Initiating disciplinary action based on anonymous allegations of wrongdoing
Wilson v City of White Plains, 259 AD2d 756, reversed, 95 NY2d 783
Anonymous communications that allege improper conduct by an employee place the appointing authority on the horns of a dilemma. If the employer ignores the communication, it may later develop that there was some substance to the allegation, and the employer will be exposed to criticism (or liability) for failing to act “on the information.” On the other hand, if the appointing authority confronts the employee, relying solely on the information it received anonymously, it may be criticized for taking adverse action against the employee based on such information alone. Such was the situation that faced the appointing authority in the Wilson case.
White Plains firefighter Scott Wilson had been directed to submit to blood and urine tests based on what the Appellate Division characterized as “unsubstantiated information contained in an anonymous letter” that had been received by the department. Ultimately disciplinary charges were filed against Wilson. A hearing officer found Wilson guilty of six charges of misconduct. The Commissioner of Public Safety adopted the findings and recommendations of the hearing officer and dismissed Wilson from his position. Wilson appealed his termination and persuaded the court that his removal was arbitrary.
Noting that “there was no objective evidence which would have suggested that the [Wilson] was abusing alcohol or drugs,” the Appellate Division said that under these circumstances, ordering Wilson to undergo such testing “was arbitrary and without even a minimal basis of justification.” Finding that Wilson’s dismissal was improper under the circumstances, the court directed the department to reinstate him to his former position with back pay and benefits.
The key issue: Did the Department have “reasonable suspicion” to require Wilson to submit to blood and urine tests for alcohol or drugs? Finding that the order was based on “reasonable suspicion,” the Court of Appeals reversed the Appellate Division’s ruling.
The court said that “Reversal is warranted because the [lower] Court erred in concluding that there was no objective evidence as to Wilson's substance abuse and overlooked the following findings of the Hearing Officer: In 1986, four years after joining the City of White Plains Fire Department, Wilson voluntarily sought treatment at a substance abuse facility.”
When he returned to duty, Wilson was told that he would be monitored for signs of recurring substance abuse and tested if he showed such signs.
Further, Wilson acknowledged that he understood that any repetition of his substance abuse would result in disciplinary charges.
In August 1996, the Fire Commissioner received an anonymous letter, indicating that Wilson had been reporting to work under the influence of alcohol. After reviewing the letter with other fire department officials, the Fire Commissioner decided to investigate the situation further. As a part of the investigation, fire department officials reviewed Wilson's personnel file, which revealed a history of chronic absenteeism.
In the words of the Court of Appeals: “A public agency may lawfully order an employee to submit to a drug test on reasonable suspicion of drug use.” The that this the Department had met this standard and, in addition, the Department’s “reasonable suspicion” was supported by far more than just the anonymous letter.
In addition to the letter, said the court, the City presented evidence of Wilson's physical manifestations of substance abuse the day he was tested, a long record of excessive absences, prior substance abuse problems, a reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.
NYPPL
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.
Nov 3, 2010
Extending an eligible list
Extending an eligible list
Doyle v NYC Dept. of Citywide Administrative Services, 261 A.D.2d 110
Thomas Doyle brought an Article 78 action to compel the New York City Department of Citywide Administrative Services to extend a civil service eligible list beyond its “maximum life.” The Appellate Division dismissed Doyle’s petition.
Noting that Doyle asked relief in the nature of mandamus (i.e., an order that a responsible official or agency perform a required duty), the Appellate Division said that mandamus is available only to compel a nondiscretionary governmental act, citing Matter of Altamore v Barrios-Paoli, 90 NY2d 378.
Here, said the court, Doyle is demanding that a civil service eligible list be extended. Because there is no question that the extension of a civil service eligible list is a discretionary act on the part of the administrator charged with maintaining such eligible lists, the court said it could not order the city to extend the list.
The Appellate Division said that there was no evidence that Department’s determination to let the list expire at the end of its maximum statutory term was arbitrary and capricious or made in bad faith.
As set out in Section 56 of the Civil Service Law, the duration of an eligible list shall be for at least one year but shall not extend beyond four years.
However, Section 56.3 provides that in the event an individual whose “disqualification has been reversed” or whose rank on the eligible list has been “adjusted by administrative or judicial action”, the candidate’s name is to be placed on the relevant eligible list[s] “for a period of time equal to the period of disqualification or for the period the application [sic] has been improperly ranked, up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer.
If the list expires before the individual has had his or her name “restoration to the eligible list,” for at least one year, the individual’s name is to be placed on a “special list” for the period remaining; if the list expires before being “restored,” the individual’s name is to be placed on a special eligible list “for a length of time equal to the restored period of time not to exceed a maximum of one year.”
NYPPL
Doyle v NYC Dept. of Citywide Administrative Services, 261 A.D.2d 110
Thomas Doyle brought an Article 78 action to compel the New York City Department of Citywide Administrative Services to extend a civil service eligible list beyond its “maximum life.” The Appellate Division dismissed Doyle’s petition.
Noting that Doyle asked relief in the nature of mandamus (i.e., an order that a responsible official or agency perform a required duty), the Appellate Division said that mandamus is available only to compel a nondiscretionary governmental act, citing Matter of Altamore v Barrios-Paoli, 90 NY2d 378.
Here, said the court, Doyle is demanding that a civil service eligible list be extended. Because there is no question that the extension of a civil service eligible list is a discretionary act on the part of the administrator charged with maintaining such eligible lists, the court said it could not order the city to extend the list.
The Appellate Division said that there was no evidence that Department’s determination to let the list expire at the end of its maximum statutory term was arbitrary and capricious or made in bad faith.
As set out in Section 56 of the Civil Service Law, the duration of an eligible list shall be for at least one year but shall not extend beyond four years.
However, Section 56.3 provides that in the event an individual whose “disqualification has been reversed” or whose rank on the eligible list has been “adjusted by administrative or judicial action”, the candidate’s name is to be placed on the relevant eligible list[s] “for a period of time equal to the period of disqualification or for the period the application [sic] has been improperly ranked, up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer.
If the list expires before the individual has had his or her name “restoration to the eligible list,” for at least one year, the individual’s name is to be placed on a “special list” for the period remaining; if the list expires before being “restored,” the individual’s name is to be placed on a special eligible list “for a length of time equal to the restored period of time not to exceed a maximum of one year.”
NYPPL
Transfer of employees
Transfer of employees
Allah v NYC Health and Hosp. Corp., 259 AD2d 409, Appeal dismissed, 93 NY2d 999
Section 45 of the Civil Service Law provides for the continuation of employment for eligible employees of a private entity when a public agency assumes the functions formerly performed by the private organization.
The Allah case concerns a variation of this: the “transfer” employees of a private employer to a public employer when (1) the private employer continues to provide services and (2) the public employer performs some of these functions as well. This was the situation when New York City’s Health and Hospital Corporation [HHC] decided to provide some of the services then being provided by the New York Medical College and Coney Island Medical Group as private entities. In other words, there was no Section 45 take-over of these two organizations.
HHC decided that it needed to transfer some of the College’s and the Group’s personnel to perform these “new” services.
To facilitate this “transfer,” the State Legislature enacted Unconsolidated Laws Section 7390(2)(b) exempting health care personnel formerly employed by the College and the Group transferred to HHC from having to take and pass a competitive examination as a condition of becoming civil service employees with permanent competitive status within the HHC system.
The Appellate Division ruled that this provision did not violate Article V, Section 6 of the State Constitution, which requires civil service appointments to be made according to merit and fitness and, as far as practicable, by competitive examination. The court said that the Legislature had expressly determined that “requiring a competitive examination as a condition of transferring the aforementioned personnel to HHC civil service employment with permanent competitive status would seriously interrupt the continuous provision of health and medical services.”
Another issue, however, concerned the “seniority” of individuals “transferred” to HHC.
Section 45 provides that employees in a “takeover” retain the seniority “as among themselves.” However, insofar as their seniority in the public service for the purposes of layoff and other statutory requirements is concerned, such individuals cannot claim seniority pre-dating the effective date of their permanent appointment in the public service with respect to the seniority of employees in the public service on or before the date of a takeover.
Allah and other individuals claimed that employees who had been transferred to HHC employment from New York Medical College and Coney Island Medical Group pursuant to the Unconsolidated Law had Section 45 seniority rights.
The Appellate Division disagreed, ruling that Section 45 is triggered only upon public acquisition of a private institution. Here, the Court decided, there was no takeover of a private entity but merely a transfer of employees to enable HHC to perform functions that New York Medical College and the Coney Island Medical Group continue to provide subsequent to their transfer. Accordingly, there was no acquisition within the meaning of Section 45 and therefore the statute is not applicable.
NYPPL
Allah v NYC Health and Hosp. Corp., 259 AD2d 409, Appeal dismissed, 93 NY2d 999
Section 45 of the Civil Service Law provides for the continuation of employment for eligible employees of a private entity when a public agency assumes the functions formerly performed by the private organization.
The Allah case concerns a variation of this: the “transfer” employees of a private employer to a public employer when (1) the private employer continues to provide services and (2) the public employer performs some of these functions as well. This was the situation when New York City’s Health and Hospital Corporation [HHC] decided to provide some of the services then being provided by the New York Medical College and Coney Island Medical Group as private entities. In other words, there was no Section 45 take-over of these two organizations.
HHC decided that it needed to transfer some of the College’s and the Group’s personnel to perform these “new” services.
To facilitate this “transfer,” the State Legislature enacted Unconsolidated Laws Section 7390(2)(b) exempting health care personnel formerly employed by the College and the Group transferred to HHC from having to take and pass a competitive examination as a condition of becoming civil service employees with permanent competitive status within the HHC system.
The Appellate Division ruled that this provision did not violate Article V, Section 6 of the State Constitution, which requires civil service appointments to be made according to merit and fitness and, as far as practicable, by competitive examination. The court said that the Legislature had expressly determined that “requiring a competitive examination as a condition of transferring the aforementioned personnel to HHC civil service employment with permanent competitive status would seriously interrupt the continuous provision of health and medical services.”
Another issue, however, concerned the “seniority” of individuals “transferred” to HHC.
Section 45 provides that employees in a “takeover” retain the seniority “as among themselves.” However, insofar as their seniority in the public service for the purposes of layoff and other statutory requirements is concerned, such individuals cannot claim seniority pre-dating the effective date of their permanent appointment in the public service with respect to the seniority of employees in the public service on or before the date of a takeover.
Allah and other individuals claimed that employees who had been transferred to HHC employment from New York Medical College and Coney Island Medical Group pursuant to the Unconsolidated Law had Section 45 seniority rights.
The Appellate Division disagreed, ruling that Section 45 is triggered only upon public acquisition of a private institution. Here, the Court decided, there was no takeover of a private entity but merely a transfer of employees to enable HHC to perform functions that New York Medical College and the Coney Island Medical Group continue to provide subsequent to their transfer. Accordingly, there was no acquisition within the meaning of Section 45 and therefore the statute is not applicable.
NYPPL
Accidental disability retirement
Accidental disability retirement
Tuper v McCall, App. Div., 259 AD2d 941
Establishing eligibility for accidental disability retirement is not easy in New York State, as the Tuper case illustrates. State corrections officer Toni Tuper slipped on a wet floor while supervising a prison inmate mopping. She also fell on a stairway located in a building to which she was assigned, and later fell again while running with a medical bag to a medical emergency.
Tuper applied for accidental disability retirement benefits based on the injuries she sustained in each of these slips and falls. The state Employees’ Retirement System (ERS) denied her application on the grounds that none of the incidents she cited constituted accidents within the meaning of Retirement and Social Security Law (RSSL) Section 507-a(b)(3).
An accident under RSSL is an unexpected and unforeseen event whose occurrence is not the result of the ordinary, predictable risks inherent in one’s duties. For instance, a police patrol officer who is shot by a robber and is incapacitated probably would not be awarded accidental disability retirement because being exposed to gunfire is inherent risk of a patrol officer’s duty.
After exhausting her administrative remedies, Tuper sued, challenging the ultimate denial of her application by the then State Comptroller, H. Carl McCall. The Appellate Division sustained the Comptroller’s determination, noting that Tuper had failed to meet her burden of demonstrating that her disability was the result of a work-related accident.
As the Appellate Division pointed out, not every event that results in a work-related injury is an “accident” for the purposes of establishing eligibility for an accidental disability retirement allowance. In Lichenstein v Board of Trustees, 57 NY2d 1010, the Court of Appeals said that “[A]n injury that occurs without an unexpected event, as the result of activity undertaken in the performance of ordinary employment duties (considered in view of the particular employment in question) is not an accidental injury....”
In other words, if an employee is injured while he or she is performing his or her duties and the cause of the injury was not an “unexpected event,” -- that is, the injury was the result of an incident that could reasonably be anticipated or expected, considering the work being performed -- it is not an accident for the purposes of the Retirement and Social Security Law. In reviewing Tuper’s claims the Appellate Division addressed each of the events she claimed demonstrated her eligibility for accidental disability retirement benefits.
Tuper first contended that she was entitled to an accidental disability retirement allowance as the result of her slipping and falling on a wet floor while she was supervising a prison inmate mopping. The Appellate Division said that “inasmuch as a wet floor would ordinarily be anticipated in the context of [Tuper’s] supervision of the mopping detail, [the Comptroller] could rationally conclude that [Tuper’s] slip on the wet surface was not an accident ....”
Tuper fared no better with respect to her second basis for her claim. Here she contended that she had fallen on a stairway located in a building to which she was assigned. She alleged that the building had been condemned and the stairs moved up and down when in use. Tuper, however, was unable to attribute her fall to any of these defects and conceded that she was unsure of the exact cause of her fall. The court decided that under the circumstances, the Comptroller “could rationally conclude that [Tuper’s] petitioner’s fall was the result of her own misstep and did not constitute an accident....”
In her final effort, Tuper claimed that “while on light-duty status, [she] was directed to run with a medical bag to the scene of a medical emergency.” She fell while running. Again the Appellate Division sustained the Comptroller’s decision denying her accidental disability retirement benefits.
The court observed that the Comptroller “could rationally conclude that this third incident did not constitute an accident because the injury was the result of the risk of ‘exertional injury’ inherent in the activity which [Tuper] was expected to perform in the ordinary course of [Tuper’s] employment.”
As a correction officer member of the State’s Police and Firefighter Retirement System (PFRS), Tuper was eligible for disability retirement benefits pursuant to Section 507-a(b)(3). Other state and municipal employees are eligible for accidental disability retirement benefits under a different section -- Section 63 of the Retirement and Social Security Law. Section 63 provides for accidental disability retirement benefits for members of the State’s Employees’ Retirement System (ERS) who are disabled as a result of an “accidental injury” while performing official duties.
Section 363 provides similar benefits to police officers and firefighters who are members of the ERS.
Regardless of the statutory provision involved, courts use the same analysis to determine if a disability resulted from an accident for the purposes of determining eligibility for disability retirement.
============================================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html ============================================
NYPPL
Tuper v McCall, App. Div., 259 AD2d 941
Establishing eligibility for accidental disability retirement is not easy in New York State, as the Tuper case illustrates. State corrections officer Toni Tuper slipped on a wet floor while supervising a prison inmate mopping. She also fell on a stairway located in a building to which she was assigned, and later fell again while running with a medical bag to a medical emergency.
Tuper applied for accidental disability retirement benefits based on the injuries she sustained in each of these slips and falls. The state Employees’ Retirement System (ERS) denied her application on the grounds that none of the incidents she cited constituted accidents within the meaning of Retirement and Social Security Law (RSSL) Section 507-a(b)(3).
An accident under RSSL is an unexpected and unforeseen event whose occurrence is not the result of the ordinary, predictable risks inherent in one’s duties. For instance, a police patrol officer who is shot by a robber and is incapacitated probably would not be awarded accidental disability retirement because being exposed to gunfire is inherent risk of a patrol officer’s duty.
After exhausting her administrative remedies, Tuper sued, challenging the ultimate denial of her application by the then State Comptroller, H. Carl McCall. The Appellate Division sustained the Comptroller’s determination, noting that Tuper had failed to meet her burden of demonstrating that her disability was the result of a work-related accident.
As the Appellate Division pointed out, not every event that results in a work-related injury is an “accident” for the purposes of establishing eligibility for an accidental disability retirement allowance. In Lichenstein v Board of Trustees, 57 NY2d 1010, the Court of Appeals said that “[A]n injury that occurs without an unexpected event, as the result of activity undertaken in the performance of ordinary employment duties (considered in view of the particular employment in question) is not an accidental injury....”
In other words, if an employee is injured while he or she is performing his or her duties and the cause of the injury was not an “unexpected event,” -- that is, the injury was the result of an incident that could reasonably be anticipated or expected, considering the work being performed -- it is not an accident for the purposes of the Retirement and Social Security Law. In reviewing Tuper’s claims the Appellate Division addressed each of the events she claimed demonstrated her eligibility for accidental disability retirement benefits.
Tuper first contended that she was entitled to an accidental disability retirement allowance as the result of her slipping and falling on a wet floor while she was supervising a prison inmate mopping. The Appellate Division said that “inasmuch as a wet floor would ordinarily be anticipated in the context of [Tuper’s] supervision of the mopping detail, [the Comptroller] could rationally conclude that [Tuper’s] slip on the wet surface was not an accident ....”
Tuper fared no better with respect to her second basis for her claim. Here she contended that she had fallen on a stairway located in a building to which she was assigned. She alleged that the building had been condemned and the stairs moved up and down when in use. Tuper, however, was unable to attribute her fall to any of these defects and conceded that she was unsure of the exact cause of her fall. The court decided that under the circumstances, the Comptroller “could rationally conclude that [Tuper’s] petitioner’s fall was the result of her own misstep and did not constitute an accident....”
In her final effort, Tuper claimed that “while on light-duty status, [she] was directed to run with a medical bag to the scene of a medical emergency.” She fell while running. Again the Appellate Division sustained the Comptroller’s decision denying her accidental disability retirement benefits.
The court observed that the Comptroller “could rationally conclude that this third incident did not constitute an accident because the injury was the result of the risk of ‘exertional injury’ inherent in the activity which [Tuper] was expected to perform in the ordinary course of [Tuper’s] employment.”
As a correction officer member of the State’s Police and Firefighter Retirement System (PFRS), Tuper was eligible for disability retirement benefits pursuant to Section 507-a(b)(3). Other state and municipal employees are eligible for accidental disability retirement benefits under a different section -- Section 63 of the Retirement and Social Security Law. Section 63 provides for accidental disability retirement benefits for members of the State’s Employees’ Retirement System (ERS) who are disabled as a result of an “accidental injury” while performing official duties.
Section 363 provides similar benefits to police officers and firefighters who are members of the ERS.
Regardless of the statutory provision involved, courts use the same analysis to determine if a disability resulted from an accident for the purposes of determining eligibility for disability retirement.
============================================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html ============================================
NYPPL
Nov 2, 2010
Displacement and layoff
Displacement and layoff
Yonkers Muni. Housing Auth. v Dugan, 261 AD2d 406
Typically when a position is abolished and this results in the layoff of a permanent employee, his or her name is placed on a preferred list in accordance with the provisions of Civil Service Law Section 80 [permanent employees in the competitive class] or Section 80-a [permanent employees in the noncompetitive class].
In some instances, however, the individual may be able to “displace” a less senior, lower grade employee in accordance with Section 80.6 of the Civil Service Law. Section 80.6 essentially allows a higher level, more senior individual whose position in the competitive class has been abolished to “displace” a less senior employee in a lower grade position “in the direct line of promotion” of the relevant job class.*
The Dugan case arose after the Yonkers Civil Service Commission ruled that Iliana Rodriguez, a Yonkers Housing Authority Field Representative had the right to “retreat” to another Housing Authority position -- Tenant Relations Aide -- when her position was abolished. The Commission’s decision was challenged by three Authority employees: Thomas E. Dugan, Mary E. Dorman, and Patricia Ortiz.
In the court proceeding that followed the Commission conceded that it was incorrect when it held that Rodriguez had the right to “retreat” to the title Tenant Relations Aide, and that it should have placed Rodriguez’s name a preferred list for the title of Field Representative as of the date of her termination.
The Commission then contended that the position of Tenant Relations Aide was “comparable” to the position formerly held by Rodriguez and thus her appointment from the Field Representative preferred list was authorized by Civil Service Law Section 81.
However, as the decision points out, the Commission’s initial determination contained no finding that the two titles were comparable. This was a fatal omission in the eyes of the Appellate Division. Nor could the court support the determination that Rodriguez had the right to ‘retreat’, because the Commission had admitted that it was in error with respect to that determination.
Accordingly, the matter had to be remanded [returned] to the Commission so that it could make express findings of fact, and to make whatever it deems the correct determination to be. The decision notes that “without such minimal findings, and without a concrete statement of exactly what it is the Commission intended to determine, intelligent judicial review is not possible.
Typically the price of making an incorrect personnel decision in a layoff situation is that the appointing authority must appoint or reinstate the individual who was entitled to the position with back salary and benefits as a matter of law.
* Section 80-a.6 provides displacement rights to employees in the noncompetitive class if specified conditions are satisfied.
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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
Yonkers Muni. Housing Auth. v Dugan, 261 AD2d 406
Typically when a position is abolished and this results in the layoff of a permanent employee, his or her name is placed on a preferred list in accordance with the provisions of Civil Service Law Section 80 [permanent employees in the competitive class] or Section 80-a [permanent employees in the noncompetitive class].
In some instances, however, the individual may be able to “displace” a less senior, lower grade employee in accordance with Section 80.6 of the Civil Service Law. Section 80.6 essentially allows a higher level, more senior individual whose position in the competitive class has been abolished to “displace” a less senior employee in a lower grade position “in the direct line of promotion” of the relevant job class.*
The Dugan case arose after the Yonkers Civil Service Commission ruled that Iliana Rodriguez, a Yonkers Housing Authority Field Representative had the right to “retreat” to another Housing Authority position -- Tenant Relations Aide -- when her position was abolished. The Commission’s decision was challenged by three Authority employees: Thomas E. Dugan, Mary E. Dorman, and Patricia Ortiz.
In the court proceeding that followed the Commission conceded that it was incorrect when it held that Rodriguez had the right to “retreat” to the title Tenant Relations Aide, and that it should have placed Rodriguez’s name a preferred list for the title of Field Representative as of the date of her termination.
The Commission then contended that the position of Tenant Relations Aide was “comparable” to the position formerly held by Rodriguez and thus her appointment from the Field Representative preferred list was authorized by Civil Service Law Section 81.
However, as the decision points out, the Commission’s initial determination contained no finding that the two titles were comparable. This was a fatal omission in the eyes of the Appellate Division. Nor could the court support the determination that Rodriguez had the right to ‘retreat’, because the Commission had admitted that it was in error with respect to that determination.
Accordingly, the matter had to be remanded [returned] to the Commission so that it could make express findings of fact, and to make whatever it deems the correct determination to be. The decision notes that “without such minimal findings, and without a concrete statement of exactly what it is the Commission intended to determine, intelligent judicial review is not possible.
Typically the price of making an incorrect personnel decision in a layoff situation is that the appointing authority must appoint or reinstate the individual who was entitled to the position with back salary and benefits as a matter of law.
* Section 80-a.6 provides displacement rights to employees in the noncompetitive class if specified conditions are satisfied.
============================================
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
Dual employment
Dual employment
Holbrook v Rockland Co, 260 AD2d 437
Most public officers and employees serve in one position at a time. Sometimes, however, an individual may be employed by two different jurisdictions simultaneously. Such dual employments generally require the knowledge and approval of the appointing authorities involved.*
Dual employments are often suspect -- particularly when both are purported to be “full-time” posts. Another consideration: is there the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation. As the Attorney General advised in an informal opinion:
In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17, May 11, 1998].
The opinion notes that the “leading case on compatibility of office” is People ex rel. Ryan v Green, 58 NY 295. In Ryan the Court of Appeals said that “two offices are incompatible is one is subordinate to the other or if there is an inherent inconsistency between the two offices.”
The Holbrook case involved a “dual employment” situation, but with a novel twist. Here the “appointing authority” in each instance was the voter. Charles E. Holbrook had been elected to two different Rockland County public offices, by two different electorates, and, as a result, was simultaneously serving in two different elective offices in two different jurisdictions.
However, in 1993 Rockland County had passed a local law -- the so-called “two hats” law -- barring an elected county officials from holding any other elected town or village office [Rockland County Local Laws of 1993, #6]. In other words, an individual could not hold a county elective office if in so serving he or she would be simultaneously serving as a local elected officer in another public jurisdiction.**
Holbrook, who was elected to serve in the Rockland County Legislature, had also been elected to position of town supervisor of a town in Rockland County. He challenged Local Law 1993 #6, as well as a 1997 local law providing for reapportionment of election districts, contending that both local laws were invalid because they had been enacted without a voter referendum as mandated by Municipal Home Rule Law Section 23(2)(e) and (f).
The Appellate Division affirmed a ruling by a Supreme Court justice rejecting Holbrook’s complaint, holding that both local laws had been validly adopted. The decision noted that while Section 23(2)(e) and (f) requires a referendum if the proposed local law “changes the term of an elective office”, or “curtails any power of an elective officer,” Rockland’s “two hat” laws merely prohibited Rockland County legislators from simultaneously holding a second elective office. The Appellate Division said that the local laws in question neither changed the terms of an elective office nor curtail any powers of an elective officer.
* Dual employments, in which appointments to different positions are made, are not the same as a “joint appointment.” In a joint appointment, two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two appointing authorities typically share the personnel service costs.
** Local Law 1993, #6, permitted elected county officials then holding two elective offices to continue to serve in both offices until January 1, 1998.
NYPPL
Holbrook v Rockland Co, 260 AD2d 437
Most public officers and employees serve in one position at a time. Sometimes, however, an individual may be employed by two different jurisdictions simultaneously. Such dual employments generally require the knowledge and approval of the appointing authorities involved.*
Dual employments are often suspect -- particularly when both are purported to be “full-time” posts. Another consideration: is there the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation. As the Attorney General advised in an informal opinion:
In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17, May 11, 1998].
The opinion notes that the “leading case on compatibility of office” is People ex rel. Ryan v Green, 58 NY 295. In Ryan the Court of Appeals said that “two offices are incompatible is one is subordinate to the other or if there is an inherent inconsistency between the two offices.”
The Holbrook case involved a “dual employment” situation, but with a novel twist. Here the “appointing authority” in each instance was the voter. Charles E. Holbrook had been elected to two different Rockland County public offices, by two different electorates, and, as a result, was simultaneously serving in two different elective offices in two different jurisdictions.
However, in 1993 Rockland County had passed a local law -- the so-called “two hats” law -- barring an elected county officials from holding any other elected town or village office [Rockland County Local Laws of 1993, #6]. In other words, an individual could not hold a county elective office if in so serving he or she would be simultaneously serving as a local elected officer in another public jurisdiction.**
Holbrook, who was elected to serve in the Rockland County Legislature, had also been elected to position of town supervisor of a town in Rockland County. He challenged Local Law 1993 #6, as well as a 1997 local law providing for reapportionment of election districts, contending that both local laws were invalid because they had been enacted without a voter referendum as mandated by Municipal Home Rule Law Section 23(2)(e) and (f).
The Appellate Division affirmed a ruling by a Supreme Court justice rejecting Holbrook’s complaint, holding that both local laws had been validly adopted. The decision noted that while Section 23(2)(e) and (f) requires a referendum if the proposed local law “changes the term of an elective office”, or “curtails any power of an elective officer,” Rockland’s “two hat” laws merely prohibited Rockland County legislators from simultaneously holding a second elective office. The Appellate Division said that the local laws in question neither changed the terms of an elective office nor curtail any powers of an elective officer.
* Dual employments, in which appointments to different positions are made, are not the same as a “joint appointment.” In a joint appointment, two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two appointing authorities typically share the personnel service costs.
** Local Law 1993, #6, permitted elected county officials then holding two elective offices to continue to serve in both offices until January 1, 1998.
NYPPL
Duty of fair representation
Duty of fair representation
Matter of Beattie, 32 PERB 3023
Representation by an attorney provided by a union is an important right of membership in an employee organization. The Matter of Beattie decision makes the point that an employee organization’s duty to represent a member “in any further pursuit” of his or her claims against an employer, or in defense against any adverse action taken by the employer, ceases if the individual employs a private attorney to handle the matter.
Guilderland Teachers Aide Association member Patricia Beattie filed improper practice charges against the association with PERB in which she alleged that:
1. The association refused to file a complaint charging another school district employee with sexual harassment when asked to do so.
2. The association’s president told Beattie she would lose her job [sic] because she had employed a private attorney to represent her concerning her sexual harassment complaint.
According to the PERB decision, in response to a June 1996 complaint, Rex Trobridge, an association representative, initially determined that Beattie might have been sexually harassed by another school district employee. Trobridge later learned that in January 1996 the employee Beattie named in her complaint alleged the reverse: that Beattie had sexual harassed him. The association advised Beattie that it would provide her with legal representation in both cases.
Before the association’s attorney had filed any complaint with the Division of Human Rights or had met with the school superintendent on her behalf, Beattie hired private counsel. PERB said that at that point in time the association’s duty to represent her ceased.
Meanwhile, a private attorney named Thomas Kenney was employed by the Guilderland School District to investigate both sets of allegations. Kenney found that “each interviewee with knowledge of the events covered by the complaints corroborated [the other employee’s] claims [of sexual harassment] and offered no support for Beattie’s claims [of sexual harassment].” Ultimately Beattie was told of Kenney’s findings and was formally reprimanded by the school superintendent.
PERB sustained its administrative law judge’s dismissal of the charges Beattie filed against the association. It ruled that Beattie’s claim that her complaint “was handled in a perfunctory manner” by the association was not supported by the record.
PERB, in a footnote, observed that Association attorney Harold Beyer testified that he intended to pursue Beattie’s complaint with the State Division of Human Rights after exhausting the school district’s sexual harassment procedure.
As to Beattie’s allegation that association president Barbara Coogan violated the Taylor Law when she commented that “Beattie was crazy to hire a private attorney...,” PERB said that “there is simply nothing improper in the timing or content” of the statement.
PERB said that it viewed Cooper’s statement as “merely an expression of [her] incredulity that a union member would choose not to utilize the counsel provided by the union, at no charge, and instead choose to pay a private attorney.”
Such a statement, said PERB, in no way violated the Taylor Law since it was an expression of an opinion by Cooper, and as such, “is not actionable.
NYPPL
Matter of Beattie, 32 PERB 3023
Representation by an attorney provided by a union is an important right of membership in an employee organization. The Matter of Beattie decision makes the point that an employee organization’s duty to represent a member “in any further pursuit” of his or her claims against an employer, or in defense against any adverse action taken by the employer, ceases if the individual employs a private attorney to handle the matter.
Guilderland Teachers Aide Association member Patricia Beattie filed improper practice charges against the association with PERB in which she alleged that:
1. The association refused to file a complaint charging another school district employee with sexual harassment when asked to do so.
2. The association’s president told Beattie she would lose her job [sic] because she had employed a private attorney to represent her concerning her sexual harassment complaint.
According to the PERB decision, in response to a June 1996 complaint, Rex Trobridge, an association representative, initially determined that Beattie might have been sexually harassed by another school district employee. Trobridge later learned that in January 1996 the employee Beattie named in her complaint alleged the reverse: that Beattie had sexual harassed him. The association advised Beattie that it would provide her with legal representation in both cases.
Before the association’s attorney had filed any complaint with the Division of Human Rights or had met with the school superintendent on her behalf, Beattie hired private counsel. PERB said that at that point in time the association’s duty to represent her ceased.
Meanwhile, a private attorney named Thomas Kenney was employed by the Guilderland School District to investigate both sets of allegations. Kenney found that “each interviewee with knowledge of the events covered by the complaints corroborated [the other employee’s] claims [of sexual harassment] and offered no support for Beattie’s claims [of sexual harassment].” Ultimately Beattie was told of Kenney’s findings and was formally reprimanded by the school superintendent.
PERB sustained its administrative law judge’s dismissal of the charges Beattie filed against the association. It ruled that Beattie’s claim that her complaint “was handled in a perfunctory manner” by the association was not supported by the record.
PERB, in a footnote, observed that Association attorney Harold Beyer testified that he intended to pursue Beattie’s complaint with the State Division of Human Rights after exhausting the school district’s sexual harassment procedure.
As to Beattie’s allegation that association president Barbara Coogan violated the Taylor Law when she commented that “Beattie was crazy to hire a private attorney...,” PERB said that “there is simply nothing improper in the timing or content” of the statement.
PERB said that it viewed Cooper’s statement as “merely an expression of [her] incredulity that a union member would choose not to utilize the counsel provided by the union, at no charge, and instead choose to pay a private attorney.”
Such a statement, said PERB, in no way violated the Taylor Law since it was an expression of an opinion by Cooper, and as such, “is not actionable.
NYPPL
Criminal conviction may bar teaching if the applicant cannot satisfy the relevant criteria set out in Section 753 of the Correction Law
Criminal conviction may bar teaching if the applicant cannot satisfy the relvant criteria set out in Section 753 of the Correction Law
Arrocha v NYC Bd. of Education, 93 NY2d 361
Sometimes an individual who has been convicted of a crime applies for a license to teach or for employment as a teacher.
The Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime. In other words, an individual may not be automatically barred from teaching because of his or her previous conviction. Instead, the school board should examine the individual’s application in light of the eight criteria set out in Section 753 of the Correction Law:
a. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
b. The specific duties and responsibilities necessarily related to the license or employment sought.
c. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
d. The time that has elapsed since the occurrence of the criminal offense or offenses.
e. The age of the person at the time of occurrence of the criminal offense or offenses.
f. The seriousness of the offense or offenses.
g. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
h. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”
In the Arrocha case, the Court of Appeals -- New York’s highest court -- overturned lower courts’ rulings and said the New York City Board of Education properly considered all eight factors when it refused to grant a teaching license to a person with a criminal record.
Jose Luis Arrocha asked the New York City Board of Education for a license to teach high school Spanish in 1996. He noted in his application form that he had been convicted in 1987, at age 36, of criminal sale of a controlled substance (a B felony) for selling a $10 bag of cocaine to an undercover officer, and subsequently served the minimum of a two-to-six year prison term.
Arrocha submitted a certificate of relief from disabilities. Courts have discretion to issue such certificates to ex-convicts, which are intended to remove any automatic bar to employment or licensure (Correction Law Section 701). Arrocha also submitted letters of recommendation attesting to his skill as a teacher.
His application was rejected on the grounds that his criminal conviction was “serious in nature” and that employment as a teacher “would pose a risk to the safety and welfare of the student population and Board of Education employees.”
Arrocha sued, contending that (1) it was arbitrary and capricious of the board to block his application because of a nine-year old conviction, and (2) the board’s decision violated the Correction Law.
The Court of Appeals said that as a general rule, the courts “cannot interfere [with an administrative decision] unless there is no rational basis for the exercise of discretion” by the administrative agency.
The court pointed out that Section 752.1 of the Correction Law allows an employer to reject an applicant without running afoul of the law where “a direct relationship between [the previous criminal offense] and the specific license or employment sought” exists. Also, Section 752.2 allows such a decision where granting the license or employment would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” It observed that the school board detected a “direct relationship” and an “unreasonable risk,” and it was reluctant to substitute its judgment for that of the board.
The Court of Appeals said the board appeared fair in its deliberations. The record showed that the board had considered all eight of the factors in reaching its conclusion, balancing elements that favored granting Arrocha a license against others that tended to mitigate against such an action.
The Court of Appeals concluded that the board was not obligated to rebut the presumption of Arrocha’s rehabilitation and was entirely justified in considering the nature and seriousness of this particular crime, a B felony cocaine sale “committed by Arrocha at the mature age of 36...” The court said Arrocha’s age when apprehended was legitimately viewed as being “of overriding significance when issuing a high school teaching license.”
The decision suggests that it is consistent with public policy of New York State to refuse to employ a person convicted of drug dealing as a teacher. Support for this view may be found in Section 3020-a of the Education Law.
Section 3020-a(2)(b) bars the suspension without pay of a teacher against whom disciplinary charges have been filed, unless otherwise permitted under an alternate disciplinary procedure negotiated pursuant to the Taylor Law, except in cases where the individual has been convicted of a felony involving illegal drugs. The inclusion of this exception suggests the legislature is deeply troubled by the prospect of schoolchildren being exposed to teachers with felony drug convictions. Section 3020-a(2)(b) also allows a school district or BOCES to suspend a teacher against whom disciplinary charges have been filed without pay if he or she has been convicted of a felony involving the physical or sexual abuse of a minor or a student.
NYPPL
Arrocha v NYC Bd. of Education, 93 NY2d 361
Sometimes an individual who has been convicted of a crime applies for a license to teach or for employment as a teacher.
The Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime. In other words, an individual may not be automatically barred from teaching because of his or her previous conviction. Instead, the school board should examine the individual’s application in light of the eight criteria set out in Section 753 of the Correction Law:
a. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
b. The specific duties and responsibilities necessarily related to the license or employment sought.
c. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
d. The time that has elapsed since the occurrence of the criminal offense or offenses.
e. The age of the person at the time of occurrence of the criminal offense or offenses.
f. The seriousness of the offense or offenses.
g. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
h. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”
In the Arrocha case, the Court of Appeals -- New York’s highest court -- overturned lower courts’ rulings and said the New York City Board of Education properly considered all eight factors when it refused to grant a teaching license to a person with a criminal record.
Jose Luis Arrocha asked the New York City Board of Education for a license to teach high school Spanish in 1996. He noted in his application form that he had been convicted in 1987, at age 36, of criminal sale of a controlled substance (a B felony) for selling a $10 bag of cocaine to an undercover officer, and subsequently served the minimum of a two-to-six year prison term.
Arrocha submitted a certificate of relief from disabilities. Courts have discretion to issue such certificates to ex-convicts, which are intended to remove any automatic bar to employment or licensure (Correction Law Section 701). Arrocha also submitted letters of recommendation attesting to his skill as a teacher.
His application was rejected on the grounds that his criminal conviction was “serious in nature” and that employment as a teacher “would pose a risk to the safety and welfare of the student population and Board of Education employees.”
Arrocha sued, contending that (1) it was arbitrary and capricious of the board to block his application because of a nine-year old conviction, and (2) the board’s decision violated the Correction Law.
The Court of Appeals said that as a general rule, the courts “cannot interfere [with an administrative decision] unless there is no rational basis for the exercise of discretion” by the administrative agency.
The court pointed out that Section 752.1 of the Correction Law allows an employer to reject an applicant without running afoul of the law where “a direct relationship between [the previous criminal offense] and the specific license or employment sought” exists. Also, Section 752.2 allows such a decision where granting the license or employment would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” It observed that the school board detected a “direct relationship” and an “unreasonable risk,” and it was reluctant to substitute its judgment for that of the board.
The Court of Appeals said the board appeared fair in its deliberations. The record showed that the board had considered all eight of the factors in reaching its conclusion, balancing elements that favored granting Arrocha a license against others that tended to mitigate against such an action.
The Court of Appeals concluded that the board was not obligated to rebut the presumption of Arrocha’s rehabilitation and was entirely justified in considering the nature and seriousness of this particular crime, a B felony cocaine sale “committed by Arrocha at the mature age of 36...” The court said Arrocha’s age when apprehended was legitimately viewed as being “of overriding significance when issuing a high school teaching license.”
The decision suggests that it is consistent with public policy of New York State to refuse to employ a person convicted of drug dealing as a teacher. Support for this view may be found in Section 3020-a of the Education Law.
Section 3020-a(2)(b) bars the suspension without pay of a teacher against whom disciplinary charges have been filed, unless otherwise permitted under an alternate disciplinary procedure negotiated pursuant to the Taylor Law, except in cases where the individual has been convicted of a felony involving illegal drugs. The inclusion of this exception suggests the legislature is deeply troubled by the prospect of schoolchildren being exposed to teachers with felony drug convictions. Section 3020-a(2)(b) also allows a school district or BOCES to suspend a teacher against whom disciplinary charges have been filed without pay if he or she has been convicted of a felony involving the physical or sexual abuse of a minor or a student.
NYPPL
Nov 1, 2010
Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably”
Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably”
Matter of Lory v County of Wash., 2010 NY Slip Op 07657, Decided on October 28, 2010, Appellate Division, Third Department
Washington County Sheriff's Department charged Chad R. Lory with four counts of misconduct arising out of his employment as a correction officer pursuant to Civil Service Law §75 alleging that Lory (1) failed to perform his assigned duties in a professional manner, (2) failed to obey all lawful orders, (3) engaged in conduct which tended to undermine the efficiency and discipline within the Department, and (4) was inattentive to duty.
The Hearing Officer found Lory guilty of all four charges and recommended that he be terminated from his position. The Washington County Sheriff Hearing Officers findings and recommendation and Lory was dismissed from his position.
In rejecting Lory’s appeal, the Appellate Division addressed a number of substantive and procedural issues. The court found that:
1. “The violations charged were sufficiently detailed to enable [Lory] to prepare an adequate and extensive defense;
2. “Any references to uncharged conduct found in the determination … were necessary to refute [Lory’s] denial of the charge that his attention was diverted from his duties;
3. The Sheriff’s Department ”was not precluded from instituting charges based on conduct that was [earlier] the subject of counseling and complaints”; and
4. “The Hearing Officer's determination is sufficiently detailed, such that petitioner was not deprived of the opportunity to intelligently challenge and obtain adequate judicial review of the same.”
As to the substance of Lory's claims, the Appellate Division said that the standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence. This, said the court, requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably."
Reviewing the record established in the course of the hearing,* the Appellate Division said that it found substantial evidence to support the Hearing Officer’s findings.
In addition, the court said that “credibility determinations are ‘solely within the province of the [H]earing [O]fficer,’ and this Court may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented, citing Perryman v Village of Saranac Lake, 64 AD3d 830.
As to the penalty imposed, the Appellate Division said that the evidence supports the Hearing Officer's determination that petitioner's conduct evidenced a lack of professional judgment and posed a serious security risk. Accordingly, the court said that it did not find the penalty of dismissal "so disproportionate to the offenses as to be shocking to one's sense of fairness."
As to Lory’s contention that the Hearing Officer should have conducted a separate hearing with respect to the penalty to be recommended, the Appellate Division held that under the under the circumstances in this case, “the Hearing Officer did not err in making a penalty recommendation without having first conducted a separate hearing.”
* §75.3, in pertinent part, provides that “If such officer or employee is found guilty, a copy of the charges, his written answer thereto, a transcript of the hearing, and the determination shall be filed in the office of the department or agency in which he has been employed, and a copy thereof shall be filed with the civil service commission having jurisdiction over such position. A copy of the transcript of the hearing shall, upon request of the officer or employee affected, be furnished to him without charge.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07657.htm
NYPPL
Matter of Lory v County of Wash., 2010 NY Slip Op 07657, Decided on October 28, 2010, Appellate Division, Third Department
Washington County Sheriff's Department charged Chad R. Lory with four counts of misconduct arising out of his employment as a correction officer pursuant to Civil Service Law §75 alleging that Lory (1) failed to perform his assigned duties in a professional manner, (2) failed to obey all lawful orders, (3) engaged in conduct which tended to undermine the efficiency and discipline within the Department, and (4) was inattentive to duty.
The Hearing Officer found Lory guilty of all four charges and recommended that he be terminated from his position. The Washington County Sheriff Hearing Officers findings and recommendation and Lory was dismissed from his position.
In rejecting Lory’s appeal, the Appellate Division addressed a number of substantive and procedural issues. The court found that:
1. “The violations charged were sufficiently detailed to enable [Lory] to prepare an adequate and extensive defense;
2. “Any references to uncharged conduct found in the determination … were necessary to refute [Lory’s] denial of the charge that his attention was diverted from his duties;
3. The Sheriff’s Department ”was not precluded from instituting charges based on conduct that was [earlier] the subject of counseling and complaints”; and
4. “The Hearing Officer's determination is sufficiently detailed, such that petitioner was not deprived of the opportunity to intelligently challenge and obtain adequate judicial review of the same.”
As to the substance of Lory's claims, the Appellate Division said that the standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence. This, said the court, requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably."
Reviewing the record established in the course of the hearing,* the Appellate Division said that it found substantial evidence to support the Hearing Officer’s findings.
In addition, the court said that “credibility determinations are ‘solely within the province of the [H]earing [O]fficer,’ and this Court may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented, citing Perryman v Village of Saranac Lake, 64 AD3d 830.
As to the penalty imposed, the Appellate Division said that the evidence supports the Hearing Officer's determination that petitioner's conduct evidenced a lack of professional judgment and posed a serious security risk. Accordingly, the court said that it did not find the penalty of dismissal "so disproportionate to the offenses as to be shocking to one's sense of fairness."
As to Lory’s contention that the Hearing Officer should have conducted a separate hearing with respect to the penalty to be recommended, the Appellate Division held that under the under the circumstances in this case, “the Hearing Officer did not err in making a penalty recommendation without having first conducted a separate hearing.”
* §75.3, in pertinent part, provides that “If such officer or employee is found guilty, a copy of the charges, his written answer thereto, a transcript of the hearing, and the determination shall be filed in the office of the department or agency in which he has been employed, and a copy thereof shall be filed with the civil service commission having jurisdiction over such position. A copy of the transcript of the hearing shall, upon request of the officer or employee affected, be furnished to him without charge.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07657.htm
NYPPL
Public officers and employees may engage in outside employment, aka “moonlighting,” subject to certain restrictions and limitations
Public officers and employees may engage in outside employment, aka “moonlighting,” subject to certain restrictions and limitations
Kastoff v NYS Dept. of Social Services, 195 A.D.2d 808
"Moonlighting" has been a common practice in both the public and private sectors. The Kastoff ruling by the Appellate Division explores some of the guidelines that may control a public employee's eligibility to accept "outside employment" after his or her normal working hours.
Kastoff, a hearing officer with the NYS Department of Social Services [DSS], requested the department's approval to serve as an acting village justice one evening a week in the event the elected village justice was unavailable or recused himself from the proceeding. DSS denied Kastoff's request, indicating that "it would be inappropriate" for him to accept such an appointment. When the DSS did not respond to Kastoff's request for a written explanation of its decision, he sued to annul its determination. The Supreme Court granted Kastoff's petition and DSS appealed.
The Appellate Division said that Kastoff's outside employment was controlled by the provisions of §74 of the Public Officers Law and the "relevant" DSS guidelines. Such laws, rules, regulations and policies required that Kastoff avoid activities that were "in substantial conflict with the proper discharge of his duties in the public interest" and not accept any employment "which (would) impair his independence of judgment in the exercise of his official duties” or which would "require him to disclose confidential information which he has gained by reason of his official position or authority."
Additionally it noted that DSS guidelines prohibited outside employment that would "create or appear to create a conflict of interest with [the] policies and programs of [DSS] or diminish [Kastoff's] effectiveness in the performance of his assigned duties."
The Appellate Ddivision affirmed a lower court ruling granting Kastoff's petition to be allowed to accept outside employment as an acting village justice. The court said that nothing in the record established that Kastoff's service as an acting village justice would be in substantial conflict with his DSS duties and responsibilities and that it did not find any rational basis for DSS to deny his request.
It appears that unless the appointing authority can clearly demonstrate an actual or potential conflict of interest or some substantial incompatibility between an individual’s public employment and the individual's proposed outside employment, a request for approval to engage in "moonlighting" should be approved. In some instances a public employer has negotiated a "no outside employment" provision in the course of collective bargaining under the Taylor Law that provides that approval of outside employment is at the sole discretion of the appointing authority.
However, other provisions of law may bar moonlighting involving certain employers.
For example, an article in the August 25, 2010 issue of the Buffalo News reported: “Police officers cannot work in a licensed bar, restaurant or nightclub in New York State,’ quoting William S. Crowley, public affairs director for the State Liquor Authority who cited [§128 of] the ABC Law as prohibiting such employments. However, during a telephone interview Thomas J. Donohue, Esq., Special Counsel to the State Liquor Authority, pointed out that there is one exception to the Authority’s interpretation of §128 with respect to police officers being prohibited from being employed by its licensees. He commented that §128-a of the Alcoholic Beverage Control Law permits police officers to work at a licensed premise in certain cases.*
Some public employers have adopted policies or negotiated provisions in collective bargaining agreements that limit the ability of its workers to "moonlight" or accept outside employment.
Violating such policies can have serious consequences, as four Saratoga County Sheriff Department employees learned.
The four, including William Marshall, the president of the union representing the Department's civilian employees [the Saratoga County Deputy Sheriffs Benevolent Association], were moonlighting as security personnel for M J Designs, a private sector employer. Marshall was a "road patrol deputy" sheriff, while the other three served as "desk officers."
The Department said that moonlighting was specifically prohibited by its collective bargaining agreement with another union, Saratoga County Deputy Sheriffs Police Benevolent Association, which represents only road patrol personnel.
The Department also noted that it had an administrative policy barring moonlighting and this policy applied to both the Department's road patrol and non-road patrol personnel.
The case also had a criminal aspect. The County's District Attorney had presented charges that the four had committed "official misconduct" to a grand jury. Official misconduct is a misdemeanor.
The County and the four employees agreed to settle the all of the charges alleged. Under the terms of the settlement agreement, the four agreed to a six-month leave without pay. In addition, Marshall agreed to resign from his union position and to "never again serve as a union officer."
One of the concerns noted by the Department was its risk of being sued if one of its employees made an arrest or injured an individual while working a second job.
The Rivera case involves a similar situation (Rivera v Farrell, NYS Supreme Court, Justice Stallman, April 5, 2001, [Not selected for publication in the Official Reports]).
Rivera, a New York City Department of Sanitation [DOS] supervisor, was "moonlighting" as an income tax advisor. According to the decision, Rivera "promoted a tax-evasion scheme, informed other DOS workers about how to evade taxes, and filled out their payroll forms so that taxes would not be withheld, in return for a fee."
Served with disciplinary charges, Rivera was terminated after being found guilty of violations of the DOS Code of Conduct by his filing a W-4 tax withholding allowance certificate falsely claiming exemptions to which he was not entitled, falsely claiming "tax-exempt status" and failing to a file a tax return for the tax year 1994.
The decision indicates that Rivera had earlier pled guilty to failing to file a tax return for the tax year 1994, a misdemeanor.**
DOS alleged that Rivera violated Code of Conduct 3.2, by engaging in conduct prejudicial to good order and which tends to discredit the City or Department, and Code of Conduct 4.4, filing false records or statements.
Rivera appealed, contending that dismissal "was disproportionate compared to sanctions imposed in similar cases." He claimed that (1) others similarly situated, with worse disciplinary records, received suspensions, not termination and (2) three sanitation workers who failed to pay taxes and filed false W-4 forms received 30-day suspensions.
Judge Stallman, after distinguishing the misdeeds of the other DOS workers cited by Rivera with respect to the disciplinary penalties imposed, upheld Rivera's termination. The court said that Rivera had failed to meet his burden of proving that DOS acted arbitrarily, capriciously or contrary to law. Under the circumstances, said the court, the penalty of termination "does not shock the judicial conscience; it was thus not an abuse of discretion."
As an alternative argument for overturning his termination, Rivera submitted a Certificate of Relief from Civil Disabilities he had obtained pursuant to Section 701 of the Corrections Law.
Judge Stallman, after commenting that Rivera failed to demonstrate the relevance of the Certificate insofar as this case was concerned, indicated that even if it were relevant, such a certificate does not exempt a civil servant from administrative discipline.
In another “moonlighting” case, Timothy Kelly was terminated after being found guilty of unauthorized "off-duty employment" and falsifying records. Ultimately the Court of Appeals considered the matter in terms of a court's authority to overturn or modify an administrative disciplinary decision or a disciplinary penalty imposed on a worker [Kelly v Safir, 96 N.Y.2d 32].
The Court of Appeals, ruled:
1. The courts may not modify such a determination if substantial evidence supports it; and
2. A court must uphold an administrative penalty unless it finds that it is so disproportionate to the offense as to be shocking to one's sense of fairness -- the Pell standard [Pell v Board of Education, 34 NY2d 222].
* §128-a of the Alcoholic Beverage Control Law provides that “Notwithstanding any inconsistent provision of law to the contrary, the authority shall promulgate such rules and regulations as may be necessary to provide that it shall not be unlawful for a police officer employed in this state, having written permission and consent from his commanding officer, to work in a premises licensed to sell beer at retail for off-premises consumption under section fifty-four of this chapter or to work solely as a security guard or director of traffic on the premises of a volunteer firefighters' organization licensed to sell beer and wine at retail pursuant to a temporary permit for on-premises consumption under section ninety-seven of this chapter.
** On a related note, some years ago the Internal Revenue Service checked the returns of some 200 police officers and deputy sheriffs in the Indianapolis, Indiana, area that had requested or received "off-duty work permits." It reported that almost 50% of the returns under-reported the total income earned by these taxpayers. IRS said that those found to have underreported their income faced substantial interest charges and penalty payments.
NYPPL
Kastoff v NYS Dept. of Social Services, 195 A.D.2d 808
"Moonlighting" has been a common practice in both the public and private sectors. The Kastoff ruling by the Appellate Division explores some of the guidelines that may control a public employee's eligibility to accept "outside employment" after his or her normal working hours.
Kastoff, a hearing officer with the NYS Department of Social Services [DSS], requested the department's approval to serve as an acting village justice one evening a week in the event the elected village justice was unavailable or recused himself from the proceeding. DSS denied Kastoff's request, indicating that "it would be inappropriate" for him to accept such an appointment. When the DSS did not respond to Kastoff's request for a written explanation of its decision, he sued to annul its determination. The Supreme Court granted Kastoff's petition and DSS appealed.
The Appellate Division said that Kastoff's outside employment was controlled by the provisions of §74 of the Public Officers Law and the "relevant" DSS guidelines. Such laws, rules, regulations and policies required that Kastoff avoid activities that were "in substantial conflict with the proper discharge of his duties in the public interest" and not accept any employment "which (would) impair his independence of judgment in the exercise of his official duties” or which would "require him to disclose confidential information which he has gained by reason of his official position or authority."
Additionally it noted that DSS guidelines prohibited outside employment that would "create or appear to create a conflict of interest with [the] policies and programs of [DSS] or diminish [Kastoff's] effectiveness in the performance of his assigned duties."
The Appellate Ddivision affirmed a lower court ruling granting Kastoff's petition to be allowed to accept outside employment as an acting village justice. The court said that nothing in the record established that Kastoff's service as an acting village justice would be in substantial conflict with his DSS duties and responsibilities and that it did not find any rational basis for DSS to deny his request.
It appears that unless the appointing authority can clearly demonstrate an actual or potential conflict of interest or some substantial incompatibility between an individual’s public employment and the individual's proposed outside employment, a request for approval to engage in "moonlighting" should be approved. In some instances a public employer has negotiated a "no outside employment" provision in the course of collective bargaining under the Taylor Law that provides that approval of outside employment is at the sole discretion of the appointing authority.
However, other provisions of law may bar moonlighting involving certain employers.
For example, an article in the August 25, 2010 issue of the Buffalo News reported: “Police officers cannot work in a licensed bar, restaurant or nightclub in New York State,’ quoting William S. Crowley, public affairs director for the State Liquor Authority who cited [§128 of] the ABC Law as prohibiting such employments. However, during a telephone interview Thomas J. Donohue, Esq., Special Counsel to the State Liquor Authority, pointed out that there is one exception to the Authority’s interpretation of §128 with respect to police officers being prohibited from being employed by its licensees. He commented that §128-a of the Alcoholic Beverage Control Law permits police officers to work at a licensed premise in certain cases.*
Some public employers have adopted policies or negotiated provisions in collective bargaining agreements that limit the ability of its workers to "moonlight" or accept outside employment.
Violating such policies can have serious consequences, as four Saratoga County Sheriff Department employees learned.
The four, including William Marshall, the president of the union representing the Department's civilian employees [the Saratoga County Deputy Sheriffs Benevolent Association], were moonlighting as security personnel for M J Designs, a private sector employer. Marshall was a "road patrol deputy" sheriff, while the other three served as "desk officers."
The Department said that moonlighting was specifically prohibited by its collective bargaining agreement with another union, Saratoga County Deputy Sheriffs Police Benevolent Association, which represents only road patrol personnel.
The Department also noted that it had an administrative policy barring moonlighting and this policy applied to both the Department's road patrol and non-road patrol personnel.
The case also had a criminal aspect. The County's District Attorney had presented charges that the four had committed "official misconduct" to a grand jury. Official misconduct is a misdemeanor.
The County and the four employees agreed to settle the all of the charges alleged. Under the terms of the settlement agreement, the four agreed to a six-month leave without pay. In addition, Marshall agreed to resign from his union position and to "never again serve as a union officer."
One of the concerns noted by the Department was its risk of being sued if one of its employees made an arrest or injured an individual while working a second job.
The Rivera case involves a similar situation (Rivera v Farrell, NYS Supreme Court, Justice Stallman, April 5, 2001, [Not selected for publication in the Official Reports]).
Rivera, a New York City Department of Sanitation [DOS] supervisor, was "moonlighting" as an income tax advisor. According to the decision, Rivera "promoted a tax-evasion scheme, informed other DOS workers about how to evade taxes, and filled out their payroll forms so that taxes would not be withheld, in return for a fee."
Served with disciplinary charges, Rivera was terminated after being found guilty of violations of the DOS Code of Conduct by his filing a W-4 tax withholding allowance certificate falsely claiming exemptions to which he was not entitled, falsely claiming "tax-exempt status" and failing to a file a tax return for the tax year 1994.
The decision indicates that Rivera had earlier pled guilty to failing to file a tax return for the tax year 1994, a misdemeanor.**
DOS alleged that Rivera violated Code of Conduct 3.2, by engaging in conduct prejudicial to good order and which tends to discredit the City or Department, and Code of Conduct 4.4, filing false records or statements.
Rivera appealed, contending that dismissal "was disproportionate compared to sanctions imposed in similar cases." He claimed that (1) others similarly situated, with worse disciplinary records, received suspensions, not termination and (2) three sanitation workers who failed to pay taxes and filed false W-4 forms received 30-day suspensions.
Judge Stallman, after distinguishing the misdeeds of the other DOS workers cited by Rivera with respect to the disciplinary penalties imposed, upheld Rivera's termination. The court said that Rivera had failed to meet his burden of proving that DOS acted arbitrarily, capriciously or contrary to law. Under the circumstances, said the court, the penalty of termination "does not shock the judicial conscience; it was thus not an abuse of discretion."
As an alternative argument for overturning his termination, Rivera submitted a Certificate of Relief from Civil Disabilities he had obtained pursuant to Section 701 of the Corrections Law.
Judge Stallman, after commenting that Rivera failed to demonstrate the relevance of the Certificate insofar as this case was concerned, indicated that even if it were relevant, such a certificate does not exempt a civil servant from administrative discipline.
In another “moonlighting” case, Timothy Kelly was terminated after being found guilty of unauthorized "off-duty employment" and falsifying records. Ultimately the Court of Appeals considered the matter in terms of a court's authority to overturn or modify an administrative disciplinary decision or a disciplinary penalty imposed on a worker [Kelly v Safir, 96 N.Y.2d 32].
The Court of Appeals, ruled:
1. The courts may not modify such a determination if substantial evidence supports it; and
2. A court must uphold an administrative penalty unless it finds that it is so disproportionate to the offense as to be shocking to one's sense of fairness -- the Pell standard [Pell v Board of Education, 34 NY2d 222].
* §128-a of the Alcoholic Beverage Control Law provides that “Notwithstanding any inconsistent provision of law to the contrary, the authority shall promulgate such rules and regulations as may be necessary to provide that it shall not be unlawful for a police officer employed in this state, having written permission and consent from his commanding officer, to work in a premises licensed to sell beer at retail for off-premises consumption under section fifty-four of this chapter or to work solely as a security guard or director of traffic on the premises of a volunteer firefighters' organization licensed to sell beer and wine at retail pursuant to a temporary permit for on-premises consumption under section ninety-seven of this chapter.
** On a related note, some years ago the Internal Revenue Service checked the returns of some 200 police officers and deputy sheriffs in the Indianapolis, Indiana, area that had requested or received "off-duty work permits." It reported that almost 50% of the returns under-reported the total income earned by these taxpayers. IRS said that those found to have underreported their income faced substantial interest charges and penalty payments.
NYPPL
False claim - work-related injury
False claim - work-related injury
Egan v Von Essen, 260 AD2d 479
New York City firefighter Richard M. Egan claimed he injured himself by falling out of a chair while at work. On May 10, 1994, Egan filed an application for a service-incurred disability pension with the Fire Department Pension Fund based on back injuries he allegedly suffered by the fall.
In the course of disciplinary action taken against Egan, the administrative law judge [ALJ] found that Egan had injured his back while participating in a nonwork-related jujitsu class. In addition, the ALJ decided that Egan violated certain regulations of the Fire Department as well as his oath of office by filing an official report containing statements concerning the incident that he knew were untrue.
Based on the findings and recommendation of the ALJ, the Fire Commissioner fired Egan. Egan challenged the Commissioner’s decision, contending that it was not supported by substantial evidence. He also contended that even assuming that he was guilty of the charges filed against him, the penalty of dismissal was unduly harsh.
The Appellate Division rejected Egan’s appeal. It said that under the circumstances of this case, it found that the charges were supported by substantial evidence, including Egan’s “admission of wrongdoing to several witnesses.”
As to the penalty imposed by the commissioner, the court said that “contrary to [Egan’s] contention, the penalty of dismissal was not ‘shocking to one’s sense of fairness’, in view of the evidence that he violated Fire Department regulations and engaged in acts of dishonesty,” citing Pell v Board of Education, 34 NY2d 222.
Similarly, in Miller v NYC Department of Corrections, 260 AD2d 190, the Appellate Division, 1st Department, affirmed the dismissal of New York City correction officer Marie Miller based on the correction commissioner’s finding that Miller made “false and misleading statements during investigatory interviews,” and, accordingly, is guilty of conduct unbecoming a correction officer.
NYPPL
Egan v Von Essen, 260 AD2d 479
New York City firefighter Richard M. Egan claimed he injured himself by falling out of a chair while at work. On May 10, 1994, Egan filed an application for a service-incurred disability pension with the Fire Department Pension Fund based on back injuries he allegedly suffered by the fall.
In the course of disciplinary action taken against Egan, the administrative law judge [ALJ] found that Egan had injured his back while participating in a nonwork-related jujitsu class. In addition, the ALJ decided that Egan violated certain regulations of the Fire Department as well as his oath of office by filing an official report containing statements concerning the incident that he knew were untrue.
Based on the findings and recommendation of the ALJ, the Fire Commissioner fired Egan. Egan challenged the Commissioner’s decision, contending that it was not supported by substantial evidence. He also contended that even assuming that he was guilty of the charges filed against him, the penalty of dismissal was unduly harsh.
The Appellate Division rejected Egan’s appeal. It said that under the circumstances of this case, it found that the charges were supported by substantial evidence, including Egan’s “admission of wrongdoing to several witnesses.”
As to the penalty imposed by the commissioner, the court said that “contrary to [Egan’s] contention, the penalty of dismissal was not ‘shocking to one’s sense of fairness’, in view of the evidence that he violated Fire Department regulations and engaged in acts of dishonesty,” citing Pell v Board of Education, 34 NY2d 222.
Similarly, in Miller v NYC Department of Corrections, 260 AD2d 190, the Appellate Division, 1st Department, affirmed the dismissal of New York City correction officer Marie Miller based on the correction commissioner’s finding that Miller made “false and misleading statements during investigatory interviews,” and, accordingly, is guilty of conduct unbecoming a correction officer.
NYPPL
Free speech
Free speech
Council 82 [ex rel Kuhnel], v State of New York, App. Div., 255 AD2d 54, Affirmed, 94 NY2d 321
State Correction Department rules do not trump a correction officer’s First Amendment right to fly a Nazi flag at his home said the Appellate Division in a decision that affirmed an arbitrator’s ruling in the Kuhnel case. This “free speech” ruling was affirmed by the Court of Appeals.
Edward Kuhnel, a state correction officer, flew a Nazi flag from the front porch of his home. He was served with a notice of discipline charging him with violating a Correction Department’s rule providing that:
[a] no employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or [i]ts personnel; and
[b] an employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.
Kuhnel was suspended without pay pending the completion of a disciplinary arbitration. An arbitrator decided that while the state had probable cause to suspend Kuhnel without pay pursuant to the collective bargaining agreement, he was not guilty of the charges contained in the notice of discipline.
The arbitrator ordered the department to reinstate Kuhnel to his position with back pay and benefits.
The department attempted to have the arbitrator’s award vacated [Section 7511 of the Civil Practice Law and Rules], while Council 82 moved to confirm the award. Rejecting the department’s claims that the arbitrator’s award was totally irrational, the Appellate Division focused on “whether the underlying arbitration or the award resulting therefrom was violative of a strong public policy.”
The court held that the department “failed to demonstrate either that the disciplinary charges brought against Kuhnel were not properly the subject of arbitration or that the public policy of this State, ... prohibits, in an absolute sense, the presence within our prison system of those that display the Nazi flag, or any other flag that may be seen as symbolizing bigotry, racism or totalitarianism.” Accordingly, said the court, it was “constrained to affirm” the arbitration award.
In affirming the Appellate Division’s decision, the Court of Appeals said:
"Simply put then, the issue before this Court is not whether we agree with the arbitrator's assessment of the evidence, interpretation of the contract or reasoning in fashioning the award. We are not authorized to revisit those questions. We must focus on the result only, and can vacate the award if the arbitration agreement itself violates public policy; if the award intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this State. Our analysis cannot change because the facts or implications of a case might be disturbing, or because an employee's conduct is particularly reprehensible…. However, in order for us to adopt the State's argument, we would have to reject the specific factual findings made by the arbitrator that Kuhnel in fact posed no such threat. As abhorrent as Kuhnel's personal conduct is, Judges cannot reject the factual findings of an arbitrator simply because they do not agree with them (see, United Paperworkers Intl. Union v Misco, Inc., 484 US 29, at 38)."
NYPPL
Council 82 [ex rel Kuhnel], v State of New York, App. Div., 255 AD2d 54, Affirmed, 94 NY2d 321
State Correction Department rules do not trump a correction officer’s First Amendment right to fly a Nazi flag at his home said the Appellate Division in a decision that affirmed an arbitrator’s ruling in the Kuhnel case. This “free speech” ruling was affirmed by the Court of Appeals.
Edward Kuhnel, a state correction officer, flew a Nazi flag from the front porch of his home. He was served with a notice of discipline charging him with violating a Correction Department’s rule providing that:
[a] no employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or [i]ts personnel; and
[b] an employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.
Kuhnel was suspended without pay pending the completion of a disciplinary arbitration. An arbitrator decided that while the state had probable cause to suspend Kuhnel without pay pursuant to the collective bargaining agreement, he was not guilty of the charges contained in the notice of discipline.
The arbitrator ordered the department to reinstate Kuhnel to his position with back pay and benefits.
The department attempted to have the arbitrator’s award vacated [Section 7511 of the Civil Practice Law and Rules], while Council 82 moved to confirm the award. Rejecting the department’s claims that the arbitrator’s award was totally irrational, the Appellate Division focused on “whether the underlying arbitration or the award resulting therefrom was violative of a strong public policy.”
The court held that the department “failed to demonstrate either that the disciplinary charges brought against Kuhnel were not properly the subject of arbitration or that the public policy of this State, ... prohibits, in an absolute sense, the presence within our prison system of those that display the Nazi flag, or any other flag that may be seen as symbolizing bigotry, racism or totalitarianism.” Accordingly, said the court, it was “constrained to affirm” the arbitration award.
In affirming the Appellate Division’s decision, the Court of Appeals said:
"Simply put then, the issue before this Court is not whether we agree with the arbitrator's assessment of the evidence, interpretation of the contract or reasoning in fashioning the award. We are not authorized to revisit those questions. We must focus on the result only, and can vacate the award if the arbitration agreement itself violates public policy; if the award intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this State. Our analysis cannot change because the facts or implications of a case might be disturbing, or because an employee's conduct is particularly reprehensible…. However, in order for us to adopt the State's argument, we would have to reject the specific factual findings made by the arbitrator that Kuhnel in fact posed no such threat. As abhorrent as Kuhnel's personal conduct is, Judges cannot reject the factual findings of an arbitrator simply because they do not agree with them (see, United Paperworkers Intl. Union v Misco, Inc., 484 US 29, at 38)."
NYPPL
Testing for drugs
Testing for drugs
Roy v City of New York, 685 NY2d 668
How much evidence is sufficient to require an employee to take a drug test? And if the employee refuses to take the drug test, is that grounds for dismissal?
The Appellate Division addressed those questions in the Roy case. The court ruled that an informant’s statement to a police officer that she had observed Gary Roy, a New York City police officer, using drugs on numerous occasions constituted substantial evidence and provided the amount of reasonable suspicion required for an order directing a drug test for cause.
The Appellate Division said the informant’s story was reasonably detailed. The fact that some of information provided by the informant was self-incriminatory also suggested credibility to the court. The Appellate Division also commented that Roy’s termination for refusing to submit to a drug test when ordered to do so, under the circumstances, did not shock its sense of fairness, upholding Roy’s termination.
However, there was a “back pay” issue to be resolved. The Appellate Division said that Roy had been suspended without pay for more than 30 days pending resolution of the disciplinary action. The decision notes that Roy was suspended without pay on May 2, 1996 and dismissed, following the hearing and determination of the charge supporting the suspension, on July 26, 1996.
Since there was no evidence that Roy was responsible for the delay in the determination of the charge beyond the 30 days suspension period permitted by Civil Service Law Sections 75(3), he is entitled to back pay for the period from June 2, 1996 to July 26, 1996, less any earnings he may have received from other sources during that period.
This is somewhat troublesome, however. Sections 75, 76 and 77 of the Civil Service Law originally provided for such an adjustment for earnings received from other sources during a period of suspension without pay in excess of 30 days upon the restoration of the individual to his or her former position.
But these three sections were amended in 1984. Chapter 710 of the Law of 1984 deleted the phrase “compensation which he may have earned in any other employment or occupation....”
These sections now provide that an employee who is acquitted of disciplinary charges or whose reinstatement is directed by a civil service commission or the court is to be “restored to his position with full pay for the period of the suspension less the amount of any unemployment insurance benefits he may have received during such period.” It would seem that the same rationale would be applied in cases where an individual has been suspended without pay for a period in excess of that authorized by statute.
Similar language is used in Education Law Section 3020-a.4(b) with respect to the payment of back salary upon acquittal.
NYPPL
Roy v City of New York, 685 NY2d 668
How much evidence is sufficient to require an employee to take a drug test? And if the employee refuses to take the drug test, is that grounds for dismissal?
The Appellate Division addressed those questions in the Roy case. The court ruled that an informant’s statement to a police officer that she had observed Gary Roy, a New York City police officer, using drugs on numerous occasions constituted substantial evidence and provided the amount of reasonable suspicion required for an order directing a drug test for cause.
The Appellate Division said the informant’s story was reasonably detailed. The fact that some of information provided by the informant was self-incriminatory also suggested credibility to the court. The Appellate Division also commented that Roy’s termination for refusing to submit to a drug test when ordered to do so, under the circumstances, did not shock its sense of fairness, upholding Roy’s termination.
However, there was a “back pay” issue to be resolved. The Appellate Division said that Roy had been suspended without pay for more than 30 days pending resolution of the disciplinary action. The decision notes that Roy was suspended without pay on May 2, 1996 and dismissed, following the hearing and determination of the charge supporting the suspension, on July 26, 1996.
Since there was no evidence that Roy was responsible for the delay in the determination of the charge beyond the 30 days suspension period permitted by Civil Service Law Sections 75(3), he is entitled to back pay for the period from June 2, 1996 to July 26, 1996, less any earnings he may have received from other sources during that period.
This is somewhat troublesome, however. Sections 75, 76 and 77 of the Civil Service Law originally provided for such an adjustment for earnings received from other sources during a period of suspension without pay in excess of 30 days upon the restoration of the individual to his or her former position.
But these three sections were amended in 1984. Chapter 710 of the Law of 1984 deleted the phrase “compensation which he may have earned in any other employment or occupation....”
These sections now provide that an employee who is acquitted of disciplinary charges or whose reinstatement is directed by a civil service commission or the court is to be “restored to his position with full pay for the period of the suspension less the amount of any unemployment insurance benefits he may have received during such period.” It would seem that the same rationale would be applied in cases where an individual has been suspended without pay for a period in excess of that authorized by statute.
Similar language is used in Education Law Section 3020-a.4(b) with respect to the payment of back salary upon acquittal.
NYPPL
Oct 29, 2010
Whether a retiree may file a grievance alleging a “violation of the collective bargaining agreement” is for the arbitrator to decide
Whether a retiree may file a grievance alleging a “violation of the collective bargaining agreement” is for the arbitrator to decide
Matter of Peters v Union-Endicott Cent. School Dist., 2010 NY Slip Op 07647, decided on October 28, 2010, Appellate Division, Third Department
[see, also, Matter of Union-Endicott Cent. School Dist. v Endicott Teachers' Assn., 59 AD3d 799, http://publicpersonnellaw.blogspot.com/2010/02/absence-of-language-in-collective.html]
The Endicott Teachers' Association, representing its member, Joanne Peters, a teacher employed by the Union-Endicott Central School District, filed a grievance and demand for arbitration alleging the school district refused to provide health benefits pursuant to the collective bargaining agreement between the District and the ETA following her retirement.
Prior to Peters submitting her retirement application, the District and local police authorities commenced an investigation into allegations that Peters was stealing school materials and property and selling such items on the Internet. Peters submitted her application for retirement while under investigation but prior to her subsequent arrest and charge of grand larceny in the fourth degree.
Following her arrest, Peters was suspended from her postion and the District filed disciplinary charges against her pursuant to Education Law §3020-a. The district also delayed action on her retirement application. The hearing officer, however, found that Peters had severed her employment relationship with the District on July 1, 2007. As a result, the Hearing Officer concluded that the disciplinary charges against Peters were moot and granted her motion to dismiss the charges.*
The School Board, relying on the Hearing Officer's determination, adopted a resolution to retroactively terminate Peters effective July 1, 2007.
Ultimately the school district denied Peters demand for retiree health insurance benefits and ETA filed a demand for arbitration of her resulting grievance. Supreme Court denied the District's application to stay the arbitration.**
The Appellate Division said that the issue raised by the second grievance “distills to whether Peters is considered a retiree for purposes of entitlement to health insurance benefits pursuant to the CBA.”
Rejecting the district’s argument that public policy prohibits arbitration of the grievance on the basis that a determination as to an employee's employment status is a matter to be left to the board of education, the court held that "issues such as [a school district's] relationship to retired employees [and] whether retirees are covered by the grievance procedure . . . are for [an] arbitrator to decide.”
* N.B. 4 NYCRR 5.3[b], which applies to employees in the Classified Service, in pertinent part, provides that “when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.”
** As to the district’s argument that public policy prohibits conferring contractual benefits upon an employee guilty of misconduct under the "faithless servant" doctrine, Supreme Court said that the record “establishes that Ms. Peters entered a plea of not guilty to a charge of grand larceny and that said charge was ultimately dismissed.” Further, the charges filed against Peters pursuant to Education Law §3020-a “were likewise dismissed without any finding of guilt.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07647.htm
NYPPL
Matter of Peters v Union-Endicott Cent. School Dist., 2010 NY Slip Op 07647, decided on October 28, 2010, Appellate Division, Third Department
[see, also, Matter of Union-Endicott Cent. School Dist. v Endicott Teachers' Assn., 59 AD3d 799, http://publicpersonnellaw.blogspot.com/2010/02/absence-of-language-in-collective.html]
The Endicott Teachers' Association, representing its member, Joanne Peters, a teacher employed by the Union-Endicott Central School District, filed a grievance and demand for arbitration alleging the school district refused to provide health benefits pursuant to the collective bargaining agreement between the District and the ETA following her retirement.
Prior to Peters submitting her retirement application, the District and local police authorities commenced an investigation into allegations that Peters was stealing school materials and property and selling such items on the Internet. Peters submitted her application for retirement while under investigation but prior to her subsequent arrest and charge of grand larceny in the fourth degree.
Following her arrest, Peters was suspended from her postion and the District filed disciplinary charges against her pursuant to Education Law §3020-a. The district also delayed action on her retirement application. The hearing officer, however, found that Peters had severed her employment relationship with the District on July 1, 2007. As a result, the Hearing Officer concluded that the disciplinary charges against Peters were moot and granted her motion to dismiss the charges.*
The School Board, relying on the Hearing Officer's determination, adopted a resolution to retroactively terminate Peters effective July 1, 2007.
Ultimately the school district denied Peters demand for retiree health insurance benefits and ETA filed a demand for arbitration of her resulting grievance. Supreme Court denied the District's application to stay the arbitration.**
The Appellate Division said that the issue raised by the second grievance “distills to whether Peters is considered a retiree for purposes of entitlement to health insurance benefits pursuant to the CBA.”
Rejecting the district’s argument that public policy prohibits arbitration of the grievance on the basis that a determination as to an employee's employment status is a matter to be left to the board of education, the court held that "issues such as [a school district's] relationship to retired employees [and] whether retirees are covered by the grievance procedure . . . are for [an] arbitrator to decide.”
* N.B. 4 NYCRR 5.3[b], which applies to employees in the Classified Service, in pertinent part, provides that “when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.”
** As to the district’s argument that public policy prohibits conferring contractual benefits upon an employee guilty of misconduct under the "faithless servant" doctrine, Supreme Court said that the record “establishes that Ms. Peters entered a plea of not guilty to a charge of grand larceny and that said charge was ultimately dismissed.” Further, the charges filed against Peters pursuant to Education Law §3020-a “were likewise dismissed without any finding of guilt.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07647.htm
NYPPL
Grieving alleged out-of-title work assignments
Grieving alleged out-of-title work assignments
Bailey v GOER, 259 AD2d 940
Sometimes a Taylor Law contract will include a provision barring unit members from being assigned to perform “out-of-title” work. Such a provision was included in a collective bargaining agreement between the State of New York and a negotiating unit represented by the Civil Service Employees Association, Local 1000 [CSEA]. As demonstrated by the Bailey decision, courts appear to be quite liberal in analyzing job descriptions when considering allegations of out-of-title work.
Complaints were received by the State Department of Transportation concerning Robert W. Bailey, a Supervising Motor Vehicle Inspector [SMVI]. Bailey was relieved of his normal SMVI duties and was given a “special assignment” while the department conducted its investigation of the complaints. Bailey performed this “special assignment” for 54-day commencing March 20, 1997.
Contending that Bailey’s “special assignment” constituted out-of-title work in violation of the collective bargaining agreement, as well as Civil Service Law Section 61(2), CSEA filed a contract grievance on his behalf. The grievance was denied at the agency level and, upon appeal, by the Governor’s Office of Employee Relations [GOER].
Section 61(2) of the Civil Service Law provides that “no person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed.” CSEA contended that Bailey’s “special assignment” duties were not appropriate to his title - Supervising Motor Vehicle Inspector.
Grievances filed under the out-of-title work provision were not subject to arbitration. Accordingly, when CSEA decided to appeal GOER’s decision, it filed an Article 78 petition [Article 78, Civil Practice Law and Rules] seeking judicial review.
CSEA’s major argument was that the tasks Bailey was assigned while on special assignment were among those performed by employees in a higher position -- Intermodal Transportation Specialist 2 [ITS2]. As additional evidence of out-of-title work, CSEA alleged that the duties of incumbents of ITS2 positions involved supervision. Accordingly, CSEA claimed that Bailey was assigned out-of-title work. NYPPL
The Appellate Division agreed that the ITS2 position was a supervisory position, requiring the management of a unit. It pointed out, however, that Bailey’s special assignment did not involve any supervisory responsibility.
Considering the circumstances involved in Bailey’s situation, the court concluded that the mere fact that there may have been some overlap between the duties of Bailey’s special assignment and those of the higher ITS2 position did not demonstrate any irrationality in GOER’s holding that Bailey was not performing out-of-title work during the period in question.
Another argument made by CSEA in support of its position was that the duties Bailey was assigned while on special assignment involved “streamlining bus inspection forms and revising program guidelines, forms and manuals for the Motor Carrier Safety Bureau.” Such duties, CSEA claimed, did not fall within any of the tasks he had performed as an SMVI.
The Appellate Division commented that the classification standards for the SMVI position included participating in special studies relating to bus safety, preparing of reports and records concerning transportation district program and providing of technical assistance and advice. It apparently decided that Bailey’s special assignment tasks could be encompassed under such “special studies.” The court said the record as a whole provides a rational basis for GOER’s determination that Bailey was not performing out-of-title work and dismissed CSEA’s appeal.
NYPPL
Bailey v GOER, 259 AD2d 940
Sometimes a Taylor Law contract will include a provision barring unit members from being assigned to perform “out-of-title” work. Such a provision was included in a collective bargaining agreement between the State of New York and a negotiating unit represented by the Civil Service Employees Association, Local 1000 [CSEA]. As demonstrated by the Bailey decision, courts appear to be quite liberal in analyzing job descriptions when considering allegations of out-of-title work.
Complaints were received by the State Department of Transportation concerning Robert W. Bailey, a Supervising Motor Vehicle Inspector [SMVI]. Bailey was relieved of his normal SMVI duties and was given a “special assignment” while the department conducted its investigation of the complaints. Bailey performed this “special assignment” for 54-day commencing March 20, 1997.
Contending that Bailey’s “special assignment” constituted out-of-title work in violation of the collective bargaining agreement, as well as Civil Service Law Section 61(2), CSEA filed a contract grievance on his behalf. The grievance was denied at the agency level and, upon appeal, by the Governor’s Office of Employee Relations [GOER].
Section 61(2) of the Civil Service Law provides that “no person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed.” CSEA contended that Bailey’s “special assignment” duties were not appropriate to his title - Supervising Motor Vehicle Inspector.
Grievances filed under the out-of-title work provision were not subject to arbitration. Accordingly, when CSEA decided to appeal GOER’s decision, it filed an Article 78 petition [Article 78, Civil Practice Law and Rules] seeking judicial review.
CSEA’s major argument was that the tasks Bailey was assigned while on special assignment were among those performed by employees in a higher position -- Intermodal Transportation Specialist 2 [ITS2]. As additional evidence of out-of-title work, CSEA alleged that the duties of incumbents of ITS2 positions involved supervision. Accordingly, CSEA claimed that Bailey was assigned out-of-title work. NYPPL
The Appellate Division agreed that the ITS2 position was a supervisory position, requiring the management of a unit. It pointed out, however, that Bailey’s special assignment did not involve any supervisory responsibility.
Considering the circumstances involved in Bailey’s situation, the court concluded that the mere fact that there may have been some overlap between the duties of Bailey’s special assignment and those of the higher ITS2 position did not demonstrate any irrationality in GOER’s holding that Bailey was not performing out-of-title work during the period in question.
Another argument made by CSEA in support of its position was that the duties Bailey was assigned while on special assignment involved “streamlining bus inspection forms and revising program guidelines, forms and manuals for the Motor Carrier Safety Bureau.” Such duties, CSEA claimed, did not fall within any of the tasks he had performed as an SMVI.
The Appellate Division commented that the classification standards for the SMVI position included participating in special studies relating to bus safety, preparing of reports and records concerning transportation district program and providing of technical assistance and advice. It apparently decided that Bailey’s special assignment tasks could be encompassed under such “special studies.” The court said the record as a whole provides a rational basis for GOER’s determination that Bailey was not performing out-of-title work and dismissed CSEA’s appeal.
NYPPL
Independent medical examinations
Independent medical examinations
Olivier v Rockland Co., 260 AD2d 482
The Olivier case addresses the question of an employer’s right to require an “independent medical examination” as a condition precedent to its making a determination concerning an employee’s application for disability benefits pursuant to Section 207-c of the General Municipal Law.
Frank Olivier, a corrections officer with the Rockland County Sheriff Department, claimed disability benefits pursuant to Section 207-c of the General Municipal Law as the result of a “work-related illness.” Before the sheriff made any determination concerning providing Olivier with such benefits, Olivier filed an Article 78 action [Article 78, Civil Practice Law and Rules] seeking a court order directing Rockland County to classify his disability as work-related pursuant to Section 207-c and to pay him the benefits mandated by that law.
Olivier contended that he had prima facie established his entitlement to benefits, and therefore should be immediately awarded the benefits provided by law.*
The Appellate Division rejected Olivier’s argument that he was entitled to Section 207-c benefits upon his prima facie showing of a right to such benefits. The court observed that “it is well settled that the County was not required to award benefits based on a prima facie showing of entitlement, but was permitted to order an independent medical examination before making a determination.” It cited the Court of Appeal’s decision in DePoalo v County of Schenectady, 85 NY2d 527, in support of its ruling.
In essence, the Appellate Division held that the employer is entitled to an opportunity to rebut an employee’s prima facie case that he or she is entitled to Section 207-c benefits and it may order the individual to submit to an “independent medical examination” for this purpose.
Presumably the courts will apply the same reasoning to cases involve GML Section 207-a, which provides similar benefits to firefighters injured in the line of duty.
* If a party makes a prima facie case, it will prevail unless rebutted by evidence presented by the other side. In other words, if an individual establishes a prima facie case, he or she will win if no “answer” is made to the allegation by the other party or if the evidence presented against the individual’s claim by the other party is unpersuasive.
Olivier v Rockland Co., 260 AD2d 482
The Olivier case addresses the question of an employer’s right to require an “independent medical examination” as a condition precedent to its making a determination concerning an employee’s application for disability benefits pursuant to Section 207-c of the General Municipal Law.
Frank Olivier, a corrections officer with the Rockland County Sheriff Department, claimed disability benefits pursuant to Section 207-c of the General Municipal Law as the result of a “work-related illness.” Before the sheriff made any determination concerning providing Olivier with such benefits, Olivier filed an Article 78 action [Article 78, Civil Practice Law and Rules] seeking a court order directing Rockland County to classify his disability as work-related pursuant to Section 207-c and to pay him the benefits mandated by that law.
Olivier contended that he had prima facie established his entitlement to benefits, and therefore should be immediately awarded the benefits provided by law.*
The Appellate Division rejected Olivier’s argument that he was entitled to Section 207-c benefits upon his prima facie showing of a right to such benefits. The court observed that “it is well settled that the County was not required to award benefits based on a prima facie showing of entitlement, but was permitted to order an independent medical examination before making a determination.” It cited the Court of Appeal’s decision in DePoalo v County of Schenectady, 85 NY2d 527, in support of its ruling.
In essence, the Appellate Division held that the employer is entitled to an opportunity to rebut an employee’s prima facie case that he or she is entitled to Section 207-c benefits and it may order the individual to submit to an “independent medical examination” for this purpose.
Presumably the courts will apply the same reasoning to cases involve GML Section 207-a, which provides similar benefits to firefighters injured in the line of duty.
* If a party makes a prima facie case, it will prevail unless rebutted by evidence presented by the other side. In other words, if an individual establishes a prima facie case, he or she will win if no “answer” is made to the allegation by the other party or if the evidence presented against the individual’s claim by the other party is unpersuasive.
Jarema credit and eligibilty for tenure
Jarema credit and eligibilty for tenure
Barbaccia v Locust Valley CSD, 282 AD2d 674
The central issue in the Barbaccia case concerned a teacher’s eligibility for Jarema credit for the purposes of granting tenure. As the decision demonstrates, determining whether an individual qualifies for Jarema credit is not always an easy task.
The case arose when Tori Barbaccia was denied tenure prior to the end of his two-year probationary period. He claimed that he had acquired tenure be estoppel a year earlier as he was entitled to Jarema credit for one and one half years of prior service as a “permanent per diem” substitute teacher with his employer, the Locust Valley Central School District.
Barbaccia had served as a per diem substitute during the 1992-93 and 1993-94 school years. He was then appointed as a part-time four-fifths social studies teacher for the 1993-94 school year. In September 1, 1995, Barbaccia was given a two-year probationary appointment and by letter dated April 11, 1997, was advised that he would not be recommended for tenure. He was terminated effective August 1, 1997.
Claiming that he had acquired tenure by estoppel or acquiescence in February 1997, Barbaccia sued to compel the board to reinstate him to his former position with tenure and back salary on the authority of Section 3012(1)(a) of the Education Law. Section 3012(1)(a), sets a three-year probationary period for teachers, but allows a reduction of the probationary period for up to one year by extending a credit (referred to as “Jarema credit”) for up to two years of “satisfactory service as a regular substitute.”*
The school board argued that Barbaccia did not qualify as a “regular substitute” since he “did not take over the class of another teacher on a permanent basis for any definite time but rather substituted for other teachers on a daily basis or for other short periods of time.” Barbaccia, the district claimed, fell within the category of “itinerant substitute.”
Barbaccia substituted for many teachers and in different subject areas, including his certified area of social studies, but never replaced any teacher for any extended period of time and never for a full semester or term. The Appellate Division, however, said what is controlling is the character of the teacher’s actual service.
The ruling notes that the Commissioner of Education has classified substitute teachers: those performing regular substitute service and those performing itinerant substitute service.
A “regular substitute” is one who takes over the class of another teacher upon a permanent basis, i.e., under circumstances where the regular teacher for maternity reasons, or for sabbatical or sick leave, has been given a definite leave of absence” while the “itinerant substitute” is a person who is called in for half a day, for short periods or for a week or more, to take the place of a teacher who is temporarily absent because of sickness or otherwise.”
An itinerant substitute is paid upon a day rate, is not entitled to membership in the teachers’ retirement system, and receives no recognition by statute for that type of service” (65 NY St Dept Rep 65, at page 67).
In Matter of Spechler, 90 NY2d 110, the Court of Appeals held that whether one falls within the category of “regular substitute” or “itinerant substitute” must be based on the substitute teacher’s actual service. It said that the substitute teacher’s title, rate of pay (per diem or annual salary), and whether the teacher for whom the substitution is made was absent for a definite or indefinite period may be factors to be considered but each alone is not dispositive and “the distinction between definite and indefinite absences should not be rigidly applied.”
The Appellate Division decided that Barbaccia was not entitled to any Jarema credit for the fall 1992 semester because he did not provide services for the entire semester nor for the time he worked as a part time teacher. But since the part time employment was immediately prior to the probationary appointment, the court ruled that he may be entitled to Jarema credit for the time he served as a “permanent substitute” that may otherwise qualify.
To resolve the issue, the court remanded the question of whether Barbaccia qualified for Jarema credit to Judicial Hearing Officer Marie G. Santagata.
* "Jarema credit" is named after the bill's sponsor, Assemblyman Stephen J. Jarema.
NYPPL
Barbaccia v Locust Valley CSD, 282 AD2d 674
The central issue in the Barbaccia case concerned a teacher’s eligibility for Jarema credit for the purposes of granting tenure. As the decision demonstrates, determining whether an individual qualifies for Jarema credit is not always an easy task.
The case arose when Tori Barbaccia was denied tenure prior to the end of his two-year probationary period. He claimed that he had acquired tenure be estoppel a year earlier as he was entitled to Jarema credit for one and one half years of prior service as a “permanent per diem” substitute teacher with his employer, the Locust Valley Central School District.
Barbaccia had served as a per diem substitute during the 1992-93 and 1993-94 school years. He was then appointed as a part-time four-fifths social studies teacher for the 1993-94 school year. In September 1, 1995, Barbaccia was given a two-year probationary appointment and by letter dated April 11, 1997, was advised that he would not be recommended for tenure. He was terminated effective August 1, 1997.
Claiming that he had acquired tenure by estoppel or acquiescence in February 1997, Barbaccia sued to compel the board to reinstate him to his former position with tenure and back salary on the authority of Section 3012(1)(a) of the Education Law. Section 3012(1)(a), sets a three-year probationary period for teachers, but allows a reduction of the probationary period for up to one year by extending a credit (referred to as “Jarema credit”) for up to two years of “satisfactory service as a regular substitute.”*
The school board argued that Barbaccia did not qualify as a “regular substitute” since he “did not take over the class of another teacher on a permanent basis for any definite time but rather substituted for other teachers on a daily basis or for other short periods of time.” Barbaccia, the district claimed, fell within the category of “itinerant substitute.”
Barbaccia substituted for many teachers and in different subject areas, including his certified area of social studies, but never replaced any teacher for any extended period of time and never for a full semester or term. The Appellate Division, however, said what is controlling is the character of the teacher’s actual service.
The ruling notes that the Commissioner of Education has classified substitute teachers: those performing regular substitute service and those performing itinerant substitute service.
A “regular substitute” is one who takes over the class of another teacher upon a permanent basis, i.e., under circumstances where the regular teacher for maternity reasons, or for sabbatical or sick leave, has been given a definite leave of absence” while the “itinerant substitute” is a person who is called in for half a day, for short periods or for a week or more, to take the place of a teacher who is temporarily absent because of sickness or otherwise.”
An itinerant substitute is paid upon a day rate, is not entitled to membership in the teachers’ retirement system, and receives no recognition by statute for that type of service” (65 NY St Dept Rep 65, at page 67).
In Matter of Spechler, 90 NY2d 110, the Court of Appeals held that whether one falls within the category of “regular substitute” or “itinerant substitute” must be based on the substitute teacher’s actual service. It said that the substitute teacher’s title, rate of pay (per diem or annual salary), and whether the teacher for whom the substitution is made was absent for a definite or indefinite period may be factors to be considered but each alone is not dispositive and “the distinction between definite and indefinite absences should not be rigidly applied.”
The Appellate Division decided that Barbaccia was not entitled to any Jarema credit for the fall 1992 semester because he did not provide services for the entire semester nor for the time he worked as a part time teacher. But since the part time employment was immediately prior to the probationary appointment, the court ruled that he may be entitled to Jarema credit for the time he served as a “permanent substitute” that may otherwise qualify.
To resolve the issue, the court remanded the question of whether Barbaccia qualified for Jarema credit to Judicial Hearing Officer Marie G. Santagata.
* "Jarema credit" is named after the bill's sponsor, Assemblyman Stephen J. Jarema.
NYPPL
Appellate Division reconsiders the disciplinary penalty imposed on an employee after finding the employee would not lose pension rights
Appellate Division reconsiders the disciplinary penalty imposed on an employee after finding the employee would not lose pension rights
Kennedy v. Bennett, 26 AD3d 334; reconsidered and revised, 31 AD3d 764; motion for leave to appeal denied, 7 NY3d 718
Brian M. Kennedy was found guilty of two of the three charges of misconduct filed against him and dismissed him from the New York Division of State Police.
The Appellate Division decided that substantial evidence supported the hearing officer’s findings that Kennedy was guilty of two of the charges filed against him but that the penalty imposed by the appointing authority, dismissal, “was so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.
State Police filed a petition seeking “leave to appeal” this unanimous decision by the Appellate Division to the Court of Appeals or, in the alternative, approval to reargue the case before the Appellate Division.
The Appellate Division denied the Division of State Police’s request to appeal the ruling to the Court of Appeals but granted its motion to reargue the matter.
This time the court unanimously decided that “the penalty imposed by the [appointing authority] is not so disproportionate to the offenses as to be shocking to one's sense of fairness” as Kennedy, who had not yet achieved 20 years of service, “will not lose his pension as a result of this termination,” citing Retirement and Social Security Law Section 381-b[b][3].*
However, there are situations where the employee’s termination could result in a forfeiture of the individual’s retirement allowance.
For example, Section 13-173.1 of the Administrative Code of the City of New York requires an employee subject to its provisions to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.
The Court of Appeals addressed the impact of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System. Waldeck and Barbaro challenged the forfeiture of their retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them. Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this meant that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!
The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory source and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."
According to the decision, “there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.”
Castro v Safir, 291 AD2d 212, is another case in which one of the issues before the court concerned the forfeiture of a retirement allowance.
Castro was terminated from his position following his "second arrest." According to the decision, Castro was discharged after he had applied for ordinary disability retirement but before he was actually retired for disability. The Appellate Division ruled that Castro had forfeited his disability retirement allowance as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.
* Retirement and Social Security Law Section 381-b[b][3] provides as follows: (3) Upon attainment of the mandatory retirement age without completion of twenty years of such service, each such member shall receive a pension which, together with an annuity for such years of service as provided in paragraph four of this subdivision, shall be equal to one-fortieth of his final average salary for each year of creditable service in such division. Every such member shall also be entitled to an additional pension equal to the pension for any creditable service rendered while not an employee of the division as provided under paragraphs three and four of subdivision a of section three hundred seventy-five of this article. This latter pension shall not increase the total allowance to more than one-half of his final average salary.
NYPPL
Kennedy v. Bennett, 26 AD3d 334; reconsidered and revised, 31 AD3d 764; motion for leave to appeal denied, 7 NY3d 718
Brian M. Kennedy was found guilty of two of the three charges of misconduct filed against him and dismissed him from the New York Division of State Police.
The Appellate Division decided that substantial evidence supported the hearing officer’s findings that Kennedy was guilty of two of the charges filed against him but that the penalty imposed by the appointing authority, dismissal, “was so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.
State Police filed a petition seeking “leave to appeal” this unanimous decision by the Appellate Division to the Court of Appeals or, in the alternative, approval to reargue the case before the Appellate Division.
The Appellate Division denied the Division of State Police’s request to appeal the ruling to the Court of Appeals but granted its motion to reargue the matter.
This time the court unanimously decided that “the penalty imposed by the [appointing authority] is not so disproportionate to the offenses as to be shocking to one's sense of fairness” as Kennedy, who had not yet achieved 20 years of service, “will not lose his pension as a result of this termination,” citing Retirement and Social Security Law Section 381-b[b][3].*
However, there are situations where the employee’s termination could result in a forfeiture of the individual’s retirement allowance.
For example, Section 13-173.1 of the Administrative Code of the City of New York requires an employee subject to its provisions to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.
The Court of Appeals addressed the impact of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System. Waldeck and Barbaro challenged the forfeiture of their retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them. Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this meant that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!
The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory source and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."
According to the decision, “there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.”
Castro v Safir, 291 AD2d 212, is another case in which one of the issues before the court concerned the forfeiture of a retirement allowance.
Castro was terminated from his position following his "second arrest." According to the decision, Castro was discharged after he had applied for ordinary disability retirement but before he was actually retired for disability. The Appellate Division ruled that Castro had forfeited his disability retirement allowance as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.
* Retirement and Social Security Law Section 381-b[b][3] provides as follows: (3) Upon attainment of the mandatory retirement age without completion of twenty years of such service, each such member shall receive a pension which, together with an annuity for such years of service as provided in paragraph four of this subdivision, shall be equal to one-fortieth of his final average salary for each year of creditable service in such division. Every such member shall also be entitled to an additional pension equal to the pension for any creditable service rendered while not an employee of the division as provided under paragraphs three and four of subdivision a of section three hundred seventy-five of this article. This latter pension shall not increase the total allowance to more than one-half of his final average salary.
NYPPL
Oct 28, 2010
Governor Paterson approves layoff plan that will reduce the State’s workforce by an additional 2,000 employees
Governor Paterson approves layoff plan that will reduce the State’s workforce by an additional 2,000 employees
Source: Office of the Governor
On October 28, 2010, Governor Paterson said that New York State is facing more than an $8 billion deficit next year and more than a $30 billion deficit over the next three years.
In response to this “stark reality,” the Governor said that he had approved the implementation of a layoff plan to reduce the State’s workforce by an additional 2000 employees, including some “898 layoffs to be effected at year's end.”
Governor Paterson said that his plan will result in a reduction in the State workforce by more han 11,000 employees -- “a reduction greater than 8 percent for the workforce under Executive control.”
NYPPL
Source: Office of the Governor
On October 28, 2010, Governor Paterson said that New York State is facing more than an $8 billion deficit next year and more than a $30 billion deficit over the next three years.
In response to this “stark reality,” the Governor said that he had approved the implementation of a layoff plan to reduce the State’s workforce by an additional 2000 employees, including some “898 layoffs to be effected at year's end.”
Governor Paterson said that his plan will result in a reduction in the State workforce by more han 11,000 employees -- “a reduction greater than 8 percent for the workforce under Executive control.”
NYPPL
Requiring teachers to get school's permission to use school's internal mailboxes to distribute personal materials does not violate free speech rights
Requiring teachers to get school's permission to use school's internal mailboxes to distribute personal materials does not violate free speech rights
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.
N.B. The Taylor Law [Section 209-a.6, Civil Service Law] provides that "in applying this [Article], fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent."
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.
Policastro v. Tenafly Bd. of Educ., ___F.Supp. 2d____ (D. N.J. May 7, 2010), is an interesting case. A district court in New Jersey has ruled that school district officials did not violate a teacher’s First Amendment right to freedom of speech when they disciplined him for placing personal correspondence in teachers’ internal mailboxes in contravention of the district’s materials distribution policy requiring teachers to obtain prior permission.
The court concluded that the policy constituted a reasonable content-neutral time, place and manner restriction.
The court rejected Policastro’s contention that based on the free speech principles enunciated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1968), that he had the right “to use the teacher mailboxes without administrative permission.” The court explained that when the speaker is a government employee, the public employer may restrict speech that “does not relate to matters of public concern as long as the employee’s interest in speaking does not outweigh the government’s interest in prohibiting him or her from doing so” under Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), as refined in Garcetti v. Ceballos, 547 U.S. 410 (2006). Like Tinker, however, the Pickering/Carcetti standard involves content-based restrictions, and is not applicable to content-neutral limitations on government employee speech like the regulation at issue here.
Editor's Comments: A similar issue was considered by PERB.
The Public Employees Federation [PEF] filed a complaint with PERB after a PEF board member, state education program supervisor C. Michael Darcy, lost his State e-mail privileges because he used his account to conduct union business.
Darcy lost his department e-mail privilege after the Governor's Office of Employee Relation's [GOER] circulated a memorandum to state departments and agencies indicating that the use of state equipment to conduct union business was "strictly prohibited."
PEF conceded that Darcy, and other PEF officials, have used the state's e-mail to discuss union business but contended that this is a "past practice" and thus any change should have first been negotiated with the union. GOER disagreed, explaining that its reminder simply reflected a management policy that dates back to the 1970's.
In a case involving "snail-mail" rather than e-mail, [Roosevelt Teachers Association, 16 PERB 4545] PERB said that a union does not have any statutory right to access employee mailboxes on employer's property. In the absence of a contractual provision permitting such access, PERB ruled, an employee union representative may be denied approval to place material in the boxes. [Of course the union could distribute such information via the teacher's school mailbox by using the U.S. postal service "to deliver the mail."]
In a similar case, the U.S. Supreme Court declined to find discrimination when a school district decided not to allow an employee organization to use its internal mail system to distribute union material to its members [Perry Education Association v Perry School District, 460 US 37].
In contrast, the National Labor Relations Board ruled that the use of the employer's e-mail to communicate about union business is a protected activity within the meaning of Section 7 of the National Labor Relations Act. The case arose when nonunion Timekeeping Systems, Inc. fired an employee after he sent e-mail messages to the company's chief executive officer and fellow employees complaining about Timekeeping's new leave policies [Timekeeping Systems, Inc. v Leinweber, 323 NLRB 30].
N.B. The Taylor Law [Section 209-a.6, Civil Service Law] provides that "in applying this [Article], fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent."
NYPPL
Mandatory retirement
Mandatory retirement
Mainello v McCall, 252 AD2d 235, motion to appeal dismissed, 93 NY2d 919
In 1988 the state amended the Retirement and Social Security Law to change the mandatory age of retirement for certain members of the Police and Firefighters’ Retirement System [PFRS] from age 60 to age 57 [Chapter 795 of the Laws of 1988].
State Police Assistant Deputy Superintendent John A. Mainello challenged the requirement that he retire from his position upon his attainment of age 57 [RSSL Section 381-b(e)].
He filed a lawsuit contending that the legislature’s action violated the state Constitution. He said it contradicted the so-called “Nonimpairment Clause” (Article V, Section 7), which provides that a retiree’s retirement benefits from a public retirement system of this state are contractual and may neither be diminished nor impaired.
Mainello argued that his retirement benefits would be compromised because he would “lose three years of member service.” The Appellate Division disagreed, holding that Mainello’s early retirement would have a “minor and entirely incidental” influence on his retirement benefits.
Furthermore, the Appellate Division pointed out that the law only protects the benefits of current retirees, not the potential benefits of employees who are approaching retirement. [“(T)he fact that there can be no Constitutional impairment of pension system benefits does not create a constitutional right to stay in public employment” (see Cook v City of Binghamton, 48 NY2D 323); “(An) expectation of remaining in public employment ... is not within the scope of protection afforded by the Nonimpairment Clause.” (see Lake v Regan, 135 AD2d 312)]
In addition, the amendment requiring PFRS members to retire at age 57 “was enacted to further a legitimate public policy goal,” the Appellate Division said.
Courts will probably apply a similar reasoning to other challenges to mandated early retirement on constitutional grounds.
Judge Cardona dissented, commenting that “it is settled law that “[t]he Nonimpairment Clause of the New York Constitution was adopted in order to prevent the reduction of an individual’s retirement benefits after he or she had joined a retirement system operated by the State or one of its civil divisions.” Judge Cardona also cited Lake v Regan [supra] in support of his position.
In effect Judge Cardona took the position that a member of a public retirement system is entitled to at least the level of benefits provided by law when he or she joined the system when he or she retires. Because the system provides a “defined benefit,” Judge Cardona concluded that a member suffers an impairment of his or her constitutionally protected retirement benefit if the calculation of his or her “defined benefit” would be adversely affected by any amendment to the Retirement and Social Security Law prior to his or her effective date of retirement.
NYPPL
Mainello v McCall, 252 AD2d 235, motion to appeal dismissed, 93 NY2d 919
In 1988 the state amended the Retirement and Social Security Law to change the mandatory age of retirement for certain members of the Police and Firefighters’ Retirement System [PFRS] from age 60 to age 57 [Chapter 795 of the Laws of 1988].
State Police Assistant Deputy Superintendent John A. Mainello challenged the requirement that he retire from his position upon his attainment of age 57 [RSSL Section 381-b(e)].
He filed a lawsuit contending that the legislature’s action violated the state Constitution. He said it contradicted the so-called “Nonimpairment Clause” (Article V, Section 7), which provides that a retiree’s retirement benefits from a public retirement system of this state are contractual and may neither be diminished nor impaired.
Mainello argued that his retirement benefits would be compromised because he would “lose three years of member service.” The Appellate Division disagreed, holding that Mainello’s early retirement would have a “minor and entirely incidental” influence on his retirement benefits.
Furthermore, the Appellate Division pointed out that the law only protects the benefits of current retirees, not the potential benefits of employees who are approaching retirement. [“(T)he fact that there can be no Constitutional impairment of pension system benefits does not create a constitutional right to stay in public employment” (see Cook v City of Binghamton, 48 NY2D 323); “(An) expectation of remaining in public employment ... is not within the scope of protection afforded by the Nonimpairment Clause.” (see Lake v Regan, 135 AD2d 312)]
In addition, the amendment requiring PFRS members to retire at age 57 “was enacted to further a legitimate public policy goal,” the Appellate Division said.
Courts will probably apply a similar reasoning to other challenges to mandated early retirement on constitutional grounds.
Judge Cardona dissented, commenting that “it is settled law that “[t]he Nonimpairment Clause of the New York Constitution was adopted in order to prevent the reduction of an individual’s retirement benefits after he or she had joined a retirement system operated by the State or one of its civil divisions.” Judge Cardona also cited Lake v Regan [supra] in support of his position.
In effect Judge Cardona took the position that a member of a public retirement system is entitled to at least the level of benefits provided by law when he or she joined the system when he or she retires. Because the system provides a “defined benefit,” Judge Cardona concluded that a member suffers an impairment of his or her constitutionally protected retirement benefit if the calculation of his or her “defined benefit” would be adversely affected by any amendment to the Retirement and Social Security Law prior to his or her effective date of retirement.
NYPPL
Religious freedom and employment
Religious freedom and employment
Marchi v BOCES, 2nd Cir., 173 F.3d 469
A school risks violating the Establishment Clause of the U.S. Constitution if any of its teachers’ activities give the impression that the school endorses a religion.
But how far can a school board go in limiting a teacher’s classroom speech on religious issues before it tramples on another Constitutional guarantee: the right to free expression? The U.S. Court of Appeals for the Second Circuit, which includes New York State, wrestled with those issues in the Marchi case.
Dan Marchi, a certified special education teacher in the Capital Region BOCES, taught socially and emotionally disturbed high school students. Marchi said he “underwent a dramatic conversion to Christianity,” and admitted that he shared this experience with his students.
In the fall of 1991 he modified his instructional program to discuss topics such as forgiveness, reconciliation, and God. He used a tape, Singing the Bible, in class and voiced his thankfulness to God in at least one letter to a parent.
After Marchi ignored letters directing him to refrain from using religion as part of his instructional program, the BOCES filed charges of insubordination and “conduct unbecoming a teacher” against him. A state Department of Education hearing officer found that Marchi had committed an act of insubordination and imposed a penalty of six months’ suspension without pay.
However, Marchi’s return to teaching was conditioned on his commitment, in writing, to adhere to a directive that he would not discuss religion in class. Upon advice of his attorney, Marchi said that he would adhere to the directive.
Marchi then filed a civil rights complaint pursuant to 42 USC 1983, alleging that:
1. By suspending him in 1995, BOCES violated his rights to academic freedom, free association, free speech, and free exercise of religion, as well as his rights under the Religious Freedom Restoration Act;
2. BOCES violated his right to due process and retaliated against him when deciding his classroom assignment upon his return to teaching;
3. The directive he accepted was unconstitutionally vague and overbroad; and
4. The directive “proscribe(d) protected speech between Marchi and students’ parents.”
A federal district judge dismissed his complaint, saying “thousands of teachers of common intelligence are able to distinguish between their instructional program and their personal life and do so without violating the establishment clause.” In addition, the District Court found that the challenged directive “addresses only [Marchi’s] instructional program and no other aspect of [his] personal life”.
Marchi appealed the ruling. The Circuit Court agreed with the lower court, holding that while “the directive is unquestionably a restraint on Marchi’s First Amendment rights,” not all restraints on free exercise and free speech rights are invalid. The court said that the validity of a particular restraint depends on the context in which the expression occurs.
The Circuit Court noted that the decisions that governmental agencies make in determining when they are at risk of Establishment Clause violations are difficult.
In dealing with their employees, public employers cannot be expected to resolve so precisely the inevitable tensions between the Establishment Clause and the Free Exercise Clause “that they may forbid only employee conduct that, if occurring, would violate the Establishment Clause and must tolerate all employee conduct that, if prohibited as to non-employees, would violate the Free Exercise Clause.”
In discharging its public functions, said the Court, the governmental employer must be given some latitude and the employee must accept that he or she does not retain the full extent of free exercise rights that he or she would enjoy as a private citizen.
NYPPL
Marchi v BOCES, 2nd Cir., 173 F.3d 469
A school risks violating the Establishment Clause of the U.S. Constitution if any of its teachers’ activities give the impression that the school endorses a religion.
But how far can a school board go in limiting a teacher’s classroom speech on religious issues before it tramples on another Constitutional guarantee: the right to free expression? The U.S. Court of Appeals for the Second Circuit, which includes New York State, wrestled with those issues in the Marchi case.
Dan Marchi, a certified special education teacher in the Capital Region BOCES, taught socially and emotionally disturbed high school students. Marchi said he “underwent a dramatic conversion to Christianity,” and admitted that he shared this experience with his students.
In the fall of 1991 he modified his instructional program to discuss topics such as forgiveness, reconciliation, and God. He used a tape, Singing the Bible, in class and voiced his thankfulness to God in at least one letter to a parent.
After Marchi ignored letters directing him to refrain from using religion as part of his instructional program, the BOCES filed charges of insubordination and “conduct unbecoming a teacher” against him. A state Department of Education hearing officer found that Marchi had committed an act of insubordination and imposed a penalty of six months’ suspension without pay.
However, Marchi’s return to teaching was conditioned on his commitment, in writing, to adhere to a directive that he would not discuss religion in class. Upon advice of his attorney, Marchi said that he would adhere to the directive.
Marchi then filed a civil rights complaint pursuant to 42 USC 1983, alleging that:
1. By suspending him in 1995, BOCES violated his rights to academic freedom, free association, free speech, and free exercise of religion, as well as his rights under the Religious Freedom Restoration Act;
2. BOCES violated his right to due process and retaliated against him when deciding his classroom assignment upon his return to teaching;
3. The directive he accepted was unconstitutionally vague and overbroad; and
4. The directive “proscribe(d) protected speech between Marchi and students’ parents.”
A federal district judge dismissed his complaint, saying “thousands of teachers of common intelligence are able to distinguish between their instructional program and their personal life and do so without violating the establishment clause.” In addition, the District Court found that the challenged directive “addresses only [Marchi’s] instructional program and no other aspect of [his] personal life”.
Marchi appealed the ruling. The Circuit Court agreed with the lower court, holding that while “the directive is unquestionably a restraint on Marchi’s First Amendment rights,” not all restraints on free exercise and free speech rights are invalid. The court said that the validity of a particular restraint depends on the context in which the expression occurs.
The Circuit Court noted that the decisions that governmental agencies make in determining when they are at risk of Establishment Clause violations are difficult.
In dealing with their employees, public employers cannot be expected to resolve so precisely the inevitable tensions between the Establishment Clause and the Free Exercise Clause “that they may forbid only employee conduct that, if occurring, would violate the Establishment Clause and must tolerate all employee conduct that, if prohibited as to non-employees, would violate the Free Exercise Clause.”
In discharging its public functions, said the Court, the governmental employer must be given some latitude and the employee must accept that he or she does not retain the full extent of free exercise rights that he or she would enjoy as a private citizen.
NYPPL
The right to appeal an arbitration
The right to appeal an arbitration
Wilson v NYC Bd. of Ed., 261 AD2d 409
The Wilson decision illustrates a basic tenet to arbitration under a collective bargaining agreement: the “owners” of the arbitration are the parties to the Taylor Law agreement. Those parties typically are the employer and the union.
The individual employee whom the grievance involves is not a party to the arbitration. Accordingly, the union has the right to decide whether to appeal an arbitration decision. The individual union member is not a party to the arbitration and lacks this right, as Nancy Wilson discovered.
Wilson was a teacher in New York City from 1984 until 1996, when the Board of Education decided to terminate her. Wilson’s union initiated a grievance proceeding on her behalf to challenge her termination. After the grievance was denied, the union filed a demand for arbitration as provided for in the collective bargaining agreement.
The arbitrator rejected the appeal, upholding the school board’s decision to terminate Wilson.
Wilson then filed a petition seeking to have the arbitrator’s award vacated pursuant to Section 7511 of the Civil Practice Law and Rules. The Appellate Division dismissed Wilson’s petition on the grounds that Wilson did not have any standing to challenge the arbitration award. The court noted that she was neither a “party” to the collective bargaining agreement nor a “party” to the arbitration.
Under the circumstances, ruled the court, only an employer or a union has standing to ask a court to vacate an arbitration award or have it confirmed. The employee involved cannot do this on his or her own behalf unless he or she is able to demonstrate that the union’s decision not to proceed was made in bad faith.
NYPPL
Wilson v NYC Bd. of Ed., 261 AD2d 409
The Wilson decision illustrates a basic tenet to arbitration under a collective bargaining agreement: the “owners” of the arbitration are the parties to the Taylor Law agreement. Those parties typically are the employer and the union.
The individual employee whom the grievance involves is not a party to the arbitration. Accordingly, the union has the right to decide whether to appeal an arbitration decision. The individual union member is not a party to the arbitration and lacks this right, as Nancy Wilson discovered.
Wilson was a teacher in New York City from 1984 until 1996, when the Board of Education decided to terminate her. Wilson’s union initiated a grievance proceeding on her behalf to challenge her termination. After the grievance was denied, the union filed a demand for arbitration as provided for in the collective bargaining agreement.
The arbitrator rejected the appeal, upholding the school board’s decision to terminate Wilson.
Wilson then filed a petition seeking to have the arbitrator’s award vacated pursuant to Section 7511 of the Civil Practice Law and Rules. The Appellate Division dismissed Wilson’s petition on the grounds that Wilson did not have any standing to challenge the arbitration award. The court noted that she was neither a “party” to the collective bargaining agreement nor a “party” to the arbitration.
Under the circumstances, ruled the court, only an employer or a union has standing to ask a court to vacate an arbitration award or have it confirmed. The employee involved cannot do this on his or her own behalf unless he or she is able to demonstrate that the union’s decision not to proceed was made in bad faith.
NYPPL
Right to counsel during administrative disciplinary action
Right to counsel during administrative disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307, motion for leave to appeal denied, 99 NY2d 509
Employees against whom disciplinary charges have been filed typically have the right to (1) testify on their own behalf and (2) the right to representation by an attorney. Such rights are standard in the disciplinary provisions of collective bargaining contracts as well as disciplinary statutes such as Section 75 of the Civil Service Law and Section 3020-a of the Education Law.
The Elmore decision illustrates that an employer who seeks to limit an employee’s access to counsel during a disciplinary proceeding can be viewed by the courts as committing a fatal error.
The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Elmore, pursuant to Section 3020-a. Elmore’s personal testimony took place on various dates over a period of ten weeks.
At the district’s request, the hearing officer ordered Elmore not to “confer with his attorney about his testimony over the breaks in the hearing.” Nor could Elmore “review transcripts of his testimony during breaks in his testimony.”
Found guilty of the charges, Elmore asked the Supreme Court, Nassau County, to vacate the award pursuant to Section 7511 of the Civil Practice Law and Rules [CPLR].*
Elmore contended the hearing officer’s order constituted “misconduct by the arbitrator” within the meaning of Article 75 of the CPLR because the order effectively denied him the right to counsel.
The district cited a ruling in a criminal matter where the Court of Appeals upheld a lower court’s “restriction of conferencing between a defendant and his attorney during a recess in the course of a criminal trial” [People v Enrique, 80 NY2d 869] in support of its position. But Justice Geoffrey J. O’Connell was not persuaded Enrique was analogous because that ruling pertained only to a single, brief recess period.
The court said that a closer approximation of Elmore’s situation was addressed in People v Carracedos, 89 NY2d 1059. In Carracedos the Court of Appeals ruled that the preclusion of communications between counsel and client during a single overnight recess was a violation of the accused’s right to counsel. Elmore had demonstrated that he was prevented from communicating with his attorney for “weeks at a time” in the middle of his testimony.
Holding that Elmore’s rights were prejudiced by the hearing officer’s order barring him from speaking with his attorney, Justice O’Connell vacated the arbitration award in its entirety. The Appellate Division affirmed the ruling.
[For decisions addressing Elmore’s being placed on leave without pay in concert with this disciplinary action, see Elmore v. Mills, 296 AD2d 704 and Elmore v. Plainview Old Bethpage Central School Dist., 299 AD2d 545].
* N.B. Section 3020-a, as amended, provides that appeals from a Section 3020-a hearing officer’s determination must be filed within ten days pursuant to Section 7511, CPLR.
NYPPL
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307, motion for leave to appeal denied, 99 NY2d 509
Employees against whom disciplinary charges have been filed typically have the right to (1) testify on their own behalf and (2) the right to representation by an attorney. Such rights are standard in the disciplinary provisions of collective bargaining contracts as well as disciplinary statutes such as Section 75 of the Civil Service Law and Section 3020-a of the Education Law.
The Elmore decision illustrates that an employer who seeks to limit an employee’s access to counsel during a disciplinary proceeding can be viewed by the courts as committing a fatal error.
The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Elmore, pursuant to Section 3020-a. Elmore’s personal testimony took place on various dates over a period of ten weeks.
At the district’s request, the hearing officer ordered Elmore not to “confer with his attorney about his testimony over the breaks in the hearing.” Nor could Elmore “review transcripts of his testimony during breaks in his testimony.”
Found guilty of the charges, Elmore asked the Supreme Court, Nassau County, to vacate the award pursuant to Section 7511 of the Civil Practice Law and Rules [CPLR].*
Elmore contended the hearing officer’s order constituted “misconduct by the arbitrator” within the meaning of Article 75 of the CPLR because the order effectively denied him the right to counsel.
The district cited a ruling in a criminal matter where the Court of Appeals upheld a lower court’s “restriction of conferencing between a defendant and his attorney during a recess in the course of a criminal trial” [People v Enrique, 80 NY2d 869] in support of its position. But Justice Geoffrey J. O’Connell was not persuaded Enrique was analogous because that ruling pertained only to a single, brief recess period.
The court said that a closer approximation of Elmore’s situation was addressed in People v Carracedos, 89 NY2d 1059. In Carracedos the Court of Appeals ruled that the preclusion of communications between counsel and client during a single overnight recess was a violation of the accused’s right to counsel. Elmore had demonstrated that he was prevented from communicating with his attorney for “weeks at a time” in the middle of his testimony.
Holding that Elmore’s rights were prejudiced by the hearing officer’s order barring him from speaking with his attorney, Justice O’Connell vacated the arbitration award in its entirety. The Appellate Division affirmed the ruling.
[For decisions addressing Elmore’s being placed on leave without pay in concert with this disciplinary action, see Elmore v. Mills, 296 AD2d 704 and Elmore v. Plainview Old Bethpage Central School Dist., 299 AD2d 545].
* N.B. Section 3020-a, as amended, provides that appeals from a Section 3020-a hearing officer’s determination must be filed within ten days pursuant to Section 7511, CPLR.
NYPPL
Appealing a disciplinary termination
Appealing a disciplinary termination
Stevens v McGraw CSD, 261 AD2d 698, motion for leave to appeal denied, 93 NY2d 816
McGraw Central bus driver Arthur Stevens’ failure to comply with Education Law Section 3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.
Section 75 disciplinary charges were filed against Stevens alleging that he permitted unacceptable behavior on his bus, was absent without leave, inaccurately reported his work time, and failed to comply with his supervisor’s directives as well as with district rules and procedures.
The hearing officer found Stevens guilty of seven of the charges preferred against him and recommended that he be discharged. The district accepted the hearing officer’s findings and recommendation.
When Stevens challenged his termination, the district raised the technical defense that he had failed to comply with notice requirements set out in Section 3813 of the Education Law.
Section 3813 requires that the individual, before going to court, give the school district an opportunity to respond. The individual must file an affidavit that the district was given timely notice of the claim and that it failed to act within 30 days of such notice.
The Appellate Division affirmed a lower court’s ruling dismissing Stevens’ Article 78 action, holding that “the mere fact that he seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law Section 3813, as a review of the petition makes clear that [Stevens] nonetheless primarily is seeking to enforce a private right.”
Section 76 of the Civil Service Law gives a person found guilty of charges brought pursuant to Section 75 a statutory right to appeal the penalty imposed to the responsible civil service commission or, in the alternative, to the courts pursuant to Section 78 of the CPLR. However, the Appellate Division’s ruling in Stevens holds that an employee of a school district or a BOCES, as a condition precedent to his or her filing an Article 78 appeal challenging the disciplinary action, must file a timely notice of claim with the district or BOCES.
In contrast, in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights.”
Presumably this means that although a teacher who is terminated for cause pursuant to Section 3020-a of the Education Law is not required to file a notice of claim as a condition precedent to his or her filing an appeal pursuant to Article 75 of the CPLR, [see Education Law Section 3020-a.5], a school district employee in the classified service who is terminated after a Section 75 hearing must satisfy the requirements of Section 3813 in order to file an Article 78 action challenging the disciplinary action.
It would seem that the fact that the Civil Service Law provides an aggrieved employee with a statutory right to appeal an adverse disciplinary action to a civil service commission or to the courts should have the same standing with respect to such an employee’s “tenure rights” as does Section 3020-a.5 insofar as the “tenure rights” of educators are concerned.
Another type of case in which the school district attempted to invoke the provisions of Section 3813 involved a teacher’s application for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law.
In Elmsford UFSD v Alfred G. Meyer, (Supreme Court, Albany County), State Supreme Court Justice Anthony Kane rejected the district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807.
While it appears that exceptions to the Section 3813 “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813 rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
NYPPL
Stevens v McGraw CSD, 261 AD2d 698, motion for leave to appeal denied, 93 NY2d 816
McGraw Central bus driver Arthur Stevens’ failure to comply with Education Law Section 3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.
Section 75 disciplinary charges were filed against Stevens alleging that he permitted unacceptable behavior on his bus, was absent without leave, inaccurately reported his work time, and failed to comply with his supervisor’s directives as well as with district rules and procedures.
The hearing officer found Stevens guilty of seven of the charges preferred against him and recommended that he be discharged. The district accepted the hearing officer’s findings and recommendation.
When Stevens challenged his termination, the district raised the technical defense that he had failed to comply with notice requirements set out in Section 3813 of the Education Law.
Section 3813 requires that the individual, before going to court, give the school district an opportunity to respond. The individual must file an affidavit that the district was given timely notice of the claim and that it failed to act within 30 days of such notice.
The Appellate Division affirmed a lower court’s ruling dismissing Stevens’ Article 78 action, holding that “the mere fact that he seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law Section 3813, as a review of the petition makes clear that [Stevens] nonetheless primarily is seeking to enforce a private right.”
Section 76 of the Civil Service Law gives a person found guilty of charges brought pursuant to Section 75 a statutory right to appeal the penalty imposed to the responsible civil service commission or, in the alternative, to the courts pursuant to Section 78 of the CPLR. However, the Appellate Division’s ruling in Stevens holds that an employee of a school district or a BOCES, as a condition precedent to his or her filing an Article 78 appeal challenging the disciplinary action, must file a timely notice of claim with the district or BOCES.
In contrast, in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights.”
Presumably this means that although a teacher who is terminated for cause pursuant to Section 3020-a of the Education Law is not required to file a notice of claim as a condition precedent to his or her filing an appeal pursuant to Article 75 of the CPLR, [see Education Law Section 3020-a.5], a school district employee in the classified service who is terminated after a Section 75 hearing must satisfy the requirements of Section 3813 in order to file an Article 78 action challenging the disciplinary action.
It would seem that the fact that the Civil Service Law provides an aggrieved employee with a statutory right to appeal an adverse disciplinary action to a civil service commission or to the courts should have the same standing with respect to such an employee’s “tenure rights” as does Section 3020-a.5 insofar as the “tenure rights” of educators are concerned.
Another type of case in which the school district attempted to invoke the provisions of Section 3813 involved a teacher’s application for retroactive membership in a public retirement system pursuant to Section 803 of the Retirement and Social Security Law.
In Elmsford UFSD v Alfred G. Meyer, (Supreme Court, Albany County), State Supreme Court Justice Anthony Kane rejected the district’s argument that the employee’s application had to be dismissed because he failed to file a timely Section 3813(1) claim with the school district, citing Matter of DeMeurers, 243 AD2d 54, motion for leave to appeal denied, 92 NY2d 807.
While it appears that exceptions to the Section 3813 “notice of claim” requirement exist, it would seem prudent for an aggrieved party to file a timely notice of claim with a school district as set out in Section 3813 rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.
NYPPL
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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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