Union’s demand that GML §207-c the individual continue to receive benefits pending a hearing and determination is mandatorily negotiable

Union’s demand that GML §207-c the individual continue to receive benefits pending a hearing and determination is mandatorily negotiable

Baldwinsville Police Benevolent Association and Village of Baldwinsville, 44 PERB ¶3031, U-29453, U-29481 

PERB held that that a General Municipal Law (GML) §207-c proposal that would require a continued receipt of benefits pending a hearing and determination is mandatorily negotiable because the proposal seeks a contractual codification of a unit member’s constitutionally protected property right of continued GML §207-c benefits, which can not be terminated without due process.

========================

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.

========================

A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty

A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty

Gibson v Board of Educ. for The City School Dist. of Albany,2012 NY Slip Op 04441, Appellate Division, Third Department

A City School District of Albany account clerk was charged with two specifications of incompetence: unsatisfactory work performance and excessive absenteeism, during the 2009-2010 school year. Following a hearing pursuant to Civil Service Law §75, account clerk was found guilty of both specifications and the Hearing Officer recommended dismissal as a penalty to be imposed.

The appointing authority accepted the Hearing Officer's findings and recommendation and terminated account clerk's employment with the school district. Contending that the evidence did not support the Board's finding that her conduct and deficiencies rose to the level of incompetence, and that dismissal is an inappropriate and excessive penalty, the account clerk appealed.

The Appellate Division ruled that “The determination of the Board must be upheld where, as here, it is supported by substantial evidence,” explaining that "a finding of incompetence only requires evidence of some dereliction or neglect of duty." Further, said the court, testimony by the account clerk’s immediate supervisors, coworkers and two district-level assistant supervisors, and the documentary evidence — including the clerk's employee evaluations in March 2009 and May 2010 and attendance records — “provided overwhelming evidence to substantiate each of the specifications of misconduct.”

As to the penalty imposed, dismissal, the Appellate Division said that “on the record before us, we do not find the penalty of termination shocking to the judicial conscience,” citing Kelly v Safir, 96 NY2d 32, and Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the individual was “given numerous warnings over a period of many years and failed to assume responsibility for her shortcomings.”

Accordingly, said the court, “In view of the foregoing, the Board's implicit conclusion that further attempts to rehabilitate and retrain petitioner would be futile is neither unfair, shocking nor an abuse of discretion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04441.htm

Civil Service Commission permitted to rely on appointing authority’s medical expert’s opinion where medical experts differ concerning applicant’s medical condition

Civil Service Commission permitted to rely on appointing authority’s medical expert’s opinion where medical experts differ concerning applicant’s medical condition
Matter of Altieri v City of New York Civ. Serv. Commn. 57 AD3d 248

Anthony Altieri sued the New York City Civil Service Commission after it disqualified him for appoint to the position of sanitation worker because of Altieri’s cardiac condition

The Appellate Division said that the Commission was entitled to rely on the opinion of the Department of Sanitation's medical director that Altieri's appointment as a sanitation worker would put Altieri “at serious risk.”

The fact that Altieri’s treating physician’s opinion disagreed with the Department’s medical director’s opinion does not tend to show that the Commission "acted illegally or capriciously or adopted a professional opinion not founded on a rational basis."

Further, the Appellate Division commented that Altieri’s disqualification for medical reasons “cannot be the predicate of a discrimination claim under Executive Law §296(1)(a).”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09487.htm

 

The timeliness an unfair practice charge measured from the date on which the party adversely affected learned [or should have known] of the event

The timeliness an unfair practice charge measured from the date on which the party adversely affected learned [or should have known] of the event
Levi Mcintyre And Middle Island Administrators Association and Longwood Central School District, ALJ Blassman, U-27349

A PERB ALJ dismissed a charge alleging that the Association violated of its duty of fair representation §209a.2(c) of the Act in breach as untimely.

The Association agreed to a collectively negotiated agreement that gave Levi McIntyre a lower total wage increase than other unit employees during the life of the agreement. McIntyre advanced two arguments with respect to his contention that his charge was timely: (1) that timeliness did not begin to run until he learned of the retirement of the Association's president, who was the only other unit employee who was similarly situated to McIntyre under the agreement or, in the alternative, the statute of limitations not begin to run until the second year of the agreement, which was when McIntyre alleged he was first negatively impacted by the agreement.

The ALJ ruled that McIntyre was adversely affected by the agreement when the Association agreed to it and thus his time to file a charge began to run from the date he learned of its provisions and how they affected him.

[See, also, Police Benevolent Association of Elmira, New York, Inc. and City Of Elmira, U-27466, in which the Board affirmed the decision of its ALJ dismissing an improper practice charge as untimely after determining that the PBA had actual knowledge of the triggering event more than four months before it filed its improper practice charge and failed to demonstrate that Elmira was equitably estopped from asserting its timeliness defense.]

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440, Appellate Division, Third Department

The issue in this action: Does Retirement and Social Security Law §110* insulate the retirement benefits from a public retirement system of this State from “the broad reach of the Son of Sam Law, which does not expressly exempt pension funds?”**

The Appellate Division held that such retirement benefits are not exempt from the Son of Sam Law.

Steven C. Raucci, a former employee of the Schenectady City School District, was sentenced to a lengthy prison term upon his conviction of numerous crimes arising out of his alleged detonation and attempted detonation of explosive devices at two of his victims' homes. Raucci began receiving a retirement allowance from the New York State and Local Employees' Retirement System of approximately $5,800 per month.

The New York State Office of Victim Services sought a preliminary injunction prohibiting the withdrawal or transfer of those funds from Raucci’s inmate account. Raucci, and his spouse as “an interested person,” argued that RSSL §110 exempts the pension funds from garnishment or any other legal process.

Noting that prior to its amendment in 2001, the Son of Sam Law permitted victims to recover only "profits from a crime," i.e., property or income generated from the crime itself, the Legislature "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source."

Accordingly, said the Court,  “The current version of the statute thus permits crime victims to commence an action ‘within three years of the discovery of any profits from a crime or funds of a convicted person’ broadly defined as "all funds and property received from any source by a person convicted of a specified crime (Executive Law § 632-a [1] [c]” [emphasis added by the court].

The Appellate Division said that only two categories of a convicted person's funds are not recoverable by crime victims: the first $1,000 in the convicted person's account and the first 10% of compensatory damages obtained by the convicted person in a civil judgment, less counsel fees.

* The decision summaries the provisions of §110 as follows: Retirement and Social Security Law §110 protects public employee pensions, providing that "[t]he right of a person to a pension . . . or a retirement allowance . . . to the return of . . . the pension . . . or retirement allowance itself . . . and the monies in [those] funds . . . [s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever, and . . . [s]hall be unassignable."

** The decision refers to both a “pension” and a “retirement allowance.” A retirement allowance consists of a “pension portion” determined by the employee’s final average salary and his or her “years of member service,” which is funded by employer contributions plus an “annuity portion” based on the actuarial value of the employee’s contributions, or contributions made on his or her behalf as of the date of his or her retirement.

NYPPL comments: This decision raises a number of questions that may have to be addressed by the courts or the legislature such as [1] Is a retirement allowance being received by a surviving beneficiary or beneficiaries of a retired public employee of this State subject to the Son of Sam Law? and [2] Is a retirement benefit being received by an individual or his or her beneficiary or beneficiaries from a retirement program or plan other than a public retirement system of this State subject to the Son of Sam Law?

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04440.htm

The Doctrine of Primary Jurisdiction explained

The Doctrine of Primary Jurisdiction explained 

Razzano v Remsenburg-Speonk UFSD, 2012 NY Slip Op 04178, Appellate Division, Second Department

The Board of Education of Remsenburg-Speonk UFSD reclassified Janice Razzano’s from a full-time position to a part-time position. Razzano filed a CPLR Article 78 petition seeking a court order compelling Board to reinstate Razzano to her former full-time position.

Razzano alleged that the reclassification of her position from full-time to part-time was undertaken in retaliation for various complaints she had made regarding alleged hazardous health conditions in the school building in which she worked. She also contended that school district improperly attempting to circumvent tenure rules by engaging the services of “an outside contractor to undertake the job responsibilities that she had previously undertaken” when she was employed full-time.*

Supreme Court dismissed Razzano’s on the ground that primary jurisdiction over the dispute lies with the Commissioner of the New York State Department of Education. The Appellate Division reversed the lower court’s ruling and remitted the matter to the Supreme Court, Suffolk County, for further proceedings.

Supreme Court had based its denial of the petition and dismissed the proceeding, pursuant to the doctrine of primary jurisdiction, i.e., (1) the Commissioner has the specialized knowledge and expertise necessary to resolve the factual question of whether an independent contractor assumed some of the responsibilities of Razzano, who held tenure in the position, and (2) whether the school district's conduct in reclassifying Razzano‘s full-time position to a part-time position was undertaken in good faith.

The Appellate Division ruled that Supreme Court erred in dismissing Razzano’s petition on basis of the doctrine of primary jurisdiction. The court explained that "The doctrine of primary jurisdiction provides that [w]here the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 35.

The doctrine, said the court, is applied whenever a claim is originally cognizable in the courts, and comes into play “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” In such situations the judicial process is suspended, rather than being dismissed, pending referral of such issues to the administrative body for its views.

In this instance, said the Appellate Division, the crux of Razzano’s threshold claim is that the reclassification and subsequent "excessing" of her employment from her full-time position and her “reinstatement” to a part-time position was undertaken in bad faith in that it was effected in retaliation for her engagement in a protected activity, in violation of the New York State Public Sector Whistleblower Law (see Civil Service Law §75-b).

In addition, Razzano contended that the school district’s "purported rationale was a fiction, and was not an issue within the Commissioner's special competence.”

The Appellate Division agreed, ruling that in light of the nature of Razzano’s allegations, Supreme Court should have retained jurisdiction to decide her claim of retaliation. Thus, said the court, the matter must be remitted to the Supreme Court for further proceedings on that branch of the petition alleging that the reclassification of Razzano’s position was undertaken in bad faith and, thus, constituted an abuse of discretion as a matter of law.

As to next steps, the Appellate Division explained that:

1. If the Supreme Court ultimately determines that Razzano’s employment was reclassified in bad faith, she is entitled to reinstatement.

2. If the Supreme Court ultimately determines that Razzano’s position was not reclassified in bad faith, then it would be proper for the Supreme Court to refer the remaining issues raised by the petition to the Commissioner for determination of questions arising under Education Law §3012, pursuant to the doctrine of primary jurisdiction.

* Razzano had also filed administrative petitions with the Commissioner of the New York State Department of Education pursuant to Education Law §310 challenging the district's decision to reclassify her position as a part-time position.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04178.htm

 =========================

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

 =========================

Serving notices by mail

Serving notices by mail

Cook v Village of Greene, 2012 NY Slip Op 04264, Appellate Division, Third Department

This decision by the Appellate Division sets out a number of points concerning effectively serving a notice to an individual to appear for a General Municipal Law §50-h when sending such a notice by mail.

The Village of Greene served a demand for examination by certified mail to the address verified by Wayne C. Cook in his notice of claim as his address. Cook failed to appear for the examination, but subsequently commenced an action against the Village and others. The Village moved to dismiss the action asserting, among other things, Cook's failure to attend the General Municipal Law §50-h examination.

The Appellate Division said that complying with a proper request for an examination pursuant to General Municipal Law §50-h is a condition precedent and failure to comply, absent exceptional circumstances, generally is a ground for dismissal of the action.

General Municipal Law §50-h [2] provides that certified mail is authorized manner of notifying a litigant not represented by an attorney to appear for an examination and the Village’s motion papers included a duly executed affidavit of service. The court noted that "A properly executed affidavit of service raises a presumption that a proper mailing occurred."

The Village, however, did not send the notice with a return receipt requested. Although the Appellate Division commented that a “return receipt” is not required by the statute as a general rule sending the notice "certified mail, return receipt requested" or "registered mail, return receipt requested," is viewed as appropriate and desirable.

Other provisions of law may authorize the delivery of certain notices by mail.

For example, Civil Service Law §76.1 provides that a §75 disciplinary determination is to be delivered “personally or by registered mail to the last known address of such person” while Education Law §3020-a provides that disciplinary charges shall be served on an educator “by certified or registered mail, return receipt requested or by personal delivery to the employee.”

The decision if posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04264.htm

Selected Rulings posted by PERB – A question of jurisdiction

Selected Rulings posted by PERB – A question of jurisdiction

United Federation of Teachers and the Board Of Education of the City School District of the City of New York, PERB U-28996

Although the Board dismissed exceptions filed by the employee after finding that she did not timely serve her exceptions upon UFT and the School District pursuant §213.2(a) of the Rules of Procedure, it noted that had it addressed the merits of her exceptions it would have dismissed them as PERB “does not have authority to determine alleged violations of Education Law §3020-a, or alleged violations of the terms of an unexpired agreement.”

Employee’s ADA claim for damages survives promotion to a higher grade position

Employee’s ADA claim for damages survives promotion to a higher grade position
Matter of Jochelman v New York State Banking Dept., 56 AD3d 375

After the New York State Banking Department denied Irving Jochelman a promotion to the position of Principal Bank Examiner I, Jochelman sued

Supreme Court granted Banking’s motion to dismiss his petition because Jochelman had been given the promotion underlying his complaint prior to his appeal, which also had the effect of “rendering moot that portion of his complaint seeking back pay.”

The Appellate Division, however, reversed the lower court’s dismissal of Jochelman’s petition “as a matter of law” explaining that his complaint also sought damages under the Americans with Disabilities Act (ADA).

Reinstating Jochelman’s ADA claim, but dismissing the remainder of his appeal as moot, the court explained that Jochelman's “separate claim for damages related to [Banking’s] allegedly discriminatory behavior has not been rendered moot by [Jochelman’s] promotion.”

Finding that Jochelman’s “ADA claim “was not without merit as a matter of law,” the Appellate Division indicated that the record raised factual issues as to whether Banking failed to make reasonable accommodations for the alternative workspace that Jochelman had requested for medical reasons and remanded the case to Supreme Court for its further its consideration of that issue.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09267.htm

Appellant required to meet a high burden by showing, with clear and convincing evidence, that the disciplinary hearing officer was partial

Appellant required to meet a high burden by showing, with clear and convincing evidence, that the disciplinary hearing officer was partial

Batyreva v N.Y.C. Dept. of Educ., 2012 NY Slip Op 04234, Appellate Division, First Department

Supreme Court, New York County denied the CPLR Article 75 petition seeking to vacate an arbitration award which found that the New York City Department of Education had just cause to terminate the employee, Olga Batyreva. The Appellate Division unanimously affirmed the lower courts ruling.

Explaining that the award was made in accord with due process, is supported by adequate evidence, is rational and is not arbitrary and capricious, the court noted “(e)ach of the sustained specifications was well supported by both documentary evidence and witness testimony.”

Batyreva, said the Appellate Division, failed to meet the high burden of showing, by clear and convincing evidence, that the hearing officer was partial, noting that it had not found any basis in the record to support a finding of partiality. Further, said the court, to the extent that Batyreva’s contention “is premised upon the hearing officer's credibility determinations, her arguments are unavailing because she failed to show that the hearing officer's credibility findings evince a bias against her.”

As to the penalty imposed, termination, the court rejected Batyreva’s claim that it is unwarranted and shocks the conscience.

In the words of the Appellate Division: “Not only does the high volume of sustained specifications of misconduct, standing alone, justify termination … but also [Batyreva] repeated unsuccessful attempts to cast [the employer], the witnesses, the hearing officer, a federal judge, and a Supreme Court Justice as somehow biased against her tend to show her "failure to take responsibility for her actions."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04234.htm

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

Meaney v Village of Johnson City, 2012 NY Slip Op 04265, Appellate Division, Third Department

The mayor of the Village of Johnson City demoted a fire captain to firefighter first class after adopting the findings of the disciplinary hearing officer that a fire captain was guilty of multiple counts of misconduct and incompetence.

The Appellate Division annulled the mayor’s determination and reinstated the captain to his former position with back salary.

In explaining its ruling the Appellate Division said:

1. Substantial evidence does not support the determination of guilt;

2. The disciplinary charges were based on the captain’s “failure to disclose information that was neither solicited nor relevant to the conversation” with a police detective and “under no reasonable view of the evidence can it be said that the captain’s silence was willful or indicative of ‘some dereliction or neglect of duty’ on his part;” and

3. The captain was not charged with making inaccurate statements to his superior and, thus, cannot be disciplined for allegedly making such statements.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04265.htm

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Vargas v New York City Employees' Retirement Sys., 2012 NY Slip Op 04185, Appellate Division, Second Department

Alex Vargas filed a petition pursuant to CPLR Article 78 challenging a determination of the Board of Trustees of the New York City Employees' Retirement System [NYCERS] that denied his application for accidental disability retirement benefits pursuant to Retirement and Social Security Law §605-b. When Supreme Court denied his petition, Vargas appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that NYCERS’ Medical Board determines whether a member applying for accidental disability retirement benefits is disabled and NYCERS’ Board of Trustees of the New York City Employees' Retirement System is bound by the Medical Board's determination as to whether an applicant is disabled. Further, said the court, the Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational.

The record demonstrates that the Medical Board considered all of the medical evidence submitted by Vargas, interviewed him, and performed its own physical examination of him. Although the medical conclusions of some of Vargas' treating physicians differed from that reached by the Medical Board, the resolution of such conflicts is solely within the province of the Medical Board.

Rejecting Vargas’ argument to the contrary, the Appellate Division said that a disability determination by the Workers' Compensation Board does not control the Medical Board's disability determination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04185.htm

Police officer dismissed after being found guilty of serving as an active volunteer firefighter while on GML §207-c leave

Police officer dismissed after being found guilty of serving as an active volunteer firefighter while on GML §207-c leave

Kaufman v Wells, 56 AD3d 674

A disciplinary hearing officer found Steve Kaufman guilty of 42 of 122 specifications of misconduct filed against him, which ultimately resulted in Kaufman’s being terminated from his position with the Town of New Castle Police Department.

New Castle, among other things, charged that Kaufman, while on leave pursuant to General Municipal Law §207-c, participated in activities as a volunteer firefighter “which demonstrated his ability to work a light-duty assignment for the police department.”

Kaufman filed an Article 78 action to review New Castle’s determination.

The Appellate Division said that "Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence."

In this instance the court found that the Town Board's determination that Kaufman was guilty of the specified acts of misconduct was supported by substantial evidence.

In addition, said the court, "[a]n administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law," citing Kreisler v New York City Transit Authority, 2 NY3d 775.”

The Appellate Division concluded that ”Considering the repeated and numerous acts of misconduct, and the serious nature of the acts, it cannot be concluded, as a matter of law, that the penalty of [termination] shocks the judicial conscience."

Finally, the court said that “there is substantial evidence in the record to support the hearing officer's determination” that the disciplinary charges were not preferred against Kaufman in retaliation for his commencement of a civil action against the Town and members of the police department.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09082.htm

=======================

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.

========================

15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose

15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose
Dep't of Sanitation v. Pulliam, OATH Index No. 1976/08

A sanitation worker was found to have disobeyed a supervisor's order and used a Department truck for an unauthorized purpose when he drove to a pay phone to call the police after allegedly being assaulted by a civilian on his route. Pulliam’s supervisor, after checking to make sure the respondent was not hurt, had ordered him to continue on his route while he called the central office to find out how to proceed. Administrative Law Judge Julio Rodriguez recommended a suspension of 15 days. He dismissed a second charge of unauthorized absence where the respondent claimed that he had gone on a bathroom break, and prior cases indicated that workers are vested with some discretion as to when and where to use the bathroom.

[For the full text of the decision, click on the title of the decision.]

 

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present
Harbatkin v New York City Dept. of Records & Info. Servs., 2012 NY Slip Op 04277, Court of Appeals

This action arose as the result of the City of New York providing redacted records in response to a Freedom of Information request for records resulting from the New York City Board of Education’s investigation of a large number of teachers and other employees suspected of being present or former members of the Communist Party in the1950's. These investigations included interviews with many individuals who, under the promise of confidentiality, were asked to provide the names of those who had been in the Communist Party with them.*

An historian of the period sought disclosure of unredacted transcripts of these interviews under the Freedom of Information Law (FOIL).

The Court of Appeals held that the historian was “entitled to everything in the transcripts except material that would identify informants who were promised confidentiality.”

The Court explained that “today, more than half a century after the interviews took place, the disclosure of the deleted information would not be an unwarranted invasion of personal privacy” noting that this was not always true as “at the time of the investigations, and for some years thereafter, public knowledge that people were named as present or former Communists would have subjected them to enormous embarrassment, or worse.” In any event, said the court, any such embarrassment would be much diminished today because “the activity of which they were accused took place so long ago, and because the label "Communist" carries far less emotional power than it did in the 1950s.”

Balancing these “diminished claims of privacy” against the claims of history, the court said that “The story of the Anti-Communist Investigations, like any other that is a significant part of our past, should be told as fully and as accurately as possible, and historians are better equipped to do so when they can work from uncensored records.”

There was a limitation on providing such records "unredacted," however. The Court ruled that with respect to the disclosure of the names of the interviewees who were promised that "no one would find out they were being interviewed," that promise was required to be honored.

The Court of Appeals said that it was “unacceptable for the government to break that promise, even after all these years,” commenting that “[p]erhaps there will be a time when the promise made to [such individuals], and to others similarly situated, is so ancient that its enforcement would be pointless, but that time is not yet.”

* NYPPL comments: Education Law §§3021 [adopted in 1949 and sometimes referred to as the Feinberg Law] and 3022, respectively provide for "loyalty oaths" and for the “elimination of subversive persons from the public school system”]. Educators involved in “Subversive activities” were “disqualified” for employment. In 1967 these provisions were ruled unconstitutional by the U.S. Supreme Court [Keyishian v. Board of Regents, 514 U.S. 673] on the grounds that they were [1] unconstitutionally vague and [2] violative of the individual's First Amendment rights of free speech and association. 

As to positions in the Classified Service, the Civil Service Law was amended by adding §105, the so-called “Anti-red Law,” which was challenged in Keyishian by co-plaintiff George E. Starbuck, an employee in the Classified Service.

The Supreme Court held that "Civil Service Law §105, subd.1(c), and Education Law §3022, subd. 2, are invalid insofar as they proscribe mere knowing membership without any showing of specific intent to further the unlawful aims of the Communist Party of the United States or of the State of New York."

The Keyishian decision is posted on the Internet at: http://scholar.google.com/scholar_case?case=15934266528750676067&q=keyishian+v.+board+of+regents&hl=en&as_sdt=2,33&as_vis=1

The Harbatkin decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04277.htm

An administrative decision denying an application for accidental disability retirement vacated because of a lack of evidence in the record supporting the determination

An administrative decision denying an application for accidental disability retirement vacated because of a lack of evidence in the record supporting the determination

Baranowski v Kelly, 2012 NY Slip Op 04208, Appellate Division, First Department

A New York City police officer filed an Article 78 petition seeking to vacate the denial of his application for accidental disability retirement based on a work-related incident involving his carrying an individual from a burning building.

The Medical Board had found that the officer suffered from a disabling congenital condition that prevented him from performing his duties as a police officer and recommended he be awarded ordinary disability retirement benefits rather than an accidental disability retirement allowance.

The officer, on the other hand, had contended that he was entitled an accidental disability retirement allowance because his congenital condition became permanently aggravated as a result of his rescuing the individual. The Appellate Division noted that it had remanded the matter to the Medical Board on earlier two occasions, asking the Board for evidence supporting its conclusion that officer's disability was not service-related.

However, said the Appellate Division, “the Medical Board's finding that [police officer’s] congenital condition was only temporarily exacerbated by the incident was based solely on conjecture” as the Board failed to cite anything in the record indicating that the condition improved before becoming permanently disabling.

Accordingly, it sustained Supreme Court’s ruling vacating the denial of the police officer’s application for accidental disability retirement benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04208.htm

=======================

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.

========================

Application of the federal Hatch Act barring partisan political activities by certain State and municipal employees

Application of the federal Hatch Act barring partisan political activities by certain State and municipal employees
Juan Molina-Crespo v United States Merit Systems Protection Board, 547 F.3d 651

Juan Molina-Crespo served as the Executive Director of the Lorain County Children and Families First Council (“LCCFFC”), an Ohio government agency that is financed in part by the federal government. The federal government provides funds to Ohio agencies, which are then passed through to the LCCFFC. The United States Merit Systems Protection Board [Board] determined that Molina-Crespo violated the federal Hatch Act [5 U.S.C. § 1502(a)(3)], which regulates the political activity of certain state employees who administer federal funds. The Board ruled that Molina-Crespo’s actions in violation of the Hatch Act warranted his removal.

The Circuit Court of Appeals said: “It is undisputed that, as Director, Molina-Crespo was subject to the Hatch Act because he was “an individual employed by a State . . . agency whose principal employment is in connection with an activity which is financed in whole or in part” by the federal government.”

Molina-Crespo’s difficulties arose when he declared his candidacy in a primary election for the office of Lorain County Commissioner. The United States Office for Special Counsel (“OSC”), the federal agency charged with administering the Hatch Act, advised him that his candidacy violated § 1502(a)(3) of the Act and that he would either have to resign his position at the LCCFFC or withdraw his candidacy in order to comply with the Act’s requirements.

Molina-Crespo, however, told the OSC that he did not consider himself a “covered employee” subject to the Act because the federal funding the LCCFFC received first passed through various state agencies.

Although Molina-Crespo’s candidacy for Lorain County Commissioner ended when he failed to win the Primary, the OSC filed a formal complaint with the MSPB alleging that Molina-Crespo violated the Act by being a candidate for elective office.

Ultimately the Board ordered the LCCFFC to remove Molina-Crespo from his position as Director within thirty days and warned that, if the LCCFFC failed to dismiss Molina, it would lose federal funds equal to two years of Molina-Crespo’s pay. Molina-Crespo then resigned from his position and sued, challenging the constitutionality of the Hatch Act together with allegations that the Act violated his First Amendment rights and constitutional guarantees of due process and equal protection.

The court noted the Supreme Court has addressed the constitutionality of the Hatch Act’s restrictions on federal employees’ political activities, and has concluded that the Act’s prohibitions are constitutional, citing United Pub. Workers v. Mitchell, 330 U.S. 75 and in Carver v. Dennis, 104 F.3d 847, and that the Sixth Circuit had earlier concluded that there is no fundamental right to be a candidate for political office. Rejecting Molina-Crespo’s efforts to distinguish between federal and state employees with respect to the application the Hatch Act, the Circuit Court of Appeals ruled that a state employee’s participation in political activities violated the Hatch Act and warranted his or her removal from his or her state position.

Similarly, the Circuit Court of Appeals rejected Molina-Crespo contention that the Hatch Act violates the Equal Protection Clause.

Finally, the court held that the Board did not abuse its discretion in concluding that Molina-Crespo’s violation of the Hatch Act justified his removal.

A relevant decision, Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], holds that an individual otherwise subject to a “due process disciplinary hearing” such as that provided by a Taylor Law agreement or by State Law, may be summarily removed from his or her position on the authority of a Board determination. The Blackburne decision, which addressed the right of an individual to file a Taylor Law contract disciplinary grievance after the Board directed his removal from his position for violating the Hatch Act, held that arbitration would offend public policy as it "would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

The full text of the Molina decision is posted on the Internet at:

http://www.ca6.uscourts.gov/opinions.pdf/08a0419p-06.pdf

N.B. As earlier noted, officers and employees in the executive branch of state and local government whose principal employment involves an activity financed in whole or in part by federal loans or grants are subject to the Hatch Act. However, certain public officers such as the governor, the mayor of a city, and the elected head of an executive department not in the classified service are exempted, as are individuals employed by educational or research institutions which are supported in whole or in part by the State or a political subdivision of the State.

Another key element of the Hatch Act provides that while public officers and employees may be members of a political party and even serve as officers in that party, they cannot use their official authority or influence for the purpose of interfering with or affecting the results of such elections or the nominations of candidates for those elective offices. Also direct or indirect coercion of public workers to make a loan or to contribute anything of value to an individual or a party or other organization for political purposes is prohibited.

Union presence during an interrogation of a unit member by the appointing authority

Union presence during an interrogation of a unit member by the appointing authority

Seabrook v City of New York, 57 AD3d 232

Norman Seabrook, individually and as President of the Correction Officers' Benevolent Association, challenged the policy of not allowing an employee to consult with a union representative after a question is posed and before an answer must be given, at an interrogation conducted pursuant to [New York City] Mayoral Executive Order No. 16.

Mayoral Executive Order 16 requires city employees to report allegations of corruption to City's Department of Investigation.

The exclusion of union representatives, said the court, "ensures that the charges will be probed confidentially and professionally by investigators independent of the employee's own agency and superiors."

Holding that this policy “was reasonably designed to promote truthful responses by discouraging coaching,” the Appellate Division concluded that such action did not deprive the employee of his right to union representation under Civil Service Law §75(2) or National Labor Relations Bd. v J. Weingarten, Inc. (420 US 251 [1975]).

A similar issue was addressed by the Appellate division in City of Rochester v Public Employment Relations Board, 15 AD3d 922, Leave to appeal denied, 4 N.Y.3d 710. In Rochester the Appellate Division, Fourth Department, held that PERB abused its discretion when it decided that the City of Rochester committed an improper employer practice in violation of Civil Service Law §209-a(1)(a) (The Taylor Law) by denying city police officers, who were union members, access to union representation during a criminal investigation interview.

The Fourth Department said that "PERB abused its discretion in expanding a public employee's rights to include the right to have a union representative present during a criminal investigation" as New York State "has a strong public policy that prohibits union interference with criminal investigations."

The full text of the Seabrook decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09471.htm

The text of Executive Order 16 is posted on the Internet at:

http://www.nyc.gov/html/doi/html/whistblr-eo16.html

 

A court order must be “clear and unequivocal” in order to hold a party in contempt for its alleged “failing to comply”

A court order must be “clear and unequivocal” in order to hold a party in contempt for its alleged “failing to comply”

Storman v New York City Dept. of Educ., 2012 NY Slip Op 04217, Appellate Division, First Department

Supreme Court granted, among other things, a motion to hold the New York City Department of Education (DOE) in contempt for its alleged failure to comply with a judgment.

The Appellate Division unanimously reversed the Supreme Court’s action, commenting that it was acting “In the interest of justice, we nostra sponte* [in granting] DOE leave to appeal from the contempt order … which was "made in a proceeding against a body or officer pursuant to article 78" and therefore was not appealable as of right” (see CPLR 5701[b][1]).

The court explained that Supreme Court's “judgment to remand for ‘further proceedings’ was not a ‘clear and unequivocal’ mandate, and thus DOE should not have been held in contempt for allegedly disobeying it.” The remedy, if any, said the Appellate Division “lies in seeking to clarify the … order, which will allow the court to issue a clear and unequivocal mandate.”

Considering a related aspect of the appeal, the Appellate Division noted that the administrative hearing conducted by the Chancellor's Committee "was not determinative but merely advisory" to the Chancellor and thus the "arbitrary and capricious" standard of judicial review applies, not the "substantial evidence" standard.

Accordingly, said the court, “Applying the proper standard, DOE's determination was not arbitrary and capricious, but was rationally based in the record, which included the investigator's report and the testimony of the investigator and principal at the administrative hearing,” citing Murane v Department of Education, 82 AD3d 576.

* Nostra Sponte - an action by a court undertaken on its own inherent authority.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04217.htm

Employee terminated after being found guilty of deliberately striking his superior with a duffel bag

Employee terminated after being found guilty of deliberately striking his superior with a duffel bag

Human Resources Administration v. Power, OATH Index No. 879/12

OATH Administrative Law Judge Ingrid M. Addison sustained charges Civil Service Law §75 charges alleging that an agency employee deliberately struck his supervisor with his heavy duffel bag and continued walking without stopping even though the supervisor was pinned to the wall.

Judge Addison recommended dismissal of two charges [1] that the individual intimidated a co-worker by staring through her office window and [2] that he failed to evacuate the building as directed by building security, finding the proof insufficient to establish guilt of the misconduct alleged.

The ALJ recommended that the employee be terminated based on the charges found to have been proven in the course of the disciplinary hearing. 

The Commissioner adopted the Administrative Law Judge’s findings and recommendation, dismissing the employee from his position with the agency.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0879.pdf

Selected Rulings posted by PERB

Selected Rulings posted by PERB 

Matter of Chemung County Sheriff’s Association, Inc., Decision 44 PERB 3026, U-29007

The Board reversed a decision of an Administrative Law Judge (ALJ) that had found that the Chemung County Sheriff’s Association, Inc. (Association) violated §209-a.2(b) of the Public Employees’ Fair Employment Act (Act) when it sought interest arbitration of a nonarbitrable proposal under §209.4(g) of the Act.

The Board held that the joint employer’s second amended charge, which alleged for the first time that the Association’s General Municipal Law (GML) §207-c hearing proposal was nonarbitrable under §209.4(g) of the Act, was untimely because it did not relate back to the joint employer’s original claim challenging the mandatory nature of the proposal under the Act.

Finally, the Board held that the Association’s GML §207-c hearing proposal to permit a hearing officer to issue a binding decision, subject to review by the courts under CPLR Article 78, was mandatory under City of Watertown v. New York State Public Employment Relations Board, 97 NY2d 73, [33 PERB 7007].

Recipient of workers' compensation benefits may not sue his or her employer “in its landlord role”

Recipient of workers' compensation benefits may not sue his or her employer “in its landlord role”

Weiner v City of New York, 2012 NY Slip Op 04207, Court of Appeals

Mark Weiner was employed by the New York City Fire Department as an Emergency Medical Technician. Injured in the course of his performing his duties, he applied for, and received, workers' compensation benefits from his employer - the City of New York.

Weiner subsequently sued the City and the New York City Parks and Recreation Department alleging both “common law negligence and a cause of action under General Municipal Law §205-a.” According to Weiner, the City-maintained boardwalk was poorly illuminated, resulting in his being injured.

The Appellate Division, reversing a Supreme Court ruling to the contrary, held that Weiner's action was barred by his receipt of workers' compensation benefits and that he could not sue the City “in its landlord role.”

The Court of Appeals, citing Gonzales v Armac Indus., 81 NY2d 1, sustained the Appellate Division’s decision, commenting that worker’s compensation benefits are "[t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment."

The Court explained that "In exchange for the security of knowing that fixed benefits will be paid without the need to resort to expensive and sometimes risky litigation, … the employee has been asked to pay a price in the form of the loss of his [or her] common-law right to sue his [or her] employer in tort and perhaps to enjoy a more substantial recovery through a jury award."


In the words of the court: “Weiner's principal argument relies on a difference in wording between General Municipal Law § 205-a (pertaining to firefighters) and General Municipal Law §205-e (pertaining to police officers). Section 205-e contains the same statement found in §205-a that the cause of action created by the statute exists "[i]n addition to any other right of action or recovery under any other provision of law" (General Municipal Law §205-e [1]).


However, said the Court, in addition §205-e explicitly provides that "nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law."

Although Weiner argued that the omission of this §205-e language concerning workers' compensation law in §205-a was deliberate, the Court said that it disagreed, holding that “Had the Legislature intended to give firefighters, but not police officers, the right to sue as well as receive workers' compensation benefits, this distinction, we are certain, would have been evident in the legislative history.” Rather, concluded the court, “it was not the intent of the Legislature to allow recipients of workers' compensation benefits to sue their employers in tort under §205-a.”*

Noting that it was not addressing the question of whether emergency medical technicians who are employed by fire departments and are not recipients of workers' compensation benefits are entitled to the right of action provided by §205-a, or whether the right of action is limited to firefighters, the Court noted that it has “long refused to condone the circumvention of the Workers' Compensation scheme by means of a theory that would allow an employer to be sued in its capacity as property owner.”

Here, said the court, “[a]n employer remains an employer in [its] relations with [its] employees as to all matters arising from and connected with their employment" and Weiner's injuries arose from and were connected with his employment as an emergency medical technician.


* See the Governor's "Approval Memorandum" in the "bill jacket" of Chapter 703 of the Laws of 1996.


The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04207.htm

=======================

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.

========================

Administrative Law Judge holds that intent is a pre-requisite for a finding of misconduct

Administrative Law Judge holds that intent is a pre-requisite for a finding of misconduct

OATH Index No. 802/12

A sanitation worker was charged with committing misconduct for being absent without leave (“AWOL”).

The worker, however, established that he was absent on the days charged because voices told him he would be killed if he attended in the course of the disciplinary hearing. The worker also submitted medical records documenting a history of his mental disability.*

Because intent is a pre-requisite for a finding of misconduct, OATH Administrative Law Judge Faye Lewis recommended dismissal of the charges.

In the words of Judge Lewis, “Where respondent’s disability caused him to have a sincere belief that he would be killed if he went to work, he cannot be blamed for not doing so. Respondent lacked the intent that is a prerequisite under section 75 of the Civil Service Law for a finding of misconduct. Therefore, his absence without authorization did not constitute misconduct.”

The ALJ also noted that the agency is not precluded from seeking to place the employee on disability leave [see Civil Service Law §72.

* In an administrative disciplinary action the accused “may defend against the charges by showing that he [or she] lacked the requisite intent to commit the charged misconduct because he was mentally incapacitated. Such a defense is in the nature of an affirmative defense which respondent bears the burden of proving by a preponderance of the evidence.” Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v. Bruce, OATH Index No. 138/10

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0802.pdf

Changing payroll-payment mode a mandatory subject of collective bargaining

Changing payroll-payment mode a mandatory subject of collective bargaining
United College Employees of Fashion Institute of Technology and Fashion Institute of Technology, PERB U-27057

The Board affirmed the decision of the ALJ that FIT violated §209a.1(d) of the Act when it unilaterally changed a past practice of paying day adjunct faculty represented by UCE on the basis of 16 weeks of work, thereby reducing their salaries by one-sixteenth.

Finding that a cognizable past practice of payment for 15 weeks of instruction and one week of registration had existed for almost 30 years established a reasonable expectation that it would continue unchanged, the Board rejected FIT's argument that it had no actual or constructive knowledge of the practice.

The amount in the annual budget represented by the 16th week, the actions of management employees in approving both payroll and the budget along with the longevity of the practice were considered by the Board.

The Board also found that the practice involved wages and the method for calculating the payment of salary, both mandatory subjects of negotiations.

Finally, the Board rejected FIT's argument that the payment for the 16th week, during which little or no duties might be performed, was an unconstitutional gift of public monies.

Discrimination complaint dismissed because law did not require an accommodation at the time the request for an accommodation was made

Discrimination complaint dismissed because law did not require an accommodation at the time the request for an accommodation was made

Rappo v NYS Division of Human Rights, 57 AD3d 217

The New York State Division of Human Rights dismissed Frances V. Rappo’s claim that she had been unlawfully discriminated against by her former employer, the New York City Human Resources Administration (HRA). Rappo alleged that HRA had failed to reasonably accommodate her disability.

The Appellate Division dismissed Rappo’s petition, explaining that at the time she made her request for a reasonable accommodation of her disability Executive Law §292(21) -- New York State’s Human Rights Law -- did not require an employer to provide "reasonable accommodations" of an applicant’s or an employee’s disability.

Further, the court said that substantial evidence supports the determination that HRA was not required to provide Rappo with a job transfer as a reasonable accommodation, since she failed to demonstrate that she could not perform the essential duties of her then present job and that she would be able to perform the essential duties of another job.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09447.htm

Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect

Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect 

Arthur v  Soares,  2012 NY Slip Op 04255, Appellate Division, 3^rd Dept.

The Albany County District Attorney, P. David Soares,  filed disciplinary charges pursuant to §75 of the Civil Service Law against one of his subordinates, D. Richard Arthur, then serving as the office’s Director of Administration.

The Hearing Officer found Arthur guilty of the charges and recommended that he be terminated from his position. Soares adopted the hearing officer’s findings and recommendation and dismissed Arthur from his position. Arthur file a petition pursuant to Article 78 seeking a court order vacating Soares' action.

The Appellate Division annulled Soares' decision, finding “the record evinces that the Hearing Officer lacked jurisdiction.” and directed that Arthur be reinstated to his former position with back pay and benefits.*

The court noted that Civil Service Law §75(2), provides that a hearing on employee disciplinary charges "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a . . . person designated by such officer or body in writing for that purpose" [emphasis supplied].

It is well settled, said the Appellate Division, that absent "a written delegation authorizing a deputy or other person to conduct the hearing," the hearing officer did not have jurisdiction to conduct the §75 disciplinary hearing,  citing Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, among other decisions.

Significantly, the Appellate Division, Third Department had earlier ruled that the requirements of Civil Service Law §75(2) could be satisfied by a written record of such designation such as the minutes of a board meeting at which a resolution was adopted appointing the hearing officer or a letter to the hearing officer advising him or her that the official designation has taken place. In contrast, the court observed that “correspondence to the hearing officer that does not reference the official designation is insufficient, as is written notice to the [accused] of the hearing officer's identity.”

The Appellate Division found that there was no evidence in the record on appeal that the appointing authority had ever designated the Hearing Officer in a writing sufficient to satisfy the statutory requirement. The court specifically noted that reference to the designation of the hearing officer in the notice of charges sent to Arthur is not sufficient in the absence of any evidence of the written designation itself.”**

In addition, the employee’s failure to object to the absence of such written designation “is of no moment, inasmuch as this jurisdictional defect cannot be waived,” said the court, citing Gardner v Coxsackie-Athens Cent. School Dist. Bd. of Educ., 92 AD3d at 1095. This clearly implies that the individual being disciplined has no duty to inform the appointing authority of this procedural defect.

As the Hearing Officer lacked jurisdiction to conduct the hearing, his determination and Soares’ adoption thereof are nullities and Arthur, said the court, “must be restored to his former position with back pay and benefits.”

The court also noted that while courts employ the substantial evidence standard of review in resolving challenges to Civil Service Law §75 determinations, the disciplinary hearing officer does not review an employer's disciplinary actions taken against a public employee "to determine whether those actions were undertaken based upon substantial evidence," as occurred in Arthur's disciplinary proceeding; rather," it remains the responsibility of the hearing officer to weigh the evidence and resolve credibility determinations."

Further, said the court, "administrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review."

* The Appellate Division also held that the hearing officer “did not properly weigh the evidence, and failed to adequately detail the specific factual findings and hearing evidence relied upon.”

** Such notice to the accused has been deemed to satisfy the statutory mandate when the appointing authority separately issues a written resolution incorporating the notice by reference (Scharf v Levittown Union Free School Dist., 294 AD2d 508, lv denied 98 NY2d 613).

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04255.htm

===================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

=======================

Employer’s abolishment of a position challenged

Employer’s abolishment of a position challenged
Eugenio v City of Yonkers, N.Y, 2012 NY Slip Op 04006, Appellate Division, Second Department

When the City Council of the City of Yonkers abolished the position of Clerk II Spanish Speaking, the former incumbent filed an Article 78 petition seeking a court order reinstating her to her former position with back pay. Supreme Court denied the petition and the Appellate Division affirmed the lower court’s dismissal of the petition.

The Appellate Division explained that "[A] public employer may abolish civil service positions for the purpose of economy or efficiency." In the event that action is challenged, the challenger “has the burden of proving that the employer did not act in good faith in abolishing the position."

Finding that Supreme Court properly determined that the former incumbent failed to sustain her burden of proving her position was abolished in bad faith, the Appellate Division commented that under the circumstances, the former employee’s request for further inquiry amounted to "no more than an expression of hope insufficient to warrant deferral of judgment"

As to mechanics involved in abolishing a position, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these §§80 and 80-a of the Civil Service Law (1976 Opinions of the Attorney General 7).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04006.htm

=========================

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

=========================

Changing the employees’ tours of duty and work schedules alleged a violation of the employer’s duty to bargain in good faith

Changing the employees’ tours of duty and work schedules alleged a violation of the employer’s duty to bargain in good faith

Matter of the Town of Fishkill, Decisions of the Public Employment Relations Board, U-27331, U-27568

The Board affirmed a decision of an ALJ dismissing a portion of an improper practice charge filed by PBA alleging that the Town of Fishkill (Town) violated §§209-a.1(d) and (e) of the Public Employees’ Fair Employment Act (Act) when the Town changed the tours of duty and work schedules of two PBA officers thereby reducing their total weekly hours of work.

The Board rejected, as meritless, the PBA’s assertion that the ALJ misconstrued the allegations of the charge with the Board citing to the specific allegations of the charge.

The Board also rejected PBA’s claim that the ALJ erred in her conclusion regarding the number of hours worked by the two PBA officers noting that the evidence presented concerning the respective length of tours and workweeks was incomplete and confusing, at best.

Finally, the Board affirmed the ALJ’s conclusion that the Town had satisfied its duty to bargaining under the Act.

Due to the fact that the relevant contractual terms could reasonably be interpreted to have more than one meaning, the Board considered parol evidence in the record in determining that the Town satisfied its duty to negotiate the at-issue subject. 

Expulsion from a membership organization

Expulsion from a membership organization
Dormer v Suffolk County Police Benevolent Assn., Inc., 2012 NY Slip Op 03979, Appellate Division, Second Department

The then Police Commissioner of Suffolk County and the then Deputy Police Commissioner of Suffolk County sued the Suffolk County Police Benevolent Association, Inc., [PBA] and the Superior Officers Association of the Police Department of the County of Suffolk, [SOA] contending that their expulsions from these organizations was "illegal and improper."

Both the Commissioner and the Deputy Commission contended that they were expelled from the PBA and the SOA in retaliation for following official directives which required them to transfer responsibility for patrolling certain roadways on Long Island from the Suffolk County Police Department to the Office of the Sheriff, claiming that their expulsion had an adverse effect on them due to the loss of a life insurance policy. They sought a court order reinstating their membership “with full benefits.”

As their petitions were dismissed by Supreme Court as untimely, which ruling was affirmed by the Appellate Division, the merits of their claims were never addressed by the courts.

However, assuming, but not deciding, that the PBA and the SOA were recognized or certified for purposes of collective bargaining with the Suffolk County Police Department, as both the Commissioner and the Deputy Commissioner were expelled from their “membership” in the PBA and the SOA, presumably neither the Commissioner nor the Deputy Commissioner positions had been designated managerial or confidential within the meaning of §214 of the Civil Service Law [the Taylor Law].

§214 provides, in pertinent part, that “ No managerial or confidential employee, as determined pursuant to subdivision seven of section two hundred one of this article, shall hold office in or be a member of any employee organization which is or seeks to become pursuant to this article the certified or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.”

§201.7(a) of the Civil Service Law provides, in pertinent part, that “The term ‘public employee’ means any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include for the purposes of any provision of this article … persons who may reasonably be designated from time to time as managerial or confidential.”

.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03979.htm

Filing exceptions to a PERB administrative law judge’s determination

Filing exceptions to a PERB administrative law judge’s determination

Matter of County of Ontario and Ontario County Sheriff [Joint employers] PERB decision U-30353

The Board rejected the Joint Employer’s contention that it had a right to file exceptions to an ALJ’s interim decision denying its motion to dismiss a charge, without the necessity of seeking leave to file exceptions from the Board pursuant to § 212.4(h) of the Rules of Procedure (Rules).

The Board reached its conclusion based upon well-established precedent requiring a party to seek permission to file exceptions from interim decisions and rulings pursuant to §212.4(h) of the Rules.

Nevertheless, the Board treated the Joint Employer’s pleading as a motion for leave to file exceptions and concluded that the Joint Employer failed to demonstrate extraordinary circumstances.

Pursuant to §205.5(d) of the Public Employees’ Fair Employment Act (Act), PERB has exclusive jurisdiction to determine whether an employer has engaged in an improper practice in violation of §209-a.1 of the Act. The fact that a notice of claim was served asserting an alternative motivational theory underlying the alleged retaliation did not deprive PERB of jurisdiction to hear the pending charge, nor did it constitute a waiver of jurisdiction.

The Board noted, however, that although the pursuit of ancillary litigation may not deprive of PERB of jurisdiction or constitute a waiver, the results of such litigation may, in certain circumstances, form the basis for a collateral estoppel defense to a charge pending at PERB. 

Practice Tip noted by PERB staff:

Practitioners are reminded that under Board precedent, motions for leave to file exceptions are very rarely granted due to the strict standard requiring a movant to demonstrate extraordinary circumstances. This high standard is applied by the Board based upon the view that it is far more efficient to await the final disposition of the merits of a charge before examining interim determinations and to avoid unnecessary delays in the processing of improper practice charges. 

NYPPL has added a link to Education News

NYPPL has added a link to Education News

The Internet web site EducationNews [ www.EducationNews.org ] is a leading news resource reporting on national and international educational, political, business, and environmental issues. Since 1997 EducationNews has provided relevant news on a daily basis.

The site is listed in the sidebar in NYPPL's listing of "Links to Other Useful Web Pages" as Education News - a global resource.

Willful failure to comply with a “discovery order” assumes an ability to comply

Willful failure to comply with a “discovery order” assumes an ability to comply
2012 NY Slip Op 03786, Appellate Division, First Department

One of the issues considered by the Appellate Division in this phase of this litigation was Supreme Court’s denial of a motion to “strike” the New York City Department of Education’s [DOE] answer based on the petitioner’s allegation that DOE had “failed to disclose” certain records she had demanded in the course of discovery.

The Appellate Division unanimously affirmed the Supreme Court’s ruling, explaining the petitioner had failed to "show conclusively that [the DOE’s] failure to disclose was willful, contumacious or due to bad faith."

The court noted that DOE was not in possession of certain records demanded that had been prepared by a former employee nor could DOE control whether the former employee “contacts them.”

In such cases the Appellate Division said the test as to a party's “willful failure to comply with a discovery order” assumes an ability to comply with such an order and the party's decision not to comply with such an order. However, a showing that it is impossible to make the particular disclosure will bar the imposition of a sanction for such non-disclosure pursuant to Section 3126 of the Civil Practice Law and Rules.

The court concluded that DOE had satisfied the test of “impossibility” insofar as these particular records were concerned.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03786.htm

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment

Washington v New York City Bd. of Educ., 2012 NY Slip Op 04103, Appellate Division, First Department

.
The employee claimed that she had slipped while using an internal staircase in the school building and then fell.

At the administrative hearing held to consider her claim she testified that she "tripped/slipped and fell" on a "substance" and that the staircase was "unclean, dirty and contained a substance for an unreasonable amount of time." She subsequently filed verified bill of particulars that she slipped and fell "on an unknown liquid substance," and that the subject stairwell was "dirty, slippery, [and] wet."

Although discovery was still pending, the New York City Board of Education moved for summary judgment dismissing the  employee's complaint. The Appellate Division said that the Board had established a prima facie entitlement to summary judgment by pointing to the employee’s testimony at the administrative hearing that she did not know what caused her to fall.

Sustaining the granting of the Board’s motion, the Appellate Division explained that the employee had failed to submit evidence sufficient to raise a triable issue of fact. The assertions in her bill of particulars and her affidavit that she slipped on a wet and slippery condition caused by an "unknown liquid" or "semi-liquid" substance contradict her prior hearing testimony that she did not know what caused her to fall.

Because, said the court, the employee’s affidavit and bill of particulars can only be considered to avoid the consequences of her prior testimony, they are insufficient to raise an issue of fact.

While the employee claimed that certain requested “incident reports and maintenance records,” in conjunction with her testimony that she slipped on "something," could prove that a foreign substance was on the stairs where she fell, the Appellate Division ruled that “the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny the motion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04103.htm

Transfer of exclusive bargaining unit work to another bargaining unit

Transfer of exclusive bargaining unit work to another bargaining unit

Selected Rulings posted by PERB  – Matter of the City of New Rochelle, Decision U-26722

The Board affirmed a decision of an ALJ, concluding that the employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred exclusive bargaining unit work to employees in another bargaining unit. In reaching its decision, the Board rejected the argument that a stipulation resolving a prior improper charge deprived the agency of jurisdiction to decide the present charge.

The Board affirmed the ALJ’s conclusion that the settlement agreement did not grant PBA unit members the right to exclusively perform at issue, but made them eligible for such work and set forth the terms and conditions applicable to perform the work. The Board also rejected a duty satisfaction defense premised upon the terms of the management rights clause in the parties’ agreement