Employee organization may not rely of a FOIL request to obtain the names of charter school employees
Matter of New York State United Teachers v Brighter Choice Charter School, 2010 NY Slip Op 08383, Decided on November 18, 2010, Court of Appeals
The New York State United Teachers (NYSUT) filed a Freedom of Information Law (FOIL) request with six Charter Schools* seeking, among other things, payroll records showing the full names, titles, corresponding salaries, and home addresses of all persons employed as teachers, instructors and faculty.**
The Charter Schools partially denied NYSUT's request, contending that full compliance would constitute an unwarranted invasion of personal privacy within the meaning of FOIL and “the commercial and fund-raising exemption of Public Officers Law §89(2)(b)(iii).”
Ultimately the issue presented to the Court of Appeals concerned the disclosure of the teachers' full names, NYSUT having abandoned its request for home address information.
The Court of Appeals said that “Charter schools are clearly subject to FOIL (see Education Law §2854[1][e]), meaning that they must maintain ‘a record setting forth the name, public office address, title and salary of every officer or employee,’ [and] … [t]here is a presumption that such records must be made ‘available for public inspection and copying’ … [although] an entity subject to FOIL may deny access to records*** that ‘if disclosed would constitute an unwarranted invasion of personal privacy,’ which, as relevant here, includes the ‘sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes’ (Public Officers Law §89 [2][b][iii]).”
The court, reversing the Appellate Division, denied that part of NYSUT’s petition seeking disclosure of the names of the teachers employed by the Charter Schools, explaining that ordering disclosure of the names would do nothing to further the purpose of FOIL, "which is to assist the public in formulating intelligent informed choices with respect to both the direction and scope of governmental activities."
“If anything,” said the court, "it is precisely because no governmental purpose is served by public disclosure" of this information that §87 2)(b)(iii)'s privacy exemption falls squarely within FOIL's statutory scheme.”
As NYSUT, the court concluded, seeks the teachers' names for contacting prospective members, it ruled that “although NYSUT certainly possesses a right to seek dues-paying members, it may not rely on FOIL to achieve that end.”
* Brighter Choice, Henry Johnson, Kipp Tech Valley, Albany Community, Albany Preparatory and Achievement Academy. None of the Charters Schools' teachers are members of a labor union.
** Subdivision 3(a) of §2859 of the State Education Law, in pertinent part, provides that “An employee of a charter school shall be deemed to be a public employee solely for purposes of article fourteen of the civil service law, [The Taylor Law] except for section two hundred twelve of such law, and for no other purposes ….” Education Law §2859 Subdivision (c-1) provides for the reasonable access to employees of a charter school "If employees of the charter school are not represented, .….” [§2859, Subdivision (b), applies to “The school employees of a charter school that has been converted from an existing public school,” while Section 2859, Subdivision (b-1), applies to “The employees of a charter school that is not a conversion from an existing public school …”]
*** The custodian of the records or documents requested pursuant to FOIL may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08383.htm
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 19, 2010
Individuals identified as “unknown petitioners” may not be named as plaintiffs in an Article 78 proceeding
Individuals identified as “unknown petitioners” may not be named as plaintiffs in an Article 78 proceeding
Matter of Westchester County Correction Officers Benevolent Assn. Inc. v County of Westchester, 29 Misc.3d 1219(A)
One of the issues in this CPLR Article 78 action was the “Naming of Unknown Petitioners” as plaintiffs by the Westchester County Correction Officers Benevolent Association.
County Court Judge Jeffrey A. Cohen agreed with Westchester County that the petition improperly names John Does "1" through "100" as Petitioners.
The court said that although CPLR 1024 provides for the naming of unknown parties as defendants in an action, it does not provide for the naming of unidentified Petitioners in an Article 78 proceeding.
The judge also faulted the Association for failing to come forward with any statutory authority for naming unknown Petitioners, merely asserting that “there are similarly situated individuals who are presently unknown.”*
In addition, the court commented that the Association failed to show that it had undertaken any efforts to determine the identities of the unidentified Petitioners and have failed to refute County’s evidence that documents in the Association’s possession reveal the identities of other correction officers similarly situated to the individual Petitioners.
Accordingly Judge Cohen dismissed “that branch of the motion to dismiss the petition with respect to the Petitioners named John Does ‘1’ through ‘100’ as motioned by the County.
* Judge Cohen indicated that he had conducted its own review of Article 78 and failed to find any authority for naming “unidentified Petitioners.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52719.htm
NYPPL
Matter of Westchester County Correction Officers Benevolent Assn. Inc. v County of Westchester, 29 Misc.3d 1219(A)
One of the issues in this CPLR Article 78 action was the “Naming of Unknown Petitioners” as plaintiffs by the Westchester County Correction Officers Benevolent Association.
County Court Judge Jeffrey A. Cohen agreed with Westchester County that the petition improperly names John Does "1" through "100" as Petitioners.
The court said that although CPLR 1024 provides for the naming of unknown parties as defendants in an action, it does not provide for the naming of unidentified Petitioners in an Article 78 proceeding.
The judge also faulted the Association for failing to come forward with any statutory authority for naming unknown Petitioners, merely asserting that “there are similarly situated individuals who are presently unknown.”*
In addition, the court commented that the Association failed to show that it had undertaken any efforts to determine the identities of the unidentified Petitioners and have failed to refute County’s evidence that documents in the Association’s possession reveal the identities of other correction officers similarly situated to the individual Petitioners.
Accordingly Judge Cohen dismissed “that branch of the motion to dismiss the petition with respect to the Petitioners named John Does ‘1’ through ‘100’ as motioned by the County.
* Judge Cohen indicated that he had conducted its own review of Article 78 and failed to find any authority for naming “unidentified Petitioners.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52719.htm
NYPPL
Employee terminated after being found guilty of falsifying his time records
Employee terminated after being found guilty of falsifying his time records
In the Application of Rodriguez, 258 AD2d 419
The Housing Authority terminated John Rodriguez after a disciplinary hearing officer found him guilty of claiming and obtaining overtime pay through the filing of false or misleading overtime records, including overtime pay for time spent commuting.
Rodriguez argued that because he was authorized to clock in and out at a place other than his work site, his claims for overtime were permitted under the Fair Labor Standards Act. The Appellate Division disagreed, stating that the agency’s imposing the “penalty of dismissal does not shock our sense of fairness given what was systematic dishonesty, misrepresentation and falsification of records” by Rodriguez.
NYPPL
In the Application of Rodriguez, 258 AD2d 419
The Housing Authority terminated John Rodriguez after a disciplinary hearing officer found him guilty of claiming and obtaining overtime pay through the filing of false or misleading overtime records, including overtime pay for time spent commuting.
Rodriguez argued that because he was authorized to clock in and out at a place other than his work site, his claims for overtime were permitted under the Fair Labor Standards Act. The Appellate Division disagreed, stating that the agency’s imposing the “penalty of dismissal does not shock our sense of fairness given what was systematic dishonesty, misrepresentation and falsification of records” by Rodriguez.
NYPPL
Tests applied by courts considering vacating an arbitration award
Tests applied by courts considering vacating an arbitration award
Recore v Chateaugay CSD, 256 AD2d 801, motion for leave to appeal dismissed, 93 NY2d 957
In Recore v Chateaugay Central School District, the Chateaugay district asked to have an arbitrator’s award vacated. The arbitrator had ruled that the district had violated a clause of its collective bargaining agreement with CSEA Local 1000 when it failed to appoint Deborah Recore, a teacher’s aide, to the position of kindergarten aide.
The contract clause involved provided that “[f]or the purposes of filling vacancies or new job openings ... [the district] shall consider both ... seniority and ... skills and abilities. Seniority shall be the determining factor when in the sole judgment of [the district] the affected applicant’s skills and abilities are equal.”
A State Supreme Court justice vacated the arbitrator’s award. The arbitrator erred by inserting the word “relatively” before “equal” in interpreting the contract provision.
This, the court said, meant that “the arbitrator failed to apply the language of the collective bargaining agreement” in resolving the grievance.
CSEA appealed. The Appellate Division decided that the award had defects that “render it irrational,” but did not use the same reasoning as the Supreme Court.
In its decision, the Appellate Division noted that the grounds for vacating an arbitration award are very limited. It said that an arbitration award will be vacated only where “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
It ruled that “given the considerable discretion afforded arbitrators in interpreting contract language [an arbitrator’s insertion of the word relatively] was an insufficient basis to invalidate the award.”
The Appellate Division emphasized that broad powers are vested in an arbitrator. Unless there is a provision in the arbitration clause to the contrary, an arbitrator is not bound by principles of substantive law or the rules of evidence and “may do justice by making an award reflective of the spirit rather than the letter of the parties’ agreement.”
Accordingly, said the court, an arbitrator’s interpretation of the parties’ agreement “may disregard the apparent, even the plain, meaning of the words of the contract before him and still be impervious to challenge in the courts.”
The Appellate Division found other defects in the arbitration award. The court noted that there were two different grievances arbitrations filed by Recore against the district.
The first concerned Recore’s not being selected for one kindergarten aide vacancy and the second concerned Recore’s not being selected for a second kindergarten aide vacancy.
According to the decision, apparently the arbitrator who conducted the second arbitration, Michael Lewandowski, “based his disposition [of the grievance] on the outcome of the first grievance” decided by another arbitrator, Walter Donnaruma.
Donnaruma had ruled that the district should have “utilized seniority as the primary consideration” with respect to Recore’s application for the first vacancy filled by the district and remitted the grievance to the district for its reconsideration. Upon reconsideration, the district reaffirmed its original decision.
Lewandowski considered the grievance that was filed after Recore was not selected for the second vacancy that the district filled.
The Appellate Division said “there is no discussion [of Recore’s] application for the second vacancy which culminated in the filing of the grievance that actually was before arbitrator Lewandowski, nor the evidence adduced at the hearing with respect to [Recore’s] and the chosen candidate’s qualifications for the position.”
In other words, the court concluded that Lewandowski based his decision of the determinations made by Donnaruma in the first arbitration.
Affirming the vacating of Lewandowski’s award because of this procedural defect rather than for the reasons stated by the lower court regarding Lewandowski’s interpretation of the contract’s language, the Appellate Division said that “inasmuch as [Lewandowski’s] disposition [of the grievance] leaves the controversy unresolved, a rehearing should be ordered” by the Supreme Court.
NYPPL
Recore v Chateaugay CSD, 256 AD2d 801, motion for leave to appeal dismissed, 93 NY2d 957
In Recore v Chateaugay Central School District, the Chateaugay district asked to have an arbitrator’s award vacated. The arbitrator had ruled that the district had violated a clause of its collective bargaining agreement with CSEA Local 1000 when it failed to appoint Deborah Recore, a teacher’s aide, to the position of kindergarten aide.
The contract clause involved provided that “[f]or the purposes of filling vacancies or new job openings ... [the district] shall consider both ... seniority and ... skills and abilities. Seniority shall be the determining factor when in the sole judgment of [the district] the affected applicant’s skills and abilities are equal.”
A State Supreme Court justice vacated the arbitrator’s award. The arbitrator erred by inserting the word “relatively” before “equal” in interpreting the contract provision.
This, the court said, meant that “the arbitrator failed to apply the language of the collective bargaining agreement” in resolving the grievance.
CSEA appealed. The Appellate Division decided that the award had defects that “render it irrational,” but did not use the same reasoning as the Supreme Court.
In its decision, the Appellate Division noted that the grounds for vacating an arbitration award are very limited. It said that an arbitration award will be vacated only where “it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”
It ruled that “given the considerable discretion afforded arbitrators in interpreting contract language [an arbitrator’s insertion of the word relatively] was an insufficient basis to invalidate the award.”
The Appellate Division emphasized that broad powers are vested in an arbitrator. Unless there is a provision in the arbitration clause to the contrary, an arbitrator is not bound by principles of substantive law or the rules of evidence and “may do justice by making an award reflective of the spirit rather than the letter of the parties’ agreement.”
Accordingly, said the court, an arbitrator’s interpretation of the parties’ agreement “may disregard the apparent, even the plain, meaning of the words of the contract before him and still be impervious to challenge in the courts.”
The Appellate Division found other defects in the arbitration award. The court noted that there were two different grievances arbitrations filed by Recore against the district.
The first concerned Recore’s not being selected for one kindergarten aide vacancy and the second concerned Recore’s not being selected for a second kindergarten aide vacancy.
According to the decision, apparently the arbitrator who conducted the second arbitration, Michael Lewandowski, “based his disposition [of the grievance] on the outcome of the first grievance” decided by another arbitrator, Walter Donnaruma.
Donnaruma had ruled that the district should have “utilized seniority as the primary consideration” with respect to Recore’s application for the first vacancy filled by the district and remitted the grievance to the district for its reconsideration. Upon reconsideration, the district reaffirmed its original decision.
Lewandowski considered the grievance that was filed after Recore was not selected for the second vacancy that the district filled.
The Appellate Division said “there is no discussion [of Recore’s] application for the second vacancy which culminated in the filing of the grievance that actually was before arbitrator Lewandowski, nor the evidence adduced at the hearing with respect to [Recore’s] and the chosen candidate’s qualifications for the position.”
In other words, the court concluded that Lewandowski based his decision of the determinations made by Donnaruma in the first arbitration.
Affirming the vacating of Lewandowski’s award because of this procedural defect rather than for the reasons stated by the lower court regarding Lewandowski’s interpretation of the contract’s language, the Appellate Division said that “inasmuch as [Lewandowski’s] disposition [of the grievance] leaves the controversy unresolved, a rehearing should be ordered” by the Supreme Court.
NYPPL
Automatic termination from public office by operation of law
Automatic termination from public office by operation of law
Schirmer v Town of Harrison, USDC, SDNY, 1999 WL 61843
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]
Police officers are public officers and as such a subject to the provisions of Section 30.1 of the Public Officers Law. Section 30.1(d) provides that if a public officer ceases to be an inhabitant of the state, or if he or she is a local officer, of the political subdivision of which he or she is required to be a resident, his or her office “shall be vacant.”
Section 30.1(e) provides for the same result if the officer is convicted of a felony or a crime involving a violation of his or her oath of office. The Schirmer, Foley and Griffin decisions consider the impact of these provisions in cases where the individual may otherwise claim the protection of Section 75 of the Civil Service Law or a disciplinary grievance procedure set out in a collective bargaining agreement.
The Schirmer case
Peter Schirmer was a police officer with the Town of Harrison. He was injured in the line of duty and in March 1994 applied for, and was granted, disability benefits.* In December 1994, Schirmer and his family moved to Connecticut. Harrison terminated him pursuant to Section 30.1(d) on the grounds that he had moved his domicile to Connecticut and therefore was no longer eligible for employment. Schirmer sued, contending that his termination without a hearing violated the Due Process clause of the Constitution and entitled him to relief under 42 USC 1983 and 42 USC 1988.
Federal District Court Judge Allen Schwartz ruled that the provisions of Section 30.1(d) controlled and that under the circumstances Schirmer was not entitled to the Section 75 pre-termination hearing he claimed was due him. The court said “public officials such as [Schirmer] should not expect that the protections of Section 75(1) will apply to all types of dismissals, especially those based on a change in residency.” A public officer should understand that he or she “is vulnerable to summary dismissal” if it appears that he or she fails to meet the conditions of employment set out in Section 30 of the Public Officers Law.
According to the ruling, Section 30.1(d) explicitly informs public officers that their position will be automatically vacated upon an apparent change in domicile and that “post-termination relief is all that such employees may expect.”
This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
The Foley and Bratton cases
Michael Foley, a New York City police officer, was convicted of a misdemeanor and a violation following an off-duty incident. Dennis Griffin, another New York City police officer was convicted of two misdemeanors. Both were dismissed without a hearing and their appeals were denied by the Supreme Court and the Appellate Division.
Three different statutes or ordinances were cited by the Court of Appeals in its analysis of the appeals filed by Foley and Griffin from the lower court rulings.
In addition to Section 30.1(e) of the Public Officer Law, the Court referred to:
1. Section 14-115(a) of the Administrative Code of the City of New York [The commissioner shall have power ... on conviction ... by any court ... of a member of the force of any criminal offense ... to punish ... by dismissal from the force], and Section 14-115(b) which provides for a pre-termination hearing.
2. Section 891 of the Unconsolidated Laws [A policeman serving in the competitive class ... in any city ... shall not be removed ... except for incompetency or misconduct shown after a hearing upon due notice upon stated charges].
Noting that the three provisions “are locked in a statutory clash,” the Court of Appeals said that “to the extent that the automatic removal provision of Public Officers Law contrast with the pre-dismissal administrative hearing requirements of Administrative Code 14-115 and Unconsolidated Laws 841, we have little difficulty in harmonizing the provisions by concluding that the Legislature flatly determined that a felony or “oath of office” conviction is serious enough, without more, to justify automatic removal.”
However, the court disagreed with the Police Commissioner’s claim that the Administrative Code permits summary termination for any misdemeanor conviction. “It is one thing for the Legislature to decree that certain convictions carry summary removal ... but it is quite different for a court to find, or to write in, a summary dismissal power under Administrative Code provisions that do not contain it.”
The Court of Appeals has held that a misdemeanor conviction for conduct outside the line of duty qualifies as an “oath of office” crime only if the violation is apparent from the Penal Law’s definition of the crime [Duffy v Ward, 81 NY2d 127].
Commenting that the Commissioner dismissed the officers “under Administrative Law 14-115 exclusively” and did not rely on Section 30.1(e) as a basis for the termination, the court reversed the lower courts’ rulings, indicating that if the Commissioner claims that a particular crime falls under the “oath of office” category, “he may proceed under Public Officers Law Section 30.1(e) and the issue will be determined in accordance with Duffy v Ward.” For other convictions a public hearing is required.... This hearing requirement does not compel a retrial of the criminal case. “The conviction may be presented as prima facie proof ... [and] the officer would then have an opportunity to present proof in mitigation....”
* This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
NYPPL
Schirmer v Town of Harrison, USDC, SDNY, 1999 WL 61843
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]
Police officers are public officers and as such a subject to the provisions of Section 30.1 of the Public Officers Law. Section 30.1(d) provides that if a public officer ceases to be an inhabitant of the state, or if he or she is a local officer, of the political subdivision of which he or she is required to be a resident, his or her office “shall be vacant.”
Section 30.1(e) provides for the same result if the officer is convicted of a felony or a crime involving a violation of his or her oath of office. The Schirmer, Foley and Griffin decisions consider the impact of these provisions in cases where the individual may otherwise claim the protection of Section 75 of the Civil Service Law or a disciplinary grievance procedure set out in a collective bargaining agreement.
The Schirmer case
Peter Schirmer was a police officer with the Town of Harrison. He was injured in the line of duty and in March 1994 applied for, and was granted, disability benefits.* In December 1994, Schirmer and his family moved to Connecticut. Harrison terminated him pursuant to Section 30.1(d) on the grounds that he had moved his domicile to Connecticut and therefore was no longer eligible for employment. Schirmer sued, contending that his termination without a hearing violated the Due Process clause of the Constitution and entitled him to relief under 42 USC 1983 and 42 USC 1988.
Federal District Court Judge Allen Schwartz ruled that the provisions of Section 30.1(d) controlled and that under the circumstances Schirmer was not entitled to the Section 75 pre-termination hearing he claimed was due him. The court said “public officials such as [Schirmer] should not expect that the protections of Section 75(1) will apply to all types of dismissals, especially those based on a change in residency.” A public officer should understand that he or she “is vulnerable to summary dismissal” if it appears that he or she fails to meet the conditions of employment set out in Section 30 of the Public Officers Law.
According to the ruling, Section 30.1(d) explicitly informs public officers that their position will be automatically vacated upon an apparent change in domicile and that “post-termination relief is all that such employees may expect.”
This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
The Foley and Bratton cases
Michael Foley, a New York City police officer, was convicted of a misdemeanor and a violation following an off-duty incident. Dennis Griffin, another New York City police officer was convicted of two misdemeanors. Both were dismissed without a hearing and their appeals were denied by the Supreme Court and the Appellate Division.
Three different statutes or ordinances were cited by the Court of Appeals in its analysis of the appeals filed by Foley and Griffin from the lower court rulings.
In addition to Section 30.1(e) of the Public Officer Law, the Court referred to:
1. Section 14-115(a) of the Administrative Code of the City of New York [The commissioner shall have power ... on conviction ... by any court ... of a member of the force of any criminal offense ... to punish ... by dismissal from the force], and Section 14-115(b) which provides for a pre-termination hearing.
2. Section 891 of the Unconsolidated Laws [A policeman serving in the competitive class ... in any city ... shall not be removed ... except for incompetency or misconduct shown after a hearing upon due notice upon stated charges].
Noting that the three provisions “are locked in a statutory clash,” the Court of Appeals said that “to the extent that the automatic removal provision of Public Officers Law contrast with the pre-dismissal administrative hearing requirements of Administrative Code 14-115 and Unconsolidated Laws 841, we have little difficulty in harmonizing the provisions by concluding that the Legislature flatly determined that a felony or “oath of office” conviction is serious enough, without more, to justify automatic removal.”
However, the court disagreed with the Police Commissioner’s claim that the Administrative Code permits summary termination for any misdemeanor conviction. “It is one thing for the Legislature to decree that certain convictions carry summary removal ... but it is quite different for a court to find, or to write in, a summary dismissal power under Administrative Code provisions that do not contain it.”
The Court of Appeals has held that a misdemeanor conviction for conduct outside the line of duty qualifies as an “oath of office” crime only if the violation is apparent from the Penal Law’s definition of the crime [Duffy v Ward, 81 NY2d 127].
Commenting that the Commissioner dismissed the officers “under Administrative Law 14-115 exclusively” and did not rely on Section 30.1(e) as a basis for the termination, the court reversed the lower courts’ rulings, indicating that if the Commissioner claims that a particular crime falls under the “oath of office” category, “he may proceed under Public Officers Law Section 30.1(e) and the issue will be determined in accordance with Duffy v Ward.” For other convictions a public hearing is required.... This hearing requirement does not compel a retrial of the criminal case. “The conviction may be presented as prima facie proof ... [and] the officer would then have an opportunity to present proof in mitigation....”
* This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
NYPPL
Denying unemployment insurance benefits based on a finding the individual left work without good cause
Denying unemployment insurance benefits based on a finding the individual left work without good cause
Williams v NYC General Services, App. Div., 256 AD2d 792
Rodriguez v Commissioner of Labor, App. Div., 256 AD2d 768
One basis for denying an individual unemployment insurance benefits is a finding that the applicant left his or her employment “without good cause.” The Williams and Rodriguez decisions involve determinations as to what constitutes leaving employment “without good cause.”
The Williams case
Carlton A. Williams, employed as a real property manager the New York City’s Office of General Services, decided to accept the city’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct.
Williams’ decision was based on a statement made by the “case conferencing judge at a prehearing conference” that if Williams decided to go forward with the hearing and the administrative law judge found him guilty, “he would discharged from his employment and would lose the employer’s contributions to his pension.” Williams elected to resign rather than risk dismissal. When the Unemployment Insurance Appeals Board rejected his application for unemployment insurance benefits, Williams appealed. The Appellate Division sustained the board’s determination.
The court said that “neither resigning in anticipation of discharge nor voluntarily separating from one’s employment in order to accept an early retirement incentive package when continuing work is available have been held to constitute good cause for leaving employment.”
The Rodriguez case
Usually leaving employment to relocate to another state in order to remain with one’s family will not disqualify an individual for unemployment insurance benefits. In Rodriguez’s case, the Appellate Division found there were mitigating circumstances sufficient to justify reversing the Unemployment Insurance Board’s rejection of her application for benefits.
In November 1995 Evelyn R. Rodriguez, a state disability claims examiner, remained behind when her husband and two daughters moved to Florida on the advice of their pediatrician, because her children had severe and chronic asthma. Rodriguez stayed because her employment was the source of the family’s health insurance, the family’s house had to be sold, she needed to continue to earn income and she wanted additional membership credit in the retirement system.
In August 1996, Rodriguez resigned and joined her family in Florida. The board, in rejecting her claim for benefits, held that she had “decided to live apart from her family indefinitely, if not permanently.” This, said the board, meant that she was disqualified from receiving benefits because she voluntarily left her job without good cause.
In reversing, the Appellate Division ruled that “the instant case is not a situation where a spouse is trying to decide if she will quit her job and join her transferred spouse.” Instead, said the court, “two parents have endured real hardship for the well-being of their children.”
Both spouses, said the court, had good cause to relocate to Florida, which was as compelling in August 1996 when Rodriguez resigned as the previous October when her husband moved to Florida with their children.
Essentially the court held that Rodriguez “from the outset” intended to relocate to Florida and that her uncertainty as to when she would do so was justified.
NYPPL
Williams v NYC General Services, App. Div., 256 AD2d 792
Rodriguez v Commissioner of Labor, App. Div., 256 AD2d 768
One basis for denying an individual unemployment insurance benefits is a finding that the applicant left his or her employment “without good cause.” The Williams and Rodriguez decisions involve determinations as to what constitutes leaving employment “without good cause.”
The Williams case
Carlton A. Williams, employed as a real property manager the New York City’s Office of General Services, decided to accept the city’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct.
Williams’ decision was based on a statement made by the “case conferencing judge at a prehearing conference” that if Williams decided to go forward with the hearing and the administrative law judge found him guilty, “he would discharged from his employment and would lose the employer’s contributions to his pension.” Williams elected to resign rather than risk dismissal. When the Unemployment Insurance Appeals Board rejected his application for unemployment insurance benefits, Williams appealed. The Appellate Division sustained the board’s determination.
The court said that “neither resigning in anticipation of discharge nor voluntarily separating from one’s employment in order to accept an early retirement incentive package when continuing work is available have been held to constitute good cause for leaving employment.”
The Rodriguez case
Usually leaving employment to relocate to another state in order to remain with one’s family will not disqualify an individual for unemployment insurance benefits. In Rodriguez’s case, the Appellate Division found there were mitigating circumstances sufficient to justify reversing the Unemployment Insurance Board’s rejection of her application for benefits.
In November 1995 Evelyn R. Rodriguez, a state disability claims examiner, remained behind when her husband and two daughters moved to Florida on the advice of their pediatrician, because her children had severe and chronic asthma. Rodriguez stayed because her employment was the source of the family’s health insurance, the family’s house had to be sold, she needed to continue to earn income and she wanted additional membership credit in the retirement system.
In August 1996, Rodriguez resigned and joined her family in Florida. The board, in rejecting her claim for benefits, held that she had “decided to live apart from her family indefinitely, if not permanently.” This, said the board, meant that she was disqualified from receiving benefits because she voluntarily left her job without good cause.
In reversing, the Appellate Division ruled that “the instant case is not a situation where a spouse is trying to decide if she will quit her job and join her transferred spouse.” Instead, said the court, “two parents have endured real hardship for the well-being of their children.”
Both spouses, said the court, had good cause to relocate to Florida, which was as compelling in August 1996 when Rodriguez resigned as the previous October when her husband moved to Florida with their children.
Essentially the court held that Rodriguez “from the outset” intended to relocate to Florida and that her uncertainty as to when she would do so was justified.
NYPPL
Barring an individual from a PERB proceeding
Barring an individual from a PERB proceeding
Advisory Opinion of Counsel, 32 PERB 5001*
PERB’s counsel was asked if PERB or its administrative law judges “have the power” to issue an order disqualifying an attorney from representing a party based on a “potential substantive violation of the Code of Professional Responsibility”.
After noting that the Appellate Division is vested with the authority to discipline attorneys for alleged misconduct, Counsel pointed out that under Section 205(5)(j) of the Civil Service Law, PERB is not restricted from taking action to “exclude, suspend, or disbar any representative for misconduct in accordance with the Board’s rules.”
Section 207.4(j) of PERB’s rules [4 NYCRR 204.7(j)] provides:
Misconduct at any hearing before an administrative law judge shall be grounds for summary exclusion from the hearing. Such misconduct, if of an aggravating character and engaged in by an attorney or other representative of a party, shall be grounds for suspension or disbarment from further practice before the board after due notice and hearing.
Counsel concluded that although a violation of the Code might also constitute misconduct in a PERB proceeding, “for PERB’s purposes, the critical issue regarding such conduct would not be whether it violated the Code of Professional Responsibility, but whether it was misconduct that threatened a party’s rights, the Taylor Law, or PERB’s administration of that law.”
* Advisory Opinions of Counsel are not binding on PERB
NYPPL
Advisory Opinion of Counsel, 32 PERB 5001*
PERB’s counsel was asked if PERB or its administrative law judges “have the power” to issue an order disqualifying an attorney from representing a party based on a “potential substantive violation of the Code of Professional Responsibility”.
After noting that the Appellate Division is vested with the authority to discipline attorneys for alleged misconduct, Counsel pointed out that under Section 205(5)(j) of the Civil Service Law, PERB is not restricted from taking action to “exclude, suspend, or disbar any representative for misconduct in accordance with the Board’s rules.”
Section 207.4(j) of PERB’s rules [4 NYCRR 204.7(j)] provides:
Misconduct at any hearing before an administrative law judge shall be grounds for summary exclusion from the hearing. Such misconduct, if of an aggravating character and engaged in by an attorney or other representative of a party, shall be grounds for suspension or disbarment from further practice before the board after due notice and hearing.
Counsel concluded that although a violation of the Code might also constitute misconduct in a PERB proceeding, “for PERB’s purposes, the critical issue regarding such conduct would not be whether it violated the Code of Professional Responsibility, but whether it was misconduct that threatened a party’s rights, the Taylor Law, or PERB’s administration of that law.”
* Advisory Opinions of Counsel are not binding on PERB
NYPPL
Nov 18, 2010
Circuit Court of Appeals rules that hearsay testimony is admissible to support the issuance of a preliminary injunction
Circuit Court of Appeals rules that hearsay testimony is admissible to support the issuance of a preliminary injunctionMullins v. City of New York, USCA, 2nd Circuit, 08-1839-cv, Decided November 11, 2010
The Circuit Court of Appeals affirmed a District Court ruling enjoining the City of New York and the New York City Police Department from investigating and disciplining a New York City police officer based upon testimony or participation in a pending lawsuit, concluding that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief based in part on such evidence.
About 4300 current and former New York City police sergeants sued the City, claiming “systematic violations of their overtime rights under the Fair Labor Standards Act of 1938 (“FLSA”).*
One plaintiff, Sergeant Paul Capotosto, Citywide Secretary of the Sergeants Benevolent Association, testified at the preliminary injunction hearing, reciting at least a dozen phone calls he received from worried plaintiffs in the lawsuit, who expressed concern to him that the NYPD was retaliating against them for their participation in the lawsuit.
Another plaintiff, Sergeant Edward Scott, alleged that his retirement was “administratively deferred” pending resolution of an unspecified “disciplinary matter” some months later. It subsequently “came to light that [Scott] was under investigation for testimony he had given during his deposition.” Sergeant Scott stated that, at the time, “I believed that if I withdrew from this FLSA lawsuit, the City would close its investigation into my deposition testimony.”
The Circuit court ruled that the district court did not abuse its discretion in finding either that Mullins, the named plaintiff in the action, is likely to succeed on the merits of their FLSA retaliation claim, or that Mullins established that irreparable harm is likely to flow from the putative FLSA violation absent injunctive relief and dismissed the Department’s arguments, concluding “that they are without merit.”
* N.B. This case may renew the question “Do federal courts have jurisdiction to consider alleged violations of the FLSA in actions brought against state and local governments?”
A decision by the U.S. Supreme Court holds that the federal courts have no authority to enforce the FLSA on non-federal governments under the 11th Amendment, which limits federal judicial power ["the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”].
The development of the jurisdiction of federal courts to consider alleged violations of the FLSA involving State and local governments is somewhat convoluted.
In 1996 the U.S. Supreme Court ruled that Congress cannot expand the authority of the judiciary beyond the constraints of the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. [Seminole Tribe v Florida, 116 S. Ct. 1114].
This decision profoundly affected FLSA issues because the Fair Labor Standards Act was enacted by Congress pursuant the Interstate Commerce Clause, which the Supreme Court said was indistinguishable from the Indian Commerce Clause.
The Supreme Court next indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided."
Following the Seminole ruling, a number of federal courts decided that federal courts lack power to enforce the provisions of the FLSA in a law suit against a State or a political subdivision of that State. Distinguishing between the State as the employer and political subdivisions of the State as the employer, however, the Supreme Court may have signaled a retreat from this expansive view.
In a footnote in Auer v Robbins, 519 U.S. 452, the Supreme Court commented that insofar as the Eleventh Amendment is implicated, a board of municipal police commissioners "does not share the immunity of the State of Missouri".
The Mullins decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/doc/08-1839-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/hilite/
NYPPL
The Circuit Court of Appeals affirmed a District Court ruling enjoining the City of New York and the New York City Police Department from investigating and disciplining a New York City police officer based upon testimony or participation in a pending lawsuit, concluding that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief based in part on such evidence.
About 4300 current and former New York City police sergeants sued the City, claiming “systematic violations of their overtime rights under the Fair Labor Standards Act of 1938 (“FLSA”).*
One plaintiff, Sergeant Paul Capotosto, Citywide Secretary of the Sergeants Benevolent Association, testified at the preliminary injunction hearing, reciting at least a dozen phone calls he received from worried plaintiffs in the lawsuit, who expressed concern to him that the NYPD was retaliating against them for their participation in the lawsuit.
Another plaintiff, Sergeant Edward Scott, alleged that his retirement was “administratively deferred” pending resolution of an unspecified “disciplinary matter” some months later. It subsequently “came to light that [Scott] was under investigation for testimony he had given during his deposition.” Sergeant Scott stated that, at the time, “I believed that if I withdrew from this FLSA lawsuit, the City would close its investigation into my deposition testimony.”
The Circuit court ruled that the district court did not abuse its discretion in finding either that Mullins, the named plaintiff in the action, is likely to succeed on the merits of their FLSA retaliation claim, or that Mullins established that irreparable harm is likely to flow from the putative FLSA violation absent injunctive relief and dismissed the Department’s arguments, concluding “that they are without merit.”
* N.B. This case may renew the question “Do federal courts have jurisdiction to consider alleged violations of the FLSA in actions brought against state and local governments?”
A decision by the U.S. Supreme Court holds that the federal courts have no authority to enforce the FLSA on non-federal governments under the 11th Amendment, which limits federal judicial power ["the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”].
The development of the jurisdiction of federal courts to consider alleged violations of the FLSA involving State and local governments is somewhat convoluted.
In 1996 the U.S. Supreme Court ruled that Congress cannot expand the authority of the judiciary beyond the constraints of the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. [Seminole Tribe v Florida, 116 S. Ct. 1114].
This decision profoundly affected FLSA issues because the Fair Labor Standards Act was enacted by Congress pursuant the Interstate Commerce Clause, which the Supreme Court said was indistinguishable from the Indian Commerce Clause.
The Supreme Court next indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided."
Following the Seminole ruling, a number of federal courts decided that federal courts lack power to enforce the provisions of the FLSA in a law suit against a State or a political subdivision of that State. Distinguishing between the State as the employer and political subdivisions of the State as the employer, however, the Supreme Court may have signaled a retreat from this expansive view.
In a footnote in Auer v Robbins, 519 U.S. 452, the Supreme Court commented that insofar as the Eleventh Amendment is implicated, a board of municipal police commissioners "does not share the immunity of the State of Missouri".
The Mullins decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/doc/08-1839-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/hilite/
NYPPL
Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position
Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position
New York State Socy. of Professional Engrs., Inc. v City of New York, 2010 NY Slip Op 08352, Decided on November 16, 2010, Appellate Division, First Department
Prior to September 3, 2008, the New York City Charter required that the Commissioner of Buildings had to be a licensed professional engineer or registered architect.
New York City Local Law 39, which took effect on September 3, 2008, amending §641 of New York’s City Charter to provided that either the Commissioner of Buildings or the First Deputy Commissioner to be a licensed professional engineer or a registered architect. §642 was also amended to authorize the Commissioner to delegate any duties to the First Deputy Commissioner.
New York State Society of Professional Engineers, Inc., challenged this amendment and asked the court to declare Local Law 39 unconstitutional on its face on the grounds that it was inconsistent with and preempted by Articles 145 and 147 of the State Education Law, which, respectively, set out the State’s licensing requirements for professional engineers and registered architects.
The Society also contended that by no longer requiring the Commissioner to be a licensed professional engineer or registered architect, the City Council has thereby permitted that official to engage in the practice of engineering without a license.
The Appellate Division rejected the Society’s claim, holding that the fact that an unlicensed Commissioner had the expressed power to delegate any duties that involve the practice of engineering or architecture to a properly licensed Deputy First Commissioner validates Local Law 39.
In addition, the court ruled that the State law does not preempt the City from establishing the qualifications for the offices of Commissioner and First Deputy Commissioner of Buildings, as the City is specifically permitted to set and enforce its own Building Code.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08352.htm
New York State Socy. of Professional Engrs., Inc. v City of New York, 2010 NY Slip Op 08352, Decided on November 16, 2010, Appellate Division, First Department
Prior to September 3, 2008, the New York City Charter required that the Commissioner of Buildings had to be a licensed professional engineer or registered architect.
New York City Local Law 39, which took effect on September 3, 2008, amending §641 of New York’s City Charter to provided that either the Commissioner of Buildings or the First Deputy Commissioner to be a licensed professional engineer or a registered architect. §642 was also amended to authorize the Commissioner to delegate any duties to the First Deputy Commissioner.
New York State Society of Professional Engineers, Inc., challenged this amendment and asked the court to declare Local Law 39 unconstitutional on its face on the grounds that it was inconsistent with and preempted by Articles 145 and 147 of the State Education Law, which, respectively, set out the State’s licensing requirements for professional engineers and registered architects.
The Society also contended that by no longer requiring the Commissioner to be a licensed professional engineer or registered architect, the City Council has thereby permitted that official to engage in the practice of engineering without a license.
The Appellate Division rejected the Society’s claim, holding that the fact that an unlicensed Commissioner had the expressed power to delegate any duties that involve the practice of engineering or architecture to a properly licensed Deputy First Commissioner validates Local Law 39.
In addition, the court ruled that the State law does not preempt the City from establishing the qualifications for the offices of Commissioner and First Deputy Commissioner of Buildings, as the City is specifically permitted to set and enforce its own Building Code.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08352.htm
Employee dismissed for altering the value of his paycheck
Employee dismissed for altering the value of his paycheck
Local 375 v NYC Health & Hospital Corp., 257 AD2d 530
Jose Hernandez was charged with changing a “3” on his pay check into an “8,” “significantly enhancing the putative value of the check.” Hernandez explained that the change was caused by his inadvertent “doodling.”
A disciplinary arbitrator found him guilty of altering the value of the amount of the check payable to him, concluding that “Hernandez’s consistent conduct [with respect to attempting to cash the check or have it reissued in the “forged amount”] evinced an effort to benefit from an alteration concededly made by him.” Hernandez was terminated and his union, Local 375, appealed.
A State Supreme Court justice, finding some inconsistencies in the arbitrator’s findings and that criminal charges concerning the same allegations had been dismissed,* vacated the award on the grounds that the arbitrator had exceed her authority.
The Appellate Division reversed and reinstating the arbitrator’s determination. It noted that Section 7511 of the Civil Practice Law and Rules allows an arbitration award to be vacated only in situations such as “fraud, corruption or bias of the arbitrator” or a procedural violation by the arbitrator, or in the event the arbitrator exceeds his or her authority, none of which were present here.
The court said that it found no basis to set the arbitration award aside “notwithstanding the explainable absence of the check and some possible inconsistencies in the arbitrator’s findings.** It commented that the lower court’s conclusions “amount to no more than impermissible second-guessing these factual findings.”
* In Kelly v. Levin, 440 NYS2d 424, the court ruled that is reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations. In contrast, an individual may be found guilty of charges in an administrative disciplinary hearing notwithstanding the fact that he or she may have been acquitted of criminal charges involving the same allegations. The reason for this is that the standard of proof required to prove guilt in a criminal proceeding is more rigorous than that in an administrative disciplinary proceeding. In a criminal case, the standard is “proof beyond a reasonable doubt” while in an administrative disciplinary action the standard of proof is the less demanding “substantial evidence” test. In an administrative proceeding, “substantial evidence” will support a finding that the individual is guilty of the disciplinary charge or charges. In some case, however, the standard used to determine guilt applied in an administrative disciplinary action is the even less demanding “preponderance of the evidence” test [see Martin v Ambach, 67 NY2d 975].
** Criminal charges had been filed against Hernandez. The altered check, however, “was destroyed in the normal course of events” by the District Attorney after forgery charges brought against him were dismissed and thus the item could not be introduced as evidence at the disciplinary administrative hearing.
NYPPL
Local 375 v NYC Health & Hospital Corp., 257 AD2d 530
Jose Hernandez was charged with changing a “3” on his pay check into an “8,” “significantly enhancing the putative value of the check.” Hernandez explained that the change was caused by his inadvertent “doodling.”
A disciplinary arbitrator found him guilty of altering the value of the amount of the check payable to him, concluding that “Hernandez’s consistent conduct [with respect to attempting to cash the check or have it reissued in the “forged amount”] evinced an effort to benefit from an alteration concededly made by him.” Hernandez was terminated and his union, Local 375, appealed.
A State Supreme Court justice, finding some inconsistencies in the arbitrator’s findings and that criminal charges concerning the same allegations had been dismissed,* vacated the award on the grounds that the arbitrator had exceed her authority.
The Appellate Division reversed and reinstating the arbitrator’s determination. It noted that Section 7511 of the Civil Practice Law and Rules allows an arbitration award to be vacated only in situations such as “fraud, corruption or bias of the arbitrator” or a procedural violation by the arbitrator, or in the event the arbitrator exceeds his or her authority, none of which were present here.
The court said that it found no basis to set the arbitration award aside “notwithstanding the explainable absence of the check and some possible inconsistencies in the arbitrator’s findings.** It commented that the lower court’s conclusions “amount to no more than impermissible second-guessing these factual findings.”
* In Kelly v. Levin, 440 NYS2d 424, the court ruled that is reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations. In contrast, an individual may be found guilty of charges in an administrative disciplinary hearing notwithstanding the fact that he or she may have been acquitted of criminal charges involving the same allegations. The reason for this is that the standard of proof required to prove guilt in a criminal proceeding is more rigorous than that in an administrative disciplinary proceeding. In a criminal case, the standard is “proof beyond a reasonable doubt” while in an administrative disciplinary action the standard of proof is the less demanding “substantial evidence” test. In an administrative proceeding, “substantial evidence” will support a finding that the individual is guilty of the disciplinary charge or charges. In some case, however, the standard used to determine guilt applied in an administrative disciplinary action is the even less demanding “preponderance of the evidence” test [see Martin v Ambach, 67 NY2d 975].
** Criminal charges had been filed against Hernandez. The altered check, however, “was destroyed in the normal course of events” by the District Attorney after forgery charges brought against him were dismissed and thus the item could not be introduced as evidence at the disciplinary administrative hearing.
NYPPL
Changing the scheduled number of hours that employees are to work during the workweek
Changing the scheduled number of hours that employees are to work during the workweek
Mitchell v LaBarge, 257 AD2d 834
Ann M. Mitchell and other employees and former employees sued the Town of Ulster when it unilaterally changed their workweek from 30 hours to 35 hours, contending that the town’s action violated the federal Fair Labor Standards Act.
At the time the individuals were hired the normal workweek was Monday through Friday, 9:00 a.m. through 4:00 p.m. Effective January 1996 they were required to work Monday through Friday, 9:00 a.m. through 5:00 p.m. without additional compensation.
This, Mitchell contended violated the FLSA because of the town’s “refusal to bargain [the change] in good faith.” A state Supreme Court justice granted the town’s motion to dismiss the action.
The Appellate Division affirmed the lower court’s dismissal of Mitchell’s complaint. It said that the sole federal claim set out in Mitchell’s petition alleged that the Town “violated the Fair Labor Standards Act [FLSA] by their refusal to bargain in good faith.” As the Act “does not impose a duty upon the employer to negotiate in good faith,” the court concluded that Mitchell failed to state a federal cause of action and dismissal of her claim was appropriate.
The Appellate Division commented that the Fair Labor Standards Act sets out “minimum wage and maximum hour requirements” [29 USC 206, 207] while the particular section relied upon by Mitchell, 29 USC 213, provides for exceptions to those provisions.
NYPPL
Mitchell v LaBarge, 257 AD2d 834
Ann M. Mitchell and other employees and former employees sued the Town of Ulster when it unilaterally changed their workweek from 30 hours to 35 hours, contending that the town’s action violated the federal Fair Labor Standards Act.
At the time the individuals were hired the normal workweek was Monday through Friday, 9:00 a.m. through 4:00 p.m. Effective January 1996 they were required to work Monday through Friday, 9:00 a.m. through 5:00 p.m. without additional compensation.
This, Mitchell contended violated the FLSA because of the town’s “refusal to bargain [the change] in good faith.” A state Supreme Court justice granted the town’s motion to dismiss the action.
The Appellate Division affirmed the lower court’s dismissal of Mitchell’s complaint. It said that the sole federal claim set out in Mitchell’s petition alleged that the Town “violated the Fair Labor Standards Act [FLSA] by their refusal to bargain in good faith.” As the Act “does not impose a duty upon the employer to negotiate in good faith,” the court concluded that Mitchell failed to state a federal cause of action and dismissal of her claim was appropriate.
The Appellate Division commented that the Fair Labor Standards Act sets out “minimum wage and maximum hour requirements” [29 USC 206, 207] while the particular section relied upon by Mitchell, 29 USC 213, provides for exceptions to those provisions.
NYPPL
School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education
School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education
Guadagnino v Lancaster CSD, CEd 14080
The Lancaster Central School District filed disciplinary charges against Anthony P. Guadagnino pursuant to Section 75 of the Civil Service Law. The charges alleged that Guadagnino, a custodian, made false, baseless and damaging statements concerning alleged inappropriate conduct by a building principal, the president of the school board and others to various district officials and staff members.
Found guilty of all charges, Guadagnino was dismissed from his position. His appeal to the Erie County Civil Service Commission pursuant to Section 76 of the Civil Service Law was denied.
Guadagnino next filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law contending that the school district violated federal and state law protecting “whistle blowers” by terminating him in retaliation for his making and pursuing his allegations of “inappropriate conduct.”
The Commissioner dismissed the appeal for lack of subject matter jurisdiction. He said that with respect to Guadagnino’s claims concerning “whistle blowing” [Civil Service Law Section 75-b], such claims may be asserted as a defense in a Section 75 hearing. However, nothing in the Education Law authorizes an appeal to the Commissioner from disciplinary action taken under Section 75. The Commissioner noted that “it is well established ... that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law Section 310.”
As to Guadagnino’s federal claims, the Commissioner pointed out that the federal law cited, 5 USC 1213, is generally applicable to federal employees and those in federally related employment.
NYPPL
Guadagnino v Lancaster CSD, CEd 14080
The Lancaster Central School District filed disciplinary charges against Anthony P. Guadagnino pursuant to Section 75 of the Civil Service Law. The charges alleged that Guadagnino, a custodian, made false, baseless and damaging statements concerning alleged inappropriate conduct by a building principal, the president of the school board and others to various district officials and staff members.
Found guilty of all charges, Guadagnino was dismissed from his position. His appeal to the Erie County Civil Service Commission pursuant to Section 76 of the Civil Service Law was denied.
Guadagnino next filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law contending that the school district violated federal and state law protecting “whistle blowers” by terminating him in retaliation for his making and pursuing his allegations of “inappropriate conduct.”
The Commissioner dismissed the appeal for lack of subject matter jurisdiction. He said that with respect to Guadagnino’s claims concerning “whistle blowing” [Civil Service Law Section 75-b], such claims may be asserted as a defense in a Section 75 hearing. However, nothing in the Education Law authorizes an appeal to the Commissioner from disciplinary action taken under Section 75. The Commissioner noted that “it is well established ... that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law Section 310.”
As to Guadagnino’s federal claims, the Commissioner pointed out that the federal law cited, 5 USC 1213, is generally applicable to federal employees and those in federally related employment.
NYPPL
Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement
Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement
Burns v NY State and Local Police and Fire Retirement Systems, 258 AD2d 692
Town of Clarkstown police officer Robert Burns was granted Section 207-c benefits after suffering a work-related injury in May 1993. In 1996, the department filed an application for disability retirement with the State and Local Police and Fire Retirement Systems [PFRS] seeking Burns “involuntary retirement from the police force.”*
When PFRS asked Burns to sign a consent form for the release of his medical records for its review, he refused. The Comptroller then issued subpoenas for the production of his medical records to a hospital and to two physicians. Burns attempted to quash the subpoenas on the grounds that the release of his medical records would “violate the physician-patient privilege” of Section 4505 of the Civil Practice Law and Rules. The Appellate Division affirmed a lower court’s ruling that Section 4504 did not protect Burns’ medical records since the Comptroller had the authority to determine applications for retirement benefits and had statutory authority to issue subpoenas.
The Appellate Division said that Burns “affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege” by applying for Section 207-c benefits.
The Court said that “to exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of [Section 363-c(c)(2) of the Retirement and Social Security Law], expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.”
* Both Section 207-a and Section 207-c of the General Municipal Law authorize the employer to file an application for disability retirement on behalf of an individual receiving benefits pursuant to these sections.
NYPPL
Burns v NY State and Local Police and Fire Retirement Systems, 258 AD2d 692
Town of Clarkstown police officer Robert Burns was granted Section 207-c benefits after suffering a work-related injury in May 1993. In 1996, the department filed an application for disability retirement with the State and Local Police and Fire Retirement Systems [PFRS] seeking Burns “involuntary retirement from the police force.”*
When PFRS asked Burns to sign a consent form for the release of his medical records for its review, he refused. The Comptroller then issued subpoenas for the production of his medical records to a hospital and to two physicians. Burns attempted to quash the subpoenas on the grounds that the release of his medical records would “violate the physician-patient privilege” of Section 4505 of the Civil Practice Law and Rules. The Appellate Division affirmed a lower court’s ruling that Section 4504 did not protect Burns’ medical records since the Comptroller had the authority to determine applications for retirement benefits and had statutory authority to issue subpoenas.
The Appellate Division said that Burns “affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege” by applying for Section 207-c benefits.
The Court said that “to exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of [Section 363-c(c)(2) of the Retirement and Social Security Law], expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.”
* Both Section 207-a and Section 207-c of the General Municipal Law authorize the employer to file an application for disability retirement on behalf of an individual receiving benefits pursuant to these sections.
NYPPL
Employee may be disciplined for excessive absence from work
Employee may be disciplined for excessive absence from work
Gradel v Sullivan Co. Public Works, 257 AD2d 972
May an individual who has been authorized to take time off from work be disciplined for “excessive absence” based on an accumulation of “authorized” absences?
The Gradel case involved Section 75 disciplinary charges that were filed against Len Gradel, a Sullivan County sanitation worker. The charges alleged misconduct in the form of excessive absences, as well as poor job performance and insubordination, notwithstanding Gradel’s claim that he was authorized to take the time off.
“[T]he fact that [Gradel] was authorized to take the days off does not preclude a finding of guilt, especially where, as here, [Gradel] was repeatedly informed by memoranda that his pattern of absences was disruptive and burdensome to his employer and co-workers,” the Appellate Division ruled, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934.
Another issue involved the penalty imposed. Finding Gradel guilty of all of the charges filed against him, a hearing officer recommended that Gradel be suspended without pay for four days and placed on probation for one year.
The county, while agreeing with the hearing officer’s determination as to guilt, imposed the penalty of termination instead of the penalty recommended by the hearing officer. Gradel contended that the penalty imposed was excessive.
The Appellate Division rejected his arguments, holding that there was ample evidence in the record to support the hearing officer’s findings and confirm the county’s decision as to the penalty imposed. The court said that it was “unpersuaded by [Gradel’s] contention that the penalty of termination, which exceed that recommended by the Hearing Officer, was disproportionate to the offenses committed as to shock one’s sense of fairness.”
NYPPL
Gradel v Sullivan Co. Public Works, 257 AD2d 972
May an individual who has been authorized to take time off from work be disciplined for “excessive absence” based on an accumulation of “authorized” absences?
The Gradel case involved Section 75 disciplinary charges that were filed against Len Gradel, a Sullivan County sanitation worker. The charges alleged misconduct in the form of excessive absences, as well as poor job performance and insubordination, notwithstanding Gradel’s claim that he was authorized to take the time off.
“[T]he fact that [Gradel] was authorized to take the days off does not preclude a finding of guilt, especially where, as here, [Gradel] was repeatedly informed by memoranda that his pattern of absences was disruptive and burdensome to his employer and co-workers,” the Appellate Division ruled, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934.
Another issue involved the penalty imposed. Finding Gradel guilty of all of the charges filed against him, a hearing officer recommended that Gradel be suspended without pay for four days and placed on probation for one year.
The county, while agreeing with the hearing officer’s determination as to guilt, imposed the penalty of termination instead of the penalty recommended by the hearing officer. Gradel contended that the penalty imposed was excessive.
The Appellate Division rejected his arguments, holding that there was ample evidence in the record to support the hearing officer’s findings and confirm the county’s decision as to the penalty imposed. The court said that it was “unpersuaded by [Gradel’s] contention that the penalty of termination, which exceed that recommended by the Hearing Officer, was disproportionate to the offenses committed as to shock one’s sense of fairness.”
NYPPL
Nov 17, 2010
Website established for those interested in joining the Cuomo-Duffy administration
Website established for those interested in joining the Cuomo-Duffy administration
Source: Cuomo-Duffy Transition Committee
Interested in joining the Cuomo-Duffy administration?
There is a website where those interested in positions in the Cuomo-Duffy administration may submit their resumes for consideration electronically.
The several transition focus committees will review these resumes and subsequently submit their recommendations to Governor-elect Cuomo and Lieutenant Governor-elect Robert Duffy with respect to staffing key positions with the new administration.
Resumes for all administration positions may be filed at http://www.worksforny.com/.
NYPPL
Source: Cuomo-Duffy Transition Committee
Interested in joining the Cuomo-Duffy administration?
There is a website where those interested in positions in the Cuomo-Duffy administration may submit their resumes for consideration electronically.
The several transition focus committees will review these resumes and subsequently submit their recommendations to Governor-elect Cuomo and Lieutenant Governor-elect Robert Duffy with respect to staffing key positions with the new administration.
Resumes for all administration positions may be filed at http://www.worksforny.com/.
NYPPL
Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”
Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”
Matter of Swindell v Antonelli, 2010 NY Slip Op 08346, Decided on November 16, 2010, Appellate Division, First Department
Tajiri Swindell, an employee of the NYC Department of Corrections, was on the promotion list for Captain. When Swindell not appointed as Captain, she initiated an Article 78 action alleging that the decision not to promote her to captain was made in bad faith.
Supreme Court temporarily restrained Department of Correction from making appointments from the new list pending a court hearing.
The Appellate Division vacated the lower court’s order and dismissed Swindell’s petition.
The court said that the Department’s decision, in the light of “the open confidential investigation,” not to promote Swindell was “rational, reasonable, and made in good faith.”
Swindell’s claims of bad faith, said the court, were conclusory and speculative and thus she was not entitled to a judicial review of her claims.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08346.htm
NYPPL
Matter of Swindell v Antonelli, 2010 NY Slip Op 08346, Decided on November 16, 2010, Appellate Division, First Department
Tajiri Swindell, an employee of the NYC Department of Corrections, was on the promotion list for Captain. When Swindell not appointed as Captain, she initiated an Article 78 action alleging that the decision not to promote her to captain was made in bad faith.
Supreme Court temporarily restrained Department of Correction from making appointments from the new list pending a court hearing.
The Appellate Division vacated the lower court’s order and dismissed Swindell’s petition.
The court said that the Department’s decision, in the light of “the open confidential investigation,” not to promote Swindell was “rational, reasonable, and made in good faith.”
Swindell’s claims of bad faith, said the court, were conclusory and speculative and thus she was not entitled to a judicial review of her claims.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08346.htm
NYPPL
Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position
Advancement to a higher level position not always a promotion entitling employee to a leave of absence from his or her former position
Bethel v McGrath-McKechnie, 258 AD2d 316, Reversed, 95 NY2d 7
If an employee is promoted to a position in which he or she is required to serve a probationary period, the individual is given a leave of absence from his or her former position and is to be restored to that position if he or she fails the probationary period (Section 63.1, Civil Service Law). Section 63.1 does not define the term “promotion”, however.
In the Bethel case, the Appellate Division said it is incorrect to assume that a “promotion” is restricted to a direct promotion in the chain of command. It ruled that an appointment to a position from an open competitive examination list having higher pay, more responsibility and more prestige qualified as a promotion. The Court of Appeals disagreed and reversed the Appellate Division’s determination.
Earlene Bethel was a New York City Contract Specialist Level II with the city’s Community Development Agency (CDA). In July 1994, she accepted a provisional appointment as a Staff Analyst, another position in CDA, and she was placed on leave from her Contract Specialist position. Nine months later she was permanently appointed to the title of Staff Analyst from on open competitive examination eligible list. She, accordingly, was required to serve a probationary period. At the same time, Bethel was told that “her leave from the title of Contract Specialist II was canceled.” CDA’s reason for discontinuing her leave of absence: Bethel had not been “promoted” and thus Section 63.1 did not apply in her situation.*
On January 11, 1996, while still a probationer, Bethel was summarily dismissed from her Staff Analyst position. CDA rejected her request to be restored to her former position on the grounds that she was not on leave from the position and therefore had no legal claim to it.
Although the Appellate Division decided that “under the unique circumstances presented, “cancellation of [Bethel’s] leave from her former position prior to the expiration of her probationary period was an abuse of discretion,” the Court of Appeal disagreed and reversed the Appellate Division’s ruling. The court said that although after passing the examination for Staff Analyst and being appointed to the title as a provisional employee and given a leave of absence from her permanent position as Contract Specialist II:
1. Bethel was appointed to the position of Staff Analyst from an open competitive examination.**
2. Civil Service Law § 63 and the corresponding rules "furnish job security [i.e., a leave of absence] to a permanent employee who is transferred or promoted to a position in which he or she is required to serve,” a probationary period for his or her probationary term" citing Matter of Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied, 77 NY2d 805.***
3. Bethel conceded that she was not "transferred," nor was she "promoted," to Staff Analyst and her argument that her appointment to Staff Analyst through an open examination rather than a promotional examination “is without consequence” is not persuasive.
4. The Civil Service Law and implementing rules and regulations do not mandate an agency place a permanent appointee on leave of absence from his or her former position while he or she is serving a probationary period in an effort to qualify for continuation in a position to which he or she has been neither promoted nor transferred.
Further, the Court of Appeals said that CDA's determination denying Bethel’s application for reinstatement to her former position of Contract Specialist was not an abuse of discretion and as Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.
Accordingly, said the court, Civil Service Law §75(1)(a) is inapplicable under the facts in this case. Accordingly, Bethel was not entitled to a hearing prior to her employer’s cancellation of her leave of absence from her former Contract Specialist position.
* CSL Section 63.1 applies to New York City personnel. Moreover, the city’s administrative code is consistent with Section 63.1 of the Civil Service Law. [See Rule 5.2.3 of the City’s Personnel Rules].
** In July 1994, after passing the examination, Bethel received a provisional appointment to Staff Analyst pending certification of the civil service list for the position to the Human Resources Administration.
*** An individual holding a position by permanent appointment who is place on a leave of absence upon promotion or transfer to another position may elect to return to his or her “permanent title” at any time during the probationary period.
NYPPL
Bethel v McGrath-McKechnie, 258 AD2d 316, Reversed, 95 NY2d 7
If an employee is promoted to a position in which he or she is required to serve a probationary period, the individual is given a leave of absence from his or her former position and is to be restored to that position if he or she fails the probationary period (Section 63.1, Civil Service Law). Section 63.1 does not define the term “promotion”, however.
In the Bethel case, the Appellate Division said it is incorrect to assume that a “promotion” is restricted to a direct promotion in the chain of command. It ruled that an appointment to a position from an open competitive examination list having higher pay, more responsibility and more prestige qualified as a promotion. The Court of Appeals disagreed and reversed the Appellate Division’s determination.
Earlene Bethel was a New York City Contract Specialist Level II with the city’s Community Development Agency (CDA). In July 1994, she accepted a provisional appointment as a Staff Analyst, another position in CDA, and she was placed on leave from her Contract Specialist position. Nine months later she was permanently appointed to the title of Staff Analyst from on open competitive examination eligible list. She, accordingly, was required to serve a probationary period. At the same time, Bethel was told that “her leave from the title of Contract Specialist II was canceled.” CDA’s reason for discontinuing her leave of absence: Bethel had not been “promoted” and thus Section 63.1 did not apply in her situation.*
On January 11, 1996, while still a probationer, Bethel was summarily dismissed from her Staff Analyst position. CDA rejected her request to be restored to her former position on the grounds that she was not on leave from the position and therefore had no legal claim to it.
Although the Appellate Division decided that “under the unique circumstances presented, “cancellation of [Bethel’s] leave from her former position prior to the expiration of her probationary period was an abuse of discretion,” the Court of Appeal disagreed and reversed the Appellate Division’s ruling. The court said that although after passing the examination for Staff Analyst and being appointed to the title as a provisional employee and given a leave of absence from her permanent position as Contract Specialist II:
1. Bethel was appointed to the position of Staff Analyst from an open competitive examination.**
2. Civil Service Law § 63 and the corresponding rules "furnish job security [i.e., a leave of absence] to a permanent employee who is transferred or promoted to a position in which he or she is required to serve,” a probationary period for his or her probationary term" citing Matter of Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied, 77 NY2d 805.***
3. Bethel conceded that she was not "transferred," nor was she "promoted," to Staff Analyst and her argument that her appointment to Staff Analyst through an open examination rather than a promotional examination “is without consequence” is not persuasive.
4. The Civil Service Law and implementing rules and regulations do not mandate an agency place a permanent appointee on leave of absence from his or her former position while he or she is serving a probationary period in an effort to qualify for continuation in a position to which he or she has been neither promoted nor transferred.
Further, the Court of Appeals said that CDA's determination denying Bethel’s application for reinstatement to her former position of Contract Specialist was not an abuse of discretion and as Bethel accepted an original appointment to the position of Staff Analyst after passing the open competitive examination, she effectively resigned her permanent position as a Contract Specialist.
Accordingly, said the court, Civil Service Law §75(1)(a) is inapplicable under the facts in this case. Accordingly, Bethel was not entitled to a hearing prior to her employer’s cancellation of her leave of absence from her former Contract Specialist position.
* CSL Section 63.1 applies to New York City personnel. Moreover, the city’s administrative code is consistent with Section 63.1 of the Civil Service Law. [See Rule 5.2.3 of the City’s Personnel Rules].
** In July 1994, after passing the examination, Bethel received a provisional appointment to Staff Analyst pending certification of the civil service list for the position to the Human Resources Administration.
*** An individual holding a position by permanent appointment who is place on a leave of absence upon promotion or transfer to another position may elect to return to his or her “permanent title” at any time during the probationary period.
NYPPL
Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing
Negotiated drug testing policy may waive an employee’s right to a Section 75 disciplinary hearing
Gary Grippo v John P. Martin, 257 AD2d 952
After negotiations with union representatives, the Town of Glenville adopted a drug and alcohol policy in December 1995. The policy included a provision for the random testing of employees for drug and alcohol use. The policy also specified various disciplinary actions to be taken following positive test results. In particular, the policy provided that two positive tests within a 10-year period would result in the employee’s immediate termination.
Gary Grippo, a town employee since 1986, tested positive for drug and alcohol use in August 1996. In accordance with the policy, Grippo was suspended from his employment without pay for 30 days. Grippo tested positive a second time on May 15, 1997. He was informed of the test result and the penalty of termination was imposed.
Grippo challenged his dismissal, contending that by creating an “irrebuttable presumption of [Grippo’s] guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law Section 75[1].”
The Appellate Division disagreed and sustained a lower court’s ruling dismissing Grippo’s petition.
The Appellate Division commented that “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law”.
Accordingly, an employee organization may, pursuant to the provisions of a collective bargaining agreement, waive the employee’s Section 75 and 76 rights.
The decision points out that “both by statute and case law, such a waiver in a collective bargaining agreement of public employee statutory rights in disciplinary matters is not against public policy, and members of the bargaining unit are bound thereby.”
The court found that: (1) Glenville had negotiated with Grippo’s union to enact the drug and alcohol policy, and (2) Grippo was provided with a copy of the policy and expressly agreed to its terms by signing it.
NYPPL
Gary Grippo v John P. Martin, 257 AD2d 952
After negotiations with union representatives, the Town of Glenville adopted a drug and alcohol policy in December 1995. The policy included a provision for the random testing of employees for drug and alcohol use. The policy also specified various disciplinary actions to be taken following positive test results. In particular, the policy provided that two positive tests within a 10-year period would result in the employee’s immediate termination.
Gary Grippo, a town employee since 1986, tested positive for drug and alcohol use in August 1996. In accordance with the policy, Grippo was suspended from his employment without pay for 30 days. Grippo tested positive a second time on May 15, 1997. He was informed of the test result and the penalty of termination was imposed.
Grippo challenged his dismissal, contending that by creating an “irrebuttable presumption of [Grippo’s] guilt without affording him the due process of a hearing”, the policy is unconstitutional and violative of Civil Service Law Section 75[1].”
The Appellate Division disagreed and sustained a lower court’s ruling dismissing Grippo’s petition.
The Appellate Division commented that “a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law”.
Accordingly, an employee organization may, pursuant to the provisions of a collective bargaining agreement, waive the employee’s Section 75 and 76 rights.
The decision points out that “both by statute and case law, such a waiver in a collective bargaining agreement of public employee statutory rights in disciplinary matters is not against public policy, and members of the bargaining unit are bound thereby.”
The court found that: (1) Glenville had negotiated with Grippo’s union to enact the drug and alcohol policy, and (2) Grippo was provided with a copy of the policy and expressly agreed to its terms by signing it.
NYPPL
Negotiations during decertification action
Negotiations during decertification action
Advisory Opinion of Counsel 32 PERB 5002*
Sometimes the time becomes ripe for collective bargaining while a decertification petition is pending final determination. May the employer commence negotiations with a representative of a unit of public employees while the representation challenge concerning that unit is still pending?
PERB’s Counsel noted that in Matter of Rockland County, 10 PERB 3098, PERB held that “a public employer is not compelled to, and may not, negotiate with the incumbent employee organization while a bona fide question concerning representation is pending.”
However, Counsel noted that in earlier opinions it was indicate that such negotiations may be conducted in the face of a pending representation petition with the consent of all parties affected by the petition, citing 23 PERB 5001; 5002 and 5003.
Finally, the opinion notes that while the then recognized or certified bargaining agent for the unit may be barred from negotiating a successor agreement because of the pending representation petition, it has the “continuing right and duty to represent the at-issue unit” for the purposes of preserving the status quo and to respond to changes “through negotiations.”
* An Advisory Opinion of Counsel is not binding on PERB
NYPPL
Advisory Opinion of Counsel 32 PERB 5002*
Sometimes the time becomes ripe for collective bargaining while a decertification petition is pending final determination. May the employer commence negotiations with a representative of a unit of public employees while the representation challenge concerning that unit is still pending?
PERB’s Counsel noted that in Matter of Rockland County, 10 PERB 3098, PERB held that “a public employer is not compelled to, and may not, negotiate with the incumbent employee organization while a bona fide question concerning representation is pending.”
However, Counsel noted that in earlier opinions it was indicate that such negotiations may be conducted in the face of a pending representation petition with the consent of all parties affected by the petition, citing 23 PERB 5001; 5002 and 5003.
Finally, the opinion notes that while the then recognized or certified bargaining agent for the unit may be barred from negotiating a successor agreement because of the pending representation petition, it has the “continuing right and duty to represent the at-issue unit” for the purposes of preserving the status quo and to respond to changes “through negotiations.”
* An Advisory Opinion of Counsel is not binding on PERB
NYPPL
Staying a grievance arbitration
Staying a grievance arbitration
Newfield CSD v Newfield Teachers Asso., 258 AD2d 845, motion to appeal denied, 93 NY2d 809
Newfield Central School District subcontracted with BOCES to staff various positions. In July 1997, the Newfield Central School Teachers Association filed a grievance alleging that the district had violated its collective bargaining agreement with the teachers association.
The superintendent denied the grievance, and the school board affirmed that ruling on administrative appeal. The teachers next filed a demand for arbitration. The district, however, obtained a stay from a state Supreme Court justice barring arbitration because the collective bargaining agreement was silent as to the district’s right to subcontract. The Supreme Court reasoned that absent clear contractual basis for arbitration on such an issue, the Teachers Association’s grievance was not arbitrable. The teachers appealed to the Appellate Division.
In a 4 to 1 ruling, the Appellate Division, Third Department, agreed with the lower court.
The court applied a two-part test set out in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509.
The first test was whether subject of the arbitration claim was prohibited under the Taylor Law (Civil Service Law Section 200 et seq.) For instance, issues involving strong public policy typically are not subject to arbitration. The court said the BOCES subcontracting issue was not prohibited under the Taylor Law.
Having passed the first test, the next question was whether the parties had agreed by the terms of their collective bargaining agreement to submit this type of dispute to arbitration. No, said the court.
Courts are likely to deny arbitration of a grievance unless the language of the arbitration clause in a collective bargaining agreement specifically provides for such arbitration. To determine whether an issue sought to be arbitrated falls within the ambit of an arbitration clause, a court is “to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration; anything less will lead to denial of arbitration.”
In the Liverpool case, the Court of Appeals held: The Appellate Division said it may be appropriate for a school district and a teachers association to negotiate the degree to which a school district utilizes the resources available through BOCES.
The court characterized the subject as a permissible, rather than a mandatory, subject of negotiation.
Accordingly, said the court, it makes little sense to require the district, under the guise of a broad arbitration clause, to arbitrate a provision that it is not even required to negotiate. It ruled that in the absence of a valid and specific agreement between the parties clearly showing an intent to arbitrate claims arising out of subcontracting with BOCES, the district’s application to stay arbitration was properly granted.
The lesson here is that unless the contract arbitration provision specifically states that it is applicable to certain other, or all, controversies concerning issues not covered by the negotiated agreement arising between the parties during the life of the agreement, the courts usually will limit the scope of arbitration to those claims alleging a violation of a specified contract provision.
In a dissenting opinion, Presiding Judge Ann Mikoll said that “for a public employment dispute to be arbitrable, it is not necessary that the parties have specifically addressed its subject matter and specifically agreed to arbitrate it. Rather, the focus must be solely upon the language of the parties’ arbitration clause, and whether or not it extends to the particular dispute.” Judge Mikoll said that she believed that “the instant dispute falls within the scope of the parties’ broad arbitration clause, which extends to all ‘claimed violations’ thereof,” and concluded that the matter should be resolved by arbitration.
NYPPL
Newfield CSD v Newfield Teachers Asso., 258 AD2d 845, motion to appeal denied, 93 NY2d 809
Newfield Central School District subcontracted with BOCES to staff various positions. In July 1997, the Newfield Central School Teachers Association filed a grievance alleging that the district had violated its collective bargaining agreement with the teachers association.
The superintendent denied the grievance, and the school board affirmed that ruling on administrative appeal. The teachers next filed a demand for arbitration. The district, however, obtained a stay from a state Supreme Court justice barring arbitration because the collective bargaining agreement was silent as to the district’s right to subcontract. The Supreme Court reasoned that absent clear contractual basis for arbitration on such an issue, the Teachers Association’s grievance was not arbitrable. The teachers appealed to the Appellate Division.
In a 4 to 1 ruling, the Appellate Division, Third Department, agreed with the lower court.
The court applied a two-part test set out in Liverpool CSD v United Liverpool Faculty Asso., 42 NY2d 509.
The first test was whether subject of the arbitration claim was prohibited under the Taylor Law (Civil Service Law Section 200 et seq.) For instance, issues involving strong public policy typically are not subject to arbitration. The court said the BOCES subcontracting issue was not prohibited under the Taylor Law.
Having passed the first test, the next question was whether the parties had agreed by the terms of their collective bargaining agreement to submit this type of dispute to arbitration. No, said the court.
Courts are likely to deny arbitration of a grievance unless the language of the arbitration clause in a collective bargaining agreement specifically provides for such arbitration. To determine whether an issue sought to be arbitrated falls within the ambit of an arbitration clause, a court is “to be guided by the principle that the agreement to arbitrate must be express, direct and unequivocal as to the issues or disputes to be submitted to arbitration; anything less will lead to denial of arbitration.”
In the Liverpool case, the Court of Appeals held: The Appellate Division said it may be appropriate for a school district and a teachers association to negotiate the degree to which a school district utilizes the resources available through BOCES.
The court characterized the subject as a permissible, rather than a mandatory, subject of negotiation.
Accordingly, said the court, it makes little sense to require the district, under the guise of a broad arbitration clause, to arbitrate a provision that it is not even required to negotiate. It ruled that in the absence of a valid and specific agreement between the parties clearly showing an intent to arbitrate claims arising out of subcontracting with BOCES, the district’s application to stay arbitration was properly granted.
The lesson here is that unless the contract arbitration provision specifically states that it is applicable to certain other, or all, controversies concerning issues not covered by the negotiated agreement arising between the parties during the life of the agreement, the courts usually will limit the scope of arbitration to those claims alleging a violation of a specified contract provision.
In a dissenting opinion, Presiding Judge Ann Mikoll said that “for a public employment dispute to be arbitrable, it is not necessary that the parties have specifically addressed its subject matter and specifically agreed to arbitrate it. Rather, the focus must be solely upon the language of the parties’ arbitration clause, and whether or not it extends to the particular dispute.” Judge Mikoll said that she believed that “the instant dispute falls within the scope of the parties’ broad arbitration clause, which extends to all ‘claimed violations’ thereof,” and concluded that the matter should be resolved by arbitration.
NYPPL
Employee terminated following loss of a license required to perform the duties of the position
Employee terminated following loss of a license required to perform the duties of the position
Lytle v U.S. Postal Service, 257 AD2d 779
One of the conditions of Christopher M. Lytle’s employment by the United States Postal Service was that he posses a valid driver’s license so that he could perform his postal duties.
Lytle was arrested for driving while intoxicated and his license was suspended. As he could not lawfully drive a motor vehicle, he was terminated from his position. Finding that he was “terminated due to misconduct,” the Unemployment Insurance Appeals Board denied his application for unemployment insurance benefits.
The Appellate Division sustained the board’s ruling, holding that since Lytle “engaged in a voluntary act which violated a reasonable condition of his employment, we decline to disturb the Board’s decision that [Lytle’s] behavior constituted disqualifying misconduct.”
NYPPL
Lytle v U.S. Postal Service, 257 AD2d 779
One of the conditions of Christopher M. Lytle’s employment by the United States Postal Service was that he posses a valid driver’s license so that he could perform his postal duties.
Lytle was arrested for driving while intoxicated and his license was suspended. As he could not lawfully drive a motor vehicle, he was terminated from his position. Finding that he was “terminated due to misconduct,” the Unemployment Insurance Appeals Board denied his application for unemployment insurance benefits.
The Appellate Division sustained the board’s ruling, holding that since Lytle “engaged in a voluntary act which violated a reasonable condition of his employment, we decline to disturb the Board’s decision that [Lytle’s] behavior constituted disqualifying misconduct.”
NYPPL
Nov 16, 2010
Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement
Any expansion of benefits available pursuant to §§207-a and 207-c must be expressly provided for in a collective bargaining agreement
Matter of Town of Tuxedo v Town of Tuxedo Police Benevolent Assn., 2010 NY Slip Op 08122, decided on November 9, 2010, Appellate Division, Second Department
On December 4, 2004, Town of Tuxedo Police Officer John Tamburello was injured in the line of duty. He never returned to work and was awarded a disability retirement on or about December 23, 2008.
In March 2009 the Tuxedo Park PBA filed a grievance alleging that Tamburello had not been paid for all of his unused leave as mandated by the collective bargaining agreement [CBA]. According to the PBA, leave time continued to accrue during the four-year period that Tamburello was receiving benefits pursuant to General Municipal Law §207-c.
When it demanded that the question be submitted to arbitration, Tuxedo Park filed a petition pursuant to Article 75 seeking a permanent stay of arbitration.
Ultimately the Appellate Division ruled that “benefits provided to a police officer pursuant to General Municipal Law §207-c, like the benefits provided to a firefighter pursuant to General Municipal Law §207-a, are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits.”*
“Unless,” said the court, “a collective bargaining agreement expressly provides for compensation rights to disabled officers in addition to those provided by General Municipal Law § 207-c, there is no entitlement to such additional compensation,” citing Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686.
As the Appellate Division found that the controlling CBA “did not contain any language expressly providing that leave time would accrue during the period that a disabled officer receives General Municipal Law §207-c benefits, or that a disabled officer would be paid for such leave time upon retirement,”. Supreme Court should have granted the petition in Proceeding No. 2 to permanently stay arbitration.
Comment: The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.
The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.
Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c.
Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement.
Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.
Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary, i.e., a Section 207-a level of benefits.
Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.
Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:
1. Had been included in the contract by mistake and
2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.
The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.
Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.
As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.
Accordingly, Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement were entitle to Section 207-a type benefits.
* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08122.htm
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For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
===================================
NYPPL
Matter of Town of Tuxedo v Town of Tuxedo Police Benevolent Assn., 2010 NY Slip Op 08122, decided on November 9, 2010, Appellate Division, Second Department
On December 4, 2004, Town of Tuxedo Police Officer John Tamburello was injured in the line of duty. He never returned to work and was awarded a disability retirement on or about December 23, 2008.
In March 2009 the Tuxedo Park PBA filed a grievance alleging that Tamburello had not been paid for all of his unused leave as mandated by the collective bargaining agreement [CBA]. According to the PBA, leave time continued to accrue during the four-year period that Tamburello was receiving benefits pursuant to General Municipal Law §207-c.
When it demanded that the question be submitted to arbitration, Tuxedo Park filed a petition pursuant to Article 75 seeking a permanent stay of arbitration.
Ultimately the Appellate Division ruled that “benefits provided to a police officer pursuant to General Municipal Law §207-c, like the benefits provided to a firefighter pursuant to General Municipal Law §207-a, are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits.”*
“Unless,” said the court, “a collective bargaining agreement expressly provides for compensation rights to disabled officers in addition to those provided by General Municipal Law § 207-c, there is no entitlement to such additional compensation,” citing Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686.
As the Appellate Division found that the controlling CBA “did not contain any language expressly providing that leave time would accrue during the period that a disabled officer receives General Municipal Law §207-c benefits, or that a disabled officer would be paid for such leave time upon retirement,”. Supreme Court should have granted the petition in Proceeding No. 2 to permanently stay arbitration.
Comment: The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.
The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.
Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c.
Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement.
Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.
Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary, i.e., a Section 207-a level of benefits.
Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.
Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:
1. Had been included in the contract by mistake and
2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.
The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.
Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.
In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.
As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.
Accordingly, Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement were entitle to Section 207-a type benefits.
* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08122.htm
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For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
===================================
NYPPL
Disciplinary suspension without pay tolled while individual incarcerated
Disciplinary suspension without pay tolled while individual incarcerated
Manning v Warsaw CSD, CEd 14071
The Warsaw Central School District served disciplinary charges against a tenured teacher, William Manning, Jr., related to his alleged operating a motor vehicle under the influence of alcohol.
Following a disciplinary hearing and an appeal, on November 22, 1994 former Commission of Education Sobol issued a decision and imposed a penalty of suspension without pay for two years. The decision was sustained by a State Supreme Court justice [Manning v Sobol, August 7, 1995, not officially reported].
Manning, however, was incarcerated in the Wyoming County jail on July 19, 1994. Because he was “unavailable” to work, the district changed his pay status from suspension with pay pending resolution of the Section 3020-a action to suspension without pay effective July 19, 1994.
Released from prison and claiming that his two-year suspension without pay commenced on November 22, 1994, Manning advised the district that he intended to return to work on November 22, 1996. The District said that the two-year suspension period commenced on March 21, 1995, when he was released from prison and therefore he could not return to work earlier than March 21, 1997. Manning appealed.
Commissioner of Education Richard P. Mills said that the two-year suspension imposed by former Commissioner Sobol commenced when Manning was released from incarceration since allowing the suspension to run concurrently with his incarceration “nullifies a portion of the suspension, since [Manning] could not work during that period in any event.”
The Commissioner rejected Manning’s claim that he was entitled to back salary from November 22, 1996, holding that to do so would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol.
NYPPL
Manning v Warsaw CSD, CEd 14071
The Warsaw Central School District served disciplinary charges against a tenured teacher, William Manning, Jr., related to his alleged operating a motor vehicle under the influence of alcohol.
Following a disciplinary hearing and an appeal, on November 22, 1994 former Commission of Education Sobol issued a decision and imposed a penalty of suspension without pay for two years. The decision was sustained by a State Supreme Court justice [Manning v Sobol, August 7, 1995, not officially reported].
Manning, however, was incarcerated in the Wyoming County jail on July 19, 1994. Because he was “unavailable” to work, the district changed his pay status from suspension with pay pending resolution of the Section 3020-a action to suspension without pay effective July 19, 1994.
Released from prison and claiming that his two-year suspension without pay commenced on November 22, 1994, Manning advised the district that he intended to return to work on November 22, 1996. The District said that the two-year suspension period commenced on March 21, 1995, when he was released from prison and therefore he could not return to work earlier than March 21, 1997. Manning appealed.
Commissioner of Education Richard P. Mills said that the two-year suspension imposed by former Commissioner Sobol commenced when Manning was released from incarceration since allowing the suspension to run concurrently with his incarceration “nullifies a portion of the suspension, since [Manning] could not work during that period in any event.”
The Commissioner rejected Manning’s claim that he was entitled to back salary from November 22, 1996, holding that to do so would abrogate the degree of discipline deemed appropriate by former Commissioner Sobol.
NYPPL
Payment for vacation credits upon resignation
Payment for vacation credits upon resignation
Karp v North Country Community College, 258 AD2d 775
After 15 years of service, Robert Karp resigned from his position with the North Country Community College in 1997. When the college refused to pay him for accrued vacation credits he claimed he accrued between 1982 and 1985, he sued.
Although Karp admitted that the college lacked express authority to pay him for his unused vacation time, he nevertheless claimed that he was entitled to such payments because the college had paid other employees for unused vacation time in the past. Karp argued that this meant that the college was obligated to pay him for such credits as well.
Karp claimed that in 1986 two employees received compensation for their unused vacation time when they resigned. He also referred to a 1986 memorandum written by respondent’s then-Dean of Administration recognizing that the school’s policy respecting unused vacation time needed clarification and that, in the interim, respondent would honor its past practice for vacation time accrued up until August 31, 1985.
Supreme Court said that if not expressly authorized by statute, local law, resolution or pursuant to a contract term, a public employee may not be paid for unused vacation time, citing General Municipal Law Section 92. The court noted that payments made without such authority are deemed public gifts, prohibited by Article VIII, Section 1 of the New York State Constitution.
The Appellate Division agreed, commenting that “the mere fact that [the college] despite lacking authority to do so, may have on prior occasions compensated employees for unused vacation time does not validate [Karp’s] claim. Express authorization being required, prior conduct cannot satisfy the express statutory authorization needed to form a basis for recovery against a public body.”
Also noted was the fact that in 1986 the college advised Karp that he should develop a plan to use any remaining vacation time during that academic year.
NYPPL
Karp v North Country Community College, 258 AD2d 775
After 15 years of service, Robert Karp resigned from his position with the North Country Community College in 1997. When the college refused to pay him for accrued vacation credits he claimed he accrued between 1982 and 1985, he sued.
Although Karp admitted that the college lacked express authority to pay him for his unused vacation time, he nevertheless claimed that he was entitled to such payments because the college had paid other employees for unused vacation time in the past. Karp argued that this meant that the college was obligated to pay him for such credits as well.
Karp claimed that in 1986 two employees received compensation for their unused vacation time when they resigned. He also referred to a 1986 memorandum written by respondent’s then-Dean of Administration recognizing that the school’s policy respecting unused vacation time needed clarification and that, in the interim, respondent would honor its past practice for vacation time accrued up until August 31, 1985.
Supreme Court said that if not expressly authorized by statute, local law, resolution or pursuant to a contract term, a public employee may not be paid for unused vacation time, citing General Municipal Law Section 92. The court noted that payments made without such authority are deemed public gifts, prohibited by Article VIII, Section 1 of the New York State Constitution.
The Appellate Division agreed, commenting that “the mere fact that [the college] despite lacking authority to do so, may have on prior occasions compensated employees for unused vacation time does not validate [Karp’s] claim. Express authorization being required, prior conduct cannot satisfy the express statutory authorization needed to form a basis for recovery against a public body.”
Also noted was the fact that in 1986 the college advised Karp that he should develop a plan to use any remaining vacation time during that academic year.
NYPPL
Educator terminated before the end of the probationary period
Educator terminated before the end of the probationary period
Strax v Rockland County BOCES, 257 AD2d 578
The Rockland County Board of Cooperative Educational Services dismissed Carol Strax, a probationary administrative assistant, from her position. Strax sued, seeking a court order reinstating her to the position.
The Appellate Division rejected her appeal, commenting that “it is well established that a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period, without a hearing, unless that person establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription.”
According to the ruling, Strax did not allege that the BOCES had terminated her probationary employment for a constitutionally impermissible reason nor did she demonstrate that it failed to comply with the procedural requirements of Education Law Section 3031 or otherwise acted in violation of a statutory proscription.
Accordingly, the Appellate Division ruled that under the circumstances the Supreme Court properly ruled that Strax’s termination was neither arbitrary nor capricious.
NYPPL
Strax v Rockland County BOCES, 257 AD2d 578
The Rockland County Board of Cooperative Educational Services dismissed Carol Strax, a probationary administrative assistant, from her position. Strax sued, seeking a court order reinstating her to the position.
The Appellate Division rejected her appeal, commenting that “it is well established that a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period, without a hearing, unless that person establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription.”
According to the ruling, Strax did not allege that the BOCES had terminated her probationary employment for a constitutionally impermissible reason nor did she demonstrate that it failed to comply with the procedural requirements of Education Law Section 3031 or otherwise acted in violation of a statutory proscription.
Accordingly, the Appellate Division ruled that under the circumstances the Supreme Court properly ruled that Strax’s termination was neither arbitrary nor capricious.
NYPPL
Employee terminated after refusing to work overtime
Employee terminated after refusing to work overtime
Mack v Comm. of Labor, 257 AD2d 828
One of the requirements of toll collector Tijuana R. Mack’s employment was that she occasionally was needed to work overtime before or after her regular shift. However, she declined to accept a number of overtime assignments and was given a number of written warnings.
After she once again refused to accept an overtime assignment, she was discharged. When she applied for unemployment insurance, her claim was rejected on the grounds that her refusing the overtime assignment constituted disqualifying misconduct.
The Appellate Division affirmed the Unemployment Insurance Appeals Board’s determination, holding that “an employee’s refusal to accept reasonable overtime work assignments when he or she has agreed to do so at the time of hiring can constitute disqualifying misconduct” for the purposes of qualifying for unemployment insurance benefits.
NYPPL
Mack v Comm. of Labor, 257 AD2d 828
One of the requirements of toll collector Tijuana R. Mack’s employment was that she occasionally was needed to work overtime before or after her regular shift. However, she declined to accept a number of overtime assignments and was given a number of written warnings.
After she once again refused to accept an overtime assignment, she was discharged. When she applied for unemployment insurance, her claim was rejected on the grounds that her refusing the overtime assignment constituted disqualifying misconduct.
The Appellate Division affirmed the Unemployment Insurance Appeals Board’s determination, holding that “an employee’s refusal to accept reasonable overtime work assignments when he or she has agreed to do so at the time of hiring can constitute disqualifying misconduct” for the purposes of qualifying for unemployment insurance benefits.
NYPPL
Unemployment insurance benefit adjusted to reflect retirement allowance
Unemployment insurance benefit adjusted to reflect retirement allowance
Licciardello v Comm. of Labor, 255 AD2d 850
Marie Licciardello left her teaching position with the City of New York. She later began to receive payments from her pension fund at the rate of $250 per week. In addition, Licciardello was receiving unemployment insurance benefits at the rate of $300 per week.
However, Section 600.7 of the Labor Law provides that an unemployment insurance claimant’s benefit rate is to be reduced in cases where the employer has contributed to the employee’s pension fund.
The Unemployment Insurance Appeal Board held that Licciardello’s unemployment benefit rate was subject to reductions by the amount of 50% of her pension payments, reflecting her employer’s contribution of over 50% of the funding of her pension plan. In addition, the board said that Licciardello was liable for, and had to repay, $3,250 for the overpayment of benefits.
The board determined that the actuarial value of Licciardello’s pension was $138,000 and that her contributions were $33,000, about a quarter of the actuarial value of the pension.
The Appellate Division said that this constituted substantial evidence supporting the board’s ruling that “her employer contributed over half of the actuarial value of [Licciardello’s] pension, thereby triggering the statutory reduction in benefits imposed by the Board.”
NYPPL
Licciardello v Comm. of Labor, 255 AD2d 850
Marie Licciardello left her teaching position with the City of New York. She later began to receive payments from her pension fund at the rate of $250 per week. In addition, Licciardello was receiving unemployment insurance benefits at the rate of $300 per week.
However, Section 600.7 of the Labor Law provides that an unemployment insurance claimant’s benefit rate is to be reduced in cases where the employer has contributed to the employee’s pension fund.
The Unemployment Insurance Appeal Board held that Licciardello’s unemployment benefit rate was subject to reductions by the amount of 50% of her pension payments, reflecting her employer’s contribution of over 50% of the funding of her pension plan. In addition, the board said that Licciardello was liable for, and had to repay, $3,250 for the overpayment of benefits.
The board determined that the actuarial value of Licciardello’s pension was $138,000 and that her contributions were $33,000, about a quarter of the actuarial value of the pension.
The Appellate Division said that this constituted substantial evidence supporting the board’s ruling that “her employer contributed over half of the actuarial value of [Licciardello’s] pension, thereby triggering the statutory reduction in benefits imposed by the Board.”
NYPPL
Nov 15, 2010
Determining if a demand for arbitration was timely filed
Determining if a demand for arbitration was timely filed
Matter of Town of N. Hempstead v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 08121, decided on November 9, 2010, Appellate Division, Second Department
Two days after the Town of North Hempstead terminated the employment of an employee CSEA advised the Town that it intended to proceed to arbitration. Two months after the employee’s date of dismissal CSEA submitted a demand for arbitration to the American Arbitration Association [AAA] challenging the employee’s dismissal.
North Hampstead filed an Article 75 petition to stay the arbitration contending that under the parties' collective bargaining agreement as well as a subsequent stipulation entered into between the parties, the demand for arbitration to the AAA had to be made within 10 days after the termination of the employee's employment.* The Town’s theory: CSEA’s demand for arbitration was untimely and it was thus entitled to a permanent stay of arbitration.
Although Supreme Court granted the Town’s petition, holding that "[t]here is no precedent for finding that notice to the [Town] of an intent to arbitrate also constitutes timely notice to the AAA as required by the [2008 stipulation],” the Appellate Division reversed the lower court’s decision.
In this instance, said the court, the relevant provisions state that "[w]ithin ten (10) days after . . . discharge . . . only the Union may proceed to Disciplinary Arbitration by written notification to . . . the Town Attorney, and in accordance with the rules and requirements of the AAA as they relate to Labor Arbitration."** This language, said the Appellate Division, “does not require that a demand for arbitration be made to the AAA within that 10-day period.” It simply requires that the Town be notified of the union’s intent within such period.
The court explained that the Stipulation, requiring that a demand for arbitration be made to the AAA within 10 days, refers only to those situations where there has been a Step 1 disciplinary procedure. Here there was “no such Step 1 procedure” making the 10-day rule for making a demand for arbitration to the AAA inapplicable.
Finally, said the court, “to the extent that the subject language governing the time to demand arbitration may be ambiguous, it should be resolved in favor of the employee's right to proceed to arbitration.”
* The Appellate Division noted that the Stipulation specifically provides that the Agreement's time "deadlines . . . are conditions precedent to arbitration." Rejecting CSEA argument that the issue of whether its demand for arbitration was timely made to AAA was for the arbitrator to determine, the court, citing Matter of All Metro Health Care Serv., Inc. v Edwards, 57 AD3d 892, ruled that a court, rather than an arbitrator, was to decide the matter.
** AAA rules do not impose any time limits for filing a demand for arbitration
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08121.htm
NYPP:
Matter of Town of N. Hempstead v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 08121, decided on November 9, 2010, Appellate Division, Second Department
Two days after the Town of North Hempstead terminated the employment of an employee CSEA advised the Town that it intended to proceed to arbitration. Two months after the employee’s date of dismissal CSEA submitted a demand for arbitration to the American Arbitration Association [AAA] challenging the employee’s dismissal.
North Hampstead filed an Article 75 petition to stay the arbitration contending that under the parties' collective bargaining agreement as well as a subsequent stipulation entered into between the parties, the demand for arbitration to the AAA had to be made within 10 days after the termination of the employee's employment.* The Town’s theory: CSEA’s demand for arbitration was untimely and it was thus entitled to a permanent stay of arbitration.
Although Supreme Court granted the Town’s petition, holding that "[t]here is no precedent for finding that notice to the [Town] of an intent to arbitrate also constitutes timely notice to the AAA as required by the [2008 stipulation],” the Appellate Division reversed the lower court’s decision.
In this instance, said the court, the relevant provisions state that "[w]ithin ten (10) days after . . . discharge . . . only the Union may proceed to Disciplinary Arbitration by written notification to . . . the Town Attorney, and in accordance with the rules and requirements of the AAA as they relate to Labor Arbitration."** This language, said the Appellate Division, “does not require that a demand for arbitration be made to the AAA within that 10-day period.” It simply requires that the Town be notified of the union’s intent within such period.
The court explained that the Stipulation, requiring that a demand for arbitration be made to the AAA within 10 days, refers only to those situations where there has been a Step 1 disciplinary procedure. Here there was “no such Step 1 procedure” making the 10-day rule for making a demand for arbitration to the AAA inapplicable.
Finally, said the court, “to the extent that the subject language governing the time to demand arbitration may be ambiguous, it should be resolved in favor of the employee's right to proceed to arbitration.”
* The Appellate Division noted that the Stipulation specifically provides that the Agreement's time "deadlines . . . are conditions precedent to arbitration." Rejecting CSEA argument that the issue of whether its demand for arbitration was timely made to AAA was for the arbitrator to determine, the court, citing Matter of All Metro Health Care Serv., Inc. v Edwards, 57 AD3d 892, ruled that a court, rather than an arbitrator, was to decide the matter.
** AAA rules do not impose any time limits for filing a demand for arbitration
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08121.htm
NYPP:
Hearsay evidence may be the basis for an administrative disciplinary determination
Hearsay evidence may be the basis for an administrative disciplinary determination
Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 07932, Decided on November 3, 2010, Appellate Division, Second Department
Thomas Hughes, an Office of Court Administration [OCA] court officer, was served with disciplinary charges alleging, among other offenses, failing to keep his uniform in proper condition, failing to keep his weapon properly loaded, and keeping an impermissible metal-jacketed round in his weapon.
The disciplinary hearing officer found that Hughes was guilty of “engaging in acts of misconduct and incompetency prejudicial to the good order and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court office.” OCA accepted the hearing officer’s recommendation that Hughes be dismissed from his position.
Hughes filed a petition pursuant to CPLR Article 78 seeking a court order vacating OCA’s decision to terminate him.
The Appellate Division dismissed Hughes petition noting that “appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.” In this instance, said the court, the hearing officer’s findings were supported by substantial evidence.*
Addressing another issue concerning the evidence presented in the course of the disciplinary hearing, the Appellate Division commented that “Hearsay evidence may be the basis for an administrative determination,” citing Gray v Adduci, 73 NY2d 741.
As to the penalty imposed, dismissal, the court said that “termination of employment was not so disproportionate to the misconduct as to shock the conscience.”
* Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07932.htm
NYPPL
Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 07932, Decided on November 3, 2010, Appellate Division, Second Department
Thomas Hughes, an Office of Court Administration [OCA] court officer, was served with disciplinary charges alleging, among other offenses, failing to keep his uniform in proper condition, failing to keep his weapon properly loaded, and keeping an impermissible metal-jacketed round in his weapon.
The disciplinary hearing officer found that Hughes was guilty of “engaging in acts of misconduct and incompetency prejudicial to the good order and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court office.” OCA accepted the hearing officer’s recommendation that Hughes be dismissed from his position.
Hughes filed a petition pursuant to CPLR Article 78 seeking a court order vacating OCA’s decision to terminate him.
The Appellate Division dismissed Hughes petition noting that “appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.” In this instance, said the court, the hearing officer’s findings were supported by substantial evidence.*
Addressing another issue concerning the evidence presented in the course of the disciplinary hearing, the Appellate Division commented that “Hearsay evidence may be the basis for an administrative determination,” citing Gray v Adduci, 73 NY2d 741.
As to the penalty imposed, dismissal, the court said that “termination of employment was not so disproportionate to the misconduct as to shock the conscience.”
* Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07932.htm
NYPPL
Termination during probation
Termination during probation
Rigney v Nassau Co. CSC, NYS Supreme Court, [Not selected for publication in the Official Reports]
The Rigney decision illustrates that individuals who complain that their employer acted in bad faith in terminating them prior to the end of their probationary periods must demonstrate that their probationary performance was otherwise satisfactory in order to prevail.
Rigney, a former Nassau County probationary police officer, complained that her supervisor, Sergeant Daniel P. Flanagan, arbitrarily decided that she would not successfully complete her training at the Police Academy. According to her complaint, Sergeant Flanagan told Rigney “that the decision was already made and that it was only a matter of time before she was terminated.”
Ultimately the Academy’s Deputy Inspector, George Gudmundsen, recommended that Rigney be terminated because she had not maintained a 75 percent average, which constituted “unsatisfactory performance during her probationary period including a failure to satisfy the minimum academic criteria” The report also said that Rigney “repeatedly argues with Academy staff members”; “failed simulations training”; and “repeatedly failed to address Academy staff members in [the] prescribed manner.”
Rigney sued, seeking a court order annulling her dismissal. She contended that her termination was made in bad faith because “Sergeant Flanagan arbitrarily determined that she would be terminated notwithstanding [her attaining] a passing (i.e., 75 percent or higher average) grade.”
State Supreme Court Justice McCaffrey pointed out that a probationary employee, unlike a tenured public employee, has no property rights in the position and can be discharged without a hearing and without a stated specific reason, provided that: (1) the employee has completed the minimum but not yet served the maximum period of probation, (2) the discharge is in good faith, and (3) the action is not in violation of constitutional, statutory, or decisional law. [See McKee v. Jackson, 152 AD2d 547].
Justice McCaffrey dismissed Rigney’s petition, commenting that even assuming that Nassau County had predetermined that Rigney was to be terminated irrespective of her final grade, her unilateral failure to acquire the minimum passing average (75 percent) provided an independent lawful predicate for terminating her employment.
Significantly, the employee has the burden of proof in actions challenging his or her dismissal during the probationary period. As the Appellate Division recently stated in dismissing an appeal filed by a former probationer at the Town of Brookhaven, the employee has a burden to present “legal and competent evidence to show a deprivation of his rights, bad faith, or other arbitrary action constituting an abuse of discretion” by the employer [Iannuzzi v Town of Brookhaven, 258 AD2d 651].
In Iannuzzi’s case, the Appellate Division said that Iannuzzi’s termination “was based upon his unsatisfactory performance and was not arbitrary and capricious, but had a rational basis and was carried out in good faith.”
NYPPL
Rigney v Nassau Co. CSC, NYS Supreme Court, [Not selected for publication in the Official Reports]
The Rigney decision illustrates that individuals who complain that their employer acted in bad faith in terminating them prior to the end of their probationary periods must demonstrate that their probationary performance was otherwise satisfactory in order to prevail.
Rigney, a former Nassau County probationary police officer, complained that her supervisor, Sergeant Daniel P. Flanagan, arbitrarily decided that she would not successfully complete her training at the Police Academy. According to her complaint, Sergeant Flanagan told Rigney “that the decision was already made and that it was only a matter of time before she was terminated.”
Ultimately the Academy’s Deputy Inspector, George Gudmundsen, recommended that Rigney be terminated because she had not maintained a 75 percent average, which constituted “unsatisfactory performance during her probationary period including a failure to satisfy the minimum academic criteria” The report also said that Rigney “repeatedly argues with Academy staff members”; “failed simulations training”; and “repeatedly failed to address Academy staff members in [the] prescribed manner.”
Rigney sued, seeking a court order annulling her dismissal. She contended that her termination was made in bad faith because “Sergeant Flanagan arbitrarily determined that she would be terminated notwithstanding [her attaining] a passing (i.e., 75 percent or higher average) grade.”
State Supreme Court Justice McCaffrey pointed out that a probationary employee, unlike a tenured public employee, has no property rights in the position and can be discharged without a hearing and without a stated specific reason, provided that: (1) the employee has completed the minimum but not yet served the maximum period of probation, (2) the discharge is in good faith, and (3) the action is not in violation of constitutional, statutory, or decisional law. [See McKee v. Jackson, 152 AD2d 547].
Justice McCaffrey dismissed Rigney’s petition, commenting that even assuming that Nassau County had predetermined that Rigney was to be terminated irrespective of her final grade, her unilateral failure to acquire the minimum passing average (75 percent) provided an independent lawful predicate for terminating her employment.
Significantly, the employee has the burden of proof in actions challenging his or her dismissal during the probationary period. As the Appellate Division recently stated in dismissing an appeal filed by a former probationer at the Town of Brookhaven, the employee has a burden to present “legal and competent evidence to show a deprivation of his rights, bad faith, or other arbitrary action constituting an abuse of discretion” by the employer [Iannuzzi v Town of Brookhaven, 258 AD2d 651].
In Iannuzzi’s case, the Appellate Division said that Iannuzzi’s termination “was based upon his unsatisfactory performance and was not arbitrary and capricious, but had a rational basis and was carried out in good faith.”
NYPPL
A public employer may discipline an employee for refusing to support employer’s change in its operation
A public employer may discipline an employee for refusing to support employer’s change in its operation
Lewis v Cowen,165 F.3d 154
Lewis v Cowen,165 F.3d 154
J. Blaine Lewis, head of Connecticut’s lottery, was fired for refusing to publicly support a change in the lottery’s operations. Lewis was an unclassified employee and served at the pleasure of the Executive Director of the Connecticut Division of Special Revenue and the Gaming Policy Board.
Lewis had national prominence in the public gaming community. He served as President of the National Association of State and Provincial Lotteries, an association of public gaming executives in the United States and Canada, and had been featured on the cover of Public Gaming International, a trade magazine.
Problems began in 1988, when the state awarded a contract to install a statewide computer system for the sale of lottery tickets to General Instrument Corporation (GIC). Lewis opposed this move. After GIC’s system malfunctioned and created a system-wide breakdown of on-line sales, Lewis criticized GIC to the press. The board ordered him and other unit heads to stop all media contact, but this gag order was eventually lifted.
Another change Lewis opposed was increasing the pool of numbers from which the winning Lotto numbers were picked was from 40 to 44. Lewis believed that revenues would decrease and suspected that GIC had recommended the change merely to cover up problems with on-line ticketing.
His superior, the Executive Director, ordered him to present the change to the Board at a public meeting and to cite “all positives and no negatives.” Lewis balked and was fired by the board one day after it unanimously approved the change.
Lewis sued, contending that his termination constituted a violation of his First Amendment rights. He won a substantial jury verdict in U.S. District Court -- $2 million in compensatory damages and punitive damages plus $380,000 in attorney’s fees.
On appeal, the Second Circuit U.S. Court of Appeals reversed. While “it is by now well established that public employees do not check all of their First Amendment rights at the door upon accepting public employment,” the court said that Lewis’ case involves a different issue: may a public employer discipline an employee for refusing to speak?
Connecticut argued that it was entitled to terminate Lewis pursuant to the standard announced in cases such as Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968), and in the alternative, that its decision to terminate Lewis is shielded by a qualified immunity. The Circuit Court applied the so-called Pickering balancing test typically used in considering free-speech cases involving public employees in resolving the issue.
The Pickering test has two elements. The court must first decide whether the speech addresses a matter of public concern. If so, the court then must balance the interests of the employer in providing “effective and efficient” public services against the employee’s First Amendment right to free expression. The court addressed two key questions:
1. Did Lewis’s refusal to speak to the Board touch on a matter of public concern?; and
2. Did the potential disruptiveness of Lewis’s refusal to speak outweigh his First Amendment-based interest in not speaking?
Reviewing the evidence, the circuit panel concluded that as a matter of law Connecticut’s interest in the effective and efficient operation of its Lottery Division outweighed Lewis’s First Amendment interest in refusing to present the proposed Lotto change before the Board in a positive manner.
State officials testified that Lewis’s speech would “potentially interfere” with the Division’s operations and that his refusal to promote the proposed change would result in negative publicity and decreased morale, in turn impairing the profitability of the lottery. Concluding that under the circumstances Lewis’s termination was justified, the Court ruled that:
1. The lower court should have dismissed the action on the ground of qualified immunity.
2. The state defendants are immune from liability on Lewis’s state law wrongful discharge claim.
The decision also considered “the exceptional significance of a government employee’s interest in testifying truthfully before a legislative committee,” referring to Piesco v City of New York, 933 F.2d 1149,. In Piesco, the Second Circuit “refused to force employees like Dr. Piesco to choose between answering questions honestly and risk being fired on one hand, and committing perjury on the other” holding that there was no evidence that Dr. Piesco’s testimony interfered with government operations in a manner outweighing Dr. Piesco’s strong interest in testifying truthfully.
In contrast, the court said although Lewis had a strong First Amendment interest in testifying truthfully before the Board, it “did not believe that interest to have been implicated here because Lewis was directed to present the Division’s views, not his own.”
NYPPL
Employee has the burden of showing the abolishment of his or her position was not made in good faith
Employee has the burden of showing the abolishment of his or her position was not made in good faith
Belvey v Tioga County, 257 AD2d 967
In January 1998 the Tioga County legislature abolished its position of Director of Data Processing and, implementing recommendations by both a private consultant and the Governor’s Task Force on Information Resource Management regarding future data processing needs for the county, created a new position -- Director, Division of Information Technology and Communication Services.
Richard J. Belvey, the then Director of Data Processing was terminated when that position was abolished. Efforts to find Belvey alternative employment with the County were unsuccessful. He sued, seeking reinstatement to either his former position or the new position or appointment to a similar one within Tioga County’s public service.
Belvey alleged that characterizing the abolition of his position as being undertaken for the purpose of economy or efficiency was a “subterfuge to avoid the statutory protection afforded to civil servants [by Civil Service Law Section 75].”
The Appellate Division disagreed, and dismissed his appeal. The court noted that the record demonstrated that the county had undertaken a needed expansion of its computer operations and required an individual “with qualifications far greater than that previously required.”
The decision also stated that the new position was in the noncompetitive class and required either a master’s degree in computer science and three years of experience or a bachelor’s degree and five years of experience. Presumably Belvey could not meet either of these requirements of training and experience.
The Appellate Division held that the county met its burden of showing that the former director of data processing position was abolished for economic or efficiency reasons. Accordingly, the burden shifted to Belvey to demonstrate that the county did not act in good faith or that his termination was based upon his job performance.
Belvey, said the court, failed to show that there the county’s decision was arbitrary or capricious by demonstrating that there were no bona fide reasons for the elimination of his position or that someone was hired to replace him as Director of Data Processing. Thus Belvey did not demonstrate that the protections afforded by Civil Service Law Section 75 were triggered when his position was abolished and he was laid off [Section 80 of the Civil Service Law].
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NYPPL
Belvey v Tioga County, 257 AD2d 967
In January 1998 the Tioga County legislature abolished its position of Director of Data Processing and, implementing recommendations by both a private consultant and the Governor’s Task Force on Information Resource Management regarding future data processing needs for the county, created a new position -- Director, Division of Information Technology and Communication Services.
Richard J. Belvey, the then Director of Data Processing was terminated when that position was abolished. Efforts to find Belvey alternative employment with the County were unsuccessful. He sued, seeking reinstatement to either his former position or the new position or appointment to a similar one within Tioga County’s public service.
Belvey alleged that characterizing the abolition of his position as being undertaken for the purpose of economy or efficiency was a “subterfuge to avoid the statutory protection afforded to civil servants [by Civil Service Law Section 75].”
The Appellate Division disagreed, and dismissed his appeal. The court noted that the record demonstrated that the county had undertaken a needed expansion of its computer operations and required an individual “with qualifications far greater than that previously required.”
The decision also stated that the new position was in the noncompetitive class and required either a master’s degree in computer science and three years of experience or a bachelor’s degree and five years of experience. Presumably Belvey could not meet either of these requirements of training and experience.
The Appellate Division held that the county met its burden of showing that the former director of data processing position was abolished for economic or efficiency reasons. Accordingly, the burden shifted to Belvey to demonstrate that the county did not act in good faith or that his termination was based upon his job performance.
Belvey, said the court, failed to show that there the county’s decision was arbitrary or capricious by demonstrating that there were no bona fide reasons for the elimination of his position or that someone was hired to replace him as Director of Data Processing. Thus Belvey did not demonstrate that the protections afforded by Civil Service Law Section 75 were triggered when his position was abolished and he was laid off [Section 80 of the Civil Service Law].
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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
Retirement benefits based on only an employee’s regular salary and termination pay or other compensation paid in anticipation of retirement excluded
Retirement benefits based on only an employee’s regular salary and termination pay or other compensation paid in anticipation of retirement excluded
Davies v NYS LPFRS, 259 AD2d 912, motion for leave to appeal denied, 93 NY2d 810
A Taylor Law contract negotiated by the City of Corning and its police officers allowed unit members to elect to participate in a “senior officer” program. This program permitted police officers electing to participate to give up 20 percent of their accumulated sick leave credits in exchange for a salary increase equal to 30 percent of the value of his or her remaining sick leave accruals. This increased hourly rate applied to a participant’s base salaries, overtime credits and holiday pay.
The Local Police and Fireman Retirement System [LPFRS] subsequently advised retired participants of the “senior officer” program that the increase in their base salaries resulting from their participation in the program should not have been included in determining their “final average salary” for purposes of calculating their retirement allowance.
As a result, the retirement allowances of such retired officers were recalculated and reduced. LPFRS than made arrangements to recoup the overpayments that it had made to such retirees. Terrance Davies appealed this ruling by LPFRS to the Comptroller seeking reinstatement of their initial retirement benefit.
The Comptroller denied their appeal, concluding that Corning’s senior officer program “was nothing more than an attempt to circumvent the prohibition contained in Retirement and Social Security Law Section 431.” Section 431, said the Comptroller, prohibits the Retirement System from using accumulated sick leave credits in calculating an applicant’s final average salary.
Unhappy with this ruling, Davies, together with other retirees affected by the Comptroller’s decision filed an Article 78 [Article 78, Civil Practice Law and Rules] seeking reversal of the Comptroller’s determination and an order reinstating their former level of retirement benefits.
The Appellate Division commenced its analysis of Davies’ appeal by commenting that “it is well settled that the Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld. Based upon its review of the record as a whole, the panel said that “we cannot say that such determination is not supported by substantial evidence.”
The decision noted that in Tooley v McCall, 676 NY2d 259 the Appellate Division ruled that, “retirement benefits are to be computed on the basis of an employee’s regular salary and not on any kind of termination pay or other form of additional compensation paid in anticipation of retirement.”
The court rejected Davies’ argument that the “senior officer” program did not violate Section 431 because the participants had not received a lump-sum payment of accumulated sick leave credits.
The Appellate Division said that such an argument “misses the mark.” In determining what constitutes termination pay or compensation paid in anticipation of retirement, the panel said that it “must look to the substance of the transaction and not to what the parties may label it.” Concluding, as did the Comptroller, that the senior officer program was designed to circumvent the provisions of Retirement and Social Security Law Section 431, the Appellate Division dismissed the appeal.
The clear lesson here is that courts will not allow parties to obtain a benefit otherwise prohibited by law by including the benefit in a collective bargaining agreement negotiated pursuant to the Taylor Law.
One issued not addressed in the opinion was whether the election to participate in the “senior officer” program had an adverse impact on the benefits otherwise available to participants as a result of the Comptroller’s determination and, if so, what remedy, if any, the retired police officers had available to them.
NYPPL
Davies v NYS LPFRS, 259 AD2d 912, motion for leave to appeal denied, 93 NY2d 810
A Taylor Law contract negotiated by the City of Corning and its police officers allowed unit members to elect to participate in a “senior officer” program. This program permitted police officers electing to participate to give up 20 percent of their accumulated sick leave credits in exchange for a salary increase equal to 30 percent of the value of his or her remaining sick leave accruals. This increased hourly rate applied to a participant’s base salaries, overtime credits and holiday pay.
The Local Police and Fireman Retirement System [LPFRS] subsequently advised retired participants of the “senior officer” program that the increase in their base salaries resulting from their participation in the program should not have been included in determining their “final average salary” for purposes of calculating their retirement allowance.
As a result, the retirement allowances of such retired officers were recalculated and reduced. LPFRS than made arrangements to recoup the overpayments that it had made to such retirees. Terrance Davies appealed this ruling by LPFRS to the Comptroller seeking reinstatement of their initial retirement benefit.
The Comptroller denied their appeal, concluding that Corning’s senior officer program “was nothing more than an attempt to circumvent the prohibition contained in Retirement and Social Security Law Section 431.” Section 431, said the Comptroller, prohibits the Retirement System from using accumulated sick leave credits in calculating an applicant’s final average salary.
Unhappy with this ruling, Davies, together with other retirees affected by the Comptroller’s decision filed an Article 78 [Article 78, Civil Practice Law and Rules] seeking reversal of the Comptroller’s determination and an order reinstating their former level of retirement benefits.
The Appellate Division commenced its analysis of Davies’ appeal by commenting that “it is well settled that the Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld. Based upon its review of the record as a whole, the panel said that “we cannot say that such determination is not supported by substantial evidence.”
The decision noted that in Tooley v McCall, 676 NY2d 259 the Appellate Division ruled that, “retirement benefits are to be computed on the basis of an employee’s regular salary and not on any kind of termination pay or other form of additional compensation paid in anticipation of retirement.”
The court rejected Davies’ argument that the “senior officer” program did not violate Section 431 because the participants had not received a lump-sum payment of accumulated sick leave credits.
The Appellate Division said that such an argument “misses the mark.” In determining what constitutes termination pay or compensation paid in anticipation of retirement, the panel said that it “must look to the substance of the transaction and not to what the parties may label it.” Concluding, as did the Comptroller, that the senior officer program was designed to circumvent the provisions of Retirement and Social Security Law Section 431, the Appellate Division dismissed the appeal.
The clear lesson here is that courts will not allow parties to obtain a benefit otherwise prohibited by law by including the benefit in a collective bargaining agreement negotiated pursuant to the Taylor Law.
One issued not addressed in the opinion was whether the election to participate in the “senior officer” program had an adverse impact on the benefits otherwise available to participants as a result of the Comptroller’s determination and, if so, what remedy, if any, the retired police officers had available to them.
NYPPL
Settlement of disciplinary arbitration must be in writing to be enforced by a court
Settlement of disciplinary arbitration must be in writing to be enforced by a court
Marpe v Dometsch, 256 AD2d 914
Sometimes the parties to a grievance or disciplinary proceeding agree to “settle” the matter. The terms of the settlement may be read into the record at an administrative hearing or before an arbitrator or the parties may simply “sign an agreement of settlement.” The Marpe case shows that the settlement of a pending lawsuit must follow a more formal procedure.
Terri L. Marpe sued Paul Dometsch and Capital Area Community Health Plan Inc. [CHP], alleging that sexual harassment and negligence arising out of psychiatric treatment provided by her supervisor, Paul Dometsch. During a pretrial deposition with her attorney, Marpe and CHP entered into an on-the-record oral stipulation of settlement providing that Marpe would execute a written release and confidentiality agreement in exchange for CHP’s agreement to pay her a specified sum of money. CHP forwarded the proposed settlement papers to Marpe but she refused to sign them. When a State Supreme Court justice denied CHP’s motion to enforce the stipulation of settlement, it appealed.
The Appellate Division affirmed the lower court’s determination, commenting that “a stipulation of settlement is not enforceable unless it is made in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys.” Since the stenographic record created at the deposition was made outside the presence of a judge, the Appellate Division ruled that it was insufficient to satisfy the requirements of Section 2104 of the Civil Practice Law and Rules.
NYPPL
Marpe v Dometsch, 256 AD2d 914
Sometimes the parties to a grievance or disciplinary proceeding agree to “settle” the matter. The terms of the settlement may be read into the record at an administrative hearing or before an arbitrator or the parties may simply “sign an agreement of settlement.” The Marpe case shows that the settlement of a pending lawsuit must follow a more formal procedure.
Terri L. Marpe sued Paul Dometsch and Capital Area Community Health Plan Inc. [CHP], alleging that sexual harassment and negligence arising out of psychiatric treatment provided by her supervisor, Paul Dometsch. During a pretrial deposition with her attorney, Marpe and CHP entered into an on-the-record oral stipulation of settlement providing that Marpe would execute a written release and confidentiality agreement in exchange for CHP’s agreement to pay her a specified sum of money. CHP forwarded the proposed settlement papers to Marpe but she refused to sign them. When a State Supreme Court justice denied CHP’s motion to enforce the stipulation of settlement, it appealed.
The Appellate Division affirmed the lower court’s determination, commenting that “a stipulation of settlement is not enforceable unless it is made in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys.” Since the stenographic record created at the deposition was made outside the presence of a judge, the Appellate Division ruled that it was insufficient to satisfy the requirements of Section 2104 of the Civil Practice Law and Rules.
NYPPL
Educator’s assignments must be consistent with tenure area of the position in which he or she is employed
Educator’s assignments must be consistent with tenure area of the position in which he or she is employed
Banschback v Middle Country CSD, CEd. 14078
Dowler v Middle Country CSD, CEd 14078
Eileen Banschback and Timothy Dowler, certified physical education teachers, were employed by the Middle Country Central School District as teaching assistants* and assigned to teach adaptive physical education under the general supervision of a certified physical education teacher.
The district conceded that they were to perform “primary instruction duties” related to adaptive physical education such as individualized education plans and preparing lesson plans, teaching students, determining student grades and giving supervision and direction to teacher aides.
Both teaching assistants appealed to the Commissioner of Education, contending that their assignments violated State Education Department guidelines and constituted an assignment outside their teaching assistant tenure area.
The Commissioner set out the following guidelines concerning their assignment:
1. Without a certified teacher present, Banschback and Dowler may teach adaptive physical education and supervise and direct teacher aides assigned to such classes, provided that they do so under the general supervision of such a teacher.
2. The certified teacher must review and approve the lesson plans and progress reports prepared by Banschback and Dowler as “deficient supervision may, as a practical matter, result in teachers being supplanted by teaching assistants, which is not permissible under law.”
* Section 80.33(b)(1) of the Commissioner’s Regulations defines a teaching assistant as a person “appointed by a board of education to provide, under the general supervision of a licensed or certified teacher, direct instructional services to students.”
NYPPL
Banschback v Middle Country CSD, CEd. 14078
Dowler v Middle Country CSD, CEd 14078
Eileen Banschback and Timothy Dowler, certified physical education teachers, were employed by the Middle Country Central School District as teaching assistants* and assigned to teach adaptive physical education under the general supervision of a certified physical education teacher.
The district conceded that they were to perform “primary instruction duties” related to adaptive physical education such as individualized education plans and preparing lesson plans, teaching students, determining student grades and giving supervision and direction to teacher aides.
Both teaching assistants appealed to the Commissioner of Education, contending that their assignments violated State Education Department guidelines and constituted an assignment outside their teaching assistant tenure area.
The Commissioner set out the following guidelines concerning their assignment:
1. Without a certified teacher present, Banschback and Dowler may teach adaptive physical education and supervise and direct teacher aides assigned to such classes, provided that they do so under the general supervision of such a teacher.
2. The certified teacher must review and approve the lesson plans and progress reports prepared by Banschback and Dowler as “deficient supervision may, as a practical matter, result in teachers being supplanted by teaching assistants, which is not permissible under law.”
* Section 80.33(b)(1) of the Commissioner’s Regulations defines a teaching assistant as a person “appointed by a board of education to provide, under the general supervision of a licensed or certified teacher, direct instructional services to students.”
NYPPL
Nov 10, 2010
New York Public Personnel Law readers
New York Public Personnel Law readers
Source: Google/Blogspot Statistical Report
Google/Blogspot reports that during the past six month the "top ten" of NYPPL readers were from the following nations:
Nation………………# of Readers
United States............34.721
Germany………………..1.207
Russia………………………643
France……………………..608
Netherlands……………..477
United Kingdom……….415
South Korea……...………395
Canada…………….……….312
Ukraine………...…………170
Philippines………………..140
NYPPL
Source: Google/Blogspot Statistical Report
Google/Blogspot reports that during the past six month the "top ten" of NYPPL readers were from the following nations:
Nation………………# of Readers
United States............34.721
Germany………………..1.207
Russia………………………643
France……………………..608
Netherlands……………..477
United Kingdom……….415
South Korea……...………395
Canada…………….……….312
Ukraine………...…………170
Philippines………………..140
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.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
CAUTION
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