Retirement and Social Security Law excludes “large raises having the effect of inflating the members final average salary” in determining the member’s retirement allowance

The Retirement and Social Security Law excludes “large raises having the effect of inflating the members final average salary” in determining the member’s retirement allowance
Chichester v DiNapoli, 2013 NY Slip Op 05283, Appellate Division, Third Department

Gilbert L. Chichester was employed as the Executive Director of the Montgomery-Otsego-Schoharie Solid Waste Management Authority (MOSA) from December 1, 1993 through December 2004 pursuant to a series of employment contracts.

In December 2004, Chichester's then-current employment contract expired without a new agreement in place. MOSA's Board and Chichester entered into an oral agreement providing for Chichester’s continued employment and compensation pending further contract negotiations.

No agreement had been reached as of January 2006 and MOSA's Board adopted a resolution imposing retroactive salary increases for Chichester for 2004, 2005 and 2006. Negotiations, however, continued and, on August 20, 2009, Chichester and MOSA entered into a written employment contract covering the period from January 1, 2005 to August 31, 2009. That contract “retroactively increased Chichester's annual base salary and resulted  in certain lump-sum payments being made to Chichester.* The same day Chichester and MOSA entered into a separate agreement indicating Chichester's intention to resign from his position effective August 31, 2009 and to thereafter retire.

When Chichester submitted his application for service retirement effective September 23, 2009 to the New York State and Local Employees' Retirement System, the System advised him that the retroactive lump-sum payments he received in August 2009 (covering the period from September 1, 2006 to August 31, 2009) would not be included in the calculation of his final average salary for purposes of determining the pension portion of his retirement allowance.

The Retirement System explained that “such payments were not annual compensation but, rather, represented either a form of termination pay or additional compensation paid in anticipation of [Chichester’s] retirement.”

Chichester challenged that administrative decision and following a hearing, the Hearing Officer concluded that the "lump-sum" payments should be included in Chichester’s final average salary. The Comptroller disagreed and excluded such payments from Chichester’s retirement benefit calculation and Chichester filed a petition pursuant to CPLR article 78 challenging the Comptroller’s determination.

The Appellate Division said that its case law makes clear that "the Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld" even if other evidence in the record could support a contrary result.

The Retirement and Social Security Law [RSSL] provides that a member's pension benefit is based upon his or her final average salary, i.e., "the average salary earned by such . . . member during any three consecutive years which provide the highest average salary." However, RSSL §431further provides that to avoid the artificial inflation of that such calculation must exclude "any form of termination pay" or "any additional compensation paid in anticipation of retirement."

The Appellate Division then observed that "In determining what constitutes termination pay or compensation paid in anticipation of retirement, [it] must look to the substance of the transaction and not to what the parties may label it."

Although, noted the court, the arguments advanced by Chichester “arguably militates in favor of a finding that the lump-sum payments at issue indeed were regular salary payments,” the Appellate Division said that it could not overlook the fact that “the underlying employment agreement expired by its own terms as of August 31, 2009 — a mere 11 days after it was signed by [Chichester] and MOSA's chair — and, more to the point, was executed the same day that [Chichester] and MOSA entered into an agreement relative to Chichester's resignation (effective August 31, 2009) and retirement” and, the retroactive salary increases were disproportionate to the salary increases previously enjoyed by Chichester.

Here, said the court, "the timing of [Chichester’s] large raise[s] … had the effect of inflating [Chichester’s] final average salary." Accordingly the Appellate Division ruled that the Comptroller's exclusion of such sums from Chichester‘s final average salary and corresponding retirement benefit calculation was supported by substantial evidence.

* Chichester‘s base salary was increased incrementally from $73,254 as of August 31, 2006 to $115,000 as of August 31, 2009.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05283.htm

Employee’s claim that employer discharged the employee because of his disability rejected where the record showed that employee had falsified his time sheets

Employee’s claim that employer discharged the employee because of his disability rejected where the record showed that employee had falsified his time sheets

2013 NY Slip Op 02689, Appellate Division, First Department

The New York State Division of Human Rights denied a former employee’s allegation the employer had engaged in “disability discrimination” in terminating his employment. 

The Appellate Division dismissed the individual’s Article 78 petition. The court said that the Division’s determination that there was no probable cause to believe that individual was subjected to disability-based discrimination was rationally based.

According to the decision, the record showed that the individual had falsified his time sheets to show that he was working during times when he was absent from the office. Citing Costello v St. Francis Hosp., 258 F Supp 2d 144, 155 [ED NY 2003, the Appellate Division noted that "(a)n employee's falsification of a time sheet can constitute a legitimate, nondiscriminatory reason for terminating an employee."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02689.htm

Personality problem held a valid ground for dismissal under the circumstances

Personality problem held a valid ground for dismissal under the circumstances

112 Misc. 2d 10, reversed, 89 A.D.2d 778 

From time to time it becomes necessary for an employer to attempt to resolve what it views as a chronic personality difficulty with an employee. Is discipline appropriate in such a case?

Yes, according to a decision of the Appellate Division.

The employee had been told on many occasions that his conduct and attitude disrupted and interfered with the work of his subordinates, the teaching staff of the school and the administrative staff of the District.

Eventually charges were brought against the employee pursuant to §75 of the Civil Service Law and he was terminated.

Although Supreme Court ruled that the penalty imposed, dismissal, was excessive because the charges only involved matters of personal relationships with other employees and staff members of the School District, the Appellate Division reversed that holding.

The Appellate Division commented that the penalty did not shock its sense of fair treatment and upheld the dismissal of the employee, explaining that although the employee “had a long record of competent service unblemished except for this continuing personality problem and the incidents ... are relatively minor ... they assume an importance out of all proportion because of the disruptive effect such behavior had on the harmonious operation of the school”.

The decision notes that the principal of the school where the employee served was “required to spend a substantial and inordinate amount of time resolving personnel problems arising because of [the employee’s] attitude and conduct”.

The Moreland Commission to Investigate Public Corruption to hold its first round of public hearings across the State

The Moreland Commission to Investigate Public Corruption to hold its first round of public hearings across the State

The Moreland Commission to Investigate Public Corruption has announced the first round of its public hearings to be held across the state. The first three hearing are to be held in New York City, Buffalo, and Albany and will focus on three issues:

1. The adequacy of existing state laws, regulations and procedures involving unethical and unlawful misconduct by public officials.

2. The electoral process.

3. Campaign finance laws

Members of the public, as well as public officials, public policy experts, advocacy organizations and others are invited to testify or attend the hearings and are asked to address these issues.

Individuals unable to present testimony in person may also submit testimony before or after the hearings at: comments@moreland.ny.gov

 .

The New York City Moreland Commission Public Hearing will commence at 6 p.m., Tuesday, September 17, 2013 (Doors open at 5 p.m.) at Pace University, NY Campus - Multipurpose Room, 1 Pace Plaza, NYC

The Western New York Moreland Commission Public Hearing will commence at 6 p.m., Wednesday, September 18, 2013 (Doors open at 5 p.m.) at the Senator Walter J. Mahoney State Office Building – Hearing Room #4 – 65 Court Street, Buffalo

The Capital Region Moreland Commission Public Hearing will commence at 6 p.m., Tuesday, September 24, 2013 (Doors open at 5 p.m.) The Crossings of Colonie Meeting Room, 580 Albany Shaker Road, Loudonville

The Commission said that additional hearings will be announced in the near future.

Areas where the Commission will focus its investigation include but are not limited to:

1. Criminal statutes for corruption and misconduct by public officials, such as bribery laws.

2. Campaign financing including but not limited to contribution limits and other restrictions; disclosure of third-party contributions and expenditures; and the effectiveness of existing campaign finance laws.

3. Compliance of outside organizations and persons with existing lobbying laws, including but not limited to organizations engaged in lobbying and other efforts to influence public policies and elections, and the effectiveness of such laws.

4. Adequacy and enforcement of the State’s election laws and electoral process including: the structure and composition of the State and County Boards of Elections, the Board of Elections’ enforcement, and the effectiveness of and compliance with existing election laws.

On July 2, 2013, Governor Andrew M. Cuomo established the Commission under the Moreland Act (Section 6 of the New York State Executive Law) (“Moreland Commission”) and Executive Law Section 63(8) to probe systemic public corruption and the appearance of such corruption in state government, political campaigns and elections in New York State. Executive Order 106 which created the Commission is posted on the Internet at http://www.governor.ny.gov/executiveorder/106

The Commission’s website is www.publiccorruption.moreland.ny.gov

Employer’s termination of probationary employee overturned after its repeated failure to appear before the court

Employer’s termination of probationary employee overturned after its repeated failure to appear before the court

2013 NY Slip Op 05207, Appellate Division, Second Department

The petitioner [Educator] in this action was appointed as a probationary assistant principal at a New York City Department of Education [DOE] middle school. Prior to the end of the Educator’s probationary period the middle school principal informed Educator that DOE intended to discontinue her employment based on an unsatisfactory rating. 

Educator filed a timely Civil Practice Law and Rules Article 78 petition challenging DOE’s determination.

DOE moved to dismiss Educator’s petition for “failure to state a cause of action” 

However when DOE failed to appear before Supreme Court on the return date of its motion, the court granted Educator’s petition and, in effect, denied DOE’s motion.

DOE then filed a motion asking Supreme Court to vacate its order but when DOE failed to answer the “call of the calendar” on the return date of its motion to vacate the earlier order of Supreme Court, the court denied the motion in an order that directed DOE to appear for a contempt hearing.

Ultimately Supreme Court did not hold DOE in contempt and DOE again moved again to vacate the court’s order that, in effect, had granted Educator’s petition.

DOE, however, again failed to appear on the return date of its “renewed” motion and Supreme Court, upon DOE’s default, issued an order dated January 14, 2010 that, in effect, reinstated its initial decision granting Educator’s petition.

DOE yet again asked the court to dismiss Educator’s petition, which motion Supreme Court granted.

Educator appealed and the Appellate Division agreed with her argument that Supreme Court erred in granting DOE’s motion to vacate the court’s initial order, dated May 30, 2006, as it was untimely, having been made more than one year after DOE received actual notice of the order.

In the words of the Appellate Division, this convoluted series of events developed as follows:

1. In a proceeding pursuant to CPLR Article 78 to review a determination of the New York City Department of Education [DOE] made in 2006 discontinuing the Educator's probationary service as an assistant principal,
2. the Educator appeals, as limited by her brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County dated August 2, 2011,
3. as granted the motion of the DOE, in effect, pursuant to CPLR 5015(a)(1), (a) 3. to vacate an order of the same court dated January 14, 2010,
4. entered upon DOE’s failure to appear on the return date,
5. denying DOE’s motion to vacate an order of the same court, dated May 30, 2006, 
6. also entered upon DOE’s failure to appear on the return date, granting the petition and, in effect,
7. denying that branch of DOE’s motion which was to dismiss the petition pursuant to CPLR 3211(a)(7), and (b) to vacate the order dated May 30, 2006,
8. thereupon granted that branch of DOE’s motion which was to dismiss the petition pursuant to CPLR 3211(a)(7), and, in effect, 
9. dismissed the proceeding brought by Educator

The bottom line: the Appellate Division remitted the matter to the Supreme Court for the entry of a judgment in favor of Educator and against DOE, granting Educator’s petition

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05207.htm

Abandonment of a position

Abandonment of a position

Ciccarelli v West Seneca Central School District, 107 AD2d 105

In a case challenging a teacher’s alleged abandonment of her position, the Appellate Division rejected a Board of Education’s resolution holding that an educator had abandoned her position and terminating her.

The court said that the burden of proving that the educator had abandoned her tenured teaching position was upon the District. This must be established "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, a tenured teacher may be terminated only in accordance with §3020-a of the Education Law.

In a similar situation involving an employee in the classified service [teachers are in the unclassified service] a former rule of the New York State Civil Service Commission [4 NYCRR 5.3(d)] providing that a State employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position was held to violate the employee's right to due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. However, this type of provision has survived in collective bargaining agreements, [see New York State Off. of Mental Health v New York State Div. of Human Rights, 53 A.D.3d 887].

Employer's use of payroll cards to pay workers under investigation by New York State Attorney General Schneierman

Employer's use of payroll cards to pay workers under investigation by New York State Attorney General Schneierman

Marnie E. Smith, Esq., an attorney with Harris Beach's Labor and Employment Law Practice Group, has posted an item on the NYMUNIBLOG reviewing Attorney General Eric T. Schneiderman’s investigation of the use of "payroll cards” by employers.

Ms. Smith observes that “Payroll cards are used as an alternative to the traditional written paycheck or direct deposit” whereby the employee’s wages “are loaded onto a debit card, which avoids having to cash a paycheck and does not require the employee to have a bank account.”

The full text of Ms. Smith’s posting is on the Internet at: http://nymuniblog.com/?p=3349

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending July 13, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli Finds Millions in Medicaid Overpayments

New York State’s Medicaid program overpaid providers $11.4 million, largely because providers overstated the amounts of Medicare coinsurance charges and incorrect rate changes, according to two audits of the Department of Health released Tuesday by State Comptroller Thomas P. DiNapoli. The state has recovered $3.8 million of these overpayments.

DiNapoli: Long Beach Faces Fiscal Challenges but Moving in Right Direction

Poor budgeting of the prior administration in the city of Long Beach created an $18 million multi–year deficit while also exhausting $21 million in rainy day funds, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The audit, which was requested by city officials, was conducted prior to the damage caused Superstorm Sandy.

DiNapoli Releases Bronx Economic Snapshot

The Bronx has made impressive economic gains in recent decades according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli. Population, business and job growth has been strong and the Bronx continued to add jobs even during the Great Recession.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office completed audits of:

Cattaraugus County;

the Lansing Fire District;

the Town of Fremont; and,

the Middle Island Fire District.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced that his office completed audits of

the Child Development Center of the Hamptons Charter School; and,

the Syracuse Academy of Science Charter School.

State Education Department, Rainbow Rhymes Learning Center (Follow-Up) (2012-F-31)

An audit issued in 2010 examined whether selected State Education Department grant payments to Rainbow Rhymes Learning Center were appropriate. Auditors found that Rainbow claimed $473,815 in expenses that were either not adequately supported, not program appropriate or were claimed for a period for which Rainbow was not entitled to receive reimbursement. In a follow-up report, auditors found that of the three prior audit recommendations, one was implemented and two were partially implemented. However, SED has not yet recovered the overpayments.

New York State Thruway Authority, Status of the Board-Approved Capital Plan For 2005-2011 (Follow Up) (2013-F-5)

An audit report issued in 2008 examined the actions taken by the Thruway in monitoring and reporting on the board-approved Capital Plan for 2005-2011. Auditors found the Thruway did not report whether the individual projects were starting and finishing on time and within budget. Furthermore, the authority could not support its decision-making and prioritization of all capital project items. Auditors also found that completing the plan as approved would take longer and cost significantly more than was originally forecast. In a follow-up report, auditors found Thruway officials have made progress in correcting the problems identified. However, additional improvements are needed.

Division of Housing and Community Renewal, Disposal of Electronic Devices (2012-S-101)

Auditors tested a total of 752 electronic devices at both the Albany and the New York City offices. In Albany, two devices still contained general agency information and personal pictures, but none contained personal, private or sensitive information. In New York City, 13 hard drives showed indications that they still contained data. Auditors were unable to locate 17 computer hard drives that had already been removed from computers and were scheduled for shredding. Auditors could also not locate 18 servers listed on the inventory records. Auditors could not locate eight other devices listed on inventory records and found one device recorded as surplus that was still in use.

Department of Corrections and Community Supervision, Seventeen Years of Fraud by the Former Director of the Department of Correctional Services' Food Production Center (Follow-Up) (2012-F-7)

An audit issued in 2010 identified longstanding fraudulent practices committed by former Director of the Food Production Center in Oneida County, Howard Dean. He failed to work on Fridays for 17 years although he claimed to be working a five-day week on his time and attendance records. He also submitted fraudulent travel vouchers and hotel invoices for days he did not stay at a hotel in Rome, N.Y. These practices cost the taxpayers more than a quarter-million dollars. Another quarter million in improper payments occurred because DOCCS failed in its responsibilities to operate in the best interest of the state. In a follow-up report, auditors found DOCCS officials have made progress in addressing the problems we identified in our initial report. Of the five recommendations, three have been implemented and two have been partially implemented.

Tuition Assistance Program - Higher Education Services Corporation, College of Mount Saint Vincent (2011-T-3)

Auditors determined the College of Mount Saint Vincent was overpaid $319,468 because school officials incorrectly certified students as eligible for TAP awards.

Statewide Travel Audits:

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:

State University of New York Upstate Medical Center, Selected Travel Expenses (2012-S-147)

Auditors examined the travel expenses for two individuals paid by SUNY Center with outliers in the area of mileage; one of these individuals also had reimbursements of more than $100,000. In total, auditors examined $175,618 in travel costs associated with these two individuals. Auditors found the travel expenses for the two individuals selected for audit were documented and adhered to state travel rules and regulations.

Res judicata bars the granting of a wage increase awarded in a second arbitration after the initial arbitration award addressing the same issue involving the same parties was vacated by the Court of Appeals “in its entirety”

Res judicata bars the granting of a wage increase awarded in a second arbitration after the initial arbitration award addressing the same issue involving the same parties was vacated by the Court of Appeals “in its entirety”

Buffalo Professional Firefighters Assn., Inc., IAFF Local 282 v Buffalo Fiscal Stability Auth., 2013 NY Slip Op 02931, Appellate Division, Fourth Department

The Buffalo Fiscal Stability Authority [BFSA] prohibited the City of Buffalo from complying with an arbitration award known as “Rinaldo I” that set a wage increase for the collective bargaining agreement. The Rinaldo I arbitration award was vacated in its entirety by the Court of Appeals.*

Subsequently an arbitration award involving the same parties designated “Rinaldo II” was issued by the arbitrator. Rinaldo II provided for a wage increase with respect to the collective bargaining agreement in effect from July 1, 2002 to June 30, 2004 between Local 282 and the City. BFSA determined that the wage freeze applied to the wages awarded in Rinaldo II and adopted a resolution, Resolution 11-05, that froze the wages awarded in Rinaldo II..

Local 282 filed an Article 78 petition challenging the authority of BFSA prohibiting the City from effecting the wage increase awarded by the arbitrator in Rinaldo II. Supreme Court dismissed Local 282’s petition.

The Appellate Division affirmed the lower court’s ruling, explaining that “Supreme Court properly determined that the instant proceeding is barred by res judicata.”

Although Local 282’s petition challenged a resolution of the BFSA that applied to Rinaldo II rather than Rinaldo I, the Appellate Division ruled that both arbitrations were between the same parties in interest and concern the same cause of action, i.e., the application of the wage freeze to wage rates for the same CBA.” Thus, said the court, “the instant action therefore is barred by res judicata.…”

* Matter of Buffalo Professional Firefighters Assn., Inc., Local 282, IAFF, AFL-CIO-CLC [Masiello], 13 NY3d 803.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02931.htm

The lack of a full transcript of a disciplinary hearing for review by the court requires the annulment of the finding of guilt

The lack of a full transcript of a disciplinary hearing for review by the court requires the annulment of the finding of guilt
Farrell v New York State Off. of the Attorney Gen., 2013 NY Slip Op 05014, Appellate Division, Third Department

In this proceeding the Appellate Division reviewed a determination of Commissioner of Corrections and Community Supervision which found a prisoner guilty of violating a prison disciplinary rule.

The prisoner contended that, among other things, a meaningful review of the Commissioner’s decision by the court was precluded because a significant portion of the hearing was not transcribed.

The Appellate Division agreed, explaining that it appeared that only the first side of the audiotape made during the hearing was transcribed by the stenographer. The stenographer had noted that "[s]econd side of tape not audible - runs on fast speed only," and then “abruptly ended the transcript.”

The court said that it could not ascertain what was on the second side of the tape or if it would have been beneficial to the prisoner's defense. Accordingly, it ruled that the Commissioner’s determination must be annulled and remanded the matter for a new hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05014.htm

Public officer automatically terminated from his or her position upon conviction of a crime or a violation of his or her oath of office

Public officer automatically terminated from his or her position upon conviction of a crime or a violation of his or her oath of office

Hodgson v McGuire, 75 A.D.2d 763

Public Officers Law §30 provides for an automatic forfeiture of office upon a public officer’s conviction of a felony or a crime involving a violation of his oath of office.

A police officer was dismissed following his entering a plea of guilty to a crime (official misconduct) that was a class A misdemeanor under the Penal Law.

The police officer admitted acceptance of $350 from an undercover police officer and was dismissed without a hearing.

The Appellate Division held that police officers are public officers and that the underlying crime, although not a felony, involved a violation of his oath of office. The court indicated that there is a strong public policy in favor of vacating the office of a public officer convicted of a violation of his oath of office.

As the office was automatically vacated by operation of law, no pre-termination hearing was required.

Suspensions without pay deemed appropriate penalties under the circumstances

Suspensions without pay deemed appropriate penalties under the circumstances

105 AD3d 613

The New York City Department of Correction suspended one correction officer, “M” for sixty days without pay and a second correction officer, “S” for thirty days without pay. M was found guilty using excessive force against an inmate and making false and misleading statements; S was found guilty of misconduct in preparing an official report and making false and misleading statements.

Finding that the Department’s determinations were supported by substantial evidence, the Appellate Division sustained the Department’s decision. As to the penalty imposed, citing the “Pell” standard, the court said that the “The penalty imposed does not shock one's sense of fairness” (Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02698.htm

Determining mandatory subjects of Taylor Law negotiations

Determining mandatory subjects of Taylor Law negotiations

Town of Haverstraw v Newman, 75 A.D.2d 874

The Appellate Division sustained PERB’S determination that “legal insurance”, family sick leave, uniform cleaning allowances and a safety clause in connection with Taylor Law negotiations between the Town and its police officer’s union were mandatory subjects of collective bargaining.

That determination, said the court, was a permissible interpretation of §201.4 of the Civil Service Law and it saw no reason to distinguish legal insurance from health insurance or group life insurance.

 The Appellate Division also commented that PERB was the expert here and that it would not substitute its judgment for that of PERB in this area.

Vacating an arbitration award

Vacating an arbitration award

2013 NY Slip Op 50666(U), Supreme Court, Part-orange County, Judge Catherine M. Bartlett [Not selected for publication in the Official Reports]

It is “black letter law” that an arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power and every reasonable intendment is indulged in favor of an award." Further, the burden of proving that an arbitrator's ruling "constituted misconduct rests with [the] respondent and must be met by clear and convincing proof."

In this case the employer commenced a special proceeding in an effort to vacate an arbitration award that provided for the temporary suspension of an employee without pay for “the balance of the school year” and required the employee to attend an anger management class.

The employer appealed in an effort annul the penalty imposed by the arbitrator, contending that under the circumstances this "punishment did not fit the crime" that the arbitrator's decision was irrational given the sworn testimony of various witnesses concerning the employee’s [mis]behavior, and argued that the "shockingly lenient penalty" was enough to shock the court's conscience and violated public policy. In lieu of the penalty imposed by the arbitrator, the employer sought the termination of the employee.

In rebuttal, the employee argued that the arbitrator’s decision to suspend him without pay and require his participation in anger management training was well within the bounds of the arbitrator’s decision making authority and should not to be upset by the court.

Judge Bartlett observed that “Under CPLR §7511, the court may scrutinize an arbitration award only on the narrow grounds specified in subdivision (b) and only upon the application of a party.” As to the employer’s public policy argument, the court pointed out that in Civil Serv. Empls. Assn., Town of Callicoon Unit, 70 NY2d 907, the Court of Appeals held that an arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

In addition, Judge Bartlett commented that “every reasonable intendment is indulged in favor of an award” and that in this instance the burden of proving that an arbitrator's ruling "constituted misconduct rests with [the employer] and must be met by clear and convincing proof,” citing Matter of Mencher, 276 App.Div. 556, 96 N.Y.S.2d 13.

As to the employer’s claim that the arbitrator’s award was violative of public policy, Judge Bartlett observed that an arbitration award will be vacated on public policy grounds only where such policy "prohibit[s], in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator."

As to the arbitration award at issue, Judge Bartlett held that “upon review of the arbitration decision on its face, it cannot be said as a matter of law that public policy precludes its enforcement,” explaining that in this instance the hearing officer determined that an effective suspension for almost four months without pay plus remedial action in the form of required anger management training was the appropriate penalty.

Noting that there was no evidence that the employee previously or subsequently engaged in similar conduct, and that the employee had expressed his remorse and complied with the penalties imposed by the arbitrator, the court said that the fact that the employer disagreed with the arbitrator’s determination “does not empower this Court to dismantle the process.”

Accordingly, Judge Bartlett denied the employer’s application in its entirety.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50666.htm

An uncertified union or unrecognized employee organization has a limited access to use a school mailboxes to contact employees

An uncertified union or unrecognized employee organization has a limited access to use a school mailboxes to contact employees

PERB decision U-3885

PERB has held that the Taylor Law does not require a public employer to give an unrecognized or an uncertified union competing with the recognized or certified employee organization equal access to teachers or mailboxes for the purpose of soliciting members except when such contact is timely in connection with a relevant challenge period. 

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request

Shaw v. Lerer, 112 Misc2d 260

Typically a request to obtain a public record[s] pursuant to the Freedom of Information Law is required only in the event the custodian of the public record[s] sought declined to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

However, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

After officiating at interscholastic senior varsity hockey games for two years, Shaw was assigned only junior varsity events.

Rating summary sheets prepared by fellow officials evaluating Shaw were provided to him. Shaw, however, then demanded copies of the individual evaluations prepared by high school coaches pursuant to the Freedom of Information Law (§87, Public Officers Law). The request was denied and the Shaw filed a petition in Supreme Court challenging the custodian of the records decision not to provide the ratings to him.

Supreme Court dismissed Shaw’s petition, holding that the individual ratings of Shaw by the panel members fell within an exception to disclosure under the law as they were “interagency documents” (See POL 87.2g). The court stated that “If the disclosure is more harmful to the public than nondisclosure, the scales of justice must tip towards nondisclosure.”

In a similar case, a teacher was denied information concerning the votes of two other faculty members considering his application for tenure sued in federal court. The court held that there was no showing that the denial of tenure was for constitutionally impermissible reasons (Gray v. Board of Higher Education, City of New York, 92 FRD 82). Here, said the court, “the benefit likely to be gained by disclosure...for which privilege was claimed, was outweighed by the potential effect of ordering disclosure of confidential votes made under a peer review system”, a point noted by the court in Shaw as well.

Hearing officer’s discontinuing the hearing prior to completion because of individual’s unruly conduct creates a problem

Hearing officer’s discontinuing the hearing prior to completion because of individual’s unruly conduct creates a problem

88 A.D.2d 907

A person serving as a hearing officer may be tempted to terminate or “shorten” a hearing because one or more of the participants becomes unruly or abusive. In such situations the “rules of procedure” should be carefully considered.

The Chairperson at the administrative hearing stopped the hearing before the employee had an opportunity to make a “statement” specifically permitted by the controlling rules of procedure because of the individual’s “personal vituperation and ... abrasive behavior, despite repeated warnings” concerning such behavior by the hearing officer.

The Chairperson then sustained the employee’s unsatisfactory service rating, which determination was later affirmed by the Chancellor of the New York City Board of Education. The employee then sued, arguing that the Board had failed to follow its own procedures.

The Appellate Division, reversing a lower court ruling to the contrary, held that the failure to provide the employee with the “Review Format” was an abuse of the Chairperson’s discretionary powers to make necessary “adjustments” in the format and insure an “expeditious and non-repetitious presentation [and] denied (the employee) a substantial right”.

The matter was then sent back to the school district with instructions that employee “be given the opportunity to exercise his right to make a presentation and statement on his own behalf as provided in the Review Format”. 

Seminar for school districts focusing on the Affordable Care Act scheduled for July 17, 2013

Seminar for school districts focusing on the Affordable Care Act scheduled for July 17, 2013

Harris Beach, a law firm, has announced that it is offering a complimentary seminar titled “De-Mystifying the Affordable Care Act [ACA]: Practical Steps You Should be Taking Now” on Wednesday, July 17th from 1:00 to 3:00 p.m. at The West Room, Reid Castle at Manhattanville College, 2900 Purchase Street, Purchase, NY 10577.

Harris Beach said that the program is “specifically designed to help clear up confusion among superintendents, business officials, HR personnel and board members over ACA employer mandates.”

 Full program details are available by clicking on the following link, “De-Mystifying the Affordable Care Act.”

To register, e-mail Jennifer Jones at jjones@harrisbeach.com or call Ms. Jones at 800-685-1429 ext. 1114.

Intentional discrimination by an employer to avoid or remedy unintentional disparate impact in employment must be based on strong evidence to believe disparate-impact liability will result if it fails to do so

Intentional discrimination by an employer to avoid or remedy unintentional disparate impact in employment must be based on strong evidence to believe disparate-impact liability will result if it fails to do so

Margerum v City of Buffalo, 2013 NY Slip Op 05104, Appellate Division, Fourth Department

Firefighters employed by City of Buffalo Department of Fire sued the City contending that it had discriminated against them  (Fire Department), commenced this action alleging that defendants discriminated against by allowing promotional eligibility lists created pursuant to the Civil Service Law to expire solely on the ground that these firefighters [plaintiffs] who were next in line for promotion, were Caucasian.

Previously, the Appellate Division had held that [1] the action taken by the City was subject to strict scrutiny and [2] the plaintiffs had failed to establish "the absence of a compelling interest," particularly because " a sufficiently serious claim of discrimination' may constitute a compelling interest to engage in race-conscious remedial action."

A short time later the United States Supreme Court decided Ricci v DeStefano (557 US 557), holding that, "before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious discriminatory action."

Following Ricci, the Appellate Division affirmed an order that granted those parts of plaintiffs' motion for partial summary judgment on liability with respect to the Fire Department and the City, determining that defendants "did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race-conscious action, i.e., allowing the eligibility lists to expire."

Supreme Court then conducted a nonjury trial on the issue of damages, and the City appeal from an order that awarded a total amount of $2,510,170 in economic damages and a total amount of $255,000 in emotional distress damages to the remaining plaintiffs.

The City appealed and the Appellate Division ruled that Supreme Court's awards for emotional distress were proper, but that the court erred with respect to its awards for economic damages.

The Appellate Division explained that that plaintiffs the established that their damages were proximately caused by the City's failure to promote them from the 2002 eligibility list. Thus, it its view, the plaintiffs met their burden of establishing that they would have been promoted but for the City's action in allowing the promotion eligibility lists to expire and suffered economic damages because they were not promoted.

As to the amounts of damages, the Appellate Division concluded that each amount of damages awarded for emotional distress is reasonable. However, it found that as to the awards for economic damages, Supreme Court “applied the wrong burden of proof and erred in relying on assumptions not supported by the record.”

Supreme Court had placed the burden of proof on the City to establish plaintiffs' economic damages. This was error as a plaintiff seeking, e.g., damages for loss of future earnings must "provide evidence demonstrating the difference between what he [or she] is now able to earn and what he [or she] could have earned" in the absence of discrimination.

Noting that recovery for lost earning capacity may be based on future probabilities and is not limited to actual past earnings and that a plaintiff is not required to establish loss of earnings with absolute certainty, the Appellate Division said that it is a "fundamental premise that loss of earnings or earning capacity must be established with reasonable certainty . . . and will be reduced if based upon mere speculation."

The Appellate Division then considered the evidence and expert testimony offered on the issue of economic damages and modified the Supreme Court’s determinations in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05104.htm

Discontinuing the performance of a governmental operation

Discontinuing the performance of a governmental operation

Civil Serv. Employees Assn., Inc. Local 1000, AFSCME, AFL-CIO v County of Onondaga, State Supreme Court Judge Donald A. Greenwood [Not selected for publication in the Official Reports]

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) brought an Article 78 petition seeking a determination that Onondaga County acted in violation of law and in an arbitrary and capricious manner by authorizing the sale of the County owned Van Duyn Home and Hospital Facility. CSEA also alleged that the County “acted in bad faith by adopting a budget that zero-funded positions at Van Duyn.”

After considering a number of procedural issued, Judge Donald A. Greenwood addressed the merits of CSEA’s petition.

CSEA’s first claim in its petition alleged that the Department of Long Term Care Services was created by the County Charter and that the elimination of that department, along with the positions employed within it, without passing an amendment to the Charter, was arbitrary, capricious, an abuse of discretion, violative of law and in excess of the County’s jurisdiction in that the County Legislature lacked the authority to adopt a budget striking salary appropriations, thereby eliminating the operations of the department without affecting an amendment to the Charter.

In effect, CSEA contended that the action offended the doctrine of legislative equivalency, also known as the legislative equal dignity rule.* (1995). The Court of Appeals has summarized the principle by stating "to repeal or modify a statute requires a legislative act of equal dignity and import."

Judge Greenwood decided that CSEA’s argument was “both factually and legally flawed.” explaining that the County demonstrated that through the annual budget process established within the County Charter and Administrative Code, the Legislature declared its intent” to be out of the nursing home business, and abolished a number of positions related to provisions of such services at Van Duyn, and determined that the facility should be sold.” This legislative act, said the court, carries with it a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support for its provisions.

In addition, Judge Greenwood said that the County demonstrated that the facts here justified the legislative decision to sell the facility while retaining operating rights, to enact a local law amending the Administrative Code to reorganize the Long Term Care Services Department and eliminate job titles effective November 30, 2013.

The court also noted that “the County is authorized to enact legislation establishing its form of government … and generally regulating its affairs, provided that such legislation is consistent with state law and [it] is empowered to establish and abolish positions of employment by resolution as part of the budget process.”**

As to CSEA’s contention that the “elimination of union jobs here constitutes a bad faith abolition of the positions,” the court said that “municipal officials are vested with authority to create and abolish positions and to adopt a budget; they also have the power and the prerogative to determine that civil service positions may be abolished in good faith for reasons of efficiency and economy in the absence of fraud, corruption or bad faith.”

As to CSEA’s claim of bad faith on the part of the County, CSEA was required to show that the positions in question were not eliminated for bona fide reasons, that savings were not accomplished or that replacement employees were hired. Judge Greenwood found that CSEA had not met this burden and dismissed its petition seeking a court order invalidating the sale of the facility and nullifying the budgetary elimination of the positions by the County Legislature..

* In Torre v County of Nassau, 86 NY2d 421, the Court of Appeals noted that the Doctrine of Legislative Equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act.

** The decision notes that the budget resolution, Resolution #160-2012, established the budget for 2013 and declared the County's policy with respect to discontinuing future provision of nursing home services and further provided for the abolition of roster positions, except for two positions established by the County Charter and Administrative Code.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50813.htm

Employee terminated for failure to comply with the employer’s “residence” requirement

Employee terminated for failure to comply with the employer’s “residence” requirement

2013 NY Slip Op 04148, Appellate Division, Fourth Department

The City of Niagara Falls requires its employees “to reside in the City.” When the City terminated the employment of one of its employees based on her failure to comply with the City’s residence requirement, the individual filed a petition pursuant to CPLR Article 78 challenging the City’s action.

Supreme Court granted the individual’s petition; the Appellate Division reversed the lower court’s ruling on the law.

Addressing the merits of the City’s determination, the Appellate Division said that “"the proper standard for judicial review in these cases is whether the . . . determination was arbitrary and capricious or an abuse of discretion.” Here, said the court, it conclude that City’s determination that individual violated the City's residency requirement was neither arbitrary nor capricious nor an abuse of discretion.

The Local Law relied upon by the City, Local Law No. 7, as amended, defines "residency" as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any."

The Appellate Division said that it agreed with the City that the phrase "actual principal place of residence is akin to, if not synonymous with, the legal concept of domicile,' i.e., living in [a] locality with intent to make it a fixed and permanent home."**

In this regard the court found that the City had sufficiently established that individual’s "actual principal place of residence" was in the Town of Niagara rather than the City of Niagara by utillizing the services of a surveillance company.

Under these circumstances, the Appellate Division concluded that the City’s determination was neither arbitrary nor capricious because there is substantial evidence, based on the surveillance of the individual demonstrating that she "normally [slept]" at the Town of Niagara address. While the individual did produce documents listing a City residence as her address, the court decided "that evidence was not so overwhelming as to support the [Supreme] court's determination granting the petition."

Relying on the "extremely deferential" standard applied in reviewing administrative determinations, the Appellate Division decided that the City's determination that individual's actual principal place of residence was outside the City is not "without foundation in fact" and the City "rationally concluded that [individual] did not comply with the residency policy."

** See also Alexis v City of Niagara Fallsposted on the Internet at:  http://publicpersonnellaw.blogspot.com/2013/05/an-employees-satisfying-employers.html

The decision in this action is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04148.htm

In the event it is determined that the arbitrator has exceed his or her powers, the arbitration award must be vacated

In the event it is determined that the arbitrator has exceed his or her powers, the arbitration award must be vacated
Adirondack Beverages Corp. (Bakery, Laundry, Beverage Drivers & Vending Mach. Servicemen & Allied Workers, Local Union No. 669 of Albany, N.Y and Vic.), 2013 NY Slip Op 05031, Appellate Division, Third Department

The genesis of this appeal was the arbitrator’s rejection of Adirondack Beverages’ contention that the grievances at issue were not timely filed under the collective bargaining agreement [CBA].

Ultimately the arbitrator determined that certain of Adirondack Beverages’ employees were entitled to back wages, negotiations with respect to higher wages and a preference with respect to filling certain positions.

Supreme Court concluded that the arbitrator exceeded his powers, granted Adirondack Beverages’ petition to vacate the arbitration award and remitted the matter to a different arbitrator for a rehearing to decide the timeliness of the grievances.* Local Union No. 669 appealed the Supreme Court’s remanding the matter to a new arbitrator.

The Appellate Division affirmed the lower court’s ruling explaining that “[I]t is well established that an arbitrator's award is largely unreviewable but such an award may be vacated upon a showing that it ‘'violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.'"

In this instance, said the court, Supreme Court properly concluded that the arbitrator exceeded a specifically enumerated limitation on his power by failing to recognize the grievance and arbitration procedures as outlined in the CBA and, more particularly, the time limitation for filing grievances that is contained therein. The Appellate Division cited Article VII, §4 of the CBA which stated that "[t]he [a]rbitrator shall in no way have the right to modify, add to[,] subtract from or [otherwise] alter the provision[s] of [the CBA]."

In his award, said the court, the arbitrator acknowledged the CBA's limitation of his authority, as well as the controlling provisions with respect to filing a timely grievance, but “[n]onetheless, the arbitrator decided that he would ‘not mechanically apply the contractual limitations period in the instant case as to do so would discourage good faith negotiations in the future.’"

Concluding that in refusing to address the issue of the timeliness advanced by Adirondack Beverages that could otherwise preclude the grievances from being arbitrated, the arbitrator ignored a specifically enumerated limitation on his powers and effectively modified, added to or subtracted from the terms of the CBA.

Accordingly the Appellate Division held that Supreme Court properly vacated the arbitrator's award remitted the matter to a different arbitrator for a rehearing to determine whether the grievances were timely submitted under the CBA.

* Supreme Court reserved judgment on Local Union No. 669’s petition to confirm the award pending the arbitrator's decision on the timeliness issue.

The decision is posted on the Internet at:  

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05031.htm

An employee of a BOCES is a State employee for the purposes Public Officers Law §17 when performing his or her duties under the supervision of the State Education Department

An employee of a BOCES is a State employee for the purposes Public Officers Law §17 when performing his or her duties under the supervision of the State Education Department

Formal Opinions of the Attorney General, 2013-F1

The Attorney General advised Richard J. Trautwein, Esq., State Education Department Counsel & Deputy Commissioner for Legal Affairs, that a member of the staff of a BOCES district superintendent who is serving as an integrity officer under the supervision of State Education Department is eligible for state-provided defense and indemnification in accordance with the provisions of Public Officers Law §17 in the event he or she is sued as the result of an act or an omission flowing from the performance of his or her official duties under such supervision. 

In the opinion of the Attorney General, “… an integrity officer who is a member of the district superintendent's staff also is in the service of the State when performing these duties.” Accordingly, the Attorney General explained, such personnel are eligible for defense and indemnification pursuant to Public Officers Law §17 in the event the individual is sued as the result of his or her investigating test security breaches on behalf of the State.

Subdivision 3 of §17, in pertinent part, provides that: “The state shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim, or shall pay such judgment or settlement; provided, that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties; the duty to indemnify and save harmless or pay prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employee."

The text of the opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-f1_pw.pdf

Tenure by estoppel, tenure by acquisition, tenure by default

Tenure by estoppel, tenure by acquisition, tenure by default, tenure by inaction

Brown v Board of Educ. of the Mahopac Cent. Sch. Dist., 2013 NY Slip Op 51026(U), Supreme Court, Putnam County [Not selected for publications in the Official Reports]

Tenure by estoppel, tenure by acquisition, tenure by default, tenure by inaction. All four terms describe the result of the failure of an appointing authority to act that results in a probationary employee obtaining tenure by operation of law because he or she was not lawfully terminated on or before the last day of his or her original, or extended, probationary period.*

As the Court of Appeals held in McManus v Hempstead Union Free School District, 87 NY2d 183, a  probationary administrator or teacher employed by a school district or a BOCES may attain tenure by estoppel when the appointing authority continues the teacher or administrator in service after failing to take the administrative action required by law to either grant or deny the individual tenure prior to the expiration of the administrator’s or teacher’s probationary term.

In this CPLR Article 78 proceeding Maura Ann Brown sought, among other things, reinstatement to her teaching position with the Mahopac Central School District based her contention she had attained tenure by estoppel and thus could not be summarily terminated from her postion.

The issue before State Supreme Court Judge Lewis Jay Lubell in this third appearance before the court:  the propriety of the school district’s recalculation of Brown’s Education Law §3012(3) probationary period end date “as directed and guided by the Court in its Decisions and Orders of March 19, 2012, and October 25, 2012”** which, in the words of the court, were “thoroughly set forth in this Court's prior two Decisions and Orders.”

The court’s conclusion: "… the Administrative Recalculation of [Brown’s] Education Law §3012(3) probationary period end date was undertaken in a manner and reaches a result that is legally insupportable and is contrary to the legal conclusions reached and directives clearly enunciated by this Court in its March and October 2012 Decisions and Orders directing remand for purposes of recalculation." Judge Lubell pointed out that the Administrative Recalculation results in a probation end date that coincided with Brown’s termination date, January 21, 2011. Brown needed just one additional date of service time to prevail on her tenure by estoppel argument, which, said the court, “she has easily established.”

Judge Lubell said the Administrative Recalculation did not properly account for his “unequivocal determination that ‘[the school district is] bound by the originally established and thereafter repeatedly reasserted June 30, 2010 probationary period end-date . . . . from [which] . . . any properly attributed extension of the probationary period must be calculated.’"

The court ruled that “it is June 30, 2010 from which to calculate [Brown’s] probationary end date….” The school district apparently “ignore the June 30th date in favor of September 2, 2010.” Accordingly, said Judge Lubell, “Upon properly accounting for the sixty-four day period from June 30th to September 2, 2010, [Brown’s] recalculated probationary end-date falls well before her termination date, i.e., the date needed by [Brown] to prevail on her tenure by estoppel argument.”

The Administrative Recalculation, said the court, “employs a ‘workday-for-workday’ methodology which is in contravention of this Court's interpretation of the methodology used in Maras v Schenectady CSD, 275 AD2d 551, wherein the Appellate Division ruled as follows:

Clearly, it was error for [the Schenectady City School District] to extend petitioner's probationary period beyond September 12, 1998 - "the period of time petitioner was absent from school in excess of her contractually allotted sick days. While respondents possess the authority to exclude from the computation of petitioner's three-year probationary period any noncontractual absences [citations omitted], they have no authority to exclude those absences provided for by contract, i.e., petitioner's 20 days of sick leave, five days of personal time and five days of medical leave that fell on school-wide vacation days. Indeed, Education Law §2509(7) expressly prohibits extension of an employee's probationary period by adding thereto contractually bargained for sick or personal leave days or school-wide vacation days.

In sum, said Judge Lubell, the court in Maras permitted an extension of Maras’ probationary period by the actual number of workdays her medical leave exceeded her paid contractual leave time, excluding any medical leave which otherwise fell on school-wide breaks or vacation days (for a total of eleven days) and which, in any event, extended petitioner's probationary period by a corresponding number of consecutive calendar days, not "workdays" as respondents would have it; thus arriving at a new probation period end date of September 12, 1998.

The bottom line: Judge Lubell held the Brown completed her three year period of Education Law §3012(3) probation well before her January 21, 2011, termination date and granted her motion to strike and dismiss the school district's Administrative Recalculation.

The court then granted summary judgment in her favor on her claim of tenure by estoppel, which tenure by estoppel matured “prior to the school district’s termination of her employment on January 21, 2011,”

Accordingly, the court directed Brown’s reinstatement to her former position as a tenured teacher effective January 21, 2011, “together with an award of back-pay, reimbursement of all employment benefits, including but not limited to medical, retirement and pension contributions, and other compensatory damages to which she may be entitled and in an amount to be determined at a damages hearing” before Judge Lubell to be held at a later date.

One exception to the general rule applied for the purpose of determining if an individual has attained tenure by estoppel is set out in Mendez v Valenti, 101 AD2d 612. In Mendez the Appellate Division ruled that as long as the termination of a probationer [in the classified service] is effected within a reasonable time after the end of his or her maximum period of probation, such as set to coincide with the end of the next payroll period, the courts will not deem the individual to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the effective date of the employee's removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before close of business on the last day of his or her probationary period.

* Military Law §243.9 [with respect to public employees other than teachers] and Military Law §243.9-a, [with respect to teachers] provide certain rights to such an employee entering military service before the end of his or her probationary period upon his or her return to his or her former position.

** See, also, Matter of Brown v Board of Educ. of the Mahopac Cent. School Dist., 32 Misc 3d 370, at http://www.nycourts.gov/reporter/3dseries/2011/2011_21182.htm

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_51026.htm

A retiree is not affected by post-retirement collective bargaining negotiations concerning health insurance contributions absent specific contract language to that effect in place at the time of his or her retirement

A retiree is not affected by post-retirement collective bargaining negotiations concerning  health insurance contributions absent specific contract language to that effect in place at the time of his or her retirement

Warner v Board of Educ., Cobleskill- Richmondville Cent. Sch. Dist., Warner v Board of Educ., Cobleskill- Richmondville Cent. Sch. Dist., Appellate Division, Third Department

Samuel T. Warner, on behalf of himself and other former school administrators who retired from the Cobleskill-Richmondville Central School District [Warner] sued the District in this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment contending that the District had breached its contractual obligations as a result of its reducing the District's share of the cost of the premium it paid towards Warner’s health insurance coverage.

The relevant provision in the collective bargaining agreements (CBAs) in effect from July 1993 to June 2003 provided:

"Individuals who retire during the term of the contract shall be covered at the rate of 100 percent of the charge for individual coverage and 75 percent of the charge for dependent coverage, as applicable. Employees hired after July 1, 1976 shall be required to satisfy ten (10) years of service in order to be eligible to continue the health insurance program in retirement as offered by the District."

According to the Appellate Division’s decision, successive CBAs in effect from July 2003 to June 2009 contained nearly identical language regarding the rate and eligibility for retiree health insurance coverage.

In June 2009, the Association and the District agreed to a CBA for the July 2009 through June 2012 CBA that provided that employees who retire during the 2010-2011 or 2011-2012 school year would receive health insurance coverage at the rate of 84% of the charge for individual or dependent coverage as the “District’s contribution,” while those who retire during the 2009-2010 school year would continue to receive the rates of 100% for individual coverage and 75% for dependent coverage as the “District’s contribution.”

In March 2010, Warner received a letter from the District stating that, "[a]s of July 1, 2010, the rate of contribution for both eligible active and eligible retired [Association] employees shall be 16% of the charge for individual and dependent coverage." He filed a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment alleging seeking, among other things, a declaration that District is obligated to contribute to the cost of his health insurance throughout his retirement.

Supreme Court granted Warner’s motion for summary judgment, finding that the plain language of the CBAs unambiguously obligated the District to provide lifetime health insurance coverage for those bargaining unit members who retired prior to the 2010-2011 school year at a rate of 100% for individuals and 75% for dependents. The District appealed.

The Appellate Division commenced its review by noting that “A written agreement that is clear and complete on its face must be enforced according to the plain meaning of its terms” and that “Extrinsic evidence may be considered to discern the parties' intent only if the contract is ambiguous, which is a question of law for the court to resolve.”

In determining whether an ambiguity exists, said the court, the entire contract must be examined and consider the relation of the parties and the circumstances under which it was executed. “Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby."

The Appellate Division said that considering the CBAs as a whole and in accordance with these principles, it found no ambiguity, pointing out that pursuant to the CBAs in effect at the time Warner and his co-plaintiffs retired, an employee who had completed 10 years of service was entitled to health insurance coverage "in retirement." In order to receive that coverage at a rate of 100% per individual and 75% per dependent, the only requirement was that the individual "retire during the term of the contract."

Despite the District’s argument to the contrary, the court said that “nothing in the provisions at issue suggests that the coverage was limited to the time period of the CBA in effect at the time of an individual's retirement.”

Significantly, the Appellate Division pointed out that Warner and his co-plaintiffs, as retirees are not involved in subsequent collective bargaining negotiations and that "it is logical to assume [from the absence of any such durational language] that the bargaining unit intended to insulate retirees from losing important insurance rights during subsequent negotiations by using language in each and every contract which fixed their rights to coverage as of the time they retired."

Accordingly, the Appellate Division concluded that the CBAs at issue “unambiguously provide lifetime health insurance coverage to [Warner and his co-plaintiffs] pursuant to the terms of the CBA in effect at the time of their retirement, and therefore consideration of the extrinsic evidence submitted is unnecessary. Further, notes the opinion, were the court to have found that there was an ambiguity, the extrinsic evidence introduced to aid in the construction of the CBAs fully supports the interpretation proffered by Warner and his co-plaintiffs.

The court then ruled that Supreme Court had properly award summary judgment to Warner.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05032.htm

Board member’s defeat in an election to the board renders appeal seeking his or her removal from the board moot

Board member’s defeat in an election to the board renders appeal seeking his or her removal from the board moot

Decisions of the Commissioner of Education # 16,468

The Board of Education asked the Commissioner of Education to remove one of its members from the board, alleging the board member had breach of fiduciary duties and violations of district policies.

The board member denied the allegations. The Commissioner, however, dismissed the Board complaint without addressing its merits.

Subsequent to its filing its complaint, the board submitted an affidavit from its superintendent stating that board member “was defeated in [the] school board election and is no longer a member of the board."

Accordingly, the Commissioner ruled that the Board’s application to remove the member was moot and dismissed it, explaining that "the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16468.pdf

The State’s State Fire Prevention and Building Code Council to meet on July 16th 2013

The State’s State Fire Prevention and Building Code Council to meet on July 16^th 2013

Source: New York State Department of State

The New York Department of State’s State Fire Prevention and Building Code Council will hold a public meeting of the Council on Tuesday, July 16^th, 2013 at 10:00 a.m.at the Department of State, 99 Washington Avenue in Albany, 123 William Street in NYC, and 65 Court Street in Buffalo. 

The meeting will be held via videoconferencing to discuss a number of topics, including more restrictive local standards and the next Uniform Code and Energy Code Adoption update.

The public is welcome to attend the meeting at any of the locations listed below:

Albany:

Department of State

99 Washington Avenue (Commerce Plaza)

5^th Floor, Room 505

Albany, NY

New York City

123 William Street

20^th Floor, Executive Conference Room

New York, NY

Buffalo, New York:

65 Court Street

Room 208

Buffalo, NY