Determining the distribution of a divorced pubic employee’s retirement allowance

Determining the distribution of a divorced pubic employee’s retirement allowance

Bodolato v Bodolato, Supreme Court, Judge Mills [subsequent appeal withdrawn, 305 A.D.2d 1124]

An individual's public pension benefit is a "marital asset" under New York State Law. Accordingly, it sometimes becomes necessary to determine the value of the pension and, or, the annuity available to a public employee in the course of a divorce action.

In Bodolato v Bodolato both parties conceded that each was entitled to one-half of the value of New York City police officer Bodolato's pension benefits and deferred annuity. But establishing the value of Bodolato's pension benefits and annuity proved to be another matter.

Mrs. Bodolato contended that she was entitled to one-half of the value of Bodolato's New York City Police Department pension and deferred annuity based on its value as of the date she commenced her action for divorce. Her spouse, in contrast, argued that the value of his pension and annuity should be determined on the basis of the pension's and annuity's "market or present value" at the time of the trial -- now several years later -- in order "to avoid [Mrs. Bodolato getting] a windfall."

In support of her claim, Mrs. Bodolato cited Majauskas v Majauskas 61 NY2d 481. Officer Bodolato, on the other hand, argued that the court's ruling in Burgio v Burgio, 278 AD2d 767, set out proper standard to be applied in this situation.

Justice Mills observed that there was a significant difference between the situation in Burgio and the situation in the Bodolato action for divorce. In Burgio the plaintiff wanted a lump sum payment of pension funds that had not yet vested. Here, in contrast, Bodolato had retired from the NYPD and thus, said the court, his pension and annuity benefits have been determined.

Mrs. Bodolato had commenced her divorce action before her husband had actually retired from the Police Department. Accordingly, Justice Mills ruled that the formula set by the Court of Appeals in Majauskas controlled and thus the value of the pension and the annuity to which Mrs. Bodolato was entitled should be determined:

1. As of the date of the commencement of the divorce action by Mrs. Bodolato; and

2. In accordance with the following "Majauskas formula."

The "percentage [of Bodolato's retirement and annuity allowance] to be derived by dividing the number of months the parties were married before the commencement of the action [divided] by the total number of months of credit [Bodolato] will have earned toward his pension as of the date of [his] retirement."

If nothing else, the Bodolato decision demonstrates the complex issues that the parties may experience in attempting to establish the value of an individual's retirement benefit in order to determine the "marital distribution" of the benefit in a divorce proceeding. If the marital distribution determination involves an individual entitled to a "vested retirement allowance" -- i.e., the individual has not actually retired but is entitled to "pension and annuity benefits" upon retirement -- there may be even more complex issues to address and resolve.

Duty of fair representation

Duty of fair representation
Bruns and Council 82, 35 PERB 2023

Unit member's dissatisfaction with his or her representation by the union in a grievance that resulted in a negotiated settlement rather than proceeding to arbitration, did not, without more, establish a prima facie case that the union breached its duty of fair representation as a member's "disagreement with the tactics utilized or his or her dissatisfaction with the quality and extent of representation" does not constitute a breach of the union's duty of fair representation. 

Union did not violate its duty of fair representation when union representative recommended that employer file disciplinary action

Union did not violate its duty of fair representation when union representative recommended that employer file disciplinary action
Mtr. of Donaldson and the UFT, et al., PERB case U-24893

PERB affirmed the decision of the ALJ dismissing the charge that UFT violated §209-a.2(c) of the Act when a UFT representative advised a Local Instructional Superintendent to initiate disciplinary charges against Donaldson, a negotiating unit member, and that the District violated §209-a.1(a) when it miscalculated his years of service, failed to approve his line-of-duty injury designation and issued an unsatisfactory performance evaluation.

PERB found that the settlement agreement Donaldson signed that provided for his resignation and the dropping of the Education Law §3020-a charges brought by the District against him waived his right to file a charge alleging that the District miscalculated his years of service. 

Out of title work assignments

Out of title work assignments

Murphy v Herik, NYS Supreme Court [Not selected for publication in the Official Reports]

Out-of-title work usually refers to an employer assigning an individual to perform the duties of the incumbent of different, typically higher level, position. Section 61.2 of the Civil Service Law provides that:

Prohibition against out-of-title work. No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

Many collective bargaining agreements require that if the employer assigns an individual to perform "out-of-title" work for more than a designated period of time, he or she is to be compensated at the appropriate pay level of the higher position.

Detailing is used to describe a form of assigning an individual to perform "out-of-title" frequently encountered in law enforcement organizations. Its most common manifestation: assigning a police patrol officer to perform the duties of a detective or investigator. Officers detailed to perform the duties of a detective or an investigator typically are not permanently appointed to the position. Section 58.4.c(ii) of the Civil Service Law was enacted to address this practice and provides that:

In any jurisdiction, other than a city with a population of one million or more, which does not administer examinations for designation to detective or investigator, any person who has received permanent appointment to the position of police officer or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation.

By its terms, Section 58.4.c(11) does not cover New York City police officers. However, Section 14-103(b)(2) of the City's Administrative Code tracks Section 58.4.c[ii] and provides that a "permanent police officer who temporarily perform the functions of what is otherwise considered to be detective work for periods of 18 months or more are to be appointed as detectives and be compensated as such."

Michael Murphy, a New York City police officer, was assigned to the Harbor Unit, Vessel Theft Team. His duties included the investigation of stolen marine equipment; returning stolen property to its rightful owner and maintaining a working relationship with insurance companies for the purpose of identifying insurance fraud. After he had been performing these duties for over three years, Murphy's commanding officer, John Cassidy, recommended that Murphy be appointed to third-grade detective. Cassidy's justification for his recommendation: Murphy's primary responsibilities were those of a detective.

The Department rejected Cassidy's recommendation and Murphy filed a grievance challenging its decision. The Department denied Murphy's grievance and he commenced an Article 78 proceeding in March of 2001 seeking a court order directing his appointment as a detective.

The Department asked the court to dismiss Murphy's petition. It contended that its rejecting Murphy's appointment as a detective was justified because the Harbor Unit was specifically excluded from the career-path for detective by a lawful Department policy. Accordingly, the Department argued, Murphy can not be deemed to have been performing detective work as part of the Harbor Unit and therefore he was not eligible for appointment as a detective pursuant to Section 14-103(b) (2) of the Code.

The Department also contended that Murphy was aware of the fact that the Harbor Unit was not on the career path for detective when he accepted the assignment.

Murphy, on the other hand, contended that he was eligible for appointment as a detective pursuant to the Code, citing Ryff v Safir, 264 AD2d 349, as authority for this claim. In Ryff, the Appellate Division ruled that the fact that the Harbor Unit was not included in the Department's career-path for detective did not exempt it from the provisions of Administrative Code Section 14-103(b)(2).

Supreme Court Justice was to prevent the department rejected the Department's argument that appointment as a detective does not depend on the actual work performed but rather on whether or not the position is on the career path for detective. Justice Madden said that the legislative intent in both Section 58.4 of the Civil Service Law and Section 14-103(b)(2) of the City's Administrative Code "was to prevent the department, for budgetary reasons, from using non-detective track officers in detective track positions, while denying the officers the benefit of those positions."

In effect, the court decided that the Department's justification for its action placed form over substance. As Murphy's duties were substantially similar to that of detective, Justice Madden ruled that Murphy was entitled to appointment as a detective pursuant to Section 14-103(b)(2). Justice Madden pointed out that there was no dispute concerning Murphy's performing criminal investigative duties, noting that Murphy was awarded "Investigator of the Year" from the International Association of Marine Investigators.

Deciding that Department's ruling that Murphy was precluded from being appointed as detective simply because his position was not included in its designated "career path" for detectives was arbitrary and capricious, Justice Madden granted Murphy's petition and, in addition, ruled that Murphy was entitled to compensation as a detective beginning 18 months subsequent to his original appointment to the Harbor Unit.

The lesson of the Murphy decision is that employees may not be required to perform out-of-title duties except in cases involving a temporary emergency. If they are assigned, or permitted, to perform out-of-title duties when there is no temporary emergency, the employer may be held liable to pay any resulting salary differential.

One of the administrative procedures available to an individual who believes that he or she is being to required to perform higher level "out-of-title" work is to request that his or her position be reclassified to the higher level title -- i.e., a position allocated to a higher salary grade.

This is usually accomplished by filing a request for reclassification of the position with the responsible civil service commission or department.

The employer, also, may initiate a request for reclassification of a position. In some cases, the employer and the employee may file a "joint" application to have the position reclassified. Concerning a related point, classification and reclassification of a position focuses on the duties of a position while allocation or reallocation of a position is concerned with placing the position in the proper pay grade or setting its appropriate salary rate.

However, approval of an "out-of-title" reclassification application does not mean the individual has the right to be continued in the reclassified title. If a position in the competitive class is reclassified, the individual will have to qualify for permanent appointment to the new title by examination, despite the fact that he or she had been "performing the duties of the higher level position" and was instrumental in having it reclassified. The same applies with respect to qualifying for appointment to a higher level position in the noncompetitive class following reclassification of the lower level position.

In some instances this could result in the individual's being "reclassified out of his or her job." Some modest protections, however, may be available to the individual whose position has been reclassified to avoid this result, at least temporarily. For example, insofar as "employees of the State" are concerned, the State Civil Service Commission's Rules, [4 NYCRR 4.1(d) provide that:

A promotion eligible list shall not be certified for filling a permanent vacancy created by upward reclassification of a permanently encumbered position where promotion from such list would require the layoff of a permanent employee or the reassignment of a permanent employee to a different geographical location; but this provision shall not apply if the incumbent whose position was reclassified has, following such reclassification, twice failed to qualify for promotion to the reclassified position.

4 NYCRR 4.1(e) which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides similar protections with respect to the certification and use of an open competitive eligible list.

Many municipal civil service commissions have adopted similar rules.*

In another New York City Police Department [NYPD] "service as a detective" case, Finelli v Bratton, 298 A.D.2d 197, the issue was whether it was arbitrary and capricious for NYPD to determine that service by former Transit Authority [TAPD] police officer Nicholas G. Finelli did not qualify as "detective track" service.

According to the decision, such credit was properly denied since it was not established that Finelli performed investigative duties comparable to those performed in units given a detective track status after the TAPD's merger with the NYPD. In addition, the court said that detective track credit was properly refused for periods during which police officers were suspended from duty or on restricted, limited or modified duty.
 

* The Rules of the State Civil Service Commission specifically provide that "[e]xcept as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service” [4 NYCR 1.1]. However, rules adopted by a local commission or personnel officer are subject to the approval of the State Civil Service Commission [see generally Civil Service Law §20].

Political activities and public employment

Political activities and public employment

Davis v City of New York, USDC, SDNY, Judge Scheindlin

Election years often produce cases involving a public employee in the classified service seeking election to political office and the impact of federal and state law upon such efforts. Often the issue concerns the individual's right to continue as an employee while campaigning for such office. In the Davis case, the court also considered the liability of the employer that violates an individual's rights in such a situation.

One election-related statute is the federal Hatch Act [5 USC 1501]. The Hatch Act attempts to insulate the civil service from the influence of partisan politics. The Act requires, among other things, that state and municipal employees responsible for administering federal funds abstain from participating in partisan political activities, including running for office in a partisan election.

How is a partisan election defined? An election is partisan where the candidate is running as a representative of a political party whose presidential candidate received electoral votes at the preceding presidential election.

The Davis case involved a number of state and federal issues concerning a public employee running for elective office.

James Davis, a New York City police officer was on the 1998 Liberal Party "petition slate" for the upcoming November election. He "conducted a minimal campaign." On November 3, 1998, his name was listed on the election ballot as the Liberal Party's nominee for Member of the State Assembly. The next day the Department dismissed him, stating that it had terminated Davis "for violating a law that prohibits police officers from accepting a political party's nomination without resigning their commission." citing Chapter 49, Section 1129 of the New York City Charter.*

Significantly, the Police Department did not cite the Hatch Act in its defense, presumably because Davis was not involved in the administration of federal funds.

In another case involving the Hatch Act, the individual seeking elective office was a postal worker. In Merle v United States, USDC DNJ, Civ. 02-3469, a federal district court judge upheld the Act's prohibition on federal workers continuing in service while running for elective officer. US District Court Judge Joseph Irenas ruled that the Hatch Act did "not prevent ... participation as a candidate ... but instead constitutes a valid attempt on the part of Congress to insulate public employees from partisan political influence."

Judge Irenas held that the Hatch Act did not require Merle to quit his job to appear on the ballot but merely forces him to choose between his job and elective office. According to the ruling, the individual "need not even resign from his position in order to appear on the ballot, as the burden is upon the government to respond to his candidacy with a sanction for removal or suspension."

In Davis' case, the New York City Police Department "responded to his candidacy" by removing him from his position pursuant to the mandates of the City's Charter.

Davis subsequently asked to be reinstated to his former position because, as it turned out, he was never actually a bona fide nominee for elective office. Why not" Because he had not filed the required certificate accepting the nomination.

The Board of Elections confirmed this fact by writing the Department that it had included Davis' name on the ballot in error. Still the Department refused to reinstate Davis and he sued. About a year later New York State Supreme Court Justice Barbara R. Kapnick ruled that Davis had not violated Section 1129 and "ordered that the Police Department reinstate Davis as a police office forthwith with back pay."

Davis, however, continued to press his federal civil rights law suit, claiming that the Department's initial refusal to reinstate him was a violation of his rights under 42 USC 1983 and, in addition, had retaliated against him by refusing to reinstate him when it learned of his "non-candidacy" in violation of 42 USC 1983 because:

1. He had challenged the Democratic incumbent, Clarence Norman, in a primary election the summer of 1998;

2. He had criticizing the Police Department for police brutality over the years; and

3. He had spoke out on issues of public concern.

Although Davis won a $100,000 jury verdict for damages, Federal District Court Judge Scheindlin set it aside. Judge Scheindlin said that although Davis showed that his constitutional rights were, indeed, violated, he did not prove the second element required for him to prevail: that the unconstitutional act was the result of a "policy" or "custom" of retaliation in the agency.

Judge Scheindlin explained that "municipalities such as the City of New York may only be held liable when the city itself deprives an individual of a constitutional right." Thus, ruled the court, in order for an individual deprived of a constitutional right to have recourse against a municipality under 42 USC 1983, he or she must show that he or she was harmed by a municipal "policy" or "custom," citing Monell v New York City Department of Social Services, 436 US 658. Judge Scheindlin also noted that "[a] municipality may not be held vicariously liable under Section 1983 on the basis of its employer-employee relationship with the employee" because "a municipality may not be held liable on a theory of respondeat superior."

* Section 1129 provides that "Any ... member of the police force ... who shall during his or her term of office be nominated for any office elective by the people ... and shall not, within ten days succeeding same, decline the said nomination, shall be deemed thereby to have resigned his or her commission and to have vacated his or her office

PERB rejects improper practice charge filed by a non-public employee

PERB rejects improper practice charge filed by a non-public employee

Nagy and SUNY at Buffalo, 35 PERB 3025.

PERB declined to assume jurisdiction to consider an individual's improper practice charge alleging the employer violated Sections 209-a.1(a) and 209-a.1(c) of the Civil Service Law because the individual was not a public employee within the meaning of the Taylor Law, observing that the individual was not on a state payroll and had neither paid union dues nor paid an agency fee to the collective bargaining unit's representative. Nagy and SUNY at Buffalo, 35 PERB 3025.

Similarly, in Arce and NYC Board of Education, 35 PERB 4576, a PERB Administrative Law Judge determined that SEIU Local 74 did not violate its duty of fair representation by failing to process a grievance filed by an individual independently hired by, and who worked directly for, a public school custodian because the individual was not a public employee as defined by the Taylor Law and thus he was not in the negotiating unit.

Challenging the employer’s discontinuing §207-c General Municipal Law benefits

Challenging the employer’s discontinuing §207-c General Municipal Law benefits

Matter of Zembiec v County of Monroe, 2011 NY Slip Op 06757, Appellate Division, Fourth Department

Thomas C. Zembiec asked Supreme Court to annul the Monroe County Sheriff's Department decision to discontinue his General Municipal Law §207-c for the period from August 12, 2008 through June 15, 2009 after if it determined he was not entitled to such disability benefits. In addition, Zembiec challenged the Department’s suspending his regular salary from June 15, 2009 through March 25, 2010. The Department argued that Zembiec was not entitled to such payments because he failed to report for his light duty assignment when directed to do so.

The Appellate Division summarized the benefits provided by General Municipal Law §207-c to law enforcement personnel injured in the performance of their official duties as follows: Such personnel injured in the performance of his or her duties or who has become ill as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment is entitled to specified benefits. The statute does not require that a qualified employee demonstrate that his or her disability "is related in a substantial degree" to the employee's job duties and the individual need only prove a direct causal relationship between job duties and the resulting illness or injury to qualify for such benefits.

The Court held that Supreme Court “properly concluded that the denial of [§207-c] benefits for the period from August 12, 2008 to June 15, 2009 was arbitrary and capricious” as Zembiec had established “the requisite direct causal relationship between his job duties and his resulting illness ….”

On June 15, 2009 Zembiec, however, failed to report for a modified duty assignment. As §207-c(3) provides for termination of benefits upon an employee's refusal to return to work to perform a light duty assignment "consistent with his status as [an officer]," the Appellate Division ruled that Supreme Court was incorrect in granting that portion of Zembiec’s petition seeking his “regular pay” for the period June 15, 2009 through March 25, 2010, finding that Zembiec did not have any right to his regular pay after he failed to report to work to perform his light duty assignment.

The Appellate Division contrasted an individual’s right to §207-c payments in cases where the individual “avails himself [or herself] of due process protections by challenging the medical examiner's determination [that he or she is qualified for light duty or is qualified to resume his or her regular assignments] as such a challenge cannot be equated with a refusal to return to duty" to a refusal to report to work, either light duty or regular duty, after he or she is unsuccessful in challenging the medical examiner’s determination.

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings

Practice and Procedure before the New York City Office of Administrative Tribunals and Hearings 

OATH Index No. 2526/11; OATH Index No. 2047/11

Pre-trial motions to dismiss are disfavored in practice at OATH and have only been granted in the clearest cases of failure by petitioner to state a viable claim. The burden is particularly high in employee disciplinary proceedings where the OATH Administrative Law Judge makes recommended findings that are submitted to the referring agency for final action. ALJ Alessandra F. Zorgniotti denied in part without prejudice an employee’s pre-trial motion to dismiss disciplinary charges as pre-mature where the employee stated in her reply papers that there were issues of fact to be determined at trial. The motion was also denied in part based on a finding that OATH has jurisdiction to hear a disciplinary case referred by the Department of Correction. In addition, the ALJ granted in part and denied in part without prejudice a request for subpoenas for witnesses, some of whom would provide cumulative and irrelevant testimony [see Dep’t of Correction v. LaSonde (in PDF), OATH Index No. 2526/11]. 

Similarly, OATH ALJ Faye Lewis denied a pre-trial motion to dismiss disciplinary charges brought against a marine engineer on the ground that the charging agency failed to comply with its own rule requiring a disciplinary complaint to be accompanied by a sworn statement from the complainant. Pleadings are liberally construed in administrative practice. Technical defects in pleading are deemed harmless absent a showing of prejudice, which was not made out here. Further, respondent’s objection was untimely as it was not made until more than a year after he received the charges. ALJ Lewis also denied respondent’s motion to stay his disciplinary hearing indefinitely until a federal suit he filed against the charging agency is decided [see Fire Dep’t v. Domini (in PDF), OATH Index No. 2047/11].

Rejecting a hearing officer’s findings

Rejecting a hearing officer’s findings

Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.

It is well settled that an appointing authority may reject a Civil Service Law Section 75 hearing officer's finding of fact and penalty recommendation provided that the appointing authority's determination is supported by substantial evidence in the record and that the penalty imposed does not "shock one's sense of fairness."

The Perfetto case demonstrates how important it is for the appointing authority to specify the reasons for its rejection of all or a portion of the hearing officer's findings and recommendation.

Louis Perfetto, an employee of the Erie County Water Authority, was charged with three acts of misconduct, all related to absences from work. The first two charges concerned an absence in November of 2000 and Perfetto's alleged failure to provide proper documentation regarding that absence. Because the parties had entered into this settlement agreement concerning the first two charges in December 2000, the Hearing Officer ruled that this settlement precluded considering these two charges in the then current disciplinary action.

The third charge related to Perfetto's alleged misuse of sick time on March 27, 2001. While Perfetto claimed he was sick on March 27, there was evidence in the record establishing that Perfetto had left his home that morning to have a document notarized. The Hearing Officer concluded that the fact that Perfetto left his home on that date did not, in and of itself, "belie [his] claim that he was sick."

The appointing authority, however, rejected the Hearing Officer's findings of fact and recommendation. Although the appointing authority stated that Perfetto's testimony was "disproved by independent sources" in its decision, it failed to cite anything in the record to support this determination.

Insofar as the first two charges were concerned, the Court agreed with the hearing officer, concluding that any consideration of those charges by the appointing authority constituted an error of law because of a binding settlement had previously been reached regarding the acts underlying the charges.

As to the third charge, the court concluded that the employer's determination was arbitrary and capricious to the extent that the appointing authority failed to set forth any findings of fact supported by substantial evidence in the record to bolster its conclusion. Perfetto was awarded his job back, along with lost wages and benefits.

Substantial evidence is not a difficult burden to meet. The Appellate Division has defined substantial evidence as enough evidence that a” reasonable mind may accept as adequate to support a conclusion."

This definition of substantial evidence allows for different conclusions based on the same evidence, as long as a reasonable person could arrive at same conclusion that the finder of fact did.

Nevertheless, it is vital that in any final decision, whether it is in agreement with the hearing officer's findings of fact or not, that the appointing authority spell out its reasoning and in the event it rejects any or all of the hearing officer's findings, that specific reasons for the rejection be given and that such reasons be supported by substantial evidence in the record. To do otherwise, as the Perfetto case demonstrates, could be fatal to the appointing authority's determination.

In contrast, the individual's entire personnel record, including past disciplinary actions that "were settled" may be considered by the hearing officer in the context of a disciplinary action for the purpose of setting an appropriate penalty provided the individual is advised that his or her personnel records will be so considered and is given an opportunity to rebut any information in that file.

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

Involuntary random drug testing based on history of illegal drug use not disparate treatment for the purposes of Title VII

 Mack v The Port Authority of New York and New Jersey, USDC, SDNY, Judge Swan

One of the issues considered by Judge Swan in the Mack case was Michael Mack's allegation that he was subjected to disparate treatment in violation of Title VII because he was an African-American. Mack alleged that he was required to submit to an involuntary random test for illegal drugs because of his color. Mack also claimed that after he submitted to a random drug test and tested positive for cocaine, the Authority told him that he would be terminated.

According to the decision, Mack was employed as a truck driver by the Authority and was required to posses a valid commercial driver's license in order to perform the duties of his position. Authority employees such as Mack are required to submit to random drug tests under the federal Omnibus Transportation Testing Act of 1991.

On July 6, 1996, Mack was tested for drugs and tested positive for cocaine. Mack and the Authority settled the matter by entering into an agreement that required Mack to submit to random drug testing for a period of sixty months and to enter a drug rehabilitation program. The agreement also provided that if Mack tested positive again, he would be subject to "administrative action."

When Mack again tested positive for cocaine on November 10, 1997, the Authority told him that his employment would be terminated effective November 17, 1997, because of the positive drug test.

Mack's union negotiated a second "disciplinary waiver agreement" and Mack agreed that he would be subject to random drug testing for sixty months and that he would cooperate with the Port Authority's Office of Medical Services. The agreement also stated that Mack's failure to comply with these obligations could result in his termination and that one positive test result would result in his termination.

On May 6, 1998, Mack was asked to submit a urine sample to the Medical Services nurse. When the sample provided proved "unusable," he was asked to supply a second sample. Mack refused to do so and, as a result of this refusal, he was terminated.

Judge Swan granted the Authority's motion to dismiss the complaint, commenting that Mack failed to allege facts sufficient for the court to find that it was the custom or practice of the Port Authority to treat him or other non-white employees differently from non-black employees when imposing sanctions for failure to pass a urine test for illegal drugs.

According to the ruling, Mack presented only conclusory allegations that "race was the determining factor in [his] termination" and thus failed to establish a prima facie case of "wrongful termination."

Arbitrator’s award entitled to great weight by is not preclusive

Arbitrator’s award entitled to great weight by is not preclusive

Pender v District Council 37, AFSCM, USDC, SDNY, 2002 WL 31164470

Among the issues considered by Federal District Court Judge Chin in the Pender case was the amount of weight to be given to an arbitration award by the court in a lawsuit involving essentially the same complaint and the same parties that were earlier considered by an arbitrator.

Judge Chin's conclusion: the arbitrator's decision "is but one piece of evidence -- albeit an important piece ... entitled to great weight -- to be considered in the context of the entire record."

Patricia A. Pender complained that her former employer, District Council 37 of the American Federation of State, County and Municipal Employees [DC-37], violated the Americans with Disabilities Act and New York States Human Rights Law when it fired her because of her disability. She filed a grievance protesting her dismissal and ultimately the matter was submitted to arbitration.

While the grievance arbitration proceeding was pending, Pender filed a charge of discrimination with the Equal Employment Opportunity Commission against DC-37, alleging that DC-37 had unlawfully discrimination against her because of her disability. Pender received a right-to-sue letter from the EEOC on April 25, 2000. By this time, the arbitrator had issued her award, rejecting Pender's grievance. DC-37 asked Judge Chin to dismiss Pender's complaint, contending that the arbitration award was preclusive and thus there was nothing left for the court to determine.

Judge Chin ruled that in this situation the arbitrator's decision was entitled to great weight, but not preclusive weight. She found that Bonnie Siber Weinstock, "an experienced labor arbitrator, conducted the grievance arbitration, at which the both Pender and DC-37 presented documentary and testimonial evidence and examined and cross-examined witnesses under oath."

Weinstock, said the court, issued a 23-page opinion and award, rejecting Pender's grievance and finding that DC-37 did not violate the collective bargaining agreement when it terminated Pender's employment because she was unable to perform the duties and responsibilities of a DC-37 Council Representative, even with reasonable accommodations. Noting that the arbitrator had specifically addressed Pender's ADA claim "on the merits" and had assumed that Pender had a "disability" within the meaning of the ADA.

In making her decision, Judge Chin said that the arbitrator concluded that Pender "was unable to perform the essential functions of a Council Representative with or without an accommodation."

Why was the arbitrator's decision entitled to great weight? Because, said the court, the issue before the arbitrator was largely one of fact, well suited for resolution in the traditional labor arbitral format -- whether Pender could perform the essential functions of the Council Representative position -- and the arbitrator gave full consideration to Pender's ADA claim.

As Weinstock's decision was entitled to great weight and since "no jury could reasonably conclude, on the basis of the record before the Court that Pender's rights under the ADA and New York law were violated," Judge Chin dismissed her petition.

In considering DC-37's motion to dismiss Pender's complaint, Judge Chin reviewed the role of arbitration decisions in civil rights litigation in the light of "three leading Supreme Court decisions" addressing this issue: Alexander v Gardner-Denver Co., 415 US 36; Gilmer v Interstate/Johnston Lane Corp., 500 US 20; and Wright v Universal Maritime Service Corp., 525 US 70.

In Gardner-Denver, the Supreme Court ruled that a union employee "does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement."

In Gilmer, the Supreme Court said that mandatory arbitration clauses are enforceable and that an employee could waive his or her right to bring federal statutory claims to court.

In the Wright case, the Supreme Court decided that even assuming a collective bargaining agreement arbitration clause is enforceable to compel arbitration of an employee's statutory discrimination claim, such a clause would only be enforced if it was "particularly clear" that it was intended to cover such claims.

Considering these three rulings, Judge Chin concluded that in this instance the arbitration procedure satisfied the several concerns set out by the Supreme Court. The bottom line: although Weinstock's decision was not entitled to preclusive effect, it was entitled to "great weight." The “weight” issue for the court to determine:

Considering the arbitration award together with all the evidence in the record, would a reasonable jury find for Pender on the issue of discrimination? In Judge Chin's view the answer was no and this finding required the court to dismiss Pender's petition.

Judge Chin commented that the collective bargaining agreement in effect furnished full statutory protections, as it provided that "[t]he employer shall comply with all applicable law in the area of non-discrimination in employment practices" and the "degree of procedural fairness in the arbitral forum was high."

Recreation Specialist terminated after being found guilty of selling an alcoholic beverage to a minor

Recreation Specialist terminated after being found guilty of selling an alcoholic beverage to a minor 

Matter of Emmerling v Town of Richmond, 2011 NY Slip Op 06690, Appellate Division, Fourth Department

Craig J. Emmerling file an Article 78 action in an effort to obtain a court order annulling the Town of Richmond terminating him from his position as a Recreational Specialist.

Emmerling was charged with, and found guilty of, selling an alcoholic beverage to a minor in violation of Penal Law §260.20(2). He contended that the Town’s imposing the penalty of dismissal termination following a Civil Service Law §75 disciplinary hearing constituted an abuse of discretion by the Town.

The Appellate Division disagreed, ruling substantial evidence supports the determination in view of the fact that his duties involved extensive contact with children and that he had been told that he was required to act as a role model for them.

Citing the so-called “Pell Doctrine” [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that the penalty of termination “is not so disproportionate to the offense, in light of all of the circumstances, as to shock one's sense of fairness.” 

Termination of an individual holding a public office “at-will”

Termination of an individual holding a public office “at-will”

Matter of Scro v Board of Education of Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 06738, Appellate Division, Fourth Department

Anthony Scro challenged his termination as the school district’s treasurer contending that such action violated his right to due process right. He obtained a court order from Supreme Court, Onondaga County annulling his termination and directing the school district to reinstate him to his former position.

The Appellate Division reversed the lower court “on the law” and dismissed Scro’s petition.

The court said that it agreed with the school district and the New York State School Boards Association, Inc.* that, under Education Law §2130(4), Scro was an at-will employee who was not entitled to pre-termination due process. 

The Appellate Division noted that although Education Law §2130(4) provides in relevant part that "[t]he board of education in every union free school district … shall appoint a district treasurer … who shall hold office during the pleasure of the board," it applies with equal force to central school districts such as the Jordan-Elbridge Central School District.

As Saco held office “during the pleasure of the board," the Board of Education had the right to discontinue his services at any time. Thus, said the Appellate Division, Saco “was the equivalent of an at-will employee” inasmuch as he served at the pleasure of' the Board of Education and was not entitled to “pre-termination due process.”

Focusing on another aspect of the case, the Appellate Division said that it agreed the school district that Saco, having failed to file his oath of office within 30 days of his being given notice of his appointment as required by Public Officers Law §30(1)(h), the office to which he had been appointed “automatically became vacant” and "no hearing on charges was required to dismiss him from office."**

Public Officers Law §30(1)(h), in pertinent part, provides that should an individual appointed to the position refuse or neglect to file his official oath or undertaking, within thirty days after notice of his or her appointment such “office shall be vacant … before the expiration of the term thereof….”

* New York State School Boards Association, Inc. filed an amicus curiae brief in support of the Jordan-Elbridge Cent. School District arguing that Scro served as an at-will employee and thus was not entitled to pre-termination hearing.

**  See, also, Informal Opinions of the Attorney General 84-17 in which the Attorney General indicated that in the event an oath of office required by law is not timely filed, the office “becomes vacant by operation of law.”

Determining an individual’s “final average salary” for retirement allowance purposes

Determining an individual’s “final average salary” for retirement allowance purposes

Weingarten v NYC Teachers' Retirement System, Ct. of Appeals, 98 N.Y.2d 575

Rhonda Weingarten was employed in the New York City school system. In addition to receiving her base annual salary, she also received hourly compensation -- referred to as "per session" compensation -- for the additional service she provided to the school district. The issue to be resolved in Weingarten’s lawsuit: may these additional earnings be added to the teachers' pensionable salary base for the purpose of determining their final averages salary for retirement purposes or are they barred by the provisions of Section 431 of the Retirement and Social Security Law?

The collective bargaining agreement between the teachers and the New York City Board of Education defines "per session work" as including such assignments as teaching summer school, teaching evening or adult education classes, or working with various athletic and non-athletic extracurricular programs.

Teachers apply these positions and may participate in only one such activity at a time. The teachers are required to submit separate time sheets for their "per session work" and receive payment for their per session work via checks issued in addition to their regular payroll checks.

In the early 1990s, teachers demanded that their "per session" compensation be included in determining their final average salary. The New York City Teachers' Retirement System [NYCTRS] refused consider per session earnings as pensionable compensation.

Weingarten sued NYCTRS, seeking a court decision holding that the System's exclusion of this income from a teacher's base salary calculation for retirement purposes was contrary to Section 13-554 of the Administrative Code and Sections 443(a), 504 and 604 of the Retirement and Social Security Law.

As the Court of Appeals noted, a critical element in determining a retiree's retirement allowance is the computation of the individual's "final average salary" for the purposes of retirement.

Both a State Supreme Court judge and the Appellate Division agreed with Weingarten, ruling that the teachers were entitled to receive credit all per session compensation earned while NYCTRS members in determining their final average salary for retirement purposes since the inception of this 1998 law suit.

Rejecting NYCTRS's argument that its views were entitled to "great weight," the Court of Appeals said that it was simply being asked to resolve a question "of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent." Accordingly, it said it would consider the matter de novo.

The critical arguments presented by the parties respectively were as follows:

1. NYCTRS contended that per session compensation has been outside the scope of the definition of "annual salary" since the inception of teachers' retirement plans and that subsequent legislative modifications to the retirement system -- which have not specifically addressed per session compensation -- did not adjust benefits to include this type of income.

2. Weingarten argued that per session compensation is a form of regular compensation and therefore should be considered in determining a member’s retirement allowance, primarily because per session income is not covered by the exclusions from "annual salary" set forth in the applicable statutes.

The Court of Appeals said that for the purpose of evaluating whether per session compensation is pensionable, it was "guided by several considerations, including the use of the term ‘salary’ in the progression of NYCTRS statutes and regulations, the legislative intent evidenced in the modifications to the programs and the public policy that precludes artificial inflation of income before retirement."

Observing that the term "annual salary" predated the establishment of the NYCTRS as it was used in a predecessor statute that established the New York City Public School Teachers' Retirement Fund in 1917, the court commented that the 1917 Fund and the NYCTRS were designed to provide an income related to actual earnings during employment, "indicating that pensionable income was intended to include more than just anticipated base salary."

The Court of Appeals pointed out that in response to the former practice of including certain one-time or lump sum items of compensation, such as sick leave payments, over-time payments, termination pay and payments for unused vacation credit to enhance a member's final salary prior to his or her retirement, in 1971 the Legislature enacted Section 431 of the Retirement and Social Security Law [Chapter 503, Laws of 1971].

Section 431 explicitly barred a public retirement system of this State from considering the following in determining a member's final average salary:

1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked;

2. Any form of termination pay;

3. Any additional compensation paid in anticipation of retirement; and

4. That portion of compensation earned during any twelve months included in such salary base period that exceeded the total compensation paid to the individual during the preceding twelve months by more than twenty per cent.

Although per session compensation was different from the exclusions listed in the first three categories barred by Section 431, the court said that "[c]ategory four would, however, limit pensionable compensation to the extent that the addition of per session income exceeds the statutory cap" and it was therefore necessary for it to consider this type of exclusion in a manner that "accord[s] respect to the[ir] interlocking and interrelated features."

The court's decision: Since the Legislature's exclusion of particular forms of compensation or payments from the calculation of the individual's final average salary "implicates a long-settled principle of statutory construction" -- where the Legislature lists exceptions in a statute, items not specifically referenced are deemed to have been intentionally excluded. Applying this canon of construction in these circumstances, the court said that by failing to exclude per session compensation when it enacted Section 431, "the Legislature evidenced an intent to allow per session compensation to be includable for pension purposes."

Pointing out that this view is consistent with the treatment of "per session" type payments by the New York State Teachers' Retirement System [TRS], which covers teachers in public schools outside of the City of New York, the decision notes that TRS "treats per session compensation as pensionable." The court said that there was "no reasonable basis justifying the disparate treatment of per session compensation by the NYCTRS and ... TRS."

The Court of Appeals also observed that "the highly regulated nature of per session activities prevents artificial manipulation of total compensation in the pre-retirement period" thereby avoiding the type of abuse that Section 431 seeks to bar.

Dismissing a probationary employee

Dismissing a probationary employee

Weintraub v NYC Board of Education, App. Div., 298 A.D.2d 595, Lv. to appeal denied, 99 N.Y.2d 507

The Weintraub case succinctly sets out what could be characterized as "black letter law" concerning the dismissal of a probationary employee.

The New York City Board of Education dismissed probationary teacher David H. Weintraub. Weintraub sued, only to have his petition summarily dismissed by a State Supreme Court judge.

The Appellate Division affirmed the lower court's ruling, indicating that:

As a probationary employee, [Weintraub] could be terminated without a hearing provided that the termination was not in bad faith, a consequence of constitutionally impermissible reasons, or prohibited by statute or case law.

The probationary employee bears the burden of establishing such bad faith or unlawful reason for his or her termination. However conclusory allegations of bad faith are insufficient to meet this burden and apparently all that Weintraub presented was what the court characterized as "conclusory allegations of bad faith."

In addition to confirming the lower court's dismissal of Weintraub's petition without a hearing, the Appellate Division commented that "[t]he termination of the petitioner's employment was not in bad faith or illegal."

The court's reference to the bar of termination prohibited by statute or case law includes the prohibition against terminating a probationary employee during his or her minimum period of probation without notice and hearing.

Where a probationary period has been set in terms of a minimum and a maximum period of probation, case law holds that if the appointing authority elected to terminate a probationary  employee during his or her minimum period of probation, such an individual is entitled to a notice and hearing in the same manner as a tenured individual.

In contrast, a probationer terminated after completing his or her minimum period of probation may be terminated without notice and hearing prior to the completion of his or her maximum period of probation.

Changing vacation scheduling not a mandatory subject of collective bargaining

Changing vacation scheduling not a mandatory subject of collective bargaining
Mtr. of NYS Correctional Officers and Police Benevolent Asso. and Elmira Correctional Facility, PERB Case U-23550

The Board reversed the Decision of the ALJ and dismissed NYSCOPBA's improper practice charge that alleged that the State had violated §209-a.1 (d) of the Act by unilaterally changing the manner in which unit employees working vacation relief are scheduled at the Elmira Correctional Facility.

The Board balanced the interests of unit employees in making plans and scheduling events against the State's need to provide corrections service by filling the vacant job openings through vacation leave and any other vacancies and found that the State's interests predominated.

Because the determination as to whether a particular work rule constitutes a mandatory or nonmandatory subject of bargaining involves identifying the subject matter and then balancing the competing interests of the employer and the employees, the Board concluded that the charge dealt with a nonmandatory subject of negotiations

Disqualification for unemployment insurance benefits

Disqualification for unemployment insurance benefits

Rivera v Commissioner of Labor, 298 A.D.2d 673

As a general rule, termination for misconduct will disqualify an applicant for unemployment insurance benefits. In the Rivera case, the New York City Department of Citywide Administrative Services controverted the claim for unemployment insurance filed by one of its former employees, Emerita Rivera, on the grounds that she had been terminated for misconduct.

The Unemployment Insurance Appeal Board agreed, and ruled that Rivera was disqualified from receiving unemployment insurance benefits because she had been terminated due to her own misconduct. The Appellate Division sustained the Board's determination.

The court pointed out that substantial evidence in the record supported the Board's decision. The Appellate Division noted that the record established that, prior to her termination, Rivera:

1. Refused to perform field-monitoring duties associated with her position as a Contract Specialist II despite being warned that she could be discharged for insubordination is she refused to perform her field duties.

2. That although Rivera had been granted a medical leave of absence, she failed to submit any medical documentation substantiating her request to be placed in a "restricted duties" status.

3. When Rivera was examined by the employer's physicians, the physicians concluded that she was medically and psychologically able to perform the duties of her position.

Under these circumstances, said the court, "we find no reason to disturb the Board's decision" and dismissed Rivera's appeal.

Ordering a hiring freeze

Ordering a hiring freeze
Caputo v Halpin, 160 A.D.2d 938; Motion for leave to appeal dismissed, 76 N.Y.2d 773

From time to time a jurisdiction’s chief executive officer places a “hiring freeze” on appointments to vacant positions in departments and agencies in the jurisdiction. Does he or she need an expressed power to do so?

The Caputo decision involved this question: the truncating of the power of an appointing officer to fill vacant positions in his or her department after the Suffolk County Executive issued an order freezing the filling of vacant county positions in order to avoid an expected budget deficit.

The Appellate Division ruled that:

Within this context, it was well within the power of the Soffolk County Executive to delay the approval of the appointments to the vacancies in the anticipation that there will be a budget deficit and that not filling these vacancies for which funds had been appropriated would be a convenient source to realize savings. The statutory provisions dealing with the avoidance of a deficit make the County Executive, as chief budget officer, the overseer of expenditure of budgeted funds.

In affirming the Appellate Division's ruling, the Court of Appeals referred to its decision in Slominski v Rutkowski, 62 NY^2d 781, a case involving a similar challenge to the Erie County Executive ordering a hiring freeze.

The Court said that despite the lack of an express provision granting the Suffolk County Executive authority to order temporary hiring freezes, a statutory power, by contrast, enjoyed by the Erie County chief executive officer, the rationale in Slominski was applicable in the Suffolk County situation. The Court of Appeals held that "the very broad powers granted the Suffolk County Executive are sufficiently similar to those granted the Erie County Executive [considered] in Slominski to render that case essentially indistinguishable."

Other problems are certain to arise in the context of such an anticipated budget deficit. Among them are the following:

1. Compensation: In Abberbock v Nassau County, a State Supreme Court judge decided that the freeze imposed on expected salary increases, as well as the reduction of salaries, of employees designated managerial or confidential [M/C] in the context of a fiscal crisis "cannot be said ... represents an unreasonable course of conduct or that it is unrelated to an active and manifest evil" insofar as employees designated managerial or confidential were concerned. The Appellate Division agreed.

2. Eligible lists: When deciding Lopez v Barrios-Paoli, the Supreme Court, New York County, considered a number of issues that frequently result when there is a hiring freeze, including the "backing up" of eligible lists. Here the court decided that New York City’s personnel director's extension of earlier lists after a subsequent list had been established, thereby requiring the earlier lists to be certified first for appointment to vacancies, was a discretionary act pursuant to Section 56.1 of the Civil Service Law. Section 56.1 permits the extension of any eligible list in the event of a restriction against the filling of vacancies.

3. Leave from a "hold" position: The status of an individual's leave from his or her "hold item" may lead to difficulties, as the decision by the Appellate Divisions in Dworkin v Dept of Environmental Conservation demonstrates. Such employees may erroneously believe that they are protected in the event of termination because a budget problem because they think that they have a "hold item." As the Dworkin decision demonstrates, sometimes such a belief that they are protected by having a "hold position" is illusory!

In addition, the termination of temporary and provisional employees could result in litigation while the layoff of persons holding a permanent appointment pursuant to Section 80 or 80-a of the Civil Service Law creates significant technical difficulties as well as personal problems for the individuals affected. Also, in some instances provisions in collective bargaining agreements may set out procedural elements that must be honored before a layoff may be instituted by the appointing authority.

Judicial review of administrative decisions

Judicial review of administrative decisions
Albano v NYC Fire Pension Fund, Court of Appeals, 98 N.Y.2d 548

What are the controlling rules to be followed by the courts in cases involving challenges to administrative decisions that concern the interpretation or application of a statute? In the Albano case, the Court of Appeals sets out the criteria used by courts in determining the weight to be accorded such administrative determinations.

The basic rule applied in such cases, said the court, is as follows:

In contrast to matters requiring "pure statutory interpretation" of the controlling law by the courts, where the interpretation or application of a statute "involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data" within the expertise of the agency administering the statute, courts accord great deference to the agency's judgment unless it is "irrational or unreasonable"

Here the statute involved was General Municipal Law Section 207-kk, the so-called Cancer Bill.

Section 207-kk provides that:

Notwithstanding any other provisions of this chapter to the contrary, any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems ... [of a] member of a fire department in a city with a population of one million or more, who successfully passed a physical on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.

Section 207-kk was enacted after medical data demonstrated that there was a high incidence of cancer in firefighters, as compared with the average adult population. The statute creates a rebuttable presumption that a firefighter who develops certain enumerated types of cancers, incurred them in the course of performing his or her duties, thereby eliminating the burden of proving causation.

In other words, the "rebuttable presumption" provided by the Section 207-kk permits the disabled firefighter to establish a prima facie case that his or her cancer incurred as the result of his or her performing firefighter duties. The employer may then attempt to rebut this presumption by introducing evidence that establishes that the cancer was the result of some other cause or does not involve the types of cancers described in the statute.

Emil Albano, a New York City firefighter for 30 years, was diagnosed with testicular cancer. He filed an application for an accident disability pension [ADR] on the ground that his cancer had presumptively been caused by the performance of his firefighting duties. The Medical Board of the New York City Fire Department Pension Fund found that Albano was, in fact, disabled, but recommended he be awarded an ordinary disability retirement allowance [ODR] rather than the ADR retirement allowance for which he had applied.

The reasons given by the Medical Board:

Although Albano is disabled from performing full fire duties due to testicular cancer, there was no evidence that Albano's lymphatic or urinary systems were involved as a result of his medical condition.

The Board of Trustees split on the question and, under its longstanding practice in such situations, the recommendation of the Medical Board was adopted: i.e., Albano's application for ADR benefits was denied but the Medical Board's recommendation that Albano be awarded ODR pension benefits was approved.

The issue before the Court of Appeals:

Was the denial of ADR benefits based on the Medical Board's finding that Albano's testicular cancer is not a cancer "affecting the lymphatic, digestive, hematological, urinary or prostate systems" rational and supported by substantial evidence?

The court said that the decision was both rational and supported by substantial evidence. In this instance the court concluded that the resolution of the issue "involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data” and thus the Board's administrative ruling was entitled to great deference because it was not shown to be either irrational or unreasonable.

In contrast, where, the question is one of pure statutory interpretation there is little basis to rely on any special competence or expertise of the administrative agency, courts "need not accord any deference to the agency's determination" and can undertake its function of statutory construction.

In Albano's case, in order to decide whether Albano was entitled to an ADR pension, the Medical Board and the Trustees were called upon to interpret the applicability of the statute in Albano’s case. This interpretation involved its respective expertise in the evaluation of factual data. Accordingly, said the Court of Appeals, the administrative decision is to be afforded deference.

In addition, the court ruled that because testicular cancer is not enumerated as a cancer entitled to the statutory presumption -- the statute offers presumptive coverage for cancers affecting the lymphatic, digestive, hematological, urinary or prostate systems -- the Board was required to use its medical expertise to decide whether testicular cancer "affects the urinary or prostate systems." Again, this question was a question involving the expertise of the Medical Board and the Retirement Board of Trustees.

Concluding that there was a rational basis for the Medical Board's decision, the Court of Appeals dismissed Albano's appeal.