Board of Education, 113 AD2d 924, as authority for his determination, Justice Cusick said that the Association’s votes to bar tape recordings of its February 25, 1998 and March 11, 1998 meetings also violated the State’s Open Meetings Law and declared them to be void.
Schuldiner also won an order preventing the Association from prohibiting the use of hand-held tape recorders by persons attending future meetings of the Association.
Holding that the Association’s reliance on the First Department’s ruling in Smith in 1998 to the effect that such an association was not a “public entity” as authority to bar the tape recording of its meetings was reasonable as the Court of Appeals had not yet ruled on the issue, Justice Cusick rejected Schuldiner’s request for attorney fees and costs pursuant to Public Officers Law Section 89(4)(c).
* In Smith, the Court of Appeals, reversing a 1998 ruling by the Appellate Division, First Department, held that college associations such as the College of Staten Island Association were public bodies and thus subject to the Open Meetings Law.
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Schuldiner v City Univ. of NY, NYS Sup. Ct., Index No. 8236/98, [Not selected for publication in the Official Reports; referred to in Perez v City University of New York, 195 Misc.2d 16]
Sometime an individual may appear at a public hearing, tape recorder in hand. May an entity subject to the Open Meetings Law prohibit observers from tape-recording a public meeting conducted by the entity?
This was one of the questions raised by Schuldiner after the College of Staten Island Association voted to prohibit observers from tape-recording two of its meetings. Barred from tape-recording at both public meetings held by the Association, Schuldiner sued.
New York State Supreme Court Justice Peter P. Cusick, citing Smith v. City University of New York, 92 NY2d 707, first pointed out that the Association was a “public body” as defined by Section 102(2) of the Public Officers Law and an “agency” as defined by Section 86(3) of that law.* Accordingly, it was subject to both the Open Meetings Law and the Freedom of Information Law.
Considering the Court of Appeals’ conclusion that an entity such as the College of Staten Island Association was a “public body” within the meaning of the Open Meetings Law, Justice Cusick decided that the Association’s blanket prohibition against the use of audio tape recordings of its public meetings violated the public policy embodied in the Public Officers Law.
Citing Mitchell v. Board of Education, 113 AD2d 924, as authority for his determination, Justice Cusick said that the Association’s votes to bar tape recordings of its February 25, 1998 and March 11, 1998 meetings also violated the State’s Open Meetings Law and declared them to be void.
Schuldiner also won an order preventing the Association from prohibiting the use of hand-held tape recorders by persons attending future meetings of the Association.
Holding that the Association’s reliance on the First Department’s ruling in Smith in 1998 to the effect that such an association was not a “public entity” as authority to bar the tape recording of its meetings was reasonable as the Court of Appeals had not yet ruled on the issue, Justice Cusick rejected Schuldiner’s request for attorney fees and costs pursuant to Public Officers Law Section 89(4)(c).
* In Smith, the Court of Appeals, reversing a 1998 ruling by the Appellate Division, First Department, held that college associations such as the College of Staten Island Association were public bodies and thus subject to the Open Meetings Law.
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Use of video tapes in evaluating disability claims
Use of video tapes in evaluating disability claims
Aprea v Sonn, NYS Supreme Court [Not selected for publication in the Official Reports]
If an employer suspects that an individual receiving Workers’ Compensation benefits or benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law is malingering, it may decide to arrange for the surveillance of the individual and make video tapes of the individual’s activities. In the Aprea case, the court addresses the question of the right of the individual to see the video tape.
John F. Aprea sued a number of doctors. The physicians had arranged for “a videotaped surveillance” of Aprea and wanted to depose [question under oath] him before providing him with a copy of the tape. Aprea, on the other hand, demanded that he be allowed to view the tape before being deposed. The doctors contended that was necessary to question Aprea before he viewed the video tape because it showed him performing physical activities that are “inconsistent with his claims of disability.”
State Supreme Court Justice Janice Bowman pointed to a case dealing with this exact issue, DiMichel v. South Buffalo Railroad Company, 80 NY2d 184. In DiMichel, Justice Bowman said, the Court of Appeals “recognized that an order delaying discovery of films until after the plaintiff has given a deposition minimizes the potential for tailored testimony.”
Justice Bowman also observed that “subsequent to the DiMichel decision, and seemingly in response to it, the legislature amended CPLR Section 3101 by adding subdivision (1) requiring “full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, ... involving the plaintiff ... [and although] silent as to the time frame in which such disclosure is required ... [did not] seek to overrule the Court of Appeals decision in DiMichel.”
Aprea was directed to submit to a further deposition before he would be allowed to view the video tapes. After being deposed, said the court, he would be entitled to view all of the surveillance films during the surveillance.
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Aprea v Sonn, NYS Supreme Court [Not selected for publication in the Official Reports]
If an employer suspects that an individual receiving Workers’ Compensation benefits or benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law is malingering, it may decide to arrange for the surveillance of the individual and make video tapes of the individual’s activities. In the Aprea case, the court addresses the question of the right of the individual to see the video tape.
John F. Aprea sued a number of doctors. The physicians had arranged for “a videotaped surveillance” of Aprea and wanted to depose [question under oath] him before providing him with a copy of the tape. Aprea, on the other hand, demanded that he be allowed to view the tape before being deposed. The doctors contended that was necessary to question Aprea before he viewed the video tape because it showed him performing physical activities that are “inconsistent with his claims of disability.”
State Supreme Court Justice Janice Bowman pointed to a case dealing with this exact issue, DiMichel v. South Buffalo Railroad Company, 80 NY2d 184. In DiMichel, Justice Bowman said, the Court of Appeals “recognized that an order delaying discovery of films until after the plaintiff has given a deposition minimizes the potential for tailored testimony.”
Justice Bowman also observed that “subsequent to the DiMichel decision, and seemingly in response to it, the legislature amended CPLR Section 3101 by adding subdivision (1) requiring “full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, ... involving the plaintiff ... [and although] silent as to the time frame in which such disclosure is required ... [did not] seek to overrule the Court of Appeals decision in DiMichel.”
Aprea was directed to submit to a further deposition before he would be allowed to view the video tapes. After being deposed, said the court, he would be entitled to view all of the surveillance films during the surveillance.
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Do teachers have a "one-slap" rule?
Do teachers have a "one-slap" rule?
Source: ICEUFT Blog [ http://iceuftblog.blogspot.com/ ]
Termination reversals after 3020-a hearings are extremely rare, but given the right circumstances and a "hanging" arbitrator and you just might get your case reversed. So is the case of Beverly Riley.
On September 21, 2006, Riley, a fifteen year elementary school teacher at P.S. 28, allegedly approached a nine-year old student who was in the hallway after school. As she approached the child, who was waiting for her family to pick her up, Riley allegedly grabbed the girl, pulled her to the wall and slapped her on the left side of the face.
The incident was reported to the principal, OSI investigated and Riley was charged with corporeal punishment. A second charge of corporal punishment was preferred against Riley for an incident allegedly occurring against another student on October 4, 2006.
After a five day hearing the arbitrator dismissed the October 4, 2006 incident but sustained the first incident and imposed the penalty of termination. In his finding the arbitrator noted Riley's fifteen year unblemished record but found it insignificant due to the devastating impact on the child.
The arbitrator wrote "even one proven incident of corporal punishment can have a devastating impact on the involved student, and justifies the imposition of severe discipline. . .[s]tudents and parents need to know that the Department will not tolerate teachers using physical force to discipline students, even where the incident of corporal punishment was isolated and the only bruise was 'on the inside'."
On appeal Justice Saliann Scarpulla of New York Supreme Court found that the arbitrator had gone too far. One slap does not indicate the pattern of misconduct that deserves the most severe penalty. Besides, the child admitted she was not injured by the incident.
The Court ordered Riley be reinstated and the matter be sent to another arbitrator for a penalty consistent with the Court's decision.
A copy of the September 13, 2010 court decision is posted here here.
Summary posted by Jeff Kaufman.
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Source: ICEUFT Blog [ http://iceuftblog.blogspot.com/ ]
Termination reversals after 3020-a hearings are extremely rare, but given the right circumstances and a "hanging" arbitrator and you just might get your case reversed. So is the case of Beverly Riley.
On September 21, 2006, Riley, a fifteen year elementary school teacher at P.S. 28, allegedly approached a nine-year old student who was in the hallway after school. As she approached the child, who was waiting for her family to pick her up, Riley allegedly grabbed the girl, pulled her to the wall and slapped her on the left side of the face.
The incident was reported to the principal, OSI investigated and Riley was charged with corporeal punishment. A second charge of corporal punishment was preferred against Riley for an incident allegedly occurring against another student on October 4, 2006.
After a five day hearing the arbitrator dismissed the October 4, 2006 incident but sustained the first incident and imposed the penalty of termination. In his finding the arbitrator noted Riley's fifteen year unblemished record but found it insignificant due to the devastating impact on the child.
The arbitrator wrote "even one proven incident of corporal punishment can have a devastating impact on the involved student, and justifies the imposition of severe discipline. . .[s]tudents and parents need to know that the Department will not tolerate teachers using physical force to discipline students, even where the incident of corporal punishment was isolated and the only bruise was 'on the inside'."
On appeal Justice Saliann Scarpulla of New York Supreme Court found that the arbitrator had gone too far. One slap does not indicate the pattern of misconduct that deserves the most severe penalty. Besides, the child admitted she was not injured by the incident.
The Court ordered Riley be reinstated and the matter be sent to another arbitrator for a penalty consistent with the Court's decision.
A copy of the September 13, 2010 court decision is posted here here.
Summary posted by Jeff Kaufman.
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Removing an individual's name from the preferred list
Removing an individual's name from the preferred list
Donato v Plainview-Old Bethpage CSD, 264 AD2d 843
Removing a teacher from a preferred list always holds the potential for litigation. In the Donato case, the New York State Supreme Court ruled that Linda Donato could not sue the Plainview-Old Bethpage Central School District for removing her from a preferred list, only to be reversed by the Appellate Division.
The case illustrates that, as a general rule, it is the employer’s duty to canvass the preferred list when it wishes to fill a position for which the list must be used.
Donato was initially appointed as a social studies teacher by the district in 1966. She was given tenure as social studies chairperson effective September 1, 1984. In 1991 Donato was “excessed” [i.e., laid off] when the district abolished the chairperson position for budgetary reasons. Her name was placed on a preferred list for the title.
In accordance with former Section 2510(3)(a) of the Education Law, Donato’s name was to be certified from the preferred list for appointment to the same or a similar position for a period of seven years from the effective date of her layoff.
In September 1997, the district appointed Dorothy Wohl to the position of social studies department chairperson. Upon learning of Wohl’s appointment, Donato wrote to Superintendent Anthony Cavanna contending that she was entitled to reinstatement to the position to which Wohl had been appointed since she was on the preferred list.
In October 1997, the district wrote to Donato advising her that her request for reinstatement was denied. Donato sued Cavanna and the Board of Education by filing an Article 78 action in January 1998 seeking reinstatement and back salary. She also named Wohl as a necessary party in her petition.
The board and Cavanna asked the court to dismiss the proceeding on the ground that it was time-barred. They contended that Donato’s name had been removed from the preferred list in 1992 because of “her failure to apply for a vacant position” and her alleged failure to challenge, in a timely fashion, her removal from the preferred list. The Supreme Court agreed and dismissed Donato’s petition. But the Appellate Division reversed the lower court’s ruling and remanded the matter back to Supreme Court for further consideration.
The key factor: the Appellate Division found no evidence in the record that Donato’s name had been removed from the preferred list in 1992. Therefore, the court held, Donato had filed a timely challenge to the district’s refusal to appoint her to the position that became available in 1997. Donato’s claim “accrued in 1997 and not in 1992, [so] this proceeding is not time-barred.”
The court noted that the district had examined Donato’s preferred list status in 1994 during litigation involving a different vacancy. Examining the record of that case, the Appellate Division said the district had conceded that Donato “was preferentially eligible for reinstatement to her abolished position or a similar one.”
Here are some points to keep in mind regarding preferred lists:
1. Typically the most senior individual on the list may be “passed over” or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.
2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.
3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.
4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of “preferred lists” such as a “special military list.”)
5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example:
An individual is laid off from Position A and subsequently accepts a position “to a lower rank position” for which the preferred list was certified. The following year the employer reestablishes Position A. Assuming that the individual who was laid off from Position A is eligible for certification from the preferred list and that he or she is the most senior person on the list, he or she must be appointed to the newly created position or the position must remain vacant.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Donato v Plainview-Old Bethpage CSD, 264 AD2d 843
Removing a teacher from a preferred list always holds the potential for litigation. In the Donato case, the New York State Supreme Court ruled that Linda Donato could not sue the Plainview-Old Bethpage Central School District for removing her from a preferred list, only to be reversed by the Appellate Division.
The case illustrates that, as a general rule, it is the employer’s duty to canvass the preferred list when it wishes to fill a position for which the list must be used.
Donato was initially appointed as a social studies teacher by the district in 1966. She was given tenure as social studies chairperson effective September 1, 1984. In 1991 Donato was “excessed” [i.e., laid off] when the district abolished the chairperson position for budgetary reasons. Her name was placed on a preferred list for the title.
In accordance with former Section 2510(3)(a) of the Education Law, Donato’s name was to be certified from the preferred list for appointment to the same or a similar position for a period of seven years from the effective date of her layoff.
In September 1997, the district appointed Dorothy Wohl to the position of social studies department chairperson. Upon learning of Wohl’s appointment, Donato wrote to Superintendent Anthony Cavanna contending that she was entitled to reinstatement to the position to which Wohl had been appointed since she was on the preferred list.
In October 1997, the district wrote to Donato advising her that her request for reinstatement was denied. Donato sued Cavanna and the Board of Education by filing an Article 78 action in January 1998 seeking reinstatement and back salary. She also named Wohl as a necessary party in her petition.
The board and Cavanna asked the court to dismiss the proceeding on the ground that it was time-barred. They contended that Donato’s name had been removed from the preferred list in 1992 because of “her failure to apply for a vacant position” and her alleged failure to challenge, in a timely fashion, her removal from the preferred list. The Supreme Court agreed and dismissed Donato’s petition. But the Appellate Division reversed the lower court’s ruling and remanded the matter back to Supreme Court for further consideration.
The key factor: the Appellate Division found no evidence in the record that Donato’s name had been removed from the preferred list in 1992. Therefore, the court held, Donato had filed a timely challenge to the district’s refusal to appoint her to the position that became available in 1997. Donato’s claim “accrued in 1997 and not in 1992, [so] this proceeding is not time-barred.”
The court noted that the district had examined Donato’s preferred list status in 1994 during litigation involving a different vacancy. Examining the record of that case, the Appellate Division said the district had conceded that Donato “was preferentially eligible for reinstatement to her abolished position or a similar one.”
Here are some points to keep in mind regarding preferred lists:
1. Typically the most senior individual on the list may be “passed over” or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.
2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.
3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.
4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of “preferred lists” such as a “special military list.”)
5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example:
An individual is laid off from Position A and subsequently accepts a position “to a lower rank position” for which the preferred list was certified. The following year the employer reestablishes Position A. Assuming that the individual who was laid off from Position A is eligible for certification from the preferred list and that he or she is the most senior person on the list, he or she must be appointed to the newly created position or the position must remain vacant.
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Representation and indemnification of public officers and employees sued in connection with official duties
Representation and indemnification of public officers and employees sued in connection with official duties
Tarrant v Schenectady Police Dept., Supreme Court, [Not selected for publication in the Official Reports, see, also, Tarrant v. City of Schenectady, 279 AD2d 870]
A public officer’s or employee’s right to “employer provided” representation and indemnification in the event he or she is sued and held liable in connection with the performance of official duties is an important one.
The Tarrant case illustrates the fact that where the employer declines to provide for such representation or indemnification, the individual must act promptly, and correctly, if he or she wishes to challenge the employer’s decision.
On February 17, 1999, Pamela Tarrant, an Afro-American, initiated a lawsuit against the City of Schenectady, its police department and police officer John Lewis for alleged violations of her civil rights. This particular aspect of the litigation concerns Lewis’ claim that the City is required to pay for his defense.
In the course of Tarrant’s action, Lewis contended that the City “failed to follow a procedure set forth in a Collective Bargaining Agreement” providing for this benefit. The City, on the other hand, argued that the Agreement did not apply in Lewis’ case because:
1. Lewis had been terminated from his position effective November 13, 1998; and
2. “The words and conduct of Lewis which purportedly gave rise to Ms. Tarrant’s action at law were outside the scope of Officer Lewis’ duties and were, therefore, not subject to defense under the Collective Bargaining Agreement.”
State Supreme Court Justice Robert E. Lynch did not have the opportunity to consider these important issues, however. Why? According to the ruling, the court did not have jurisdiction to consider Lewis’ petition since it was filed in connection with “a separate legal action ... initiated by Ms. Tarrant.”
Although the Taylor Law agreement clearly allowed Lewis to challenge the refusal of the City to provide for his defense “by an Article 78” action, he was required to initiate such a challenge in a timely fashion.
To do this he was required to take a number of steps including “purchasing an index number ... filing a Notice of Petition or an Order to Show Cause, along with a Verified Petition ... and serving the City” with the complaint. He failed to do this, despite being advised by the City’s Corporation Counsel, Michael Brockbank, that he was required to do so if he wished to challenge the City’s determination.
Another problem for Lewis concerned the fact that he did not file an “Answer” to Tarrant’s complaint within the 30-day period allowed for this purpose. This, said Justice Lynch, meant that Lewis was in “default” and the “affirmative relief” he was seeking as part of Tarrant’s lawsuit “is clearly not countenanced under New York Law.”*
It seems clear that in the event a public employer rejects a demand for representation or indemnification when a individual is sued in connection with some act or omission he or she claims is work related, it would be in the best interests of the individual to obtain the services of a private attorney immediately for purpose of representation in the litigation to avoid default. While the individual may later elect to challenge the employer’s decision, his or her interests would, in the meantime, be represented in the action.
In many instances the representation and indemnification provisions of Section 18 of the Public Officers Law apply. A municipality may refuse to provide for Section 18 representation or indemnification if its attorney determines that the individual was not action within the scope of his or her public employment or duties or where the alleged injury or damage resulted from “intentional wrongdoing or recklessness” on the part of the individual. The individual is required to [1] provide the employer with the “legal papers” within 10 days of after being served and [2] provide “full cooperation” in connection with its defense of the action.
* In another action brought against a Schenectady police officer, DiSorbo v Pederson, DiSorbo filed a “default judgment against Pederson” because he failed to answer allegations of “illegal arrest and harassment” then pending in federal district court. The City earlier advised Pederson that it would not provide for his defense or indemnification because he was “uncooperative when questioned about the case.”
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Tarrant v Schenectady Police Dept., Supreme Court, [Not selected for publication in the Official Reports, see, also, Tarrant v. City of Schenectady, 279 AD2d 870]
A public officer’s or employee’s right to “employer provided” representation and indemnification in the event he or she is sued and held liable in connection with the performance of official duties is an important one.
The Tarrant case illustrates the fact that where the employer declines to provide for such representation or indemnification, the individual must act promptly, and correctly, if he or she wishes to challenge the employer’s decision.
On February 17, 1999, Pamela Tarrant, an Afro-American, initiated a lawsuit against the City of Schenectady, its police department and police officer John Lewis for alleged violations of her civil rights. This particular aspect of the litigation concerns Lewis’ claim that the City is required to pay for his defense.
In the course of Tarrant’s action, Lewis contended that the City “failed to follow a procedure set forth in a Collective Bargaining Agreement” providing for this benefit. The City, on the other hand, argued that the Agreement did not apply in Lewis’ case because:
1. Lewis had been terminated from his position effective November 13, 1998; and
2. “The words and conduct of Lewis which purportedly gave rise to Ms. Tarrant’s action at law were outside the scope of Officer Lewis’ duties and were, therefore, not subject to defense under the Collective Bargaining Agreement.”
State Supreme Court Justice Robert E. Lynch did not have the opportunity to consider these important issues, however. Why? According to the ruling, the court did not have jurisdiction to consider Lewis’ petition since it was filed in connection with “a separate legal action ... initiated by Ms. Tarrant.”
Although the Taylor Law agreement clearly allowed Lewis to challenge the refusal of the City to provide for his defense “by an Article 78” action, he was required to initiate such a challenge in a timely fashion.
To do this he was required to take a number of steps including “purchasing an index number ... filing a Notice of Petition or an Order to Show Cause, along with a Verified Petition ... and serving the City” with the complaint. He failed to do this, despite being advised by the City’s Corporation Counsel, Michael Brockbank, that he was required to do so if he wished to challenge the City’s determination.
Another problem for Lewis concerned the fact that he did not file an “Answer” to Tarrant’s complaint within the 30-day period allowed for this purpose. This, said Justice Lynch, meant that Lewis was in “default” and the “affirmative relief” he was seeking as part of Tarrant’s lawsuit “is clearly not countenanced under New York Law.”*
It seems clear that in the event a public employer rejects a demand for representation or indemnification when a individual is sued in connection with some act or omission he or she claims is work related, it would be in the best interests of the individual to obtain the services of a private attorney immediately for purpose of representation in the litigation to avoid default. While the individual may later elect to challenge the employer’s decision, his or her interests would, in the meantime, be represented in the action.
In many instances the representation and indemnification provisions of Section 18 of the Public Officers Law apply. A municipality may refuse to provide for Section 18 representation or indemnification if its attorney determines that the individual was not action within the scope of his or her public employment or duties or where the alleged injury or damage resulted from “intentional wrongdoing or recklessness” on the part of the individual. The individual is required to [1] provide the employer with the “legal papers” within 10 days of after being served and [2] provide “full cooperation” in connection with its defense of the action.
* In another action brought against a Schenectady police officer, DiSorbo v Pederson, DiSorbo filed a “default judgment against Pederson” because he failed to answer allegations of “illegal arrest and harassment” then pending in federal district court. The City earlier advised Pederson that it would not provide for his defense or indemnification because he was “uncooperative when questioned about the case.”
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Signing an agreement "not to sue" at the time of resignation enforceable unless found to be coerced
Signing an agreement "not to sue" at the time of resignation enforceable unless found to be coerced
Sutherland v Town of Huntington, CA2, #98-9259
In exchange for certain benefits, Patricia Sutherland submitted her resignation and signed a “release agreement.” The release agreement provided that Sutherland would not sue the Town “with respect to, or arising out of [her] employment or the termination of employment.”
Sutherland subsequently decided to sue the Town. A federal district court judge, however, granted the Town’s motion for summary judgment “[b]ecause she signed a release barring litigation of these claims.”
The U.S. Court of Appeals for the Second Circuit [NY] affirmed the lower court’s ruling. The court rejected Sutherland’s argument that her release should not bar her present action, holding that the release was enforceable as its language “unambiguously precludes the instant action in its entirety as all of [Sutherland’s present] claims relate to her treatment as an employee.” As a general rule, courts typically uphold such releases unless it can be shown that the individual was coerced into signing it.
On the issue of coercion, from time to time an appointing authority will offer an employee the opportunity to submit his or her resignation as the only alternative to being served with disciplinary charges.
New York courts have ruled that a resignation submitted in response to such a threat has not been coerced. Why? Because, say the courts, the appointing authority had a legal right, if not the duty, to file disciplinary action against the individual and threatening to exercising a legal right does not constitute coercion.
The leading case addressing this point is Rychlick v Coughlin, 63 NY2d 643. In Rychlick the Court of Appeals ruled that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges against Rychlick -- did not constitute coercion so as to make the resignation involuntary.
*
Sutherland v Town of Huntington, CA2, #98-9259
In exchange for certain benefits, Patricia Sutherland submitted her resignation and signed a “release agreement.” The release agreement provided that Sutherland would not sue the Town “with respect to, or arising out of [her] employment or the termination of employment.”
Sutherland subsequently decided to sue the Town. A federal district court judge, however, granted the Town’s motion for summary judgment “[b]ecause she signed a release barring litigation of these claims.”
The U.S. Court of Appeals for the Second Circuit [NY] affirmed the lower court’s ruling. The court rejected Sutherland’s argument that her release should not bar her present action, holding that the release was enforceable as its language “unambiguously precludes the instant action in its entirety as all of [Sutherland’s present] claims relate to her treatment as an employee.” As a general rule, courts typically uphold such releases unless it can be shown that the individual was coerced into signing it.
On the issue of coercion, from time to time an appointing authority will offer an employee the opportunity to submit his or her resignation as the only alternative to being served with disciplinary charges.
New York courts have ruled that a resignation submitted in response to such a threat has not been coerced. Why? Because, say the courts, the appointing authority had a legal right, if not the duty, to file disciplinary action against the individual and threatening to exercising a legal right does not constitute coercion.
The leading case addressing this point is Rychlick v Coughlin, 63 NY2d 643. In Rychlick the Court of Appeals ruled that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges against Rychlick -- did not constitute coercion so as to make the resignation involuntary.
*
Sep 27, 2010
Providing volunteer with benefits deemed sufficient to trigger the Title VII protections available to employees and applicants
Providing volunteer with benefits deemed sufficient to trigger the Title VII protections available to employees and applicants
Pietras v Farmingville Fire District, 180 F.3d 468
Victoria Pietras failed the performance test required by the Farmingville Fire District. She sued, claiming the district’s test violated Title VII of the Civil Rights Act.
A federal district court judge agreed, holding that Farmingville’s physical agility test [PAT], which all probationary volunteer firefighters were required to pass in order to become full-fledged volunteer firefighters, had a disparate impact on women.
The U.S. Circuit Court of Appeals affirmed the lower court’s ruling.
According to the decision, as a probationary volunteer, Pietras was entitled to numerous firefighter benefits under state law and the by-laws of the department. These included: (1) a retirement pension, (2) life insurance, (3) death benefits, (4) disability insurance, and (5) some medical benefits.
Although not a paid employee, providing these benefits was deemed sufficient to trigger the Title VII protections available to employees and applicants for employment.
The district court directed Pietras’ reinstatement as a probationary firefighter and said Farmingville could “develop and administer a non-discriminatory PAT as a precondition to Pietras [and presumably all other applicants for volunteer firefighter] becoming a full-fledged volunteer member.” .
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Pietras v Farmingville Fire District, 180 F.3d 468
Victoria Pietras failed the performance test required by the Farmingville Fire District. She sued, claiming the district’s test violated Title VII of the Civil Rights Act.
A federal district court judge agreed, holding that Farmingville’s physical agility test [PAT], which all probationary volunteer firefighters were required to pass in order to become full-fledged volunteer firefighters, had a disparate impact on women.
The U.S. Circuit Court of Appeals affirmed the lower court’s ruling.
According to the decision, as a probationary volunteer, Pietras was entitled to numerous firefighter benefits under state law and the by-laws of the department. These included: (1) a retirement pension, (2) life insurance, (3) death benefits, (4) disability insurance, and (5) some medical benefits.
Although not a paid employee, providing these benefits was deemed sufficient to trigger the Title VII protections available to employees and applicants for employment.
The district court directed Pietras’ reinstatement as a probationary firefighter and said Farmingville could “develop and administer a non-discriminatory PAT as a precondition to Pietras [and presumably all other applicants for volunteer firefighter] becoming a full-fledged volunteer member.” .
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Alleged CBA violation must be submitted to arbitration unless both prongs of the two-prong test governing arbitrability of disputes are satisfied
Alleged CBA violation must be submitted to arbitration unless both prongs of the two-prong test governing arbitrability of disputes are satisfied
Matter of County of Orange v Civil Serv. Employees Assn. Local 1000 AFSCME, 2010 NY Slip Op 51647(U), Decided on September 22, 2010, Judge Jeffrey A. Cohen, [Not selected for publication in the Official Reports]
CSEA Local 1000 filed a contract grievance contending that Orange County had violated the relevant collective bargaining agreement [CBA] with it replaced the armed security officer with an unarmed security officer at a County Department of Social Services ("DSS") office. The Orange County Commissioner of Personnel denied the grievance and CSEA demanded that its grievance be submitted to arbitration.
Rather than proceed to arbitration, the County filed a petition with Supreme Court it which it alleged:
1. The new security officer is not an employee of the County and is not therefore covered by the CBA.
2. Determining whether a security officer should be armed or not “is not a matter incorporated in the terms of the CBA and is ‘exclusively a matter of management discretion’".
3. The issue CSEA sought to arbitrate “is prohibited by the terms of the contract between the [County] and the independent security firm” and thus is not a “contractual CBA issue … subject to [the] grievance and arbitration procedures".
CSEA, on the other hand, argued that should the court determines that a valid contract exists, then the "scope of the matters which might be arbitrated there under" must be decided by an arbitrator.
Judge Cohen said that "Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain whether the parties may arbitrate their dispute and, if so, whether they agreed to do so," citing In re New York State Correctional Officers and Police Benev. Ass'n, Inc. (New York State Dept. of Civil Service), 70 AD3d 240.”
Explaining that arbitration of the grievance is not prohibited by any statutory, constitutional or public policy rule of law, the County’s petition will not be granted based on the first prong of the analysis.
As to whether these parties agreed to arbitrate the matters contained in the Grievance, in determining whether or not a particular claim sought to be arbitrated lies within the scope of the parties' arbitration agreement, Judge Cohen said that case law holds that "the courts are not to engage in a penetrating analysis of the scope of the substantive provisions of a CBA"
Rejecting the County’s argument that its contract with the independent security firm prohibits arbitration, the court commented that while the CBA does not preclude the County from entering into other independent contracts, in doing so it cannot ignore its own contractual obligations under the CBA.*
Holding that the County “cannot absolve itself of its contractual obligations under the CBA” by entering into a subsequent agreement with another party containing incompatible terms, Judge Cohen dismissed the County’s petition and directed that the matter be submitted to arbitration.
* Judge Cohen said that “It is worth noting that the CBA was in existence long before the independent contract for security became effective. It is axiomatic that a party who enters into separate contracts with different parties must manage its contracts so that its obligations under its first contract are not impaired by its obligations under subsequent agreements.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51647.htm
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Matter of County of Orange v Civil Serv. Employees Assn. Local 1000 AFSCME, 2010 NY Slip Op 51647(U), Decided on September 22, 2010, Judge Jeffrey A. Cohen, [Not selected for publication in the Official Reports]
CSEA Local 1000 filed a contract grievance contending that Orange County had violated the relevant collective bargaining agreement [CBA] with it replaced the armed security officer with an unarmed security officer at a County Department of Social Services ("DSS") office. The Orange County Commissioner of Personnel denied the grievance and CSEA demanded that its grievance be submitted to arbitration.
Rather than proceed to arbitration, the County filed a petition with Supreme Court it which it alleged:
1. The new security officer is not an employee of the County and is not therefore covered by the CBA.
2. Determining whether a security officer should be armed or not “is not a matter incorporated in the terms of the CBA and is ‘exclusively a matter of management discretion’".
3. The issue CSEA sought to arbitrate “is prohibited by the terms of the contract between the [County] and the independent security firm” and thus is not a “contractual CBA issue … subject to [the] grievance and arbitration procedures".
CSEA, on the other hand, argued that should the court determines that a valid contract exists, then the "scope of the matters which might be arbitrated there under" must be decided by an arbitrator.
Judge Cohen said that "Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain whether the parties may arbitrate their dispute and, if so, whether they agreed to do so," citing In re New York State Correctional Officers and Police Benev. Ass'n, Inc. (New York State Dept. of Civil Service), 70 AD3d 240.”
Explaining that arbitration of the grievance is not prohibited by any statutory, constitutional or public policy rule of law, the County’s petition will not be granted based on the first prong of the analysis.
As to whether these parties agreed to arbitrate the matters contained in the Grievance, in determining whether or not a particular claim sought to be arbitrated lies within the scope of the parties' arbitration agreement, Judge Cohen said that case law holds that "the courts are not to engage in a penetrating analysis of the scope of the substantive provisions of a CBA"
Rejecting the County’s argument that its contract with the independent security firm prohibits arbitration, the court commented that while the CBA does not preclude the County from entering into other independent contracts, in doing so it cannot ignore its own contractual obligations under the CBA.*
Holding that the County “cannot absolve itself of its contractual obligations under the CBA” by entering into a subsequent agreement with another party containing incompatible terms, Judge Cohen dismissed the County’s petition and directed that the matter be submitted to arbitration.
* Judge Cohen said that “It is worth noting that the CBA was in existence long before the independent contract for security became effective. It is axiomatic that a party who enters into separate contracts with different parties must manage its contracts so that its obligations under its first contract are not impaired by its obligations under subsequent agreements.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51647.htm
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All about New York State’s Taylor Law
All about New York State’s Taylor Law
Summary of Taylor Law basics
Posted on the Internet is John M. Crotty’s Introduction to the Taylor Law.
Mr. Crotty, an attorney and arbitrator, explains the key elements of the Taylor Law and its application and administration, its history, collective bargaining under its provisions and a number of landmark PERB and court rulings interpreting its provision.
The text of this 29 page outline is posted on the Internet at:
http://www.nysdeputy.org/Archives,%20Wage%20Comparisons/Taylor%20Law%20Overview.pdf
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Summary of Taylor Law basics
Posted on the Internet is John M. Crotty’s Introduction to the Taylor Law.
Mr. Crotty, an attorney and arbitrator, explains the key elements of the Taylor Law and its application and administration, its history, collective bargaining under its provisions and a number of landmark PERB and court rulings interpreting its provision.
The text of this 29 page outline is posted on the Internet at:
http://www.nysdeputy.org/Archives,%20Wage%20Comparisons/Taylor%20Law%20Overview.pdf
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Concerning the duty of a public employer to defend and indemnify its employees being sued for alleged violations of an individual’s civil rights
Concerning the duty of a public employer to defend and indemnify its employees being sued for alleged violations of an individual’s civil rights
Schenectady PBA v City of Schenectady, [Not selected for publication in the Official Reports*]
Schenectady police officers were being sued in federal district court for alleged civil rights violations. Rebecca and Jessica DiSorbo were suing police officer Ronald Pederson; David Sampson was suing police officers Richard Barnett and Michael Siler.
Pederson, Barnett and Siler respectively asked the city to defend them in the federal actions and to indemnify them should they be held liable as provided by to Section 50-j(1) of the General Municipal Law [GML].
GML Section 50-j(1) provides that a municipality shall defend and indemnify a police officer if he or she is sued because of some act or omission “in the performance of his duties and within the scope of his employment.” GML Section 50-j(6) authorizes a municipality to provide for the reimbursement of “punitive damages” related to the officer’s “proper discharge of his duties and within the scope of his employment.”
The collective bargaining agreement between the PBA and the city sets out the procedural steps to be followed when a police officer submits his or her request for defense and indemnification pursuant to GML Sections 50-j(1) and 50-j(6).
The city’s corporation counsel interviewed Pederson and other witnesses and decided that “Pederson made material misrepresentations” concerning his conduct. As a result, the city rejected Pederson’s GML Section 50-j(1) application because of his “failure to cooperate in counsel’s investigation.”
The city declined to provide for the defense and indemnification of both Barnett and Siler after their personal attorney “refused to allow the officers to attend [indemnification interviews] absent an assurance ... that the attorney-client privilege would attach with the result that Counsel could not divulge the officers’ communications.” Counsel refused and the two officers failed to appear for their interview. This was deemed to be a “failure to cooperate.”
The PBA sued, seeking a court order directing the city to provide for the defense of the three officers in their respective lawsuits and to indemnify them if they are found liable for damages and attorney fees.
State Supreme Court Justice Vito C. Caruso decided that:
1. Under the terms of the Taylor Law agreement, willful misconduct within, as well as misconduct outside the scope of employment, would support the city’s rejection of a GML Section 50-j application.
2. Statements made by officers to the city’s attorney in the course of the “indemnification interview” are protected by the “attorney-client” privilege.
With respect to the applications submitted by Barnett and Siler, Justice Caruso directed the corporation counsel reconsider their applications taking into account “the distinction between defense and indemnification under GML Sections 50-j(1) and 50-j(6), and [to] set forth specific findings to support his conclusions as to both.”
The decision acknowledges that applying the “attorney-client privilege” could disqualify the corporation counsel from representing the city in a claim against both the officers and the city, but comments that any theoretical and practical difficulties are the result of the provisions of the collective bargaining agreement concerning the review of applications for defense and indemnification pursuant to GML Sections 50-j(1) and 50-j(6) negotiated by the parties.
As to Pederson, here the court found that although he appeared for the interview, the corporation counsel concluded that he had misrepresented the facts and thus “failed to cooperate.” However, the corporation counsel did not made any substantive determination as to whether Pederson was guilty of “willful misconduct ... within the scope of his employment.” Accordingly, rejecting Pederson’s application on the basis of “non-cooperation” was held to be arbitrary. The corporation counsel was directed to make a substantive determination concerning Pederson’s conduct based on his investigation and evaluation of the evidence.
* The decisions concerning the federal actions filed by Rebecca and Jessica DiSorbo, are posted on the Internet at:
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdig&searchTerm=ejEO.WGXa.aadi.YaYj&searchFlag=y&l1loc=FCLOW
Schenectady PBA v City of Schenectady, [Not selected for publication in the Official Reports*]
Schenectady police officers were being sued in federal district court for alleged civil rights violations. Rebecca and Jessica DiSorbo were suing police officer Ronald Pederson; David Sampson was suing police officers Richard Barnett and Michael Siler.
Pederson, Barnett and Siler respectively asked the city to defend them in the federal actions and to indemnify them should they be held liable as provided by to Section 50-j(1) of the General Municipal Law [GML].
GML Section 50-j(1) provides that a municipality shall defend and indemnify a police officer if he or she is sued because of some act or omission “in the performance of his duties and within the scope of his employment.” GML Section 50-j(6) authorizes a municipality to provide for the reimbursement of “punitive damages” related to the officer’s “proper discharge of his duties and within the scope of his employment.”
The collective bargaining agreement between the PBA and the city sets out the procedural steps to be followed when a police officer submits his or her request for defense and indemnification pursuant to GML Sections 50-j(1) and 50-j(6).
The city’s corporation counsel interviewed Pederson and other witnesses and decided that “Pederson made material misrepresentations” concerning his conduct. As a result, the city rejected Pederson’s GML Section 50-j(1) application because of his “failure to cooperate in counsel’s investigation.”
The city declined to provide for the defense and indemnification of both Barnett and Siler after their personal attorney “refused to allow the officers to attend [indemnification interviews] absent an assurance ... that the attorney-client privilege would attach with the result that Counsel could not divulge the officers’ communications.” Counsel refused and the two officers failed to appear for their interview. This was deemed to be a “failure to cooperate.”
The PBA sued, seeking a court order directing the city to provide for the defense of the three officers in their respective lawsuits and to indemnify them if they are found liable for damages and attorney fees.
State Supreme Court Justice Vito C. Caruso decided that:
1. Under the terms of the Taylor Law agreement, willful misconduct within, as well as misconduct outside the scope of employment, would support the city’s rejection of a GML Section 50-j application.
2. Statements made by officers to the city’s attorney in the course of the “indemnification interview” are protected by the “attorney-client” privilege.
With respect to the applications submitted by Barnett and Siler, Justice Caruso directed the corporation counsel reconsider their applications taking into account “the distinction between defense and indemnification under GML Sections 50-j(1) and 50-j(6), and [to] set forth specific findings to support his conclusions as to both.”
The decision acknowledges that applying the “attorney-client privilege” could disqualify the corporation counsel from representing the city in a claim against both the officers and the city, but comments that any theoretical and practical difficulties are the result of the provisions of the collective bargaining agreement concerning the review of applications for defense and indemnification pursuant to GML Sections 50-j(1) and 50-j(6) negotiated by the parties.
As to Pederson, here the court found that although he appeared for the interview, the corporation counsel concluded that he had misrepresented the facts and thus “failed to cooperate.” However, the corporation counsel did not made any substantive determination as to whether Pederson was guilty of “willful misconduct ... within the scope of his employment.” Accordingly, rejecting Pederson’s application on the basis of “non-cooperation” was held to be arbitrary. The corporation counsel was directed to make a substantive determination concerning Pederson’s conduct based on his investigation and evaluation of the evidence.
* The decisions concerning the federal actions filed by Rebecca and Jessica DiSorbo, are posted on the Internet at:
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdig&searchTerm=ejEO.WGXa.aadi.YaYj&searchFlag=y&l1loc=FCLOW
Disciplinary probation may result in employee being summarily terminated without further hearing
Disciplinary probation may result in employee being summarily terminated without further hearing
Wilson v Bratton, 266 AD2d 140
An individual placed in “disciplinary probation” status is typically subject termination without any further hearing or due process procedures if he or she violates the term of the probation. The Wilson case illustrates this potential for being summarily dismissed.
Lynne Wilson, a New York City police officer, petitioner was placed on “dismissal probation” after she was found unfit for duty because she was intoxicated. Since joining the police force in 1980, she had accumulated a prior disciplinary record, which included the commission of an assault while on duty, two incidents of being out of residence while on sick report, and a pattern of chronic lateness.
Although she could have been terminated for the incident involving the intoxication, she was offered a one-year “dismissal probation status.” Wilson accepted and signed an agreement which provided that “[d]uring this period the Police Commissioner may impose the penalty of Dismissal at any time without further proceedings, pursuant to Administrative Code Section 14-115(d)”.
While on probation, Wilson’s commanding officer, Captain Jeffrey Mishula, filed five “command disciplines” against her.*
Wilson was warned that her that continued tardiness could lead to her dismissal. After she was late for a 10:00 a.m. appointment with the department’s Psychological Services Unit, Wilson compounded the problem by signing in as having arrived at 11:00 a.m. although she actually arrived at 11:14 a.m. As a result, Wilson was terminated without a hearing.
Wilson grieved, claiming that department had acted in bad faith because it agreed with Captain Mishula’s recommendation to terminate her without independently investigating the facts. The grievance referee sustained Wilson’s grievance. Subsequently a State Supreme Court justice confirmed the referee’s report, granted Wilson’s petition, and ordered the department to reinstate her with back pay. The Appellate Division unanimously reversed the lower court on the law and the facts, and dismissed the case. Among the problems in the decisions by the referee and the lower court pointed out by the Appellate Division were the following:
1. The court, in confirming the report, found it significant that no formal charges were served on Wilson before her summary termination;
2. The court and the referee “inexplicably ignored” Wilson’s admission that she was an hour late to the appointment, focusing instead on the disputed 14 minutes; and
3. The lower court improperly considered testimony from Wilson’s unemployment insurance hearing, which is not admissible in court proceedings, citing Labor Law Section 537[1] and Beacham v Brown, 215 AD2d 334.
The Appellate Division concluded that the lower court misread the record and noted that “[a]bsent bad faith, a municipal agency may summarily terminate a probationary employee for any reason.” Wilson acknowledged this when she signed the agreement to dismissal probation.
As to the merits of terminating an individual for lateness, the court pointed out that “[l]ateness is sufficient grounds to terminate a probationer’s employment, particularly where, as here, [Wilson’s] late arrival at [the Psychological Services Unit] was merely the last in a long series of such episodes.”
In the Wilson case the Appellate Division concluded that Wilson had agreed in writing that she could have been fired at any time without further proceedings and that having “failed to fulfill her responsibilities after being given numerous chances by [by the department], she has no basis to argue that she was terminated in bad faith.”
In contrast, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation [Taylor v Cass, 505 NY2d 929]. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.
Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.
The lesson to be drawn from these rulings is that (1) the terms of a disciplinary probationary period must be fulfilled if the employee is to be continued in service; and (2) the employer may terminate the probationer without a hearing only if he or she fails to meet the conditions set out in the “disciplinary probation agreement.”
* Command disciplines are filed in the event an officer is late three times within a three-month period.
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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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Wilson v Bratton, 266 AD2d 140
An individual placed in “disciplinary probation” status is typically subject termination without any further hearing or due process procedures if he or she violates the term of the probation. The Wilson case illustrates this potential for being summarily dismissed.
Lynne Wilson, a New York City police officer, petitioner was placed on “dismissal probation” after she was found unfit for duty because she was intoxicated. Since joining the police force in 1980, she had accumulated a prior disciplinary record, which included the commission of an assault while on duty, two incidents of being out of residence while on sick report, and a pattern of chronic lateness.
Although she could have been terminated for the incident involving the intoxication, she was offered a one-year “dismissal probation status.” Wilson accepted and signed an agreement which provided that “[d]uring this period the Police Commissioner may impose the penalty of Dismissal at any time without further proceedings, pursuant to Administrative Code Section 14-115(d)”.
While on probation, Wilson’s commanding officer, Captain Jeffrey Mishula, filed five “command disciplines” against her.*
Wilson was warned that her that continued tardiness could lead to her dismissal. After she was late for a 10:00 a.m. appointment with the department’s Psychological Services Unit, Wilson compounded the problem by signing in as having arrived at 11:00 a.m. although she actually arrived at 11:14 a.m. As a result, Wilson was terminated without a hearing.
Wilson grieved, claiming that department had acted in bad faith because it agreed with Captain Mishula’s recommendation to terminate her without independently investigating the facts. The grievance referee sustained Wilson’s grievance. Subsequently a State Supreme Court justice confirmed the referee’s report, granted Wilson’s petition, and ordered the department to reinstate her with back pay. The Appellate Division unanimously reversed the lower court on the law and the facts, and dismissed the case. Among the problems in the decisions by the referee and the lower court pointed out by the Appellate Division were the following:
1. The court, in confirming the report, found it significant that no formal charges were served on Wilson before her summary termination;
2. The court and the referee “inexplicably ignored” Wilson’s admission that she was an hour late to the appointment, focusing instead on the disputed 14 minutes; and
3. The lower court improperly considered testimony from Wilson’s unemployment insurance hearing, which is not admissible in court proceedings, citing Labor Law Section 537[1] and Beacham v Brown, 215 AD2d 334.
The Appellate Division concluded that the lower court misread the record and noted that “[a]bsent bad faith, a municipal agency may summarily terminate a probationary employee for any reason.” Wilson acknowledged this when she signed the agreement to dismissal probation.
As to the merits of terminating an individual for lateness, the court pointed out that “[l]ateness is sufficient grounds to terminate a probationer’s employment, particularly where, as here, [Wilson’s] late arrival at [the Psychological Services Unit] was merely the last in a long series of such episodes.”
In the Wilson case the Appellate Division concluded that Wilson had agreed in writing that she could have been fired at any time without further proceedings and that having “failed to fulfill her responsibilities after being given numerous chances by [by the department], she has no basis to argue that she was terminated in bad faith.”
In contrast, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation [Taylor v Cass, 505 NY2d 929]. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.
Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.
The lesson to be drawn from these rulings is that (1) the terms of a disciplinary probationary period must be fulfilled if the employee is to be continued in service; and (2) the employer may terminate the probationer without a hearing only if he or she fails to meet the conditions set out in the “disciplinary probation agreement.”
* Command disciplines are filed in the event an officer is late three times within a three-month period.
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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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Employee seeks a hearing after being denied a promotion
Employee seeks a hearing after being denied a promotion
Wagner v NYC Transit Authority, 266 AD2d 304
The New York City Transit Authority [NYCTA] decided that Robert Wagner should not be promoted to the position of dispatcher because of his poor attendance record with the Authority. Wagner appealed and persuaded a State Supreme Court justice to direct the Authority to give him a hearing concerning the question of his promotion and make a new decision after the hearing was completed.
The Appellate Division reversed, noting that in contrast to NYCTA’s documentary evidence demonstrating that Wagner was not promoted because of his chronic absenteeism, Wagner did not present any evidence to “rebut or controvert” NYCTA’s proof.
The court said that Section 61 of the Civil Service Law gives the appointing authority “discretionary appointive power,” and a candidate for appointment or promotion does not acquire any protected property interest merely by reason of his placement on an eligible list. Accordingly, the decision of an appointing authority not to promote a particular individual “will not be disturbed as long as the determination is supported by a rational basis.” Finding that Wagner “merely alleged in conclusory fashion that the [authority’s] determination was arbitrary and improper,” the Appellate Division ruled that there was no basis for a “promotion hearing” and the Wagner’s petition should have been dismissed by the lower court.
However, Wagner also claimed that he was entitled to a hearing because NYCTA did not give him any written notice of his non-selection for the promotion required by Section 61.3 of the Civil Service Law.
Section 61.3 provides that when a candidate is selected, each candidate considered, but not selected, is to be advised of his or her “non-selection.”*
The Appellate Division said that the purpose of Section 61.3 is to provide individuals on an eligible list with information regarding their status in the civil service system so that they may make intelligent career choices. The opinion notes that neither Section 61.3 itself nor the failure of an appointing authority to comply with its provisions give an unsuccessful candidate a basis for challenging the selection decision made by the appointing authority. In contrast, a disappointed candidate may challenge his or her non-selection on the grounds that such non-selection is based on unlawful considerations by the appointing authority.
* Although Section 61.3, in pertinent part, states: “Persons on an eligible list … considered and not selected for appointment or promotion pursuant to this section shall, whenever another candidate is appointed or promoted, be given or sent written notice by the appointing authority of such non-selection …”, it does not require the appointing authority to provide the candidate with the reason or reasons why he or she was not selected for the appointment.
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Wagner v NYC Transit Authority, 266 AD2d 304
The New York City Transit Authority [NYCTA] decided that Robert Wagner should not be promoted to the position of dispatcher because of his poor attendance record with the Authority. Wagner appealed and persuaded a State Supreme Court justice to direct the Authority to give him a hearing concerning the question of his promotion and make a new decision after the hearing was completed.
The Appellate Division reversed, noting that in contrast to NYCTA’s documentary evidence demonstrating that Wagner was not promoted because of his chronic absenteeism, Wagner did not present any evidence to “rebut or controvert” NYCTA’s proof.
The court said that Section 61 of the Civil Service Law gives the appointing authority “discretionary appointive power,” and a candidate for appointment or promotion does not acquire any protected property interest merely by reason of his placement on an eligible list. Accordingly, the decision of an appointing authority not to promote a particular individual “will not be disturbed as long as the determination is supported by a rational basis.” Finding that Wagner “merely alleged in conclusory fashion that the [authority’s] determination was arbitrary and improper,” the Appellate Division ruled that there was no basis for a “promotion hearing” and the Wagner’s petition should have been dismissed by the lower court.
However, Wagner also claimed that he was entitled to a hearing because NYCTA did not give him any written notice of his non-selection for the promotion required by Section 61.3 of the Civil Service Law.
Section 61.3 provides that when a candidate is selected, each candidate considered, but not selected, is to be advised of his or her “non-selection.”*
The Appellate Division said that the purpose of Section 61.3 is to provide individuals on an eligible list with information regarding their status in the civil service system so that they may make intelligent career choices. The opinion notes that neither Section 61.3 itself nor the failure of an appointing authority to comply with its provisions give an unsuccessful candidate a basis for challenging the selection decision made by the appointing authority. In contrast, a disappointed candidate may challenge his or her non-selection on the grounds that such non-selection is based on unlawful considerations by the appointing authority.
* Although Section 61.3, in pertinent part, states: “Persons on an eligible list … considered and not selected for appointment or promotion pursuant to this section shall, whenever another candidate is appointed or promoted, be given or sent written notice by the appointing authority of such non-selection …”, it does not require the appointing authority to provide the candidate with the reason or reasons why he or she was not selected for the appointment.
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Arbitrating a contract grievance
Arbitrating a contract grievance
Greenburgh 11 UFSD v Local 1532, 266 AD2d 213
The collective bargaining agreement between Local 1532 and Greenburgh 11 provided that after a teacher was late nine times for less than 20 minutes per lateness, the district would have a meeting with the employee and a union representative. A second meeting was to be held after the tenth such lateness.
Without holding any “lateness meetings” with the teachers or the Local, the district preferred Section 3020-a disciplinary charges against 15 teachers, alleging they were late on several occasions. The Local filed a contract grievance and demanded arbitration.
When Supreme Court refused to stay the contract grievance arbitration, the district appealed. The Appellate Division affirmed the lower court’s ruling, stating that “[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator.”
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Greenburgh 11 UFSD v Local 1532, 266 AD2d 213
The collective bargaining agreement between Local 1532 and Greenburgh 11 provided that after a teacher was late nine times for less than 20 minutes per lateness, the district would have a meeting with the employee and a union representative. A second meeting was to be held after the tenth such lateness.
Without holding any “lateness meetings” with the teachers or the Local, the district preferred Section 3020-a disciplinary charges against 15 teachers, alleging they were late on several occasions. The Local filed a contract grievance and demanded arbitration.
When Supreme Court refused to stay the contract grievance arbitration, the district appealed. The Appellate Division affirmed the lower court’s ruling, stating that “[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator.”
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Information contained in personnel record alleged to be defamatory
Information contained in personnel record alleged to be defamatory
Monroe v Schenectady County, 266 AD2d 792
Sometimes an employee will contend that information contained in his or her personnel files is derogatory. May the individual sue the agency if the information is made available to other governmental officials? Part of the Monroe case concerned the dissemination of information contained in a personnel file Monroe alleged was derogatory.
David Monroe, a Schenectady County corrections lieutenant, sued the sheriff and the county following his termination from his position of lieutenant. After a Federal court dismissed his complaint alleging a deprivation of due process under the 14th Amendment of the US Constitution, Monroe filed a lawsuit in State court.
According to the decision, Monroe was served with a written notice of discipline on July 15, 1994. He was charged with sexually harassing a Schenectady police officer and endangering “the security of the county jail by playing ping-pong and smoking.” The proposed penalty: dismissal.
Monroe, Monroe’s union representatives and department personnel met to discuss settlement of the disciplinary action. The proposed terms of the settlement: Monroe would accept a demotion to correction officer and the department would reinstatement him as a correction officer without retroactive pay or the restoration of any lost benefits. Monroe rejected the offer.
As described by the court, after he rejected the settlement, Monroe was told that if he should press for and win the disciplinary arbitration, charges alleging consorting with a prostitute, having sex with her and his being present when she purchased cocaine would be filed against him and this information would be revealed to the press. At this point Monroe decided to withdraw his disciplinary grievance and accepted the settlement offer, which he signed on January 6, 1995.
One of the issues in this rather complex litigation involved Monroe’s “ninth cause of action” which set out allegations of defamation. Monroe contended that the sheriff had defamed him when he stated that he intended “to pursue further disciplinary action against [Monroe] based on [Monroe’s] alleged connection with a prostitute” if Monroe refused to the settle the then pending disciplinary action.
According to Monroe, “the defamatory words were published by the sheriff to County officials and disseminated throughout the Sheriff’s Department by the placing of a note about the event in [Monroe’s] file.”
The Appellate Division dismissed this branch of Monroe’s action, ruling that “[i]t is obvious that the Sheriff was acting wholly within the scope of his duties (as alleged in [Monroe’s] complaint) in publishing the charges in a disciplinary action and thus was protected by an absolute privilege providing him immunity from a suit for defamation.
The court cited Mahoney v Temporary Commission of Investigation of New York, 165 AD2d 233, in support of its holding.
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Monroe v Schenectady County, 266 AD2d 792
Sometimes an employee will contend that information contained in his or her personnel files is derogatory. May the individual sue the agency if the information is made available to other governmental officials? Part of the Monroe case concerned the dissemination of information contained in a personnel file Monroe alleged was derogatory.
David Monroe, a Schenectady County corrections lieutenant, sued the sheriff and the county following his termination from his position of lieutenant. After a Federal court dismissed his complaint alleging a deprivation of due process under the 14th Amendment of the US Constitution, Monroe filed a lawsuit in State court.
According to the decision, Monroe was served with a written notice of discipline on July 15, 1994. He was charged with sexually harassing a Schenectady police officer and endangering “the security of the county jail by playing ping-pong and smoking.” The proposed penalty: dismissal.
Monroe, Monroe’s union representatives and department personnel met to discuss settlement of the disciplinary action. The proposed terms of the settlement: Monroe would accept a demotion to correction officer and the department would reinstatement him as a correction officer without retroactive pay or the restoration of any lost benefits. Monroe rejected the offer.
As described by the court, after he rejected the settlement, Monroe was told that if he should press for and win the disciplinary arbitration, charges alleging consorting with a prostitute, having sex with her and his being present when she purchased cocaine would be filed against him and this information would be revealed to the press. At this point Monroe decided to withdraw his disciplinary grievance and accepted the settlement offer, which he signed on January 6, 1995.
One of the issues in this rather complex litigation involved Monroe’s “ninth cause of action” which set out allegations of defamation. Monroe contended that the sheriff had defamed him when he stated that he intended “to pursue further disciplinary action against [Monroe] based on [Monroe’s] alleged connection with a prostitute” if Monroe refused to the settle the then pending disciplinary action.
According to Monroe, “the defamatory words were published by the sheriff to County officials and disseminated throughout the Sheriff’s Department by the placing of a note about the event in [Monroe’s] file.”
The Appellate Division dismissed this branch of Monroe’s action, ruling that “[i]t is obvious that the Sheriff was acting wholly within the scope of his duties (as alleged in [Monroe’s] complaint) in publishing the charges in a disciplinary action and thus was protected by an absolute privilege providing him immunity from a suit for defamation.
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Sep 24, 2010
Layoffs and Downsizing the State's workforce
Layoffs and Downsizing the State's workforce
Source: News media reports
On Thursday, September 23, 2010, Governor Paterson announced that in order to help solve the State's current financial crisis it will be necessary to layoff some 2,000 State employees.
Indicating that the proposed downsizing of the State's work force will begin in mid-November, the Governor said that a memorandum is being sent to the heads of State Departments and Agencies, signed jointly by Robert Megna, the State’s Budget Director and Mark Leinung, the Acting Director of State Operations, notifying them of the necessary reductions.*
The memorandum indicated that specific targets for staff reductions on an agency-by-agency basis would be distributed.
The actual number of incumbents to be laid off in a particular department or agency, however, could be reduced by its not filling vacancies resulting from retirements, resignations and other forms of “attrition” in its work force.
* The September 23, 2010 memorandum signed by Megna and Leinung, in pertinent part, states:
The ongoing economic and fiscal problems facing the State will require further cost saving actions. Despite our best efforts the State is falling short of its financial plan targets. The alternatives available to ensure we remain on a stable fiscal course are limited. Accordingly, we will need to take additional actions by the end of 2010 that will result in a reduction in the workforce by 2000 employees. You will be given the discretion to use layoffs as a part of this reduction in workforce....
Your budget examination unit will contact you with revised targets, and with further details on the process for submitting your proposed reductions.
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For information about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Source: News media reports
On Thursday, September 23, 2010, Governor Paterson announced that in order to help solve the State's current financial crisis it will be necessary to layoff some 2,000 State employees.
Indicating that the proposed downsizing of the State's work force will begin in mid-November, the Governor said that a memorandum is being sent to the heads of State Departments and Agencies, signed jointly by Robert Megna, the State’s Budget Director and Mark Leinung, the Acting Director of State Operations, notifying them of the necessary reductions.*
The memorandum indicated that specific targets for staff reductions on an agency-by-agency basis would be distributed.
The actual number of incumbents to be laid off in a particular department or agency, however, could be reduced by its not filling vacancies resulting from retirements, resignations and other forms of “attrition” in its work force.
* The September 23, 2010 memorandum signed by Megna and Leinung, in pertinent part, states:
The ongoing economic and fiscal problems facing the State will require further cost saving actions. Despite our best efforts the State is falling short of its financial plan targets. The alternatives available to ensure we remain on a stable fiscal course are limited. Accordingly, we will need to take additional actions by the end of 2010 that will result in a reduction in the workforce by 2000 employees. You will be given the discretion to use layoffs as a part of this reduction in workforce....
Your budget examination unit will contact you with revised targets, and with further details on the process for submitting your proposed reductions.
============================================
For information about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Employee terminated after testing positive for drug
Employee terminated after testing positive for drug
McGovern v Safir, App. Div. First Dept., 266 AD2d 94
New York City police officer John McGovern appealed his termination from the force after testing positive for marijuana.
McGovern had been selected for a random drug test. He did not dispute the fact that he had tested positive for marijuana but explained that his “ingestion of marijuana was unknowing and involuntary.” The deputy police commissioner rejected this excuse as incredible, resulting in McGovern’s dismissal.
The Appellate Division said that the positive drug test constitute substantial evidence supporting the determination that McGovern possessed and ingested marijuana. Further, the court said that under the circumstances, “[t]he penalty of dismissal does not shock our sense of fairness.”
In another disciplinary action involving a New York City police officer, the Appellate Division upheld the officer’s termination after he was found guilty of orally and physically assaulting, without provocation, a detective he thought was involved in undercover Internal Affairs investigations [McGaughey v Safir, App. Div., First Dept., 266 AD2d 100, motion for leave to appeal denied, 94 NY2d 760.
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McGovern v Safir, App. Div. First Dept., 266 AD2d 94
New York City police officer John McGovern appealed his termination from the force after testing positive for marijuana.
McGovern had been selected for a random drug test. He did not dispute the fact that he had tested positive for marijuana but explained that his “ingestion of marijuana was unknowing and involuntary.” The deputy police commissioner rejected this excuse as incredible, resulting in McGovern’s dismissal.
The Appellate Division said that the positive drug test constitute substantial evidence supporting the determination that McGovern possessed and ingested marijuana. Further, the court said that under the circumstances, “[t]he penalty of dismissal does not shock our sense of fairness.”
In another disciplinary action involving a New York City police officer, the Appellate Division upheld the officer’s termination after he was found guilty of orally and physically assaulting, without provocation, a detective he thought was involved in undercover Internal Affairs investigations [McGaughey v Safir, App. Div., First Dept., 266 AD2d 100, motion for leave to appeal denied, 94 NY2d 760.
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The employee organization's duty of fair representation
The employee organization's duty of fair representation
Walsh v Rochester Teachers’ Asso. and the Rochester City School District, App. Div., 4th Dept., 266 AD2d 817
The lesson of the Walsh case is that if a unit member sues a union for its alleged violation of its duty of fair representation, s/he must name the specific individuals involved in, or whose actions constituted, the violation.
Timothy J. Walsh, a tenured social studies teacher said that he was induced to resign from his position effective June 26, 1997 because the Rochester City School District’s personnel director, Rebbeca Torres-Lynch told him that he would be transferred to an elementary school teaching position. Walsh also held tenure for the elementary teacher position.
The district, however, treated Walsh’s letter of resignation as a resignation from District employment and he was not given an elementary school teaching position in the following school year.
Walsh sued the district, the personnel director for “intentional misrepresentation” and the Rochester Teachers’ Association for violating its duty of “fair representation.” Considering Walsh’s allegations concerning the association, the Appellate Division said that Supreme Court was incorrect when it denied the association’s motion to dismiss Walsh’s complaint against it.
Walsh charged that while the association had provided him with “some assistance” in his efforts to “rescind” his resignation, it had violated its duty to represent him under the collective bargaining agreement. Walsh also alleged that all the defendants’ actions were “intentional and caused [him] to suffer emotional distress.”
However, he named only the association’s president, Adam Urbanski, as a defendant in his “official capacity” as president. In contrast, Walsh named the district’s personnel director as a defendant in both her official capacity and “individually”.
The Appellate Division said that Walsh’s “failure to allege that individual members of the [association] authorized or ratified the complained of conduct renders the amended complaint fatally defective as against the [association].”
In an earlier case involving the Rochester Teachers’ Association, Grahame v Rochester Teachers’ Associations, 262 AD2d 963, [motion for leave to appeal denied, 94 NY2d 796], the Appellate Division, Fourth Department, rejected the association’s motion to dismiss the complaint because Grahame did not allege that the individual members of association ratified the acts of their representative. The Grahame case, however, alleged the association was negligent in providing retirement information to a member, not that it breached its duty of fair representation to that member.
The Appellate Division also said that Supreme Court should have dismissed his petition as untimely. The court observed that “although Walsh may have had a reasonable belief that the association would represent him for some period of time after his last interaction with an association agent in late July 1997,” there was nothing in his complaint to support this belief through January 12, 1998, the last day on which he could file a timely cause of action for breach of the association’s duty of fair representation.
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Walsh v Rochester Teachers’ Asso. and the Rochester City School District, App. Div., 4th Dept., 266 AD2d 817
The lesson of the Walsh case is that if a unit member sues a union for its alleged violation of its duty of fair representation, s/he must name the specific individuals involved in, or whose actions constituted, the violation.
Timothy J. Walsh, a tenured social studies teacher said that he was induced to resign from his position effective June 26, 1997 because the Rochester City School District’s personnel director, Rebbeca Torres-Lynch told him that he would be transferred to an elementary school teaching position. Walsh also held tenure for the elementary teacher position.
The district, however, treated Walsh’s letter of resignation as a resignation from District employment and he was not given an elementary school teaching position in the following school year.
Walsh sued the district, the personnel director for “intentional misrepresentation” and the Rochester Teachers’ Association for violating its duty of “fair representation.” Considering Walsh’s allegations concerning the association, the Appellate Division said that Supreme Court was incorrect when it denied the association’s motion to dismiss Walsh’s complaint against it.
Walsh charged that while the association had provided him with “some assistance” in his efforts to “rescind” his resignation, it had violated its duty to represent him under the collective bargaining agreement. Walsh also alleged that all the defendants’ actions were “intentional and caused [him] to suffer emotional distress.”
However, he named only the association’s president, Adam Urbanski, as a defendant in his “official capacity” as president. In contrast, Walsh named the district’s personnel director as a defendant in both her official capacity and “individually”.
The Appellate Division said that Walsh’s “failure to allege that individual members of the [association] authorized or ratified the complained of conduct renders the amended complaint fatally defective as against the [association].”
In an earlier case involving the Rochester Teachers’ Association, Grahame v Rochester Teachers’ Associations, 262 AD2d 963, [motion for leave to appeal denied, 94 NY2d 796], the Appellate Division, Fourth Department, rejected the association’s motion to dismiss the complaint because Grahame did not allege that the individual members of association ratified the acts of their representative. The Grahame case, however, alleged the association was negligent in providing retirement information to a member, not that it breached its duty of fair representation to that member.
The Appellate Division also said that Supreme Court should have dismissed his petition as untimely. The court observed that “although Walsh may have had a reasonable belief that the association would represent him for some period of time after his last interaction with an association agent in late July 1997,” there was nothing in his complaint to support this belief through January 12, 1998, the last day on which he could file a timely cause of action for breach of the association’s duty of fair representation.
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Cheating on examination for disqualifying misconduct for the purposes of claiming unemployment insurance benefits
Cheating on examination for disqualifying misconduct for the purposes of claiming unemployment insurance benefits
Kinch v Sweeney, Appellate Division, 244 AD2d 748
The Kinch case involved the dismissal of an individual found to have cheated on an examination.
Alden R. Kinch, a flight attendant, was discharged on the grounds that he had attempted to cheat on his annual Federal Aviation Authority examination.
The State's Unemployment Insurance Appeal Board ruled that Kinch had been discharged for a disqualifying reason and rejected his application for unemployment insurance benefits. The Appellate Division sustained the board's determination.
The court said that the Board's ruling, holding that Kinch's "apparent dishonesty in cheating ... was sufficient to constitute disqualifying misconduct" and was also potentially detrimental to his employer's interests in that it nullified the examination's accuracy in assessing whether he possessed the knowledge necessary to perform his job.
Probably the courts would adopt the same rationale in cases involving cheating on tests for unlawful drugs.
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Kinch v Sweeney, Appellate Division, 244 AD2d 748
The Kinch case involved the dismissal of an individual found to have cheated on an examination.
Alden R. Kinch, a flight attendant, was discharged on the grounds that he had attempted to cheat on his annual Federal Aviation Authority examination.
The State's Unemployment Insurance Appeal Board ruled that Kinch had been discharged for a disqualifying reason and rejected his application for unemployment insurance benefits. The Appellate Division sustained the board's determination.
The court said that the Board's ruling, holding that Kinch's "apparent dishonesty in cheating ... was sufficient to constitute disqualifying misconduct" and was also potentially detrimental to his employer's interests in that it nullified the examination's accuracy in assessing whether he possessed the knowledge necessary to perform his job.
Probably the courts would adopt the same rationale in cases involving cheating on tests for unlawful drugs.
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Labor organization sues local for non-payment of its membership dues
Labor organization sues local for non-payment of its membership dues
American Federation of School Administrators v Council of Administrators and Supervisors, 266 AD2d 417
The American Federation of School Administrators, AFL-CIO, sued its local affiliate in Nassau and Suffolk counties, the Council of Administrators and Supervisors, claiming it had not paid all of its dues.
Noting that federal law Federal District Courts jurisdiction over suits between labor organizations, a State Supreme Court justice dismissed the Federation’s complaint on the ground that the matter must be adjudicated in a Federal court. The Appellate Division, Second Department, disagreed and reversed the lower court’s ruling.
The Appellate Division said that the federal law did not deprive State courts of their existing jurisdiction. Further, said the Appellate Division “State remedies are not preempted where the activity is of ‘merely peripheral concern’ to the Labor Management Relations Act.”
Deciding that the dispute over the nonpayment of dues is nothing more than an internal union matter, the Appellate Division remanded the case to Supreme Court to determine if the Council’s motion for summary judgment should be granted.
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American Federation of School Administrators v Council of Administrators and Supervisors, 266 AD2d 417
The American Federation of School Administrators, AFL-CIO, sued its local affiliate in Nassau and Suffolk counties, the Council of Administrators and Supervisors, claiming it had not paid all of its dues.
Noting that federal law Federal District Courts jurisdiction over suits between labor organizations, a State Supreme Court justice dismissed the Federation’s complaint on the ground that the matter must be adjudicated in a Federal court. The Appellate Division, Second Department, disagreed and reversed the lower court’s ruling.
The Appellate Division said that the federal law did not deprive State courts of their existing jurisdiction. Further, said the Appellate Division “State remedies are not preempted where the activity is of ‘merely peripheral concern’ to the Labor Management Relations Act.”
Deciding that the dispute over the nonpayment of dues is nothing more than an internal union matter, the Appellate Division remanded the case to Supreme Court to determine if the Council’s motion for summary judgment should be granted.
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Modifying a disciplinary penalty
Modifying a disciplinary penalty
CSEA Albany County Local 801 v Albany Housing Authority, 266 AD2d 676
This decision sets out the basic elements to be considered by courts when asked to confirm or vacate a disciplinary arbitrator’s award.
The facts in this case are relatively simple. Frank Turner, an Albany Housing Authority custodian, was found smoking marijuana in a vacant authority apartment in violation of authority rules. Turner was dismissed and Local 801 demanded arbitration in accordance with the collective bargaining agreement between the parties. Local 801 and the authority agreed to submit the following issues to the arbitrator:
1. Was Turner was guilty of violating the authority’s policy and procedures prohibiting entry into vacant apartments and the unlawful possession or use of marijuana; and
2. Was the penalty imposed - termination - for this violation unreasonable or made in bad faith.
The local and the authority, however, could not agree as to whether the arbitrator had the power to fashion a new or different penalty in the event Turner was found guilty of the charges. Accordingly, this issue in the disciplinary arbitration was not certified to the arbitrator.
Ultimately the arbitrator found Turner guilty of the charges. But, said the arbitrator, imposing the penalty of termination was unreasonable. The arbitrator, concluding that “he had the power to modify the penalty,” imposed a different penalty on Turner: a four-week suspension and reinstatement with back pay.
Local 801 brought an Article 75 action to confirm the award; the authority countered with a petition to reinstate the penalty of dismissal on the grounds that the arbitrator had exceeded his authority.
A State Supreme Court justice confirmed the arbitrator’s award insofar as it determined Turner was guilty of the charges filed against him. The court, however, ruled that the arbitrator had exceeded his authority by imposing a new and different penalty and vacated that portion of the award. Local 801 appealed.
The relevant contract provision -- Article 15.3 -- provided that “[t]he arbitrator shall only determine if guilt or misconduct or incompetence has been proven by a preponderance of the evidence and if the penalty was imposed in bad faith or was unreasonable. On the issue of the penalty, the employee’s entire record of employment may be considered.”
In resolving the appeal, the Appellate Division set out the following basic points:
1. Judicial review of an arbitration award is severely limited and will be upheld unless “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
2. Any limitation upon the remedial power of the arbitrator must be clearly contained, either explicitly or incorporated by reference, in the arbitration clause itself.
3. To infer a limitation from an ambiguous and general clause in the substantive provisions of the agreement would, in effect, require judicial interpretation of the contract and judicial interference with an arbitration award which should be avoided unless that award be violative of strong public policy, totally irrational or in excess of a specifically enumerated limitation upon arbitral authority.
The Appellate Division concluded that Article 15.3 contains a specific limitation of the arbitrator’s authority and restricts the arbitrator to making two decisions: (1) was the employee’s guilt proven by a preponderance of the evidence and, if so, (2) was the penalty imposed in bad faith or unreasonable.
Further, said the court, Section 15.3 of the agreement does not permit the arbitrator to impose a new or different penalty and that the arbitrator acted “in excess of a specifically enumerated limitation upon arbitral authority” when he modified the penalty imposed on Turner.
Finding that “... the arbitrator’s interpretation results in a new and different contract for the parties,” the Appellate Division sustained the lower court’s vacating that portion of the arbitrator’s award that imposed a different penalty.
In other words, although the arbitrator could determine if the penalty imposed was unreasonable, neither Article 15.3 nor the questions submitted to the arbitrator by the parties permitted the arbitrator to determine an alternative penalty.
If the arbitrator determines that the penalty imposed was unreasonable or made in bad faith, presumably Article 15.3 requires the arbitrator to return the matter to the authority for it to set a different penalty.
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CSEA Albany County Local 801 v Albany Housing Authority, 266 AD2d 676
This decision sets out the basic elements to be considered by courts when asked to confirm or vacate a disciplinary arbitrator’s award.
The facts in this case are relatively simple. Frank Turner, an Albany Housing Authority custodian, was found smoking marijuana in a vacant authority apartment in violation of authority rules. Turner was dismissed and Local 801 demanded arbitration in accordance with the collective bargaining agreement between the parties. Local 801 and the authority agreed to submit the following issues to the arbitrator:
1. Was Turner was guilty of violating the authority’s policy and procedures prohibiting entry into vacant apartments and the unlawful possession or use of marijuana; and
2. Was the penalty imposed - termination - for this violation unreasonable or made in bad faith.
The local and the authority, however, could not agree as to whether the arbitrator had the power to fashion a new or different penalty in the event Turner was found guilty of the charges. Accordingly, this issue in the disciplinary arbitration was not certified to the arbitrator.
Ultimately the arbitrator found Turner guilty of the charges. But, said the arbitrator, imposing the penalty of termination was unreasonable. The arbitrator, concluding that “he had the power to modify the penalty,” imposed a different penalty on Turner: a four-week suspension and reinstatement with back pay.
Local 801 brought an Article 75 action to confirm the award; the authority countered with a petition to reinstate the penalty of dismissal on the grounds that the arbitrator had exceeded his authority.
A State Supreme Court justice confirmed the arbitrator’s award insofar as it determined Turner was guilty of the charges filed against him. The court, however, ruled that the arbitrator had exceeded his authority by imposing a new and different penalty and vacated that portion of the award. Local 801 appealed.
The relevant contract provision -- Article 15.3 -- provided that “[t]he arbitrator shall only determine if guilt or misconduct or incompetence has been proven by a preponderance of the evidence and if the penalty was imposed in bad faith or was unreasonable. On the issue of the penalty, the employee’s entire record of employment may be considered.”
In resolving the appeal, the Appellate Division set out the following basic points:
1. Judicial review of an arbitration award is severely limited and will be upheld unless “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
2. Any limitation upon the remedial power of the arbitrator must be clearly contained, either explicitly or incorporated by reference, in the arbitration clause itself.
3. To infer a limitation from an ambiguous and general clause in the substantive provisions of the agreement would, in effect, require judicial interpretation of the contract and judicial interference with an arbitration award which should be avoided unless that award be violative of strong public policy, totally irrational or in excess of a specifically enumerated limitation upon arbitral authority.
The Appellate Division concluded that Article 15.3 contains a specific limitation of the arbitrator’s authority and restricts the arbitrator to making two decisions: (1) was the employee’s guilt proven by a preponderance of the evidence and, if so, (2) was the penalty imposed in bad faith or unreasonable.
Further, said the court, Section 15.3 of the agreement does not permit the arbitrator to impose a new or different penalty and that the arbitrator acted “in excess of a specifically enumerated limitation upon arbitral authority” when he modified the penalty imposed on Turner.
Finding that “... the arbitrator’s interpretation results in a new and different contract for the parties,” the Appellate Division sustained the lower court’s vacating that portion of the arbitrator’s award that imposed a different penalty.
In other words, although the arbitrator could determine if the penalty imposed was unreasonable, neither Article 15.3 nor the questions submitted to the arbitrator by the parties permitted the arbitrator to determine an alternative penalty.
If the arbitrator determines that the penalty imposed was unreasonable or made in bad faith, presumably Article 15.3 requires the arbitrator to return the matter to the authority for it to set a different penalty.
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Sep 23, 2010
HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces
HR 5136 proposed to provide “annual leave for family members” in the event a defined relative is called to active duty with the armed forces
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.
The leave may be taken intermittent or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.
It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.
Mr. Bosland Comments: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!
.
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Chapter 44 of House Bill (H.R. 5136) of the National Defense Authorization Act of 2011modifies the Uniformed Services Employment and Reemployment Rights Act, 38 USC 4303, et. seq., to require all employers (of any size, including local, state, and the federal government) to permit a spouse, son or daughter, or parent of a member of a uniformed service to take up to two workweeks of leave during any 12-month period where a family member has received notification of an impending call or order to active duty in support of a contingency operation.
The leave may be taken intermittent or a reduced leave schedule at the discretion of the employee. Paid leave is available at the discretion of the employer. Otherwise, the leave is unpaid. The employee must provide notice of the need for such leave "as is reasonable and practicable." An employer may require that leave be supported by a certification of entitlement to such leave. A copy of the notice, call, or order is considered sufficient certification. An employee has the right to be restored to the position the employee held prior to taking the leave, or to an equivalent position with equivalent rights and benefits.
It is unlawful for an employer to interfere with, restrain, or deny the exercise or attempt to exercise rights under the law. It is also illegal to discriminate against someone for opposing unlawful practices. The law would be enforced consistent with USERRA's current structure.
Mr. Bosland Comments: The Senate version of the 2011 National Defense Authorization Act (S. 3454) does not contain a similar provision. As such, whether the provision survives the House and Senate Conference Committee is anyone's guess. Stay tuned!
.
Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault
Michigan teachers may sue if school board fails to comply with statutory duty to expel students guilty of assault
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher
Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001).
The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.
Mitchell H. Rubinstein
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Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher
Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001).
The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.
Mitchell H. Rubinstein
.
Filing an employer application for disability retirement pursuant GML 207-c
Filing an employer application for disability retirement pursuant GML 207-c
City of Schenectady v McCall, AD 3rd Dept., 245 A.D.2d 708
The City of Schenectady filed an application for accidental disability benefits for one of its police officers, Kevin J. Coker, with the New York State and Local Policemens' and Firemens' Retirement System [PFRS]. It claimed that Coker had sustained at least four neck and back injuries while on duty. Although Coker had returned to duty after each episode, in 1992 he ceased working claiming that the back pain resulting from these accidents permanently incapacitated him.
Section 207-c.2 of the General Municipal Law authorizes the filing of an application for accidental disability retirement on behalf of a disabled police officer if the officer does not elect to do so.
PFRS' medical expert, Neurologist Neil Lava, testified that Coker was not "permanently incapacitated" and that there was no medical explanation for Coker's complaints of pain and a limited range of motion. The City's medical expert, Police Surgeon Dominic Belmonte, an occupational physician, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming employment as a police officer. The application was rejected by PFRS and the City appealed.
The Appellate Division, with Judge Mikoll dissenting, sustained the System's disapproval of the City's application to have Coker retired for work-related disability. The Court said that the System's determination "is supported by substantial evidence, even though there is other evidence that would support a contrary result."
However, the PFRS' determination may have triggered another provision of the General Municipal Law, Section 207-c.3. Section 207-c.3 provides that if a police officer is not eligible for or not granted an accidental disability retirement allowance, he or she may be required to perform "light duty ... consistent with his [or her] status as a policeman" if found medically qualified to perform such duties. If the police officer refuses to perform such light or modified duty, Section 207-c payments "shall be discontinued." As PFRS has found Coker is not "permanently disabled," the City could have Coker evaluated by its medical experts to determine whether he is able to perform "light police duties."
Another alternative: the City could, if Coker agrees, transfer him to a position with another City agency or department [see Section 207-c.4, General Municipal Law] if he meets the civil service qualifications for the position to which the transfer is to be made.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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City of Schenectady v McCall, AD 3rd Dept., 245 A.D.2d 708
The City of Schenectady filed an application for accidental disability benefits for one of its police officers, Kevin J. Coker, with the New York State and Local Policemens' and Firemens' Retirement System [PFRS]. It claimed that Coker had sustained at least four neck and back injuries while on duty. Although Coker had returned to duty after each episode, in 1992 he ceased working claiming that the back pain resulting from these accidents permanently incapacitated him.
Section 207-c.2 of the General Municipal Law authorizes the filing of an application for accidental disability retirement on behalf of a disabled police officer if the officer does not elect to do so.
PFRS' medical expert, Neurologist Neil Lava, testified that Coker was not "permanently incapacitated" and that there was no medical explanation for Coker's complaints of pain and a limited range of motion. The City's medical expert, Police Surgeon Dominic Belmonte, an occupational physician, testified that Coker was disabled from an orthopedic point of view and permanently disabled from resuming employment as a police officer. The application was rejected by PFRS and the City appealed.
The Appellate Division, with Judge Mikoll dissenting, sustained the System's disapproval of the City's application to have Coker retired for work-related disability. The Court said that the System's determination "is supported by substantial evidence, even though there is other evidence that would support a contrary result."
However, the PFRS' determination may have triggered another provision of the General Municipal Law, Section 207-c.3. Section 207-c.3 provides that if a police officer is not eligible for or not granted an accidental disability retirement allowance, he or she may be required to perform "light duty ... consistent with his [or her] status as a policeman" if found medically qualified to perform such duties. If the police officer refuses to perform such light or modified duty, Section 207-c payments "shall be discontinued." As PFRS has found Coker is not "permanently disabled," the City could have Coker evaluated by its medical experts to determine whether he is able to perform "light police duties."
Another alternative: the City could, if Coker agrees, transfer him to a position with another City agency or department [see Section 207-c.4, General Municipal Law] if he meets the civil service qualifications for the position to which the transfer is to be made.
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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Determining seniority for tenure purposes
Determining seniority for tenure purposes
Kaufman v Fallsburg CSD, Court of Appeals, 91 NY2d 57
Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In the Kaufman case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by the Fallsburg Central School District.
Two teachers, Forman and Kaufman, were both appointed to the elementary tenure area on September 1, 1992. Forman had been given a probationary appointment in the special education tenure area in November 1990 but in the 1991-92 academic year she was assigned to teach sixth grade subjects to mixed classes consisting of regular education students and six learning-disabled special needs students. On September 1, 1992, the District additionally appointed Foreman to the elementary tenure area, and assigned her to teach fourth grade.
Kaufman, who had prior service in the District as a substitute teacher, also received a probationary appointment in the elementary tenure area on September 1, 1992. Kaufman then took over the instruction of Foreman's sixth grade class.
Effective June 30, 1994, the District abolished four elementary education positions. Kaufman was excessed when the District determined that she had the least seniority in the elementary tenure area. Kaufman sued, contending that she was entitled to additional credit in the elementary tenure area for the two months she taught as a regular substitute elementary teacher during the 1991-1992 school year and thus had greater seniority in the elementary tenure area than did Foreman.
While the District conceded that Kaufman was entitled to the two months of additional credit as she claimed, it said it had also recalculated Foreman's seniority and concluded that she was entitled to additional credit in the elementary tenure area for the entire 1991-1992 school year during which she taught the mixed sixth grade class of regular education and special needs students. This, the District argued, meant that Foreman still remained senior to Kaufman in the elementary tenure area.
Kaufman challenged this, contending that: (1) The facts in the record did not establish that Foreman served in the elementary tenure area during the 1991-1992 school year; and (2) the District did not have any authority to grant Foreman seniority credit in the elementary tenure area as of September 1991 because the District (a) failed to expressly notify Foreman that her assignment for the 1991-1992 school year was outside her initial special education appointment, and (b) it had not obtained Foreman's prior written consent to that out-of-tenure area assignment.
These omissions, Kaufman contended, barred the District from retroactively crediting Foreman with elementary tenure area seniority for her service during the 1991-1992 school year. A New York State Supreme Court justice disagreed, reasoning that accepting Kaufman's theory would penalize teachers for school district mistakes by depriving them of credit to which they would have been entitled but for the school district's error. The Appellate Division concurred with the Supreme Court's analysis and affirmed the lower court's ruling (234 AD2d 698).
The Court of Appeals agreed, dismissing Kaufman's appeal. It said that the lower courts "correctly concluded that there was a sound factual basis for the District's determination that Foreman devoted a substantial portion of her time during the 1991-1992 school year to teaching in the elementary tenure area." The Court said that the record contains "ample evidence to support the District's finding that Foreman devoted over 40% of her time to teaching the "common branch subjects" of reading, science, arithmetic and language arts to her sixth grade students."*
The Court also held that the fact that some of her sixth-graders were learning-disabled special needs students "does not, under these circumstances, compel a different conclusion and thus Foreman was entitled to seniority credit in the elementary tenure area for her service during the 1991-1992 school year."
What about the District's failure to comply with the notice provisions set out in 8 NYCRR 30.9(b)? Shouldn't this prevent the District from giving Foreman retroactive elementary area seniority credit for the 1991-1992 sixth-grade assignment?
The Court of Appeals said that "concededly, Foreman was not formally notified that her assignment to teach sixth grade in 1991-1992 was out of her original tenure area, and her consent was not obtained." More important, said the Court, 8 NYCRR 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors," citing Ricca v Board of Education., 47 NY2d 385, 391.
Finding that the underlying purpose of 8 NYCRR 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area, the Court said that the regulation has a two-fold protective purpose: (1) it protects teachers from being required to accept assignments outside of their designated tenure areas involuntarily; and (2) it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments.
The Court of Appeals concluded that 8 NYCRR 30.9(b) was intended, and has been consistently construed administratively, as a safeguard for teachers who are assigned (either involuntarily or without their knowledge) outside of their designated tenure areas. Accordingly, the provision should not be interpreted to prevent a teacher from knowingly and voluntarily waiving that section's consent requirement when strict application of the regulation would itself impose adverse consequences upon the teacher.
* 8 NYCRR 30.1[g] provides that a "substantial portion" of the teacher's time "means 40 percent or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Kaufman v Fallsburg CSD, Court of Appeals, 91 NY2d 57
Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In the Kaufman case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by the Fallsburg Central School District.
Two teachers, Forman and Kaufman, were both appointed to the elementary tenure area on September 1, 1992. Forman had been given a probationary appointment in the special education tenure area in November 1990 but in the 1991-92 academic year she was assigned to teach sixth grade subjects to mixed classes consisting of regular education students and six learning-disabled special needs students. On September 1, 1992, the District additionally appointed Foreman to the elementary tenure area, and assigned her to teach fourth grade.
Kaufman, who had prior service in the District as a substitute teacher, also received a probationary appointment in the elementary tenure area on September 1, 1992. Kaufman then took over the instruction of Foreman's sixth grade class.
Effective June 30, 1994, the District abolished four elementary education positions. Kaufman was excessed when the District determined that she had the least seniority in the elementary tenure area. Kaufman sued, contending that she was entitled to additional credit in the elementary tenure area for the two months she taught as a regular substitute elementary teacher during the 1991-1992 school year and thus had greater seniority in the elementary tenure area than did Foreman.
While the District conceded that Kaufman was entitled to the two months of additional credit as she claimed, it said it had also recalculated Foreman's seniority and concluded that she was entitled to additional credit in the elementary tenure area for the entire 1991-1992 school year during which she taught the mixed sixth grade class of regular education and special needs students. This, the District argued, meant that Foreman still remained senior to Kaufman in the elementary tenure area.
Kaufman challenged this, contending that: (1) The facts in the record did not establish that Foreman served in the elementary tenure area during the 1991-1992 school year; and (2) the District did not have any authority to grant Foreman seniority credit in the elementary tenure area as of September 1991 because the District (a) failed to expressly notify Foreman that her assignment for the 1991-1992 school year was outside her initial special education appointment, and (b) it had not obtained Foreman's prior written consent to that out-of-tenure area assignment.
These omissions, Kaufman contended, barred the District from retroactively crediting Foreman with elementary tenure area seniority for her service during the 1991-1992 school year. A New York State Supreme Court justice disagreed, reasoning that accepting Kaufman's theory would penalize teachers for school district mistakes by depriving them of credit to which they would have been entitled but for the school district's error. The Appellate Division concurred with the Supreme Court's analysis and affirmed the lower court's ruling (234 AD2d 698).
The Court of Appeals agreed, dismissing Kaufman's appeal. It said that the lower courts "correctly concluded that there was a sound factual basis for the District's determination that Foreman devoted a substantial portion of her time during the 1991-1992 school year to teaching in the elementary tenure area." The Court said that the record contains "ample evidence to support the District's finding that Foreman devoted over 40% of her time to teaching the "common branch subjects" of reading, science, arithmetic and language arts to her sixth grade students."*
The Court also held that the fact that some of her sixth-graders were learning-disabled special needs students "does not, under these circumstances, compel a different conclusion and thus Foreman was entitled to seniority credit in the elementary tenure area for her service during the 1991-1992 school year."
What about the District's failure to comply with the notice provisions set out in 8 NYCRR 30.9(b)? Shouldn't this prevent the District from giving Foreman retroactive elementary area seniority credit for the 1991-1992 sixth-grade assignment?
The Court of Appeals said that "concededly, Foreman was not formally notified that her assignment to teach sixth grade in 1991-1992 was out of her original tenure area, and her consent was not obtained." More important, said the Court, 8 NYCRR 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors," citing Ricca v Board of Education., 47 NY2d 385, 391.
Finding that the underlying purpose of 8 NYCRR 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area, the Court said that the regulation has a two-fold protective purpose: (1) it protects teachers from being required to accept assignments outside of their designated tenure areas involuntarily; and (2) it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments.
The Court of Appeals concluded that 8 NYCRR 30.9(b) was intended, and has been consistently construed administratively, as a safeguard for teachers who are assigned (either involuntarily or without their knowledge) outside of their designated tenure areas. Accordingly, the provision should not be interpreted to prevent a teacher from knowingly and voluntarily waiving that section's consent requirement when strict application of the regulation would itself impose adverse consequences upon the teacher.
* 8 NYCRR 30.1[g] provides that a "substantial portion" of the teacher's time "means 40 percent or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Terminating an interim appointee
Terminating an interim appointee
Amnawah v NYC Bd. of Education, 266 AD2d 455
Linda Amnawah, an interim-acting “Special Education Review Specialist,” was terminated from her position by the New York City Board of Education.. She sued, seeking reinstatement to her former position. A State Supreme Court justice dismissed her petition.
In affirming the lower court’s determination, the Appellate Division quickly disposed of Amnawah appeal, commenting that because she was a “non-tenured, interim-acting employee,” the board of education could terminate her employment without any statement of reasons, provided that the termination was not made in bad faith or for impermissible reasons.
The court said that while Amnawah had the burden of proving that her termination was made in bad faith or was for an impermissible reason she only offered “conclusory, unsupported, and irrelevant arguments” to this end. Thus, said the court, Amnawah failed to sustain her evidentiary burden and dismissed her appeal.
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Amnawah v NYC Bd. of Education, 266 AD2d 455
Linda Amnawah, an interim-acting “Special Education Review Specialist,” was terminated from her position by the New York City Board of Education.. She sued, seeking reinstatement to her former position. A State Supreme Court justice dismissed her petition.
In affirming the lower court’s determination, the Appellate Division quickly disposed of Amnawah appeal, commenting that because she was a “non-tenured, interim-acting employee,” the board of education could terminate her employment without any statement of reasons, provided that the termination was not made in bad faith or for impermissible reasons.
The court said that while Amnawah had the burden of proving that her termination was made in bad faith or was for an impermissible reason she only offered “conclusory, unsupported, and irrelevant arguments” to this end. Thus, said the court, Amnawah failed to sustain her evidentiary burden and dismissed her appeal.
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Rescinding a letter of retirement
Rescinding a letter of retirementElmira CSD v Newcomb, 266 AD2d 622, Motion for leave to appeal dismissed, 94 NY2d 899
Among the basic general rules applicable to resignation from public service are the following:
1. An individual may rescind his or her letter resignation prior to its delivery to the appropriate authority.
2. The letter of resignation is effective upon delivery to the appointing authority unless an “approval” or “acceptance” of the resignation is mandated by law or a provision in a collective bargaining agreement.
3. Once delivered, the individual cannot withdraw or rescind his or her resignation without the approval of the appointing authority.
4. An appointing authority may elect to ignore a resignation and proceed with disciplinary action against the individual.
Do the same rules apply in cases involving an individual’s submission of a letter indicating his or her intent to retire? In the Newcomb case, the Appellate Division considered the effort of an individual to rescind his notice of his intention to retire.
James E. Newcomb, a tenured guidance counselor employed by the Elmira City School District, told the district that he could not return to his position due to “medical problems.” He was absent for practically all of the Fall 1997 semester.
Eventually Newcomb and the district entered into a “settlement agreement” in lieu of district’s pursuing disciplinary action against Newcomb. Under the terms of the settlement Newcomb agreed to submit his “written notice of retirement,” to take effect February 1, 1998. The district agreed to keep Newcomb on the payroll from December 11, 1997 until January 31, 1998. Newcomb submitted his “retirement letter” in December 1997. For its part, the district continued Newcomb on the payroll.
However, in January 1998 Newcomb sent the district a second letter rescinding his December 1997 letter of retirement. This second letter was delivered to the district before Board of Education had taken formal action on Newcomb’s December retirement letter. The board voted to disregard Newcomb’s attempt to rescind his letter of retirement unless he (1) returned “the previously paid leave funds” and (2) “presented medical documentation certifying his ability to work.” Newcomb failed to comply with either of these conditions and ultimately was deemed “retired” and terminated from the payroll.
When Newcomb sued to void the board action and to reclaim his position, the district countered with a petition asking the court to rule that Newcomb “had no right to unilaterally rescind his retirement letter and that his retirement was effective February 1, 1998.” The district argued that it had acted in reliance of the settlement agreed to by the parties in lieu of its bringing disciplinary action against Newcomb, pursuant to which Newcomb agreed to retire, when it continued him on the payroll as agreed and had hired his replacement. The Supreme Court justice denied Newcomb’s motion for summary judgment and he appealed.
Newcomb’s basic argument:
This is a simple rescission before acceptance case, i.e., I rescinded my retirement letter prior to its acceptance by the Board and thus the district had no authority to terminate my employment.
The district position:
Newcomb’s letter of retirement was not a unilateral act on his part but rather reflected a settlement agreement between the parties and therefore it was not obligated to honor the letter Newcomb submitted in a unilateral effort to rescind his retirement letter.
The Appellate Division commenced its analysis be noting that “authority exists to support the general proposition that a retirement letter may be withdrawn prior to a legally binding acceptance by a board of education,” citing a number of court decision and rulings by the Commissioner of Education. This, according to the ruling, means that although submitting a notice of an intention to retire simultaneously implies a “resignation” from one’s position, delivery of the “retirement letter” is not the operative factor; the appointing authority must take some action to “finalize it.”
The Appellate Division, however, concluded that there were questions of fact that barred the application of this general principle -- a retirement letter must be formally acted upon to be effective -- at this stage of the litigation. Among the issues of fact to be resolved:
1. Was Newcomb’s retirement letter, submitted in compliance with a settlement of a disciplinary action, essentially a term or condition of the settlement and thus he could not unilaterally rescind it notwithstanding the fact that the board had not formally acted on his retirement letter; and, if not,
2. Was the absence of a formal acceptance by the Board fatal in view of the fact that it had indicated its acceptance of the settlement by continuing Newcomb on the payroll and recruiting his replacement?
The Appellate Division, ruling that the Supreme Court was correct in denying Newcomb’s motion for summary judgment, returned the matter to Supreme Court for its consideration of these issues.
.
Among the basic general rules applicable to resignation from public service are the following:
1. An individual may rescind his or her letter resignation prior to its delivery to the appropriate authority.
2. The letter of resignation is effective upon delivery to the appointing authority unless an “approval” or “acceptance” of the resignation is mandated by law or a provision in a collective bargaining agreement.
3. Once delivered, the individual cannot withdraw or rescind his or her resignation without the approval of the appointing authority.
4. An appointing authority may elect to ignore a resignation and proceed with disciplinary action against the individual.
Do the same rules apply in cases involving an individual’s submission of a letter indicating his or her intent to retire? In the Newcomb case, the Appellate Division considered the effort of an individual to rescind his notice of his intention to retire.
James E. Newcomb, a tenured guidance counselor employed by the Elmira City School District, told the district that he could not return to his position due to “medical problems.” He was absent for practically all of the Fall 1997 semester.
Eventually Newcomb and the district entered into a “settlement agreement” in lieu of district’s pursuing disciplinary action against Newcomb. Under the terms of the settlement Newcomb agreed to submit his “written notice of retirement,” to take effect February 1, 1998. The district agreed to keep Newcomb on the payroll from December 11, 1997 until January 31, 1998. Newcomb submitted his “retirement letter” in December 1997. For its part, the district continued Newcomb on the payroll.
However, in January 1998 Newcomb sent the district a second letter rescinding his December 1997 letter of retirement. This second letter was delivered to the district before Board of Education had taken formal action on Newcomb’s December retirement letter. The board voted to disregard Newcomb’s attempt to rescind his letter of retirement unless he (1) returned “the previously paid leave funds” and (2) “presented medical documentation certifying his ability to work.” Newcomb failed to comply with either of these conditions and ultimately was deemed “retired” and terminated from the payroll.
When Newcomb sued to void the board action and to reclaim his position, the district countered with a petition asking the court to rule that Newcomb “had no right to unilaterally rescind his retirement letter and that his retirement was effective February 1, 1998.” The district argued that it had acted in reliance of the settlement agreed to by the parties in lieu of its bringing disciplinary action against Newcomb, pursuant to which Newcomb agreed to retire, when it continued him on the payroll as agreed and had hired his replacement. The Supreme Court justice denied Newcomb’s motion for summary judgment and he appealed.
Newcomb’s basic argument:
This is a simple rescission before acceptance case, i.e., I rescinded my retirement letter prior to its acceptance by the Board and thus the district had no authority to terminate my employment.
The district position:
Newcomb’s letter of retirement was not a unilateral act on his part but rather reflected a settlement agreement between the parties and therefore it was not obligated to honor the letter Newcomb submitted in a unilateral effort to rescind his retirement letter.
The Appellate Division commenced its analysis be noting that “authority exists to support the general proposition that a retirement letter may be withdrawn prior to a legally binding acceptance by a board of education,” citing a number of court decision and rulings by the Commissioner of Education. This, according to the ruling, means that although submitting a notice of an intention to retire simultaneously implies a “resignation” from one’s position, delivery of the “retirement letter” is not the operative factor; the appointing authority must take some action to “finalize it.”
The Appellate Division, however, concluded that there were questions of fact that barred the application of this general principle -- a retirement letter must be formally acted upon to be effective -- at this stage of the litigation. Among the issues of fact to be resolved:
1. Was Newcomb’s retirement letter, submitted in compliance with a settlement of a disciplinary action, essentially a term or condition of the settlement and thus he could not unilaterally rescind it notwithstanding the fact that the board had not formally acted on his retirement letter; and, if not,
2. Was the absence of a formal acceptance by the Board fatal in view of the fact that it had indicated its acceptance of the settlement by continuing Newcomb on the payroll and recruiting his replacement?
The Appellate Division, ruling that the Supreme Court was correct in denying Newcomb’s motion for summary judgment, returned the matter to Supreme Court for its consideration of these issues.
.
Provisional appointee covered by the State’s “Whistle Blower Law”
Provisional appointee covered by the State’s “Whistle Blower Law”
Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858
The fact that an individual is a provisional employee does not necessarily mean that the individual cannot challenge his or her dismissal in court. For example, the individual may allege that he or she was discharged for “whistle blowing.” In such a case, the individual has a statutory right to sue his or her former employer. The Sisson decision illustrates this.
Dismissed from his provisional appointment with the Niagara County Department of Mental Health, Joseph A. Sisson sued. Although a State Supreme Court justice summarily dismissed his petition, the Appellate Division reversed and said that the matter should go to trial.
Sisson alleged that “he was terminated from his public employment in violation of Civil Service Law Section 75-b, commonly referred to as the ‘whistleblower’s law’, and that he was terminated in bad faith.”
It is well settled that a provisional employee may be “discharged at will” after completing the minimum period of probation and before the end of his or her maximum period of probation unless there was evidence that his or her termination “was for a constitutionally impermissible purpose or in violation of statutory or decisional law.” The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal for any alleged “whistle blowing.”
Section 75-b defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”
According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior, Antoinette Lech, acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Lech]” and thus neither Lech nor the department were entitled to summary judgment.
.
Sisson v Lech, App. Div., 4th Dept., 266 AD2d 858
The fact that an individual is a provisional employee does not necessarily mean that the individual cannot challenge his or her dismissal in court. For example, the individual may allege that he or she was discharged for “whistle blowing.” In such a case, the individual has a statutory right to sue his or her former employer. The Sisson decision illustrates this.
Dismissed from his provisional appointment with the Niagara County Department of Mental Health, Joseph A. Sisson sued. Although a State Supreme Court justice summarily dismissed his petition, the Appellate Division reversed and said that the matter should go to trial.
Sisson alleged that “he was terminated from his public employment in violation of Civil Service Law Section 75-b, commonly referred to as the ‘whistleblower’s law’, and that he was terminated in bad faith.”
It is well settled that a provisional employee may be “discharged at will” after completing the minimum period of probation and before the end of his or her maximum period of probation unless there was evidence that his or her termination “was for a constitutionally impermissible purpose or in violation of statutory or decisional law.” The Appellate Division concluded that Sisson, although a provisional appointee, was covered by Section 75-b and thus he had a statutory right to challenge his dismissal for any alleged “whistle blowing.”
Section 75-b defines the term “public employee” as any person holding a position by appointment or employment in the service of a public employer except judges and members of the legislature. It also provides that where the employee is not entitled to due process pursuant to Section 75 or a similar provision of law, or a disciplinary procedure negotiated pursuant to the Taylor Law, the individual may sue under the same terms and conditions as set out in Article 20-C of the Labor Law. Thus, Section 75-b covers all public employees, not just those “tenured.”
According to the Appellate Division, Sisson presented evidence that his termination was related to the fact that “he reported to the Community Service Board that his superior, Antoinette Lech, acted in an improper manner with respect to him and two other employees” to the lower court. Viewing this evidence in the light most favorable to Sisson, the court concluded that there was a “rational basis whereby [a] jury might find for [Sisson] as against [Lech]” and thus neither Lech nor the department were entitled to summary judgment.
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Sep 22, 2010
An entertaining example of enforcing administrative law
An entertaining example of enforcing administrative law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
"Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air September 20, 2010", posted on the International Municipal Lawyers Association - Local Government Blog by Dwight Merriam (Robinson & Cole, LLP, Hartford, CT):
DeKalb County, Georgia, can teach us all something about zoning enforcement.
The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone. Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.
Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale? ...
EMM
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Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
"Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air September 20, 2010", posted on the International Municipal Lawyers Association - Local Government Blog by Dwight Merriam (Robinson & Cole, LLP, Hartford, CT):
DeKalb County, Georgia, can teach us all something about zoning enforcement.
The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone. Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.
Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale? ...
EMM
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Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing
Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing
Ozol v Center Moriches UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to an Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.
Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:
1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and
2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.
A copy of the letter was placed in Ozol's personnel file.
According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.
The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future."
In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.
The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.
The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."
The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."
The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.
Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.
Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.
In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.
Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.
Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.
Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.
Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.
.
Ozol v Center Moriches UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to an Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.
Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:
1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and
2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.
A copy of the letter was placed in Ozol's personnel file.
According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.
The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future."
In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.
The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.
The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."
The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."
The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.
Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.
Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.
In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.
Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.
Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.
Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.
Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.
.
Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813
Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.
Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.
The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.
The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"
The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.
The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.
Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
...
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813
Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.
Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.
The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.
The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"
The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.
The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.
Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
...
An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
Public Employees Federation and New York, 30 PERB 3045
Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.
New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.
PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.
However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.
PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."
The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.
PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
.
Public Employees Federation and New York, 30 PERB 3045
Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.
New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.
PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.
However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.
PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."
The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.
PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
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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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