Liability for line of duty injuries
Gonzalez v Iocovello, Appellate Division, 249 AD2d 143, Ct. of Appeals, 93 NY2d 539
The so-called “firefighter’s rule” refers to the strict limits that the courts have placed on the ability of police officers and firefighters to sue co-workers or others for injuries suffered in the line of duty, even if negligence was involved. One notable decision is Santangelo v New York State, 71 NY2d 393, in which the Court of Appeals -- the state’s highest court -- said the firefighter’s rule barred a police officer from suing a co-worker for injuries the officer suffered in the line of duty.
The legislature responded to the Santangelo ruling by enacting Section 205-e of the General Municipal Law in 1989 to nullify it. Essentially, Section 205-e allows a police officer to sue a co-worker and, or, the employer in cases where the defendant’s violation of a law, rule or regulation caused the police officer’s or firefighter’s line of duty injury.*
The ability of police officers to sue, and win damages, when the violation of a law by a fellow officer caused the injury was confirmed by the Court of Appeals in the Gonzalez decision. The case involved New York City police officer Maria C. Gonzalez, who suffered a permanent line of duty injury when the patrol car in which she was a passenger drove through a red light while responding to a “burglary in progress” call and was struck by another vehicle.
Gonzalez sued the city, claiming that she had been injured in the line of duty because her partner violated the Vehicle and Traffic Law. The city, on the other hand, contended that Gonzalez could not sue it on the theory that she suffered the injury as a result of her partner’s violation of a law. But the Court of Appeals disagreed and let her $3,300,000 jury award stand. Finding that there was nothing in Section 205-e to prevent Gonzalez from suing, the court commented that if the legislature had intended to bar such lawsuits, it “could have easily” done so in view of the several amendments to Section 205-e it had enacted.
The decision states that a violation of the Vehicle and Traffic Law is a valid basis for a claim under Section 205-e. The court pointed out that although Section 1104(e) of the V&T Law “allows emergency vehicles to run stoplights and violate other traffic laws in emergency situations,” the emergency vehicle driver is liable for his or her “reckless disregard for the safety of others.’”
In another case decided at the same time, Cosgriff v City of New York, 93 NY2d 539, the Court of Appeals ruled that the city’s failure to keep its sidewalks in “safe repair” violated the City’s Charter and its Administrative Code and thus it could be sued pursuant to Section 205-e by a police officer who tripped on a defective sidewalk while chasing a drug dealer.
* The General Obligations Law allows lawuits by police officers and firefighters injured by the negligence or intentional conduct of any person, except an employer or co-employee (Chapter 703, Laws of 1996). The Court of Appeals said that “[t]he inclusion of the explicit exception in General Obligations Law Section 11-106 magnifies its absence in General Municipal Law Section 205-e,” especially since Section 205-e was amended by the same Chapter 703.
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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.
Oct 15, 2010
Rating the oral test performance by applicants in a civil service examination to be based on objective standards
Rating the oral test performance by applicants in a civil service examination to be based on objective standards
Merlino v Schneider, Ct. of Appeals, 93 NY2d 477
Oral tests are sometimes included as part of the examination for appointment and promotion in the public service. The Merlino case sets out the basic standard used by the courts in reviewing appeals challenging the candidate’s oral test score.
Carmen Merlino challenged her oral test score for an examination for language proficiency. The Court of Appeals held that Merlin’s test results were based on “objective standards,” commenting that the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated. Essentially, courts require oral tests to provide a reviewable record and an objective rating scheme to pass judicial scrutiny.
The court said that in this instance:
The oral language exam tested grammar, pronunciation, and vocabulary in the context of a 15-minute extemporaneous conversation. These qualities cannot be measured solely by objective criteria. Although some subjective elements, of necessity, entered into the evaluation, the fact that a subjective element may have been involved to some degree in petitioner's rating is not sufficient in and of itself to invalidate the Department's ultimate determination: "The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.”
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Merlino v Schneider, Ct. of Appeals, 93 NY2d 477
Oral tests are sometimes included as part of the examination for appointment and promotion in the public service. The Merlino case sets out the basic standard used by the courts in reviewing appeals challenging the candidate’s oral test score.
Carmen Merlino challenged her oral test score for an examination for language proficiency. The Court of Appeals held that Merlin’s test results were based on “objective standards,” commenting that the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated. Essentially, courts require oral tests to provide a reviewable record and an objective rating scheme to pass judicial scrutiny.
The court said that in this instance:
The oral language exam tested grammar, pronunciation, and vocabulary in the context of a 15-minute extemporaneous conversation. These qualities cannot be measured solely by objective criteria. Although some subjective elements, of necessity, entered into the evaluation, the fact that a subjective element may have been involved to some degree in petitioner's rating is not sufficient in and of itself to invalidate the Department's ultimate determination: "The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.”
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Overtime and the Fair Labor Standards Act
Overtime and the Fair Labor Standards Act
Alden v Maine, US Supreme Court, 527 U.S. 706
The question of the enforceability of the Fair Labor Standards Act’s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years.
In Alden v Maine the U.S. Supreme Court held that federal courts do not have jurisdiction to adjudicate alleged FLSA violations insofar as states are concerned, nor does a state court have jurisdiction to consider a state’s alleged FLSA violations without the consent of the state. Why? Because the 11th Amendment, which provides states with sovereign immunity, bars such lawsuits in federal court.
In the words of the High Court, “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.
However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].
In Mueller, where Wisconsin was the employer, the court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.” Wisconsin had incorporated FLSA into state law in 1971. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions. The 7th Circuit concluded that “on this legislative history” Wisconsin had not waived its 11th Amendment immunity because it adopted a state FLSA prior to 1974. Does this mean that payment for overtime is no longer required to be paid to employees of New York State? No, for a number of reasons.
Section 134 of the Civil Service Law provides for the payment of overtime at “time and one-half” to eligible state workers. Alleged violations of Section 134 - a state law - may be tested in state court. In addition, collective bargaining agreements negotiated pursuant to the Taylor Law may require payment for overtime. Violation of such types of provisions are typically subject to contract grievance arbitration procedures.
What about suing a political subdivision of a state for alleged violations of FLSA in federal court? According to the Alden ruling there is an “important limit” to the principle of sovereign immunity barring suits against States -- the immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.
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Alden v Maine, US Supreme Court, 527 U.S. 706
The question of the enforceability of the Fair Labor Standards Act’s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years.
In Alden v Maine the U.S. Supreme Court held that federal courts do not have jurisdiction to adjudicate alleged FLSA violations insofar as states are concerned, nor does a state court have jurisdiction to consider a state’s alleged FLSA violations without the consent of the state. Why? Because the 11th Amendment, which provides states with sovereign immunity, bars such lawsuits in federal court.
In the words of the High Court, “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.
However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].
In Mueller, where Wisconsin was the employer, the court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.” Wisconsin had incorporated FLSA into state law in 1971. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions. The 7th Circuit concluded that “on this legislative history” Wisconsin had not waived its 11th Amendment immunity because it adopted a state FLSA prior to 1974. Does this mean that payment for overtime is no longer required to be paid to employees of New York State? No, for a number of reasons.
Section 134 of the Civil Service Law provides for the payment of overtime at “time and one-half” to eligible state workers. Alleged violations of Section 134 - a state law - may be tested in state court. In addition, collective bargaining agreements negotiated pursuant to the Taylor Law may require payment for overtime. Violation of such types of provisions are typically subject to contract grievance arbitration procedures.
What about suing a political subdivision of a state for alleged violations of FLSA in federal court? According to the Alden ruling there is an “important limit” to the principle of sovereign immunity barring suits against States -- the immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.
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The employee organization's duty of fair representation
The employee organization's duty of fair representation
Pietraszewski and CSEA Local 1000, 32 PERB 3019
Does a union’s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr. when he filed an improper practice charge against CSEA Local 1000.
CSEA Local 1000 declined to represent Pietraszewski in his age discrimination lawsuit against the state. It also refused to reimburse him for the fees he paid to a private attorney whom he retained to represent him in that lawsuit.
Contending that CSEA’s actions violated its duty of fair representation, Pietraszewski filed improper practice charges against CSEA with PERB.
CSEA told PERB that it decided not to provide Pietraszewski with legal assistance or financial support in his lawsuit because, after reviewing his allegations, it believed that his case was “not sufficiently meritorious for CSEA to take it on.”
PERB dismissed Pietraszewski’s complaint, commenting that a union enjoys “wide latitude” with respect to the investigation and prosecution of contract grievances. In other words, the union can exercise its discretion with respect to filing the grievance or prosecuting the grievance beyond a particular step in the grievance procedure.
This same “wide latitude,” said PERB, is equally applicable with respect to a union’s decision regarding its providing legal services concerning matters arising outside the collective bargaining agreement.
PERB found that CSEA had made its decision in good faith, commenting that even if CSEA were in error regarding the merits of Pietraszewski’s age discrimination allegations, that judgmental mistake would not constitute a breach of its duty of fair representation.
According to the ruling, having properly denied Pietraszewski’s request for representation, CSEA was not required reimburse him for his attorney’s fees and other expenses he may have incurred in pursuing the litigation he initiated.
In another case duty of fair representation case, Brignoni and Council 82, 32 PERB 3020, PERB said that settling a grievance under terms that may adversely affect some, but not other, unit members does not support a finding that the employee organization violated its duty of fair representation without evidence of arbitrary or discriminatory action or bad faith on the part of the employee organization, citing United University Professionals, 22 PERB 3013.
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Pietraszewski and CSEA Local 1000, 32 PERB 3019
Does a union’s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr. when he filed an improper practice charge against CSEA Local 1000.
CSEA Local 1000 declined to represent Pietraszewski in his age discrimination lawsuit against the state. It also refused to reimburse him for the fees he paid to a private attorney whom he retained to represent him in that lawsuit.
Contending that CSEA’s actions violated its duty of fair representation, Pietraszewski filed improper practice charges against CSEA with PERB.
CSEA told PERB that it decided not to provide Pietraszewski with legal assistance or financial support in his lawsuit because, after reviewing his allegations, it believed that his case was “not sufficiently meritorious for CSEA to take it on.”
PERB dismissed Pietraszewski’s complaint, commenting that a union enjoys “wide latitude” with respect to the investigation and prosecution of contract grievances. In other words, the union can exercise its discretion with respect to filing the grievance or prosecuting the grievance beyond a particular step in the grievance procedure.
This same “wide latitude,” said PERB, is equally applicable with respect to a union’s decision regarding its providing legal services concerning matters arising outside the collective bargaining agreement.
PERB found that CSEA had made its decision in good faith, commenting that even if CSEA were in error regarding the merits of Pietraszewski’s age discrimination allegations, that judgmental mistake would not constitute a breach of its duty of fair representation.
According to the ruling, having properly denied Pietraszewski’s request for representation, CSEA was not required reimburse him for his attorney’s fees and other expenses he may have incurred in pursuing the litigation he initiated.
In another case duty of fair representation case, Brignoni and Council 82, 32 PERB 3020, PERB said that settling a grievance under terms that may adversely affect some, but not other, unit members does not support a finding that the employee organization violated its duty of fair representation without evidence of arbitrary or discriminatory action or bad faith on the part of the employee organization, citing United University Professionals, 22 PERB 3013.
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Accidental disability retirement
Accidental disability retirement
Bloom v City of New York, NYS Supreme Court, 7/99, Justice Braun [Not selected for publication in the Official Reports]
Bloom, a guidance counselor for the New York City School District, filed a grievance contending that she was disabled as a result of her inhaling toxic substances that arose from construction, repairs, and renovation of her school. Former New York City Board of Education Chancellor Joseph Fernandez sustained her grievance, holding that Bloom had suffered “a line of duty injury.”
But when Bloom filed an accidental disability retirement application with the New York City Teachers’ Retirement System [TRS], TRS held that her injuries were not causally related to the alleged exposure to construction materials and rejected her application. TRS’ decision was upheld by the courts (Bloom v TRS, 233 AD2d 254, dismissed in part and denied in part, 90 NY2d 838.
Bloom then sued the district and the City for “a personal injury,” negligence and reckless conduct. The board of education moved for summary judgment, arguing that TRS’s determination “has a collateral estoppel effect.”
Bloom, also relying on “collateral estoppel,” asked the court for summary judgment based on the favorable grievance determination by the Chancellor, contending that the Chancellor’s determination constituted an admission of the district’s liability.
As to the board’s claim of collateral estoppel, the court explained that Bloom had “voluntarily chose to participate in the adjudicative resolution process of TRS by applying for benefits, and thus she may fairly be collaterally estopped by the TRS determination.”
With respect to Bloom’s argument, the court said that the Chancellor’s acknowledgement of the causal connection in the grievance adjudication normally would be a binding admission against the board.
Justice Braun said that although “... a quasi-judicial agency determination can have a collateral estoppel effect” that would bar further litigation; here there are “two conflicting decisions.” Therefore, the court concluded, “logically they must be held to cancel out each other.”
Since there is a significant issue of fact exists as to whether the actions and inactions of board was the proximate cause of Bloom’s injuries, granting summary judgment to either Bloom or the board would not be appropriate.
Accordingly, a trial was required.
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Bloom v City of New York, NYS Supreme Court, 7/99, Justice Braun [Not selected for publication in the Official Reports]
Bloom, a guidance counselor for the New York City School District, filed a grievance contending that she was disabled as a result of her inhaling toxic substances that arose from construction, repairs, and renovation of her school. Former New York City Board of Education Chancellor Joseph Fernandez sustained her grievance, holding that Bloom had suffered “a line of duty injury.”
But when Bloom filed an accidental disability retirement application with the New York City Teachers’ Retirement System [TRS], TRS held that her injuries were not causally related to the alleged exposure to construction materials and rejected her application. TRS’ decision was upheld by the courts (Bloom v TRS, 233 AD2d 254, dismissed in part and denied in part, 90 NY2d 838.
Bloom then sued the district and the City for “a personal injury,” negligence and reckless conduct. The board of education moved for summary judgment, arguing that TRS’s determination “has a collateral estoppel effect.”
Bloom, also relying on “collateral estoppel,” asked the court for summary judgment based on the favorable grievance determination by the Chancellor, contending that the Chancellor’s determination constituted an admission of the district’s liability.
As to the board’s claim of collateral estoppel, the court explained that Bloom had “voluntarily chose to participate in the adjudicative resolution process of TRS by applying for benefits, and thus she may fairly be collaterally estopped by the TRS determination.”
With respect to Bloom’s argument, the court said that the Chancellor’s acknowledgement of the causal connection in the grievance adjudication normally would be a binding admission against the board.
Justice Braun said that although “... a quasi-judicial agency determination can have a collateral estoppel effect” that would bar further litigation; here there are “two conflicting decisions.” Therefore, the court concluded, “logically they must be held to cancel out each other.”
Since there is a significant issue of fact exists as to whether the actions and inactions of board was the proximate cause of Bloom’s injuries, granting summary judgment to either Bloom or the board would not be appropriate.
Accordingly, a trial was required.
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Union sued for negligence for allegedly providing misinformation concerning retirement benefits
Union sued for negligence for allegedly providing misinformation concerning retirement benefits
Grahame v Rochester Teachers Association, 262 AD2d 963, motion to appeal dismissed, 94 NY2d 796
May a union be sued for alleged negligence with respect to information it provided to a member? This was the question presented by Harriet E. Grahame, as the executrix of the estate of Carole A. Wemett. Grahame is suing the Rochester Teachers Association for negligence, alleging that it provided Wemett with “erroneous information ... regarding her retirement benefits.” The Appellate Division has upheld a State Supreme Court’s refusal to dismiss Grahame’s negligence action.
The association attempted to have the case dismissed because Grahame “failed to allege that the individual members of defendant union ratified the acts of their representative.” The Appellate Division said that it was unnecessary for Grahame to do so as her action against the union is based on the negligence of its agent “in the course of performing an essential activity of the [union].” Also rejected was the association’s argument that Grahame’s complaint “is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems.”
The Appellate Division said that because the collective bargaining agreement does not address employees’ retirement benefits, “the alleged negligent misrepresentation action was not subsumed by the duty of fair representation.”
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Grahame v Rochester Teachers Association, 262 AD2d 963, motion to appeal dismissed, 94 NY2d 796
May a union be sued for alleged negligence with respect to information it provided to a member? This was the question presented by Harriet E. Grahame, as the executrix of the estate of Carole A. Wemett. Grahame is suing the Rochester Teachers Association for negligence, alleging that it provided Wemett with “erroneous information ... regarding her retirement benefits.” The Appellate Division has upheld a State Supreme Court’s refusal to dismiss Grahame’s negligence action.
The association attempted to have the case dismissed because Grahame “failed to allege that the individual members of defendant union ratified the acts of their representative.” The Appellate Division said that it was unnecessary for Grahame to do so as her action against the union is based on the negligence of its agent “in the course of performing an essential activity of the [union].” Also rejected was the association’s argument that Grahame’s complaint “is in essence one for breach of the duty of fair representation but is couched in terms of negligence in order to circumvent the Statute of Limitations and evidentiary problems.”
The Appellate Division said that because the collective bargaining agreement does not address employees’ retirement benefits, “the alleged negligent misrepresentation action was not subsumed by the duty of fair representation.”
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Oct 14, 2010
Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement
Terminated employee’s back pay settlement obviates individual’s claim for unemployment insurance benefits for the period covered by the settlement
Matter of Glick v Commissioner of Labor, 2010 NY Slip Op 07103, decided on October 7, 2010, Appellate Division, Third Department
Joseph Glick was terminated from his position with the Office of Children and Family Services on October 27, 2005. He applied for and received unemployment insurance benefits in the amount of $10,165.50, covering the period from November 2005 through May 2006.
Subsequently Glick sued Children and Family Services alleging wrongful discharge. Ultimately the matter was settled and Glick received $92,317.15 in back pay covering the period between his termination in October 2005 and May 1, 2008.
The Department of Labor then notified Glick that, in light of the settlement, he was no longer entitled to the unemployment insurance benefits he received because he was not totally unemployed "at that time." When Labor Department charged Glick with a recoverable overpayment of unemployment benefits in the amount of $10,165.50, he sued.
The Appellate Division affirmed Labor’s determination, holding that a lump-sum payment of back pay constitutes wages for the purpose of determining benefits and, therefore, the Board's determination that Glick was not totally unemployed and the overpayment was recoverable is supported by substantial evidence.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07103.htm
NYPPL
Matter of Glick v Commissioner of Labor, 2010 NY Slip Op 07103, decided on October 7, 2010, Appellate Division, Third Department
Joseph Glick was terminated from his position with the Office of Children and Family Services on October 27, 2005. He applied for and received unemployment insurance benefits in the amount of $10,165.50, covering the period from November 2005 through May 2006.
Subsequently Glick sued Children and Family Services alleging wrongful discharge. Ultimately the matter was settled and Glick received $92,317.15 in back pay covering the period between his termination in October 2005 and May 1, 2008.
The Department of Labor then notified Glick that, in light of the settlement, he was no longer entitled to the unemployment insurance benefits he received because he was not totally unemployed "at that time." When Labor Department charged Glick with a recoverable overpayment of unemployment benefits in the amount of $10,165.50, he sued.
The Appellate Division affirmed Labor’s determination, holding that a lump-sum payment of back pay constitutes wages for the purpose of determining benefits and, therefore, the Board's determination that Glick was not totally unemployed and the overpayment was recoverable is supported by substantial evidence.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07103.htm
NYPPL
Collateral estoppel
Collateral estoppel
Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542
The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.
The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.
Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”
The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.
Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.
According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.
The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.
The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
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Jaworowski v NYC Transit Authority, 2nd Circuit, 182 F. 3d 900, Cert. denied, 99–542
The doctrine of collateral estoppel prevents a party from relitigating issues previously considered by one forum in a second forum. The doctrine is based on the concept that a party may not relitigate an issue if the identical issue was necessarily decided in a previous proceeding, provided that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action.
The Jaworowski case demonstrates the elements considered by courts when determining whether the doctrine applies in a particular situation with respect to whether or not the identical issue was decided in a previous proceeding or whether there was an opportunity for such issues to be considered.
Leonard Jaworowski was terminated from his position with the New York Transit Authority following a disciplinary arbitration. He brought an Article 75 action in State Supreme Court in an effort to have the arbitration award vacated. Unsuccessful in this effort, Jaworowski next filed a lawsuit in federal district court pursuant to 42 USC Section 1983 alleging “various constitutional infirmities in an arbitration proceeding arising out of disciplinary charges brought against him by the Authority.”
The Authority claimed Jaworowski’s federal action was barred under the doctrine of collateral estoppel because he already had “his day in court” on these issues as a result his bringing an Article 75 action. The district court agreed, ruling that Jaworowski was estopped from suing on these claims because they had been previously litigated in his Article 75 action brought in New York state court. The Circuit Court of Appeals affirmed the lower court’s ruling.
Jaworowski’s major argument was that the doctrine of collateral estoppel should not bar his federal suit because the claims he was asserting in his Section 1983 complaint were not identical to those he litigated in state court. His reason was that the standards of review of arbitrations differ between New York state courts and federal courts.
According to Jaworowski, to prevail in state court he would have had to prove that the alleged due process violations rendered the arbitration irrational, while in federal court he need only show that the arbitration violated due process.
The Circuit Court of Appeals said that his argument “mistakenly conflates two different grounds for setting aside an arbitration under New York law.” Although one ground for vacating an arbitration decision is to show that the award is “totally irrational,” a court applying New York law will also vacate an arbitration if it finds that the arbitration violated due process, citing Beckman v Greentree Securities, Inc., 87 NY2d 566.
The Circuit Court said that the district court correctly dismissed his Section 1983 action because New York State courts do not review constitutional challenges to arbitration decisions more deferentially than do federal courts.
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Union takes disciplinary action against union member
Union takes disciplinary action against union member
Perez v Local 39, IUOE, USDC EDNY
Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.
The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.
The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.
Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.
A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”
The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.
Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].
The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
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Perez v Local 39, IUOE, USDC EDNY
Can a union member slander his or her union leadership and avoid internal union discipline? Yes, as the Perez case shows.
The membership of Local 39, International Union of Operating Engineers, disciplined Richard Perez for “willfully slandering and libeling another member of the Union.” The penalty imposed: a fine of $4,177 and an order directing Perez to write letters of apology.
The General Executive Board of the International upheld the decision, but reduced the fine to $2,088.50 on the condition that the Perez “apologize.” Perez refused to apologize, and was barred from attending the meetings of Local 30.
Perez sued, contending that his “free speech” rights, guaranteed by Section 101(a)(2) of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), 29 USC. Section 411(a)(2), were violated.
A federal district court judge agreed, noting that the Second Circuit U.S. Court of Appeals, which has jurisdiction in New York, Connecticut and Vermont, has interpreted LMRDA “liberally.”
The U.S. District Court for the Eastern District of New York ruled that the LMRDA protects union members’ rights to freely express their opinions about union matters, even where that expression amounts to libel or slander,” citing DeCarlo v. Salamone, 977 F. Supp 617.
Section 101(a) (2) of the LMRDA, 29 USC. Section 411(a) (2), provides, in relevant part, that “Every member of any labor organization shall have the right to ... express any views, arguments, or opinions ... provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations” [29 USC. Section 411(a) (2)].
The Local’s membership took disciplinary action against Perez because he wrote “a scathing letter” to Frank Hanley, the General President of the International Union of Operating Engineers, complaining about alleged retaliation he suffered after a 1995 union election. The court said that “whether or not [the Local] may have been justified in disciplining [Perez] for some other reason, their inclusion of the charge of libel ran afoul of [his] rights under the LMRDA.”
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Appeal of an administrative disciplinary action must be presented to the proper forum
Appeal of an administrative disciplinary action must be presented to the proper forum
Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411
School districts can pursue disciplinary charges against school employees in three different ways: (1) under Section 75 of the Civil Service Law (for employees in the classified service); (2) under Section 3020-a of Education Law (for teachers and others in the unclassified service); or, in some cases, (3) under an arbitration provision set out in of collective bargaining agreement. Appeal procedures, depend on the nature of the disciplinary action involved.
Typically disciplinary action taken pursuant to Section 75 may be appealed to either the courts as provided by Article 78 of the Civil Practice Law and Rules [CPLR] or the responsible civil service commission.
Disciplinary action taken pursuant to a “disciplinary arbitration procedure” (such as the one provided by Section 3020-a or by an arbitration provision of a collective bargaining agreement) is subject to review pursuant to Article 75 of the CPLR.*
The Westhampton Beach UFSD case involved the appeal of a disciplinary determination by hearing officer who heard charges filed under Education Law Section 3020-a. Westhampton Beach challenged the hearing officer’s Section 3020-a determination by bringing an Article 78 action rather than pursuant to CPLR Article 75. In other words, the district tried to appeal a Section 3020-a disciplinary procedure under the appeals procedure ordinarily available in appealing Section 75 disciplinary decisions.
The case involved a teacher named Ziparo who was found guilty by a Section 3020-a hearing officer of inflicting corporal punishment on several students by striking them with a belt. [On one occasion, the teacher allegedly “pushed a student and issued vulgarities.”]
In light of the teacher’s “otherwise 23 year unblemished teaching record” with the district, the hearing officer recommended that the teacher “be suspended without pay for one year, from February 1, 1999 until January 31, 2000, subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.”
In an effort to have the teacher terminated from his employment, the district filed a petition pursuant to Article 78. It contended that the hearing officer’s recommendation was irrational and violative of public policy. It argued that the hearing officer’s decision was subject to review under Article 78 because the award was arbitrary, capricious and an abuse of discretion.
The Court dismissed the appeal, saying that any judicial review of a Section 3020-a determination is controlled by CPLR Article 75 rather than CPLR Article 78. It cited Section 3020-a(5) of the Education Law, which provides that “...the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to Section 7511 of the Civil Practice Law and Rules.”
Accordingly, the standard of review to be applied was the standard set out in Section 7511 of the CPLR and not the standard used in resolving an Article 78 action.
CPLR 7511(b)(1) allows a court to vacate or modify an award if it finds [a] Corruption, fraud or misconduct in procuring the award; or [b] Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or [c] An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or [d] Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a “strong public policy.”
Supreme Court Judge Floyd said that applying the criteria set out in Section 7511, there was nothing in the record before the court that justified the modification or vacating of the hearing officer’s recommendation to impose a one-year suspension without pay rather than termination as the penalty. The Appellate Division agreed.
The decision noted that Section 3020-a permits a hearing officer to impose a variety of penalties including a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. Further, in lieu of imposing any of these penalties, “the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment.”
Confirming the arbitration award, the court said that the hearing officer was well within his authority to direct Ziparo’s suspension for one year and that his return to his teaching duties was to be conditioned upon his being certified as fit for duty by a psychiatrist.
Given the charges and Ziparo’s otherwise unblemished record, the court decided that a one year suspension without pay was “a significant financial penalty, reflecting the seriousness of the charges preferred and proven by the district and cannot be construed as irrational.”
The decision also states that the hearing officer was within his authority to condition Ziparo’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. The court indicated that “such [a] condition is remedial in nature, does not violate Section 913 of the Education Law and insures that the District’s, the hearing officer’s, and the teacher’s concerns regarding his fitness to continue [in] his profession are judged by an impartial objective evaluation.” [Section 913 provides for the medical examination of teachers and other school district or BOCES employees “by a physician of his choice” or a physician selected by the district.]
* Before Section 3020-a was modified by the state Legislature in 1994, individuals would appeal a 3020-a disciplinary decisions to the Commissioner of Education. For this reason, one occasionally finds references to disciplinary appeal decisions by the Commissioner.
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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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Westhampton Beach UFSD v Ziparo, 275 A.D.2d 411
School districts can pursue disciplinary charges against school employees in three different ways: (1) under Section 75 of the Civil Service Law (for employees in the classified service); (2) under Section 3020-a of Education Law (for teachers and others in the unclassified service); or, in some cases, (3) under an arbitration provision set out in of collective bargaining agreement. Appeal procedures, depend on the nature of the disciplinary action involved.
Typically disciplinary action taken pursuant to Section 75 may be appealed to either the courts as provided by Article 78 of the Civil Practice Law and Rules [CPLR] or the responsible civil service commission.
Disciplinary action taken pursuant to a “disciplinary arbitration procedure” (such as the one provided by Section 3020-a or by an arbitration provision of a collective bargaining agreement) is subject to review pursuant to Article 75 of the CPLR.*
The Westhampton Beach UFSD case involved the appeal of a disciplinary determination by hearing officer who heard charges filed under Education Law Section 3020-a. Westhampton Beach challenged the hearing officer’s Section 3020-a determination by bringing an Article 78 action rather than pursuant to CPLR Article 75. In other words, the district tried to appeal a Section 3020-a disciplinary procedure under the appeals procedure ordinarily available in appealing Section 75 disciplinary decisions.
The case involved a teacher named Ziparo who was found guilty by a Section 3020-a hearing officer of inflicting corporal punishment on several students by striking them with a belt. [On one occasion, the teacher allegedly “pushed a student and issued vulgarities.”]
In light of the teacher’s “otherwise 23 year unblemished teaching record” with the district, the hearing officer recommended that the teacher “be suspended without pay for one year, from February 1, 1999 until January 31, 2000, subject to being certified to return to his teaching duties by a mutually agreed upon psychiatrist.”
In an effort to have the teacher terminated from his employment, the district filed a petition pursuant to Article 78. It contended that the hearing officer’s recommendation was irrational and violative of public policy. It argued that the hearing officer’s decision was subject to review under Article 78 because the award was arbitrary, capricious and an abuse of discretion.
The Court dismissed the appeal, saying that any judicial review of a Section 3020-a determination is controlled by CPLR Article 75 rather than CPLR Article 78. It cited Section 3020-a(5) of the Education Law, which provides that “...the employee or the employing board may make an application to the New York State Supreme Court to vacate or modify the decision of the hearing officer pursuant to Section 7511 of the Civil Practice Law and Rules.”
Accordingly, the standard of review to be applied was the standard set out in Section 7511 of the CPLR and not the standard used in resolving an Article 78 action.
CPLR 7511(b)(1) allows a court to vacate or modify an award if it finds [a] Corruption, fraud or misconduct in procuring the award; or [b] Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or [c] An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or [d] Failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a “strong public policy.”
Supreme Court Judge Floyd said that applying the criteria set out in Section 7511, there was nothing in the record before the court that justified the modification or vacating of the hearing officer’s recommendation to impose a one-year suspension without pay rather than termination as the penalty. The Appellate Division agreed.
The decision noted that Section 3020-a permits a hearing officer to impose a variety of penalties including a written reprimand, a fine, a suspension for a fixed time without pay, or dismissal. Further, in lieu of imposing any of these penalties, “the hearing officer is also empowered to impose remedial action upon the employee including directing the employee to seek counseling or medical treatment.”
Confirming the arbitration award, the court said that the hearing officer was well within his authority to direct Ziparo’s suspension for one year and that his return to his teaching duties was to be conditioned upon his being certified as fit for duty by a psychiatrist.
Given the charges and Ziparo’s otherwise unblemished record, the court decided that a one year suspension without pay was “a significant financial penalty, reflecting the seriousness of the charges preferred and proven by the district and cannot be construed as irrational.”
The decision also states that the hearing officer was within his authority to condition Ziparo’s return to his teaching duties upon a certification by a mutually agreed upon psychiatrist. The court indicated that “such [a] condition is remedial in nature, does not violate Section 913 of the Education Law and insures that the District’s, the hearing officer’s, and the teacher’s concerns regarding his fitness to continue [in] his profession are judged by an impartial objective evaluation.” [Section 913 provides for the medical examination of teachers and other school district or BOCES employees “by a physician of his choice” or a physician selected by the district.]
* Before Section 3020-a was modified by the state Legislature in 1994, individuals would appeal a 3020-a disciplinary decisions to the Commissioner of Education. For this reason, one occasionally finds references to disciplinary appeal decisions by the Commissioner.
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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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Retirement benefits and divorce
Retirement benefits and divorce
Rogovin v Rogovin, NYS Supreme Court (Justice Flug), [Not selected for publication in the Official Reports]
One of the elements in a divorce settlement is the right of a former spouse to a share of the retirement benefits paid to his or her former spouse. As Judge Flug noted, the leading case in New York regarding pension rights in a divorce situation is Olivo v. Olivo, 82 NY2d 202.
In Olivo the Court of Appeals held that “a pension right jointly owned as marital property is subject to modification by future actions of the employee” and that the former spouse of an employee who earned a promotion after the divorce, which was not in ‘the “pipeline” at the time of the divorce “... is not entitled to keep the ‘excess’ earned beyond what would have accrued at the time of expected retirement.” Here Judge Flug concluded that the parties to a divorce may, by a specific agreement, provide for a different result.
When the Rogovins divorced, the wife agreed, “as part and parcel of the settlement of this action...” to assign husband “a sum equal to ten percent of the monthly [retirement] benefits from her employment ....” Following the divorce, the wife sought and attained a promotion, which resulted in her receiving higher compensation, which will eventually provide her with a higher retirement allowance.
The former Mrs. Rogovin attempted to have the terms of the divorce settlement revised. She contended that since her pension benefits will be substantially enhanced as the result of her promotion and her former husband, “having not contributed to such enhanced benefits,” does not deserve any pension benefit attributable to her promotion. She asked to court to direct that her former spouse’s “participation in the pension” be limited to an amount equal to ten per cent of what she would have received had she remained a teacher.
Judge Flug said no, holding that “the parties entered into a written stipulation.” Such agreement, said Judge Flug, has the force and effect of a contract. The Court refused “to interpret and redraft the parties’ agreement” as this would be a clear derogation of the sanctity of contracts.
The court said that “it is clearly and unequivocally established that the stipulation called for the [husband] to receive ten per cent of the pension whenever his former wife retired and whatever the amount.
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Rogovin v Rogovin, NYS Supreme Court (Justice Flug), [Not selected for publication in the Official Reports]
One of the elements in a divorce settlement is the right of a former spouse to a share of the retirement benefits paid to his or her former spouse. As Judge Flug noted, the leading case in New York regarding pension rights in a divorce situation is Olivo v. Olivo, 82 NY2d 202.
In Olivo the Court of Appeals held that “a pension right jointly owned as marital property is subject to modification by future actions of the employee” and that the former spouse of an employee who earned a promotion after the divorce, which was not in ‘the “pipeline” at the time of the divorce “... is not entitled to keep the ‘excess’ earned beyond what would have accrued at the time of expected retirement.” Here Judge Flug concluded that the parties to a divorce may, by a specific agreement, provide for a different result.
When the Rogovins divorced, the wife agreed, “as part and parcel of the settlement of this action...” to assign husband “a sum equal to ten percent of the monthly [retirement] benefits from her employment ....” Following the divorce, the wife sought and attained a promotion, which resulted in her receiving higher compensation, which will eventually provide her with a higher retirement allowance.
The former Mrs. Rogovin attempted to have the terms of the divorce settlement revised. She contended that since her pension benefits will be substantially enhanced as the result of her promotion and her former husband, “having not contributed to such enhanced benefits,” does not deserve any pension benefit attributable to her promotion. She asked to court to direct that her former spouse’s “participation in the pension” be limited to an amount equal to ten per cent of what she would have received had she remained a teacher.
Judge Flug said no, holding that “the parties entered into a written stipulation.” Such agreement, said Judge Flug, has the force and effect of a contract. The Court refused “to interpret and redraft the parties’ agreement” as this would be a clear derogation of the sanctity of contracts.
The court said that “it is clearly and unequivocally established that the stipulation called for the [husband] to receive ten per cent of the pension whenever his former wife retired and whatever the amount.
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Eligibility to serve as a school board member
Eligibility to serve as a school board member
Jackson and City of Long Beach CSD, Decisions of the Commissioner of Education, #14,131
Norman B. Alpren, a member of the Long Beach City School District since 1989, was appointed Commissioner of the Long Beach Auxiliary Police [CAP] in 1994. This was a volunteer position.
Mark Jackson and Scott Abramson challenged Alpren’s continuing to serve as a member of the school board while simultaneously serving as CAP. They asked the Commissioner of Education to declare Alpren ineligible for the board, citing Section 2502(7) of the Education Law, which forbids holders of city offices , with some exceptions, from being members of school boards. According to their petition, the position of CAP is a “city office.” Although police officers are exempt and can serve on school boards, the petitioners claimed that the CAP role “does not fall within the statutory exception of ‘policeman’ because it does not ‘endow police officer status.’”
The Commissioner ruled that Alpren could simultaneously serve in both positions, noting that the CAP position was established by the bylaws of the Long Beach Police Department rather than by statute or ordinance and thus Alpren did not hold “public office” within the meaning of Section 2502(7).
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Jackson and City of Long Beach CSD, Decisions of the Commissioner of Education, #14,131
Norman B. Alpren, a member of the Long Beach City School District since 1989, was appointed Commissioner of the Long Beach Auxiliary Police [CAP] in 1994. This was a volunteer position.
Mark Jackson and Scott Abramson challenged Alpren’s continuing to serve as a member of the school board while simultaneously serving as CAP. They asked the Commissioner of Education to declare Alpren ineligible for the board, citing Section 2502(7) of the Education Law, which forbids holders of city offices , with some exceptions, from being members of school boards. According to their petition, the position of CAP is a “city office.” Although police officers are exempt and can serve on school boards, the petitioners claimed that the CAP role “does not fall within the statutory exception of ‘policeman’ because it does not ‘endow police officer status.’”
The Commissioner ruled that Alpren could simultaneously serve in both positions, noting that the CAP position was established by the bylaws of the Long Beach Police Department rather than by statute or ordinance and thus Alpren did not hold “public office” within the meaning of Section 2502(7).
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Testing for illegal drugs
Testing for illegal drugs
Davis v Safir, App. Div., 262 AD2d 107
New York City police officer Freida Davis tested positive for cocaine after being given EMIT and GC/MS tests. This ultimately resulted in the Police Commissioner dismissing her from the force.
Davis sued, contending that GC/MS tests were unreliable and could give “false positive” results. The Appellate Division dismissed her appeal, holding that the positive test results “constitute substantial evidence of petitioner’s possession and use of cocaine.” The court rejected Davis’ argument that the GC/MS testing procedures were unreliable and likely to produce a false positive.
The decision points out that “even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which [Davis] does not challenge, would alone constitute substantial evidence of the use of cocaine, citing Lahey v Kelly, 71 NY2d 135.
As to the penalty imposed, the court said that “the penalty of dismissal does not shock our sense of fairness” and sustained the Commissioner’s determination.
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Davis v Safir, App. Div., 262 AD2d 107
New York City police officer Freida Davis tested positive for cocaine after being given EMIT and GC/MS tests. This ultimately resulted in the Police Commissioner dismissing her from the force.
Davis sued, contending that GC/MS tests were unreliable and could give “false positive” results. The Appellate Division dismissed her appeal, holding that the positive test results “constitute substantial evidence of petitioner’s possession and use of cocaine.” The court rejected Davis’ argument that the GC/MS testing procedures were unreliable and likely to produce a false positive.
The decision points out that “even if the positive result obtained by the GC/MS tests are disregarded, the positive result obtained by the EMIT tests, the reliability of which [Davis] does not challenge, would alone constitute substantial evidence of the use of cocaine, citing Lahey v Kelly, 71 NY2d 135.
As to the penalty imposed, the court said that “the penalty of dismissal does not shock our sense of fairness” and sustained the Commissioner’s determination.
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Oct 13, 2010
An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances
An educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously under certain circumstances
Nancy Pearse v Board of Education of the Burnt Hills-Ballston Lake Central School District, Decisions of the Commissioner of Education, Decision #16,159
The Commissioner of Education sustained, in part, an appeal filed by Nancy Pearse challenging the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and its Superintendent, James Schultz, to excess her as a foreign language teacher.
Pearse served in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher. On January 22, 2008, the board granted Pearse tenure in the administrative tenure area of dean of students, effective March 19, 2008.
In June 2008 the district abolished Pearse’s .4 teaching assignment as a foreign language teacher and she was laid off as a result.
Pearse appealed to the Commissioner contending that the board had violated her tenure and seniority rights as a foreign language teacher. She argued that she had received tenure by estoppel* in the foreign language tenure area and that she was not the least senior foreign language teacher in the district at the time it abolished her postion.
As redress, Pearse asked the Commissioner to direct the district to reinstate her to her foreign language teaching position, with back pay and benefits.
The district, on the other hand, argued that as Pearse’s teaching position was part-time, she was not eligible to receive tenure in the foreign language tenure area. In addition, the district contended that the decision to layoff Pearse’s was lawful because she was not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district.
The Commissioner said that Pearse’s appeal “presents a novel issue -- whether an educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.
The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties. The test with respect to teachers attaining "tenure" is that the educator spend at least 40% of his or her duties in the relvent teacher tenure area.**
The Commissioner rejected the school district’s theory that Pearse could not have accrued tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations, noting that 8 NYCRR §30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:
Professional educator means an individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the Commissioner to the State Civil Service Commission pursuant to the provisions of section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.
Although, said the Commissioner, “§30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, [it] does not require an individual to be employed solely in a full-time teaching position.”
The Commissioner also rejected the district’s claim that “an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously,” noting that Part 30 of the Commissioner’s regulations clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area, citing 8 NYCRR §30-1.9[d].
Accordingly, the Commissioner ruled that an educator “should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.”
Also, noted the Commissioner “Public policy favors the protection of the tenure rights of both teachers and administrators.”
However, the Commissioner said that it was “unclear from the record” if Pearse was the most senior teacher in the foreign language tenure area on the date on she was excessed. He deemed it appropriate “to remand this matter” to school district for it to calculate Pearse’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.
* Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term" (see Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 185, 186].
** Part 30 of the Commissioner’s regulations [8 NYCRR 30] provide that teachers are deemed to serve in any tenure area in which they spend at least 40% of their time. Further, the test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16159.htm
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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/ ============================================
NYPPL
Nancy Pearse v Board of Education of the Burnt Hills-Ballston Lake Central School District, Decisions of the Commissioner of Education, Decision #16,159
The Commissioner of Education sustained, in part, an appeal filed by Nancy Pearse challenging the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and its Superintendent, James Schultz, to excess her as a foreign language teacher.
Pearse served in a position where she was assigned to spend 60% of her time as Dean of Students and 40% of her time as a foreign language teacher. On January 22, 2008, the board granted Pearse tenure in the administrative tenure area of dean of students, effective March 19, 2008.
In June 2008 the district abolished Pearse’s .4 teaching assignment as a foreign language teacher and she was laid off as a result.
Pearse appealed to the Commissioner contending that the board had violated her tenure and seniority rights as a foreign language teacher. She argued that she had received tenure by estoppel* in the foreign language tenure area and that she was not the least senior foreign language teacher in the district at the time it abolished her postion.
As redress, Pearse asked the Commissioner to direct the district to reinstate her to her foreign language teaching position, with back pay and benefits.
The district, on the other hand, argued that as Pearse’s teaching position was part-time, she was not eligible to receive tenure in the foreign language tenure area. In addition, the district contended that the decision to layoff Pearse’s was lawful because she was not entitled to accrue tenure and seniority rights in both an administrative and teaching tenure area simultaneously and, therefore, that she never accrued tenure or seniority rights as a foreign language teacher in the district.
The Commissioner said that Pearse’s appeal “presents a novel issue -- whether an educator may accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously.
The test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties. The test with respect to teachers attaining "tenure" is that the educator spend at least 40% of his or her duties in the relvent teacher tenure area.**
The Commissioner rejected the school district’s theory that Pearse could not have accrued tenure and seniority rights in a teacher tenure area because she is not a professional educator as defined in Part 30 of the Commissioner’s regulations, noting that 8 NYCRR §30-1.1(e) of the Commissioner’s regulations defines professional educator as follows:
Professional educator means an individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the Commissioner to the State Civil Service Commission pursuant to the provisions of section 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.
Although, said the Commissioner, “§30-1.1(e) requires that the educator be appointed to a full-time position on the professional staff of the district, [it] does not require an individual to be employed solely in a full-time teaching position.”
The Commissioner also rejected the district’s claim that “an educator cannot accrue tenure and seniority rights in both an administrative and teacher tenure area simultaneously,” noting that Part 30 of the Commissioner’s regulations clearly permits a professional educator to simultaneously hold tenure and earn seniority in more than one teacher tenure area, citing 8 NYCRR §30-1.9[d].
Accordingly, the Commissioner ruled that an educator “should be able to serve in both an administrative and teacher tenure area at the same time and receive seniority credit and tenure in both tenure areas provided that the individual performs more than 50% of his or her duties in the administrative tenure area and at least 40% of his or her duties in a teacher tenure area.”
Also, noted the Commissioner “Public policy favors the protection of the tenure rights of both teachers and administrators.”
However, the Commissioner said that it was “unclear from the record” if Pearse was the most senior teacher in the foreign language tenure area on the date on she was excessed. He deemed it appropriate “to remand this matter” to school district for it to calculate Pearse’s seniority rights in the foreign language teacher tenure area and make a new determination as to whether she is entitled to be restored to a tenured position as a teacher of foreign language effective June 23, 2009, with back pay and retroactive benefits.
* Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term" (see Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 185, 186].
** Part 30 of the Commissioner’s regulations [8 NYCRR 30] provide that teachers are deemed to serve in any tenure area in which they spend at least 40% of their time. Further, the test of whether an employee should be deemed to serve in an administrative tenure area is whether an employee spends over 50% of his or her time on administrative duties.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16159.htm
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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/ ============================================
NYPPL
Educator terminated after being found guilty of berating and belittling less senior staff members
Educator terminated after being found guilty of berating and belittling less senior staff members
Matter of Denhoff v Mamaroneck Union Free School Dist., 2010 NY Slip Op 51742(U), decided on September 30, 2010, Supreme Court, Westchester County, Judge John P. Colangelo
Elizabeth Denhoff filed a petition pursuant to CPLR 7511* in an effort to vacate the findings and recommendations made by Hearing Officer Jay M. Siegel, Esq. The hearing officer found Denhoff guilty of 14 of 20 disciplinary charges filed against her by the District and recommended termination of her employment as a guidance teacher.
The District had alleged that Denhoff had “systematically berated and belittled less senior guidance counselors, criticized their work and threatened to negatively impact their careers” over the course of three academic years. The Hearing Officer had found that “Denhoff engaged in predominantly verbal conduct directed against fellow members of the Guidance Department that denigrated their respective intelligence and competence as teachers and obstructed their desire to work;” which he described as falling into one of four general categories:
1. Verbal criticism tending toward outright disparagement of the abilities of three fellow teachers, usually outside their presence.
2. Verbal and non-verbal criticism by eye rolling or other gestures - - that was either directed to such teachers or took place in such teachers' presence.
3. Attempts to impose "rules" upon or otherwise direct or influence the behavior of such teachers with respect to work hours, participation in extra curricular activities, and reporting matters to the school administration.
4. "Obstructing" the conduct of these teachers, generally with an eye toward inhibiting them from performing their work as guidance counselors, including certain activities that were above and beyond contractually required duties.
One portion of Judge Colangelo’s decision focused on the nature of Denhoff’s conduct, i.e.,”did her conduct amount to violations of the Education Law's proscriptions - - particularly in view of the fact that Denhoff's offensive behavior was that of a teacher without supervisory responsibilities, and was directed toward fellow teachers rather than towards a supervisor, student or parent.”
Because the hearing officer “failed to cite any specific provision of the Education Law violated by Denhoff or base his reason for the sanction imposed on a violation of any specific rule by which a tenured teacher must abide,” the court said this task “had been relegated to the arguments of the parties, and now to the judgment of the Court.”
As the school district conceded, Denhoff was not insubordinate since her actions were not directed at a supervisor, and since no physical violence or violation of the criminal law was shown. Rather, the district’s argument focuses on the general prohibition against "conduct unbecoming a teacher."
In this regard, the court noted that in Matter of Uniondale, 26 Educ. Dept. 498 501 (1987) the Commissioner of Education indicated that certain verbal conduct of a teacher however distasteful, is only deemed "unbecoming" if such conduct has a negative impact on the educational process. In Uniondale the Commissioner commented "Although the panel found that respondent expressed himself to his superiors in an antagonistic and discourteous manner, it held that such conduct does not constitute conduct unbecoming a teacher as long as [his] actions do not affect [his] ability to teach and are not disruptive."'
Denhoff argued that as her verbal assaults were not directed against a student or supervisor, but rather against her teaching colleagues, each act did not have such a significant impact on the educational process as to justify a finding that she had violated the Education Law by engaging in unbecoming conduct - - or, at the least, to merit the ultimate sanction of dismissal.
The court, however, said that Denhoff’s “atomistic approach, focusing on each instance of [her] misconduct in isolation, is at once misleading and misplaced. It is misleading because this approach ignores the cumulative detrimental effect of such behavior on the educational process. It is misplaced because the Hearing Officer and, ultimately, the Court are permitted to consider the totality of [Denhoff's] conduct and how it affected the educational setting and a teacher's ability to carry out his or her pedagogical responsibilities.”
Judge Colangelo, considering “the totality of the circumstances,” said they amply support the Hearing Officer's conclusion that Denhoff, in league with her fellow senior guidance counselor Haruko Hirose,** created a toxic and disruptive environment within the Hommocks' Guidance Department.
As to an appropriate penalty, Judge Colangelo agreed with the hearing officer and said that the school district “ has just cause to terminate [Denhoff’s] employment.” “Indeed,” said the court,” to not confirm the Hearing Officer's decision under the circumstances that obtain herein - - where the penalty of dismissal is not shocking to the conscience or to a "sense of fairness"*** - - would impermissibly substitute the Court's judgment for that of the Hearing Officer who saw, heard and evaluated the testimony of all of the witnesses, including Denhoff.”
* See §3020 - a (5) of the Education Law
** The District also brought charges against Haruko Hirose, another member of the Guidance Department, who resigned her position before any hearing was commenced.
*** The Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51742.htm
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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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NYPPL
Matter of Denhoff v Mamaroneck Union Free School Dist., 2010 NY Slip Op 51742(U), decided on September 30, 2010, Supreme Court, Westchester County, Judge John P. Colangelo
Elizabeth Denhoff filed a petition pursuant to CPLR 7511* in an effort to vacate the findings and recommendations made by Hearing Officer Jay M. Siegel, Esq. The hearing officer found Denhoff guilty of 14 of 20 disciplinary charges filed against her by the District and recommended termination of her employment as a guidance teacher.
The District had alleged that Denhoff had “systematically berated and belittled less senior guidance counselors, criticized their work and threatened to negatively impact their careers” over the course of three academic years. The Hearing Officer had found that “Denhoff engaged in predominantly verbal conduct directed against fellow members of the Guidance Department that denigrated their respective intelligence and competence as teachers and obstructed their desire to work;” which he described as falling into one of four general categories:
1. Verbal criticism tending toward outright disparagement of the abilities of three fellow teachers, usually outside their presence.
2. Verbal and non-verbal criticism by eye rolling or other gestures - - that was either directed to such teachers or took place in such teachers' presence.
3. Attempts to impose "rules" upon or otherwise direct or influence the behavior of such teachers with respect to work hours, participation in extra curricular activities, and reporting matters to the school administration.
4. "Obstructing" the conduct of these teachers, generally with an eye toward inhibiting them from performing their work as guidance counselors, including certain activities that were above and beyond contractually required duties.
One portion of Judge Colangelo’s decision focused on the nature of Denhoff’s conduct, i.e.,”did her conduct amount to violations of the Education Law's proscriptions - - particularly in view of the fact that Denhoff's offensive behavior was that of a teacher without supervisory responsibilities, and was directed toward fellow teachers rather than towards a supervisor, student or parent.”
Because the hearing officer “failed to cite any specific provision of the Education Law violated by Denhoff or base his reason for the sanction imposed on a violation of any specific rule by which a tenured teacher must abide,” the court said this task “had been relegated to the arguments of the parties, and now to the judgment of the Court.”
As the school district conceded, Denhoff was not insubordinate since her actions were not directed at a supervisor, and since no physical violence or violation of the criminal law was shown. Rather, the district’s argument focuses on the general prohibition against "conduct unbecoming a teacher."
In this regard, the court noted that in Matter of Uniondale, 26 Educ. Dept. 498 501 (1987) the Commissioner of Education indicated that certain verbal conduct of a teacher however distasteful, is only deemed "unbecoming" if such conduct has a negative impact on the educational process. In Uniondale the Commissioner commented "Although the panel found that respondent expressed himself to his superiors in an antagonistic and discourteous manner, it held that such conduct does not constitute conduct unbecoming a teacher as long as [his] actions do not affect [his] ability to teach and are not disruptive."'
Denhoff argued that as her verbal assaults were not directed against a student or supervisor, but rather against her teaching colleagues, each act did not have such a significant impact on the educational process as to justify a finding that she had violated the Education Law by engaging in unbecoming conduct - - or, at the least, to merit the ultimate sanction of dismissal.
The court, however, said that Denhoff’s “atomistic approach, focusing on each instance of [her] misconduct in isolation, is at once misleading and misplaced. It is misleading because this approach ignores the cumulative detrimental effect of such behavior on the educational process. It is misplaced because the Hearing Officer and, ultimately, the Court are permitted to consider the totality of [Denhoff's] conduct and how it affected the educational setting and a teacher's ability to carry out his or her pedagogical responsibilities.”
Judge Colangelo, considering “the totality of the circumstances,” said they amply support the Hearing Officer's conclusion that Denhoff, in league with her fellow senior guidance counselor Haruko Hirose,** created a toxic and disruptive environment within the Hommocks' Guidance Department.
As to an appropriate penalty, Judge Colangelo agreed with the hearing officer and said that the school district “ has just cause to terminate [Denhoff’s] employment.” “Indeed,” said the court,” to not confirm the Hearing Officer's decision under the circumstances that obtain herein - - where the penalty of dismissal is not shocking to the conscience or to a "sense of fairness"*** - - would impermissibly substitute the Court's judgment for that of the Hearing Officer who saw, heard and evaluated the testimony of all of the witnesses, including Denhoff.”
* See §3020 - a (5) of the Education Law
** The District also brought charges against Haruko Hirose, another member of the Guidance Department, who resigned her position before any hearing was commenced.
*** The Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51742.htm
==========================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
===========================================
NYPPL
Employer’s internal regulations are not a “well-developed body of law and regulation” for the purposes of §205-a of the General Municipal Law
Employer’s internal regulations are not a “well-developed body of law and regulation” for the purposes of §205-a of the General Municipal Law
Vosilla v City of New York, 2010 NY Slip Op 07162, decided on October 5, 2010, Appellate Division, Second Department
§205-a of the General Municipal Law, in pertinent part, provides for an additional right of action to firefighters “in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus.”
Joseph Vosilla, a New York City firefighter, filed a lawsuit seeking to recover damages for personal injuries he alleged he sustained as a result of the City’s violation of certain provisions of the New York City Fire Department All Unit Circulars, Incident Command System manual provisions, and internal rules concerning, classification and inspection of buildings, “and that such violations directly or indirectly caused the injuries he sustained in the line of duty.”
The Appellate Division, however, rejected Vosilla’s theory that the City was liable for damages in this instance, ruling that “These internal regulations … cannot serve as a predicate for liability under General Municipal Law §205-a, since they are not part of a "well-developed body of law and regulation" imposing clear legal duties or mandating the performance or nonperformance of specific acts.”
Accordingly, said the court, the City established its prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to GML §205-a insofar as asserted against it and, in opposition, Vosilla failed to raise a triable issue of fact and thus Supreme Court properly granted that branch of the City's motion summary judgment dismissing the cause of action pursuant to GML §205-a insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07162.htm
NYPPL
Vosilla v City of New York, 2010 NY Slip Op 07162, decided on October 5, 2010, Appellate Division, Second Department
§205-a of the General Municipal Law, in pertinent part, provides for an additional right of action to firefighters “in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus.”
Joseph Vosilla, a New York City firefighter, filed a lawsuit seeking to recover damages for personal injuries he alleged he sustained as a result of the City’s violation of certain provisions of the New York City Fire Department All Unit Circulars, Incident Command System manual provisions, and internal rules concerning, classification and inspection of buildings, “and that such violations directly or indirectly caused the injuries he sustained in the line of duty.”
The Appellate Division, however, rejected Vosilla’s theory that the City was liable for damages in this instance, ruling that “These internal regulations … cannot serve as a predicate for liability under General Municipal Law §205-a, since they are not part of a "well-developed body of law and regulation" imposing clear legal duties or mandating the performance or nonperformance of specific acts.”
Accordingly, said the court, the City established its prima facie entitlement to judgment as a matter of law dismissing the cause of action pursuant to GML §205-a insofar as asserted against it and, in opposition, Vosilla failed to raise a triable issue of fact and thus Supreme Court properly granted that branch of the City's motion summary judgment dismissing the cause of action pursuant to GML §205-a insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07162.htm
NYPPL
Public Sector union did not breach its duty of fair representation
Public Sector union did not breach its duty of fair representation
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.
Delsante v. CSEA, ____Misc. 3d____(Richmond Co. June 15, 2010), illustrates how the duty of fair representation in the public sector is similar, though not identical to the private sector. The two differences are the statute of limitations in the public sector (in New York) is 4 months as opposed to 6 months in the private sector. Additionally, the standard is a bit more favorable to unions in the public sector. As the court explained:
“With respect to claims based upon the alleged breach of a duty of fair representation, the plaintiff must establish that the defendants acted "deliberately invidious, arbitrary and founded in bad faith" (Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]; Gordon v. City of New York, 167 AD2d 509, 509-510 [2d Dept., 1990]; Garvin v. NYS Pub. Emply Relations Bd., 168 AD2d 446, 446 [2d Dept., 1990]). Here, the defendants have established that they pursued the avenues available to assist the plaintiff in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement § 33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment". Defendants established that Mrs. Zarvos, the Labor Relations Specialist with CSEA, met with the plaintiff; spoke with Mr. Lescinski in an effort to negotiate reinstating the plaintiff and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited. As is well established, "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation" (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 446-447 [2d Dept., 1990]; Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]).
"In opposition, the plaintiff failed to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The plaintiff has failed to present any evidence that the defendants acted in any way deliberately, arbitrary or in bad faith in not pursuing the grievance further and in fact, the plaintiff's failed to present any evidence or dispute the fact that the plaintiff was on probationary status (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 447 [2d Dept., 1990][dismissing the petition as no evidence of bad faith, arbitrariness or discriminatory conduct was presented]).”
Mitchell H. Rubinstein
NYPPL
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.
Delsante v. CSEA, ____Misc. 3d____(Richmond Co. June 15, 2010), illustrates how the duty of fair representation in the public sector is similar, though not identical to the private sector. The two differences are the statute of limitations in the public sector (in New York) is 4 months as opposed to 6 months in the private sector. Additionally, the standard is a bit more favorable to unions in the public sector. As the court explained:
“With respect to claims based upon the alleged breach of a duty of fair representation, the plaintiff must establish that the defendants acted "deliberately invidious, arbitrary and founded in bad faith" (Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]; Gordon v. City of New York, 167 AD2d 509, 509-510 [2d Dept., 1990]; Garvin v. NYS Pub. Emply Relations Bd., 168 AD2d 446, 446 [2d Dept., 1990]). Here, the defendants have established that they pursued the avenues available to assist the plaintiff in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement § 33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment". Defendants established that Mrs. Zarvos, the Labor Relations Specialist with CSEA, met with the plaintiff; spoke with Mr. Lescinski in an effort to negotiate reinstating the plaintiff and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited. As is well established, "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation" (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 446-447 [2d Dept., 1990]; Ponticello v. County of Suffolk, 225 AD2d 751, 752 [2d Dept., 1996]).
"In opposition, the plaintiff failed to raise a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). The plaintiff has failed to present any evidence that the defendants acted in any way deliberately, arbitrary or in bad faith in not pursuing the grievance further and in fact, the plaintiff's failed to present any evidence or dispute the fact that the plaintiff was on probationary status (Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, 447 [2d Dept., 1990][dismissing the petition as no evidence of bad faith, arbitrariness or discriminatory conduct was presented]).”
Mitchell H. Rubinstein
NYPPL
Applying for disability retirement
Applying for disability retirement
Bowns v McCall, 263 AD2d 668
Vecchi v NY State and Local Employees’ Retirement System, 263 AD2d 669
In order to qualify for accidental disability retirement benefits, a member of the New York State Employees’ Retirement System [ERS] must prove:
1. That he or she was injured while at work; and
2. The injury was the result of an accident within the meaning of the Retirement and Social Security Law [RSSL], i.e., that the injury resulted from an “unexpected and sudden mischance” and not from a risk “inherent in the regular duties of the applicant.”
The first test is relatively simple to demonstrate; the second test -- that the injury resulted from an accident within the meaning of RSSL -- is substantially more difficult to prove.
To meet the second test the employee has the burden of presenting substantial evidence that his or her injury resulted from a “sudden or unexpected event” in contrast to being merely the result of physical exertion undertaken in the performance of his or her routine or regular employment duties.
In both the Bowns and Vecchi cases the Appellate Division sustained the Comptroller’s determination that for the purposes of qualifying for a RSSL disability retirement allowance, the disability suffered by these employees as a result of an on-the-job incident did not result from an accident within the meaning of the RSSL.
The Bowns case
Norman Bowns, a maintenance assistant employed by the State Office of Mental Retardation and Developmental Disabilities, filed an application for accidental disability retirement benefits claiming a disabling back injury he sustained while he and a co-worker were moving a heavy six-drawer file cabinet away from a wall. Bowns said that the cabinet became stuck and, when pushed, began to tip towards him and he had “catch the cabinet and support its weight in order to keep it from falling on him.”
This, Bowns argued, constituted an accident because “moving a file cabinet was unusual and unrelated to his normal work.” The court sustained the Comptroller’s finding that Bowns’ injury did not result from an accident because Bowns’ supervisor had specifically assigned him to perform this task and Bowns’ job duties included occasional assignments to perform manual labor jobs outside of his regular department.
The Vecchi decision
The Appellate Division also sustained the Comptroller’s rejection of Joanne Vecchi’s application for accidental disability retirement benefits. Vecchi, a school bus driver/cleaner, testified that she slipped on wet pavement following a rainstorm and although she attempted to balance herself, her foot caught on some gravel and she fell.
The court said that there was substantial evidence that Vecchi’s “injury occurred in the ordinary course of her duties and resulted from her own misstep, not from an unexpected event.” In other words, the mishap was not an accident for the purposes of qualifying for accidental disability retirement benefits.
.
Bowns v McCall, 263 AD2d 668
Vecchi v NY State and Local Employees’ Retirement System, 263 AD2d 669
In order to qualify for accidental disability retirement benefits, a member of the New York State Employees’ Retirement System [ERS] must prove:
1. That he or she was injured while at work; and
2. The injury was the result of an accident within the meaning of the Retirement and Social Security Law [RSSL], i.e., that the injury resulted from an “unexpected and sudden mischance” and not from a risk “inherent in the regular duties of the applicant.”
The first test is relatively simple to demonstrate; the second test -- that the injury resulted from an accident within the meaning of RSSL -- is substantially more difficult to prove.
To meet the second test the employee has the burden of presenting substantial evidence that his or her injury resulted from a “sudden or unexpected event” in contrast to being merely the result of physical exertion undertaken in the performance of his or her routine or regular employment duties.
In both the Bowns and Vecchi cases the Appellate Division sustained the Comptroller’s determination that for the purposes of qualifying for a RSSL disability retirement allowance, the disability suffered by these employees as a result of an on-the-job incident did not result from an accident within the meaning of the RSSL.
The Bowns case
Norman Bowns, a maintenance assistant employed by the State Office of Mental Retardation and Developmental Disabilities, filed an application for accidental disability retirement benefits claiming a disabling back injury he sustained while he and a co-worker were moving a heavy six-drawer file cabinet away from a wall. Bowns said that the cabinet became stuck and, when pushed, began to tip towards him and he had “catch the cabinet and support its weight in order to keep it from falling on him.”
This, Bowns argued, constituted an accident because “moving a file cabinet was unusual and unrelated to his normal work.” The court sustained the Comptroller’s finding that Bowns’ injury did not result from an accident because Bowns’ supervisor had specifically assigned him to perform this task and Bowns’ job duties included occasional assignments to perform manual labor jobs outside of his regular department.
The Vecchi decision
The Appellate Division also sustained the Comptroller’s rejection of Joanne Vecchi’s application for accidental disability retirement benefits. Vecchi, a school bus driver/cleaner, testified that she slipped on wet pavement following a rainstorm and although she attempted to balance herself, her foot caught on some gravel and she fell.
The court said that there was substantial evidence that Vecchi’s “injury occurred in the ordinary course of her duties and resulted from her own misstep, not from an unexpected event.” In other words, the mishap was not an accident for the purposes of qualifying for accidental disability retirement benefits.
.
Impartiality of discipline panel members
Impartiality of discipline panel members
Informal Opinions of the Attorney General, 99-21
The impartiality of a disciplinary tribunal is a critical element in any disciplinary action. Further, even the appearance of any impropriety must be avoided. Would it be appropriate for an individual to serve on a disciplinary panel if there was a possibility that his or her son might be called as a witness in the proceeding?
David A. Menken, the Village Attorney, Village/Town of Mount Kisco, asked the Attorney General for his views with respect to such participation after the chief of police advised the board of trustees that disciplinary charges might be filed against one or more Mount Kisco police officers and the son of a trustee, who was a member of the police force, might be called as a witness.
The Attorney General commenced his analysis by noting that Section 5711-q(1) of the Unconsolidated Laws provides that such disciplinary charges must be heard by “at least a majority” of the Board of Trustees and that “even the appearance of impropriety should be avoided in order to maintain public confidence in government.”
The Attorney General concluded that the trustee should recuse herself because “the trustee may not be able to make an impartial judgment solely in the public interest if her son is called as a witness.” While state law does not bar members of the same family from serving in the same governmental unit, public officers have a responsibility to exercise their duties “solely in the public interest.”
The Attorney General said that the difficulty here was that “there was no objective way to verify” that the trustee was able to weigh the credibility of her son fairly and reached an impartial judgment. Under the circumstances, the Attorney General concluded, “there is at least an appearance of impropriety” and thus the trustee should recuse herself and “should not participate in or be present at the hearing, any deliberations, including deliberations conducted during an executive session of the board of trustees, or the determination of the disciplinary proceeding brought by the Mount Kisco Police Department.”
The designation of panel members by the district and the employee should not be viewed as the selection of a partisan representative. Rather they are impartial, quasi-judicial officials.
This point was made in Syquia v Harpursville Central School District, 568 NY2d 263, an "old law" Section 3020-a case. In Syquia, the court observed that a school board and a teacher have a statutory right to select a panel member to serve on the three-member board.
However, the court rejected the argument advanced by the attorney for the Harpursville School District suggesting that "a Section 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing...." The court clearly stated that the panel members selected by the Board of Education and by the teacher are not advocates for the party respectively selecting them, with only the chair of the hearing panel intended to be impartial.
The court said that it was taking its opportunity in this case to dispel any such "misapprehension in educational circles, if such in fact exists." It is likely that the same rationale would be applied to the selection of panel members by employers and employees under the new law.
In contrast to the Syquia decision, the Appellate Division decided in Meehan v Nassau Community College, 243 A.D.2d 12,[motion for leave to appeal denied, 92 N.Y.2d 814] that "a party-designated arbitrator may in fact be 'partial'" and that by itself this is not grounds for vacating an arbitration award.*
The case involved Nassau County Community College's attempt to overturn two arbitration awards under Article 75. One member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator actually testified concerning these facts during the arbitration. The Appellate Division had no problem with a panel member testifying at the hearing, holding that "dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting 'corruption, fraud, or misconduct' (CPLR 7511[b][1][i])."
* Related cases involving the same parties and issues: Mehan v Nassau Community College, 251 A.D.2d 415; Mehan v Nassau Community College, 251 A.D.2d 416; and Mehan v Nassau Community College, 251 A.D.2d 417.
.
Informal Opinions of the Attorney General, 99-21
The impartiality of a disciplinary tribunal is a critical element in any disciplinary action. Further, even the appearance of any impropriety must be avoided. Would it be appropriate for an individual to serve on a disciplinary panel if there was a possibility that his or her son might be called as a witness in the proceeding?
David A. Menken, the Village Attorney, Village/Town of Mount Kisco, asked the Attorney General for his views with respect to such participation after the chief of police advised the board of trustees that disciplinary charges might be filed against one or more Mount Kisco police officers and the son of a trustee, who was a member of the police force, might be called as a witness.
The Attorney General commenced his analysis by noting that Section 5711-q(1) of the Unconsolidated Laws provides that such disciplinary charges must be heard by “at least a majority” of the Board of Trustees and that “even the appearance of impropriety should be avoided in order to maintain public confidence in government.”
The Attorney General concluded that the trustee should recuse herself because “the trustee may not be able to make an impartial judgment solely in the public interest if her son is called as a witness.” While state law does not bar members of the same family from serving in the same governmental unit, public officers have a responsibility to exercise their duties “solely in the public interest.”
The Attorney General said that the difficulty here was that “there was no objective way to verify” that the trustee was able to weigh the credibility of her son fairly and reached an impartial judgment. Under the circumstances, the Attorney General concluded, “there is at least an appearance of impropriety” and thus the trustee should recuse herself and “should not participate in or be present at the hearing, any deliberations, including deliberations conducted during an executive session of the board of trustees, or the determination of the disciplinary proceeding brought by the Mount Kisco Police Department.”
The designation of panel members by the district and the employee should not be viewed as the selection of a partisan representative. Rather they are impartial, quasi-judicial officials.
This point was made in Syquia v Harpursville Central School District, 568 NY2d 263, an "old law" Section 3020-a case. In Syquia, the court observed that a school board and a teacher have a statutory right to select a panel member to serve on the three-member board.
However, the court rejected the argument advanced by the attorney for the Harpursville School District suggesting that "a Section 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing...." The court clearly stated that the panel members selected by the Board of Education and by the teacher are not advocates for the party respectively selecting them, with only the chair of the hearing panel intended to be impartial.
The court said that it was taking its opportunity in this case to dispel any such "misapprehension in educational circles, if such in fact exists." It is likely that the same rationale would be applied to the selection of panel members by employers and employees under the new law.
In contrast to the Syquia decision, the Appellate Division decided in Meehan v Nassau Community College, 243 A.D.2d 12,[motion for leave to appeal denied, 92 N.Y.2d 814] that "a party-designated arbitrator may in fact be 'partial'" and that by itself this is not grounds for vacating an arbitration award.*
The case involved Nassau County Community College's attempt to overturn two arbitration awards under Article 75. One member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator actually testified concerning these facts during the arbitration. The Appellate Division had no problem with a panel member testifying at the hearing, holding that "dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting 'corruption, fraud, or misconduct' (CPLR 7511[b][1][i])."
* Related cases involving the same parties and issues: Mehan v Nassau Community College, 251 A.D.2d 415; Mehan v Nassau Community College, 251 A.D.2d 416; and Mehan v Nassau Community College, 251 A.D.2d 417.
.
Probationary employee discharged for misrepresenting location of residence at time of employment
Probationary employee discharged for misrepresenting location of residence at time of employment
Munich v Dept. of Public Safety, 262 AD2d 959
A State Supreme Court judge annulled the Lackawanna Department of Public Safety’s dismissal of probationary firefighter Steven J. Munich prior to his completing his probationary period.
The Appellate Division reversed the lower court’s ruling, pointing out that “[i]t is axiomatic that a probationary employee may be discharged without a hearing and without a statement of the reasons for doing so provided the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law.”
Here, said the court, Munich’s “false representations ... concerning his residence at the time of his employment with the City” provided a sufficient basis for his termination.
.
Munich v Dept. of Public Safety, 262 AD2d 959
A State Supreme Court judge annulled the Lackawanna Department of Public Safety’s dismissal of probationary firefighter Steven J. Munich prior to his completing his probationary period.
The Appellate Division reversed the lower court’s ruling, pointing out that “[i]t is axiomatic that a probationary employee may be discharged without a hearing and without a statement of the reasons for doing so provided the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law.”
Here, said the court, Munich’s “false representations ... concerning his residence at the time of his employment with the City” provided a sufficient basis for his termination.
.
Oct 12, 2010
Substantial evidence supports finding employee was guilty of disciplinary charges filed against him
Substantial evidence supports finding emplyee was guilty of disciplinary charges filed against him
Matter of Drury v Village of N. Syracuse, 2010 NY Slip Op 06944, Decided on October 1, 2010, Appellate Division, Fourth Department
Phillip Druyry commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as Village of North Syracuse Code Enforcement Officer and Fire Marshall following a disciplinary hearing held pursuant to Civil Service Law §75.
The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.’”
The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,' " citing Matter of Kelly v Safir, 96 NY2d 32.
* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06944.htm
NYPPL
Matter of Drury v Village of N. Syracuse, 2010 NY Slip Op 06944, Decided on October 1, 2010, Appellate Division, Fourth Department
Phillip Druyry commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as Village of North Syracuse Code Enforcement Officer and Fire Marshall following a disciplinary hearing held pursuant to Civil Service Law §75.
The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.’”
The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,' " citing Matter of Kelly v Safir, 96 NY2d 32.
* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06944.htm
NYPPL
Determining an educator’s seniority for the purposes of layoff and reinstatement from a preferred list
Determining an educator’s seniority for the purposes of layoff and reinstatement from a preferred list
Donna Marsico v Board of Education of the City School District of the City of Mount Vernon, Decisions of the Commissioner of Education, Decision #16,158
Donna Marsico was appointed to a probationary appointment as a teacher of business education, effective February 1, 1989. Her position was abolished in 1990 and her name was placed on a preferred list. Marsico was subsequently appointed as a business education teacher in the district, effective September 1, 1993 and was granted tenure, effective September 1, 1994.
On September 24, 2008, the board established a preferred eligibility list and Marisco was listed as the most senior business education teacher. Marsico was then told that her position was abolished for budgetary reasons effective October 3, 2008.
As the result of an “opinion letter” from the New York State United Teachers dated June 24, 2009, the board rescinded the September 24, 2008 seniority list and established a new seniority list with Concetta Fantini listed as the most senior business education teacher.
In September 2009, Fantini was reinstated from the reconstituted preferred list to a business education position with the district. When Marisco sued in Supreme Court, Westchester County, challenging Fantini’s appointment the court “issued a stay” on the proceeding to permit Marisco to appeal to the Commissioner.
In her appeal to the Commissioner Marisco claimed that she was “continuously employed as a tenured business education teacher from 1993 until her layoff in October 2008, rendering her the most senior business education teacher and eligible for the first recall from the preferred eligibility list.”
The school board, on the other hand, argued that Marisco “cannot claim seniority credit for years served in a non-tenure track position that does not require a teaching certificate. Therefore, such service is not “service in the system” as required under Education Law §2510(3) for purposes of recall rights.”
The Commissioner found that, based Marisco employment record, she served as an adult education teacher in a distance-learning program from September 1, 1993 through the 2006-2007 school year. Accordingly, said the Commissioner, “Since none of the tenure areas prescribed in Subpart 30-1 of the Rules of the Board Regents relate to teachers of adult education and there is no teaching certificate required for such position, I find that [Marisco’s] service as an adult education teacher was in a non-tenure track position and cannot be considered for purposes of recall rights,” citing Appeal of Thomas, Commissioner’s Decision #13,275.
Further, said the Commissioner, “It is well settled that for purposes of determining the recall rights of teachers on a preferred eligibility list, length of service in the system is used, not length of service within a particular tenure area,” citing Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703.
As to what is considered “length of service in the system,” the Commissioner concluded that the phrase “length of service in the system” means length of service as a professional educator as defined in §30-1.1 of the Commissioner’s regulations.
Accordingly, said the Commissioner, Marisco’s service from September 1, 1993 until the 2006-2007 school year was not in a tenure-bearing position and, therefore, cannot be counted as “service in the system” for purposes of recall rights under Education Law §2510(3).
However, the Commissioner said that although he was “constrained to dismiss this appeal,” he noted that “the board lacked the authority to grant [Marisco] tenure in the business education tenure area for her service as an adult education teacher” and said that the board must follow “all pertinent provisions of the Civil Service Law, Education Law §2510 and Part 30 of Rules of the Board of Regents” in this regard.
NYPPL Comments: §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”
In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.
In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”
Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.
§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.
§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16158.htm
============================================
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/
============================================
NYPPL
Donna Marsico v Board of Education of the City School District of the City of Mount Vernon, Decisions of the Commissioner of Education, Decision #16,158
Donna Marsico was appointed to a probationary appointment as a teacher of business education, effective February 1, 1989. Her position was abolished in 1990 and her name was placed on a preferred list. Marsico was subsequently appointed as a business education teacher in the district, effective September 1, 1993 and was granted tenure, effective September 1, 1994.
On September 24, 2008, the board established a preferred eligibility list and Marisco was listed as the most senior business education teacher. Marsico was then told that her position was abolished for budgetary reasons effective October 3, 2008.
As the result of an “opinion letter” from the New York State United Teachers dated June 24, 2009, the board rescinded the September 24, 2008 seniority list and established a new seniority list with Concetta Fantini listed as the most senior business education teacher.
In September 2009, Fantini was reinstated from the reconstituted preferred list to a business education position with the district. When Marisco sued in Supreme Court, Westchester County, challenging Fantini’s appointment the court “issued a stay” on the proceeding to permit Marisco to appeal to the Commissioner.
In her appeal to the Commissioner Marisco claimed that she was “continuously employed as a tenured business education teacher from 1993 until her layoff in October 2008, rendering her the most senior business education teacher and eligible for the first recall from the preferred eligibility list.”
The school board, on the other hand, argued that Marisco “cannot claim seniority credit for years served in a non-tenure track position that does not require a teaching certificate. Therefore, such service is not “service in the system” as required under Education Law §2510(3) for purposes of recall rights.”
The Commissioner found that, based Marisco employment record, she served as an adult education teacher in a distance-learning program from September 1, 1993 through the 2006-2007 school year. Accordingly, said the Commissioner, “Since none of the tenure areas prescribed in Subpart 30-1 of the Rules of the Board Regents relate to teachers of adult education and there is no teaching certificate required for such position, I find that [Marisco’s] service as an adult education teacher was in a non-tenure track position and cannot be considered for purposes of recall rights,” citing Appeal of Thomas, Commissioner’s Decision #13,275.
Further, said the Commissioner, “It is well settled that for purposes of determining the recall rights of teachers on a preferred eligibility list, length of service in the system is used, not length of service within a particular tenure area,” citing Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703.
As to what is considered “length of service in the system,” the Commissioner concluded that the phrase “length of service in the system” means length of service as a professional educator as defined in §30-1.1 of the Commissioner’s regulations.
Accordingly, said the Commissioner, Marisco’s service from September 1, 1993 until the 2006-2007 school year was not in a tenure-bearing position and, therefore, cannot be counted as “service in the system” for purposes of recall rights under Education Law §2510(3).
However, the Commissioner said that although he was “constrained to dismiss this appeal,” he noted that “the board lacked the authority to grant [Marisco] tenure in the business education tenure area for her service as an adult education teacher” and said that the board must follow “all pertinent provisions of the Civil Service Law, Education Law §2510 and Part 30 of Rules of the Board of Regents” in this regard.
NYPPL Comments: §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”
In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.
In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”
Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.
§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.
§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16158.htm
============================================
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/
============================================
NYPPL
School boards action in an executive session appointing an interim school superintendent held to have violated the State’s Open Meetings Law
School boards action in an executive session appointing an interim school superintendent held to have violated the State’s Open Meetings Law
Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51709(U), Decided on October 1, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]
David Zehner sued the Board of Education of the Jordan-Elbridge Central School District [and others] alleging that it had violated the Open Meetings Law when it appointed Sue Gorton as its Interim Superintendent during an Executive Session of the Board.
The Board subsequently issued a “public information bulletin” to the school community, stating that "[t]he Board has decided to appoint as Interim Superintendent, Ms. Sue Gorton effective November 1, 2010." This was done, said the Board, in order to ensure a seamless transition and Ms. Gorton was to begin working during the summer of 2010 on District-wide matters with Mrs. Marilyn Dominick. Mrs. Dominick, the current superintendent, was scheduled to retire effective November 1, 2010.
Zehner attorney wrote to the Board contending that the appointment of Gorton was in violation of the Open Meetings Law and that it was not properly noticed on the meeting agenda or discussed in open session. The Board did not response.
Failing to receive a response from the Board, Zehner sued, seeking a court order declaring that the Board's actions to appoint Gorton as Interim Superintendent while in Executive Session violated the Open Meetings Law and is therefore null and void for a number of reasons including “there is no statutory basis for the Board's action purporting to appoint an employee to the position of Interim Superintendent without a public vote or discussion and that the action….”
Although the Education Law §1708.3 provides that meetings of the board of education must be open to the public, it also permits a board to hold Executive Sessions, at which sessions only the members of such boards or the persons invited shall be present.
Judge Greenwood said that “The procedure and substance of those [executive] sessions is subject to the limitations of the Open Meetings Law,” citing Previdi v. Hirsh, 138 Misc 2d 436.
Judge Greenwood concluded that the Board violated the Open Meetings Law in number of ways, including failing “to give a sufficient reason for adjourning to Executive Session.” The court said that the Board was required to be specific in its resolution to go into executive session and its failure to do so constituted a violation of the Open Meetings Law.
The court also faulted the Board for discussing the issue of the "superintendent search" in Executive Session as there “is no exception for this type of discussion in the Open Meetings Law to take place in Executive Session.”
Further, the court held that the Board violated the Open Meetings Law by appointing Gorton as Interim Superintendent.
In the words of the court, “The act of discussing and coming to a consensus in Executive Session, but not passing a formal resolution, does not shield the Board from a violation of the law.” Rather, the Open Meetings Law was designed to “assure the public's right to be informed and it is the entire decision making process which the Legislature intended to affect by the statute, not only formal acts of voting or formal executions of documents.”
Judge Greenwood concluded that the Board members participated in a private meeting with a quorum of Board members present, where topics for discussion and eventual decision are such as would otherwise arise at a regular meeting occurred and in so doing the Board has violated the Open Meetings Law.
Finding that the Board’s appointing Gorton as Interim Superintendent violated the Open Meetings Law, Judge Greenwood declared its action void but denied Zehner motion seeking costs and reasonable attorney's fees pursuant to Public Officers Law §107(2).
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51709.htm
NYPPL
Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51709(U), Decided on October 1, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]
David Zehner sued the Board of Education of the Jordan-Elbridge Central School District [and others] alleging that it had violated the Open Meetings Law when it appointed Sue Gorton as its Interim Superintendent during an Executive Session of the Board.
The Board subsequently issued a “public information bulletin” to the school community, stating that "[t]he Board has decided to appoint as Interim Superintendent, Ms. Sue Gorton effective November 1, 2010." This was done, said the Board, in order to ensure a seamless transition and Ms. Gorton was to begin working during the summer of 2010 on District-wide matters with Mrs. Marilyn Dominick. Mrs. Dominick, the current superintendent, was scheduled to retire effective November 1, 2010.
Zehner attorney wrote to the Board contending that the appointment of Gorton was in violation of the Open Meetings Law and that it was not properly noticed on the meeting agenda or discussed in open session. The Board did not response.
Failing to receive a response from the Board, Zehner sued, seeking a court order declaring that the Board's actions to appoint Gorton as Interim Superintendent while in Executive Session violated the Open Meetings Law and is therefore null and void for a number of reasons including “there is no statutory basis for the Board's action purporting to appoint an employee to the position of Interim Superintendent without a public vote or discussion and that the action….”
Although the Education Law §1708.3 provides that meetings of the board of education must be open to the public, it also permits a board to hold Executive Sessions, at which sessions only the members of such boards or the persons invited shall be present.
Judge Greenwood said that “The procedure and substance of those [executive] sessions is subject to the limitations of the Open Meetings Law,” citing Previdi v. Hirsh, 138 Misc 2d 436.
Judge Greenwood concluded that the Board violated the Open Meetings Law in number of ways, including failing “to give a sufficient reason for adjourning to Executive Session.” The court said that the Board was required to be specific in its resolution to go into executive session and its failure to do so constituted a violation of the Open Meetings Law.
The court also faulted the Board for discussing the issue of the "superintendent search" in Executive Session as there “is no exception for this type of discussion in the Open Meetings Law to take place in Executive Session.”
Further, the court held that the Board violated the Open Meetings Law by appointing Gorton as Interim Superintendent.
In the words of the court, “The act of discussing and coming to a consensus in Executive Session, but not passing a formal resolution, does not shield the Board from a violation of the law.” Rather, the Open Meetings Law was designed to “assure the public's right to be informed and it is the entire decision making process which the Legislature intended to affect by the statute, not only formal acts of voting or formal executions of documents.”
Judge Greenwood concluded that the Board members participated in a private meeting with a quorum of Board members present, where topics for discussion and eventual decision are such as would otherwise arise at a regular meeting occurred and in so doing the Board has violated the Open Meetings Law.
Finding that the Board’s appointing Gorton as Interim Superintendent violated the Open Meetings Law, Judge Greenwood declared its action void but denied Zehner motion seeking costs and reasonable attorney's fees pursuant to Public Officers Law §107(2).
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51709.htm
NYPPL
Considering an employee’s personnel record in a disciplinary action
Considering an employee’s personnel record in a disciplinary action
Source: 2001 No. 2 Pub. Emp. L. Notes 27
On October 1, 2010, NYPPL posted a summary of the decision in Matter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), decided October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey, which addressed the issue of employee conduct that was the subject of counseling memoranda serving as the basis for disciplinary charges subsequently served on the employee was posted at:
http://publicpersonnellaw.blogspot.com/2010/10/conduct-that-was-subject-of-counseling.html
A footnote in NYPPL’s summary indicated that the court had cited 2001 No. 2 Pub. Emp. L. Notes 27 among the authorities it considered in making its decision. However, this reference apparently is not easy to locate. Accordingly. it has been set out below for those interested.
Our subscribers raise interesting questions. For example, a subscriber recently asked if NYPER was aware of any court decisions concerning the introduction of an employee's employment history into the record during a disciplinary hearing?
According to the subscriber, the Section 75 hearing officer admitted the accused employee's performance evaluations during the proceeding at the request of the appointing authority, indicating that the evaluations would be considered in determining the penalty the hearing officer would recommend if he found the employee guilty of one or more of the disciplinary charges.
The question raises a number of issues, including the following:
1. May such records be introduced into the record at the disciplinary hearing?
2. If the employee is found guilty of charges unrelated to adverse material in his or her personnel record, may the records be used to determine the penalty to be imposed by the hearing officer? By the appointing authority?
3. If the employee is found guilty of charges related to an adverse comment in his or her personnel records should further consideration be barred on the grounds of "double jeopardy?"
Introducing the personnel record:
In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott's argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing.
The court said that "such evidence was relevant to the determination of an appropriate penalty," noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.
Considering the personnel record:
Having introduced the employee's personnel records, for what purpose(s) may they be used?
In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:
1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and
2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer "mitigating circumstances."
Is criticism discipline?
In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee's personnel file were not "disciplinary penalties" and thus could be placed there without having to first hold a disciplinary proceeding.
In other words, the appointing authority's placing correspondence critical of the employee's conduct or performance in his or her personnel file did not constitute discipline.
The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.
In contrast, alleged "constructive criticism" may not be used to frustrate an employee's right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.
As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000:
Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.
What distinguishes lawful "constructive criticism" of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature? This could be a difficult question to resolve.
As the Court of Appeals indicated in Holt, a "counseling memorandum" that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.
In the Fusco and Irving cases the Commissioner of Education found that "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance.
In Fusco's case, the Commissioner said that "contents of the memorandum" did not fall within the parameters of a "permissible evaluation" despite the school board's claim that the memorandum was "intended to encourage positive change" in Fusco's performance.
The Commissioner noted that it "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."
In Irving's case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.
The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.
Double jeopardy
A "counseling memorandum" is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute "double jeopardy?"
No, according to the Court of Appeal's ruling in Patterson v Smith, 53 NY2d 98. In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not "double jeopardy."
The court explained that a "proper counseling memoranda" contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself.
Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event.
Further, the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty. The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate.
NYPPL
Source: 2001 No. 2 Pub. Emp. L. Notes 27
On October 1, 2010, NYPPL posted a summary of the decision in Matter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), decided October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey, which addressed the issue of employee conduct that was the subject of counseling memoranda serving as the basis for disciplinary charges subsequently served on the employee was posted at:
http://publicpersonnellaw.blogspot.com/2010/10/conduct-that-was-subject-of-counseling.html
A footnote in NYPPL’s summary indicated that the court had cited 2001 No. 2 Pub. Emp. L. Notes 27 among the authorities it considered in making its decision. However, this reference apparently is not easy to locate. Accordingly. it has been set out below for those interested.
Our subscribers raise interesting questions. For example, a subscriber recently asked if NYPER was aware of any court decisions concerning the introduction of an employee's employment history into the record during a disciplinary hearing?
According to the subscriber, the Section 75 hearing officer admitted the accused employee's performance evaluations during the proceeding at the request of the appointing authority, indicating that the evaluations would be considered in determining the penalty the hearing officer would recommend if he found the employee guilty of one or more of the disciplinary charges.
The question raises a number of issues, including the following:
1. May such records be introduced into the record at the disciplinary hearing?
2. If the employee is found guilty of charges unrelated to adverse material in his or her personnel record, may the records be used to determine the penalty to be imposed by the hearing officer? By the appointing authority?
3. If the employee is found guilty of charges related to an adverse comment in his or her personnel records should further consideration be barred on the grounds of "double jeopardy?"
Introducing the personnel record:
In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott's argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing.
The court said that "such evidence was relevant to the determination of an appropriate penalty," noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.
Considering the personnel record:
Having introduced the employee's personnel records, for what purpose(s) may they be used?
In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:
1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and
2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer "mitigating circumstances."
Is criticism discipline?
In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee's personnel file were not "disciplinary penalties" and thus could be placed there without having to first hold a disciplinary proceeding.
In other words, the appointing authority's placing correspondence critical of the employee's conduct or performance in his or her personnel file did not constitute discipline.
The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.
In contrast, alleged "constructive criticism" may not be used to frustrate an employee's right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.
As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000:
Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.
What distinguishes lawful "constructive criticism" of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature? This could be a difficult question to resolve.
As the Court of Appeals indicated in Holt, a "counseling memorandum" that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.
In the Fusco and Irving cases the Commissioner of Education found that "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance.
In Fusco's case, the Commissioner said that "contents of the memorandum" did not fall within the parameters of a "permissible evaluation" despite the school board's claim that the memorandum was "intended to encourage positive change" in Fusco's performance.
The Commissioner noted that it "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."
In Irving's case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.
The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.
Double jeopardy
A "counseling memorandum" is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute "double jeopardy?"
No, according to the Court of Appeal's ruling in Patterson v Smith, 53 NY2d 98. In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not "double jeopardy."
The court explained that a "proper counseling memoranda" contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself.
Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event.
Further, the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty. The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate.
NYPPL
Employees must answer questions honestly in the course of an investigation involving job-related conduct
Employees must answer questions honestly in the course of an investigation involving job-related conduct
People v James, Court of Appeals, 93 NY2d 620
Section 106 of the Civil Service Law provides that it is a misdemeanor to obstruct the civil service rights of an individual. Cases involving violations of Section 106, however, are rarely encountered. Allegations of violating Section 106 and then committing perjury concerning events involving the preparation of a civil service examinations were factors in the James case.
Gordon, a New York City Transit Police officer, had been assigned to help draft a promotion examination for the New York City Transit Police Department. He set up a meeting at his home that James attended together with other potential examinees named Lebron, Tarquini and Gillians. Material concerning of the promotional examination was distributed, including questions that were ultimately included on the promotion test.
James and the others copied the materials distributed by Gordon and left with them after the meeting. One of the participants, Lebron, later gave photocopies of the test materials that she had copied, together with the tapes of her telephone conversation with Gordon, to the Department’s Internal Affairs Bureau.
The February 1991 promotion examination was invalidated, and a substitute examination was given on February 2, 1992. James, Tarquini and Gillians took the substitute examination and their rankings on the technical knowledge section of the test was determined to have dropped significantly below their performance on the 1991 test. James was called before the Grand Jury investigating the allegations of cheating on the test.
After being granted immunity, James testified that he had never been to Gordon’s home in 1990, that he had never been to Gordon’s home when Lebron was present and that he did not attend a study session at Gordon’s home on October 20, 1990. He was subsequently indicted on six counts of perjury based upon those sworn denials -- a grant of immunity does not afford a witness the right to commit perjury.*
The decision of the U.S. Supreme Court in La Chance v Erickson, 522 US 662, is instructive concerning such situations. Here the Court ruled unanimously that federal government agencies could mete out harsher discipline to employees who lie while being investigated for job-related conduct. Although only federal employees were involved, the ruling could influence cases involving state and local employees in similar situations.
Citing Bryson v. United States, 396 US 64, the Court said:
Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
Thus, said the Court, “… we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.”
On another point, Chief Justice William H. Rehnquist wrote that if employees remain silent, citing the Fifth Amendment or some other reason, employers are free to take such silence into consideration and draw adverse inferences in discipline.
* Gordon was also indicted by a Grand Jury on two counts of official misconduct in violation of Penal Law Section 195.00 and four counts of obstructing civil service rights in violation of Civil Service Law Section 106. In March 1994, Gordon was convicted of both counts of official misconduct and three of the four counts of obstructing civil service rights.
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People v James, Court of Appeals, 93 NY2d 620
Section 106 of the Civil Service Law provides that it is a misdemeanor to obstruct the civil service rights of an individual. Cases involving violations of Section 106, however, are rarely encountered. Allegations of violating Section 106 and then committing perjury concerning events involving the preparation of a civil service examinations were factors in the James case.
Gordon, a New York City Transit Police officer, had been assigned to help draft a promotion examination for the New York City Transit Police Department. He set up a meeting at his home that James attended together with other potential examinees named Lebron, Tarquini and Gillians. Material concerning of the promotional examination was distributed, including questions that were ultimately included on the promotion test.
James and the others copied the materials distributed by Gordon and left with them after the meeting. One of the participants, Lebron, later gave photocopies of the test materials that she had copied, together with the tapes of her telephone conversation with Gordon, to the Department’s Internal Affairs Bureau.
The February 1991 promotion examination was invalidated, and a substitute examination was given on February 2, 1992. James, Tarquini and Gillians took the substitute examination and their rankings on the technical knowledge section of the test was determined to have dropped significantly below their performance on the 1991 test. James was called before the Grand Jury investigating the allegations of cheating on the test.
After being granted immunity, James testified that he had never been to Gordon’s home in 1990, that he had never been to Gordon’s home when Lebron was present and that he did not attend a study session at Gordon’s home on October 20, 1990. He was subsequently indicted on six counts of perjury based upon those sworn denials -- a grant of immunity does not afford a witness the right to commit perjury.*
The decision of the U.S. Supreme Court in La Chance v Erickson, 522 US 662, is instructive concerning such situations. Here the Court ruled unanimously that federal government agencies could mete out harsher discipline to employees who lie while being investigated for job-related conduct. Although only federal employees were involved, the ruling could influence cases involving state and local employees in similar situations.
Citing Bryson v. United States, 396 US 64, the Court said:
Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
Thus, said the Court, “… we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.”
On another point, Chief Justice William H. Rehnquist wrote that if employees remain silent, citing the Fifth Amendment or some other reason, employers are free to take such silence into consideration and draw adverse inferences in discipline.
* Gordon was also indicted by a Grand Jury on two counts of official misconduct in violation of Penal Law Section 195.00 and four counts of obstructing civil service rights in violation of Civil Service Law Section 106. In March 1994, Gordon was convicted of both counts of official misconduct and three of the four counts of obstructing civil service rights.
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Court said dismissal too harsh a penalty after considering employee’s personnel file
Court said dismissal too harsh a penalty after considering employee’s personnel file
Schnaars v Copiague UFSD, 275 AD2d 462
Is dismissal too severe a penalty for a school employee who uses a school computer to find pornographic web sites? Yes, both a Supreme Court Judge and the Appellate Division ruled in the Schnaars case.
A student at Copiague High School turned on a school computer and was immediately confronted by a pornographic image. Schnaars, Copiague UFSD’s head custodian, took responsibility. Schnaars admitted that, with his subordinates, he accessed pornographic web sites during two night shift tours of duty.
The district filed disciplinary charges against him, alleging that he had used the district’s computers without authorization and neglected his duty. The hearing officer found Schnaars guilty of the charges and recommended that he be demoted to a lower grade position.
Although the board adopted the hearing officer’s findings as to guilt, it rejected the penalty recommended by the hearing officer and voted to terminate Schnaars instead.*
Schnaars sued, contending that board’s rejection of the hearing officer’s recommendation as to the penalty to be imposed was arbitrary, capricious, an abuse of discretion, and disproportionate to the offense for which he was found guilty.
New York State Supreme Court Judge Marquette L. Floyd of Suffolk County said that where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” citing the so-called Pell Standard [Pell v Board of Education, 34 NY2d 222]. Although courts rarely find that an administrative penalty violates the Pell Standard, in this instance Judge Floyd decided that dismissing Schnaars was a shockingly disproportionate penalty.
The Appellate Division affirmed the lower court’s ruling, commenting that Schnaars’ actions did not involve “moral turpitude, gross injury to the agency involved or [gross injury] to the public weal.”
Noting that “access to the school’s computers can be curtailed through adequate passwords and by ‘filtering’ software, which may also be complicated by First Amendment issues,” the Appellate Division said that although it “does not condone [Schnaars’] individual or supervisory behavior, his termination is so disproportionate to the facts that it may not be permitted to stand.”
What are some of the factors that should be considered in settling a disciplinary penalty? The Appellate Division said that where there is no “grave moral turpitude” and no grave injury to the agency or to the public weal,” the following should be considered:
1. The length of employment of the employee;
2. The probability that a dismissal may leave the employee without any alternative livelihood;
3. The employee’s loss of retirement benefits; and
4. The impact upon his innocent family.
In contrast, the court said that no such consideration of “mitigating circumstances” is required in situations involving such actions as a “deliberate, planned, unmitigated larceny, or bribe taking, or [a] demonstrated lack of qualification for the assigned job.”
The decision observed that Schnaars “candidly acknowledged his violation of District policy and sought to correct [the] same by informing his subordinates that ‘this has got to stop.’” Another consideration, said the court, was Schnaars “otherwise 13 year unblemished record with the District with many letters of recommendation and accolades that exhibit faithful and loyal service.”
What penalty would be appropriate in this case? The court said that the district should reinstate Schnaars to his position as Head Custodian with back salary and then impose “an appropriate penalty” suggesting either “demotion and/or suspension without pay for a reasonable period, said period not to exceed ninety (90) days.”
The Appellate Division also said that the district “shall be entitled to a credit of any of [Schnaars’] earned income from the time of his termination to the date of reinstatement.”
However, Civil Service Law Section 77 -- compensation of officers and employees reinstated by court order -- currently authorizes such adjustment only for “unemployment insurance benefits.” In 1985, Section 77 was amended to eliminate the clause allowing adjustments for “compensation which [the individual] may have earned in any other employment or occupation...” [Chapter 851, Laws of 1985].
On another area of concern: the decision sets out the penalty that the court said could be imposed: demotion and/or suspension without pay not to exceed ninety days.
This suggests that the district could demote Schnaars or it could suspend him without pay or it could impose both penalties. Courts, however, have ruled that only one of the several penalties set out in Section 75 may be imposed on an individual found guilty of Section 75 disciplinary charges -- the imposition of multiple penalties is not authorized. In other words, cumulative penalties are not permitted in such cases.
In Matteson v City of Oswego, 588 NYS2d 472, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.
Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.
The Appellate Division held that the penalty meted out was contrary to law in that "the imposition of multiple penalties was improper" under 75.3 of the Civil Service Law.
In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a "contract disciplinary procedure" the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator. Rarely are arbitrators limited as to the penalties or combination of penalties they can assign.
* Demotion or termination are among the penalties an appointing authority may impose on an employee found guilty of misconduct or incompetence pursuant to Section 75.
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Schnaars v Copiague UFSD, 275 AD2d 462
Is dismissal too severe a penalty for a school employee who uses a school computer to find pornographic web sites? Yes, both a Supreme Court Judge and the Appellate Division ruled in the Schnaars case.
A student at Copiague High School turned on a school computer and was immediately confronted by a pornographic image. Schnaars, Copiague UFSD’s head custodian, took responsibility. Schnaars admitted that, with his subordinates, he accessed pornographic web sites during two night shift tours of duty.
The district filed disciplinary charges against him, alleging that he had used the district’s computers without authorization and neglected his duty. The hearing officer found Schnaars guilty of the charges and recommended that he be demoted to a lower grade position.
Although the board adopted the hearing officer’s findings as to guilt, it rejected the penalty recommended by the hearing officer and voted to terminate Schnaars instead.*
Schnaars sued, contending that board’s rejection of the hearing officer’s recommendation as to the penalty to be imposed was arbitrary, capricious, an abuse of discretion, and disproportionate to the offense for which he was found guilty.
New York State Supreme Court Judge Marquette L. Floyd of Suffolk County said that where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” citing the so-called Pell Standard [Pell v Board of Education, 34 NY2d 222]. Although courts rarely find that an administrative penalty violates the Pell Standard, in this instance Judge Floyd decided that dismissing Schnaars was a shockingly disproportionate penalty.
The Appellate Division affirmed the lower court’s ruling, commenting that Schnaars’ actions did not involve “moral turpitude, gross injury to the agency involved or [gross injury] to the public weal.”
Noting that “access to the school’s computers can be curtailed through adequate passwords and by ‘filtering’ software, which may also be complicated by First Amendment issues,” the Appellate Division said that although it “does not condone [Schnaars’] individual or supervisory behavior, his termination is so disproportionate to the facts that it may not be permitted to stand.”
What are some of the factors that should be considered in settling a disciplinary penalty? The Appellate Division said that where there is no “grave moral turpitude” and no grave injury to the agency or to the public weal,” the following should be considered:
1. The length of employment of the employee;
2. The probability that a dismissal may leave the employee without any alternative livelihood;
3. The employee’s loss of retirement benefits; and
4. The impact upon his innocent family.
In contrast, the court said that no such consideration of “mitigating circumstances” is required in situations involving such actions as a “deliberate, planned, unmitigated larceny, or bribe taking, or [a] demonstrated lack of qualification for the assigned job.”
The decision observed that Schnaars “candidly acknowledged his violation of District policy and sought to correct [the] same by informing his subordinates that ‘this has got to stop.’” Another consideration, said the court, was Schnaars “otherwise 13 year unblemished record with the District with many letters of recommendation and accolades that exhibit faithful and loyal service.”
What penalty would be appropriate in this case? The court said that the district should reinstate Schnaars to his position as Head Custodian with back salary and then impose “an appropriate penalty” suggesting either “demotion and/or suspension without pay for a reasonable period, said period not to exceed ninety (90) days.”
The Appellate Division also said that the district “shall be entitled to a credit of any of [Schnaars’] earned income from the time of his termination to the date of reinstatement.”
However, Civil Service Law Section 77 -- compensation of officers and employees reinstated by court order -- currently authorizes such adjustment only for “unemployment insurance benefits.” In 1985, Section 77 was amended to eliminate the clause allowing adjustments for “compensation which [the individual] may have earned in any other employment or occupation...” [Chapter 851, Laws of 1985].
On another area of concern: the decision sets out the penalty that the court said could be imposed: demotion and/or suspension without pay not to exceed ninety days.
This suggests that the district could demote Schnaars or it could suspend him without pay or it could impose both penalties. Courts, however, have ruled that only one of the several penalties set out in Section 75 may be imposed on an individual found guilty of Section 75 disciplinary charges -- the imposition of multiple penalties is not authorized. In other words, cumulative penalties are not permitted in such cases.
In Matteson v City of Oswego, 588 NYS2d 472, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.
Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.
The Appellate Division held that the penalty meted out was contrary to law in that "the imposition of multiple penalties was improper" under 75.3 of the Civil Service Law.
In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a "contract disciplinary procedure" the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator. Rarely are arbitrators limited as to the penalties or combination of penalties they can assign.
* Demotion or termination are among the penalties an appointing authority may impose on an employee found guilty of misconduct or incompetence pursuant to Section 75.
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Communications between department’s attorney and agency employees privileged
Communications between department’s attorney and agency employees privileged
Coleman v City of New York, NYS Supreme Court, Judge Peck, [Not selected for publication in the Official Reports]
In the private sector, conversations between an attorney and his or her client are private and cannot be disclosed without the client’s permission. If the employer is an entity such as the New York City Department of Health, and different employees speak with the department’s attorney, are such conversations privileged?
In the Coleman case, a state Supreme Court Justice ruled that the answer is yes.
State Supreme Court Judge George R. Peck said that the rules that applied in cases involving a private corporation were equally applicable to governmental employers. Just as the attorney-client privilege applies to confidential communications between a corporation and its attorneys, including communications between the corporation’s attorney and low-level corporate employees, the “Defendant City is a legal creation which acts through its employees, at all levels.”
Michael Coleman was terminated from his position at the Health Department in May 1998 as a result of having been prosecuted for taking bribes. Coleman denied taking any bribes and sued the city. His complaint alleged false arrest, malicious prosecution and related charges.
Coleman’s attorney attempted to depose a number of city employees concerning communications they had with an Assistant Corporation Counsel [ACC] concerning the case. The ACC objected, contending that conversations were privileged.
The attorney-client privilege generally excuses an attorney from having to disclose the content of communications concerning actual or potential litigation between the attorney and his or her client unless the client waives the privilege. Further, the attorney-client privilege may be invoked only by the client, or by the attorney on behalf of the client. The client, of course, may elect to “waive” the privilege.
Coleman’s attorney claimed that there was no attorney-client privilege because the employees he sought to depose had not asked the ACC to represent them in this litigation.
State Supreme Court Judge Peck decided that the communications were, in fact, privileged and prohibited Colemen’s attorney from deposing the employees concerning their conversations or other communications with the ACC. According to the ruling, it did not make any difference whether the employee-witness asked the Corporation Counsel to represent him or not -- the communications were privileged.
Judge Peck held that just as attorneys for corporations and for individual clients, the defendant City must have the same opportunity for a privileged “open dialogue” by its attorney in preparing city employee-witnesses for trial. Otherwise, the city “would be at a disadvantage in preparing for trial as compared to other types of parties.”
In the Matter of Lindsey Grand Jury Testimony, 148 F.3d 1100, a U.S. Circuit Court of Appeals held that if a public official wishes to claim the attorney-client privilege in connection with discussions involving “official business” with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.
Here the issue was whether the conversation between the President of the United States and a federal government employee-attorney serving as his counsel for the purpose of obtaining legal advice triggered the attorney-client privilege with respect to compelling the attorney to testify before a grand jury concerning his conversations with the President. The Circuit Court ruled that in this instance no attorney-client relationship was created.
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Coleman v City of New York, NYS Supreme Court, Judge Peck, [Not selected for publication in the Official Reports]
In the private sector, conversations between an attorney and his or her client are private and cannot be disclosed without the client’s permission. If the employer is an entity such as the New York City Department of Health, and different employees speak with the department’s attorney, are such conversations privileged?
In the Coleman case, a state Supreme Court Justice ruled that the answer is yes.
State Supreme Court Judge George R. Peck said that the rules that applied in cases involving a private corporation were equally applicable to governmental employers. Just as the attorney-client privilege applies to confidential communications between a corporation and its attorneys, including communications between the corporation’s attorney and low-level corporate employees, the “Defendant City is a legal creation which acts through its employees, at all levels.”
Michael Coleman was terminated from his position at the Health Department in May 1998 as a result of having been prosecuted for taking bribes. Coleman denied taking any bribes and sued the city. His complaint alleged false arrest, malicious prosecution and related charges.
Coleman’s attorney attempted to depose a number of city employees concerning communications they had with an Assistant Corporation Counsel [ACC] concerning the case. The ACC objected, contending that conversations were privileged.
The attorney-client privilege generally excuses an attorney from having to disclose the content of communications concerning actual or potential litigation between the attorney and his or her client unless the client waives the privilege. Further, the attorney-client privilege may be invoked only by the client, or by the attorney on behalf of the client. The client, of course, may elect to “waive” the privilege.
Coleman’s attorney claimed that there was no attorney-client privilege because the employees he sought to depose had not asked the ACC to represent them in this litigation.
State Supreme Court Judge Peck decided that the communications were, in fact, privileged and prohibited Colemen’s attorney from deposing the employees concerning their conversations or other communications with the ACC. According to the ruling, it did not make any difference whether the employee-witness asked the Corporation Counsel to represent him or not -- the communications were privileged.
Judge Peck held that just as attorneys for corporations and for individual clients, the defendant City must have the same opportunity for a privileged “open dialogue” by its attorney in preparing city employee-witnesses for trial. Otherwise, the city “would be at a disadvantage in preparing for trial as compared to other types of parties.”
In the Matter of Lindsey Grand Jury Testimony, 148 F.3d 1100, a U.S. Circuit Court of Appeals held that if a public official wishes to claim the attorney-client privilege in connection with discussions involving “official business” with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.
Here the issue was whether the conversation between the President of the United States and a federal government employee-attorney serving as his counsel for the purpose of obtaining legal advice triggered the attorney-client privilege with respect to compelling the attorney to testify before a grand jury concerning his conversations with the President. The Circuit Court ruled that in this instance no attorney-client relationship was created.
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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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