No private right of action flows from a mere statement of general policy applicable to all Civil Service employees

No private right of action flows from a mere statement of general policy applicable to all Civil Service employees
Matter of Subway Surface Supervisors Assn. v New York City Tr. Auth., 2014 NY Slip Op 02380, Court of Appeals

The Subway Surface Supervisors Association, representing employees working under the title Station Supervisor Level One (SS-I) commenced a special proceeding against the New York City Transit Authority (TA) alleging that its members were being paid a lower base salary than their claimed counterparts, Station Supervisor Level Two (SS-II), for the same type of work.

The sole allegation in the petition was that the TA violated Civil Service Law §61(2), prohibiting out-of-title work.

The TA moved to dismiss the petition on, among other grounds, failure to state a cause of action. In response, the Union abandoned its §61(2) claim and opposed the TA's motion on new, unpleaded theories, that the TA's conduct violated Civil Service Law §115 and the Equal Protection Clauses of the New York and United States Constitutions.

Supreme Court deemed the §61(2) claim abandoned and, despite the fact that the Union failed to move for leave to replead or to amend its petition to allege the new claims, concluded that the petition stated a "potential" §115 violation, but that "a factual dispute remained" concerning whether SS-Is and SS-IIs performed the same duties. It referred the disputed issue to a special referee for a hearing, but before that hearing could be held Supreme Court granted the TA leave to appeal to the Appellate Division.

A divided Appellate Division affirmed. The majority found that the petition alleged viable Civil Service Law §115 and equal protection claims. The dissenting Justices would have dismissed the petition for failure to state a cause of action because, in their view, §115 enunciated only a state policy and did not confer upon state courts jurisdiction to enforce that policy. The dissenters would have found the Union's Equal Protection Clause arguments to be without merit.

TA then obtained leave to appeal its ruling on the certified question whether the order of Supreme Court as affirmed by the Appellate Division was properly made.

The Court of Appeals held that the order of the Appellate Division should be reversed and “the motion to dismiss the petition granted, and the certified question answered in the negative.”

The court explained that courts of this State have routinely interpreted §115 and its predecessor, the nearly identically-worded former Civil Service Law §37* "a mere statement of general policy applicable to all Civil Service employees" and that is is clear that §115 is a preamble to Civil Service Law Article VIII, and no private right of action flows from it. In contrast, said the court, Article 14 of the Civil Service Law (the Taylor Law) provides the mechanism for represented employees to challenge alleged wage disparities between classifications.

As to the Union’s Equal Protection argument, the Court of Appeals said that the Union's equal protection claims must be dismissed because the Union freely negotiated and executed the collective bargaining agreement that contained lower wage rates for SS-Is and, to the extent an equal protection claim can be raised, it must be asserted by the employees subjected to the alleged discriminatory conduct.

N.B. Justice Rivera issued a concurring opinion commenting stating “I agree that petitioner Subway Surface Supervisors Association's (SSSA) claims under the Federal and State Equal Protection Clauses should be dismissed. However, I disagree with the reasons stated for dismissal of the Civil Service Law §115 claim, and would instead dismiss that claim because SSSA failed to plead its entitlement to relief based on proper §115 equal pay for equal work allegations [and I am writing separately] to present my analysis that §115 sets forth a clear legislative mandate to ensure pay equality for state employees, guaranteed in part by a cognizable private cause of action that allows parties to challenge pay discrimination.”

* See Civil Service Law of 1909, enacted as Chapter 15 of the Laws of 1909.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_02380.htm
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The Commissioner of Education to determine if two positions are sufficiently similar within the meaning of Education Law §2510 in the first instance

The Commissioner of Education to determine if two positions are sufficiently similar within the meaning of Education Law §2510 in the first instance
Matter of Alden Cent. Sch. Dist. (Alden Cent. Schools Administrators' Assn.), 2014 NY Slip Op 02185, Appellate Division, Fourth Department

The school district filed an Article 75 petition seeking to stay arbitration of a grievance challenging the level of the compensation paid to an individual represented by the union who had been laid off from her position of principal of an elementary school and thereafter appointed from the preferred list to serve as an assistant principal at a middle school at a lower salary. The union filed a cross-petition seeking to compel arbitration of the grievance, contending that the educator’s new position was “sufficiently ‘similar’ within the meaning of the Education Law §2510(3)(a) such that she is entitled to the same level of pay.”

Supreme Court denied the school district’s petition for a stay of arbitration. The Appellate Division, however, reversed the lower court’s ruling and granted the district’s petition to stay the arbitration of the grievance.

Noting that it is well settled that, in deciding an application to stay or compel arbitration under CPLR §7503 the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim, the Appellate Division explained that in making the threshold determination of arbitrability, the court applies a two-part test.

A court first determines whether "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, [the court then determines] whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

In this instance the Appellate Division said that it agreed with the school district that the Commissioner of Education has primary jurisdiction over the parties' dispute, and that arbitration is therefore prohibited by public policy.

The court said that the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether the former position and the new position are similar within the meaning of Education Law §2510(3)(a). Accordingly, concluded the Appellate Division “the Commissioner of Education should ‘resolve, in the first instance’ the issue of fact whether two positions are sufficiently similar under Education Law §2510.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_02185.htm

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Application to stay or adjourn a disciplinary hearing

Application to stay or adjourn a disciplinary hearing
OATH Index No. 503/14

A New York City firefighter’s application to stay or adjourn disciplinary hearing pending the outcome of a state court proceeding was denied by a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge 

Judge Faye Lewis explained that the existence of a pending civil action does not generally provide a basis for a stay of an administrative disciplinary proceeding and the issues raised in the disciplinary proceeding were not preclusive of the issues raised in the Notice of Claim filed by respondent in state court.

In addition, the ALJ commented that the firefighter’s application demanding that the employer produce witnesses and document was denied in large part because it was based upon the firefighter’s defense of selective enforcement, which is not a proper defense in an administrative proceeding but can be asserted only upon judicial review of an adverse decision. 

ALJ Lewis also denied the firefigher’s motion to suppress statements made at investigatory interview on the ground that the questioning went beyond the scope of the interview notice. Judge Lewis noted that the firefighter was represented by counsel at the interview and it does not appear that his statements were made involuntarily. Further, noted the ALJ, "if the questioning violated [firefighter's] contract, the remedy would be to file a grievance, not suppression. 

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/14-503md.pdf

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The positions of village clerk/treasurer and village court clerk when filled by the same individual are incompatible

The positions of village clerk/treasurer and village court clerk when filled by the same individual are incompatible
Informal Opinions of the Attorney General 2014-1

This opinion indicates that typically a village court clerk transmits certain funds to the village treasurer, and the a village treasurer maintains the funds and transfers some portion of them to the county and State.

Accordingly, the two officials serve as a fiscal check on each other and a safeguard for these funds.

In this instance, said the Attorney General, one person serves as both village treasurer and village court clerk. In the opinion of the Attorney General performing such a dual role would compromise this neccessary fiscal check. He advised that in his view the duties of the positions therefore conflict and the positions are incompatible.

The opinion's conclusion: One person may not perform the duties of both positions simultaneously, whether they are combined into one or the same person is appointed to both.

The opinion is posted on the Internet at:
http://www.ag.ny.gov/sites/default/files/opinion/2014-1_pw.pdf

Supplemental military leave benefits

Supplemental military leave benefits
I.D. No.CVS-14-14-00001-P

The New York State Department of Civil Service has proposed to amend 4 NYCRR 21.15 and 4 NYCRR 28-1.17, both of which provided supplemental military leave benefits to eligible officers and employees of the State as the employer. whereby the availability of supplemental military leave benefits for would be extended until December 31, 2014.

The text of proposed rule and any required statements and analyses may be obtained from Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598. You may email Ms LaPlante at: shirley.laplante@cs.state.ny.us .

Data, views or arguments may be submitted to Ilene Lees, Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624 or they may be e-mailed to her at: ilene.lees@cs.state.ny.us

Public comment will be received until 45 days after publication of this notice in the State Reporter dated April 9, 2014.

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress
2014 NY Slip Op 01905, Appellate Division, Fourth Department

Petitioner, a former police officer, filed a petition pursuant to CPLR Article 78 seeking to compel his former employer to reinstate him to his former position with back pay, alleging that although he had submitted his resignation, it was obtained under duress -- i.e., threats of criminal prosecution were made by City officials against him.* Thus, Petitioner argued, the resignation was invalid.

Supreme Court dismissed  Petitioner’s complaint on the ground that it was untimely, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that "Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee's demand for reinstatement is refused." The court then observed that such a “demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [Petitioner] becomes aware of the facts which give rise to his [or her] right of relief," noting that the four-month limitations period of CPLR article 78 proceedings has been "treat[ed] . . . as a measure of permissible delay in the making of the demand."

In this instance, said the court, Petitioner's right to demand reinstatement to his position arose, at the latest, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury.

Petitioner, however, did not demand reinstatement to his position until approximately nine months later, well over the four-month guideline. The Appellate Division ruled that Supreme Court "it was [well] within [its] discretion to determine that Petitioner unreasonably delayed in making the demand."

* In Rychlick v Coughlin, 63 NY2d 643, the court said that the threat to file formal disciplinary charges if the employee did not resign does not constitute duress as it is not duress to threaten to do what one has the legal right to do.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01905.htm

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Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

The IRS has issued Notice 2014-19, which provides guidance on how qualified retirement plans should treat the marriages of same-sex couples following the Supreme Court’s decision in United States v. Windsor. The Windsor decision invalidated Section 3 of the 1996 Defense of Marriage Act (DOMA) that barred married same-sex couples from being treated as married under federal law.

The notice:

• gives examples of Code requirements under which the marital status of the participants is relevant to the payment of benefits,
• provides guidance on how to satisfy those requirements in light of Windsor and Revenue Ruling 2013-17, and
• describes when retirement plans must be amended to comply with Windsor, Revenue Ruling 2013-17, and Notice 2014-19

Recognition of marriages of same-sex couples for tax purposes

Following the Windsor decision, the IRS issued Revenue Ruling 2013-17, which holds that married same-sex couples are now treated as married for all federal tax purposes where marriage is a factor, if the couple is lawfully married under the laws of one of the 50 states, the District of Columbia, a U.S. territory or a foreign jurisdiction. Notice 2014-19 gives additional guidance on how qualified retirement plans should treat the marriages of same-sex couples.

Plan amendments required with respect to plan provisions inconsistent with Windsor

• If its terms are inconsistent with Windsor or Revenue Ruling 2013-17, a retirement plan must be amended to comply with Windsor and Revenue Ruling 2013-17. For example, a plan must be amended if it defines “spouse” by reference to section 3 of DOMA, or only as a person of the opposite sex.
• Not all plans need to be amended in order to be in compliance. An amendment generally is not required if a plan’s terms are not inconsistent with Windsor or with Revenue Ruling 2013-17.
• Required amendments must be adopted by the later of December 31, 2014, or the applicable date under the IRS’ general amendment guidance for qualified retirement plans, Revenue Procedure 2007-44.

Optional amendments

• Plan sponsors may also, but are not required to, reflect the outcome of Windsor for periods prior to the date Windsor was decided.
• In such a case, a plan amendment is required.
• Such optional amendment must be adopted by the later of December 31, 2014, or the applicable date under Revenue Procedure 2007-44.

FAQs for more information
See the FAQs on the treatment of same-sex marriages for additional guidance, including:

• beneficiary designations in profit-sharing plans after Windsor,
• amendments that reflect the outcome of Windsor for periods before the decision was issued, and
• application of the outcome of Windsor to 403(b) plans.

Additional resources

• IRS News - For Same-Sex Couples and Certain Domestic Partners
• Revenue Ruling 2013-17 – treatment of same-sex marriage for federal tax purposes
• FAQs on treatment of same-sex marriage for retirement plans

New York State's Human Rights Law and the New York City's Human Rights Law are not identical

New York State's Human Rights Law and the New York City's Human Rights Law are not identical

2014 NY Slip Op 02098, Court of Appeals

Initially employed by the NYC Health and Hospitals Corporation [HHC] in 1979, Plaintiff was diagnosed with an occupational lung disease. In 2007, HHC terminated Plaintiff. About a year later Plaintiff filed a complaint pursuant to State Human Rights Law (SHRL) and the City Human Rights Law (CHRL) alleging HHC HC had unlawfully discriminated on the basis of his disability.

Supreme Court granted HHC motion seeking summary judgment, holding that Plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job. The Appellate Division affirmed.

The Court of Appeals ruled that HHC was not entitled to summary judgment with respect to Plaintiff’s SHRL and CHRL claims, explaining that summary judgment in favor of an employer under SHRL or CHRL where the employer has failed to demonstrate that it responded to a disabled employee’s request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

The Court of Appeals set out the following guidelines in its decision:

1. An employer's failure to consider the reasonableness of a proposed accommodation for a generally qualified employee's disability via a good faith interactive process precludes the employer from obtaining summary judgment in the action.

2. The State Human Rights Law and the City Human Rights Law set forth distinct legal standards for establishing the existence of a covered disability that can be reasonably accommodated.

3. These statutes generally preclude summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee's request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

4. An employee's complaint states a prima facie case of discrimination under both the State HRL and City HRL if the employee suffers from a statutorily defined disability and the disability caused the behavior for which the employee was terminated.

Turning from the summary judgment burden to the substance of the statutes at issue, the SHRL forbids employment discrimination on the basis of an employee's disability, and the CHRL provides even greater protection against disability-based discrimination.

As to SHRL:

1. Under the State HRL, if an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment.

2. If a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a "disability" within the meaning of the State statute, and the employer cannot disadvantage the employee based on that disability.

3. A "reasonable accommodation" for an employee's impairment is one which "permit[s] an employee with a disability to perform in a reasonable manner activities involved in the job" and does not impose an "undue hardship" on the employer's business.

4. A proper State HRL claim must be supported by substantiated allegations that, "'upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job,'" and the employee bears the burden of proof on this issue at trial.

5. The SHRL's definitions of "reasonable accommodation" and "disability" requires that, where the employee seeks a specific accommodation for his or her disability, the employer must give individualized consideration to that request and may not arbitrarily reject the employee's proposal without further inquiry.

6. At a trial on a State HRL claim, the plaintiff employee bears the burden of proving the existence of a reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position

As to the CHRL:

1. The CHRL's definition of 'disability' does not include 'reasonable accommodation' or the ability to perform a job in a reasonable manner," but rather "defines 'disability' solely in terms of impairments."

2. The CHRL forbids employment discrimination against physically and mentally impaired individuals, and employers may raise the inability of disabled employees to "with reasonable accommodation, satisfy the essential requisites of the[ir] job[s]" only as an affirmative defense to a CHRL claim.

3. The CHRL places the burden on the employer to show the unavailability of any safe and reasonable accommodation and to show that any proposed accommodation would place an undue hardship on its business.

4. At trial on a CHRL claim, the employer does not automatically fail to establish the affirmative defense premised on the lack of any reasonable accommodation solely because it did not participate in an interactive process, though that failure poses a formidable obstacle to the employer's attempt to prove that no reasonable accommodation existed for the employee's disability

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02098.htm
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Employee discipline guidelines for public employers

Employee discipline guidelines for public employers

Source: posted by the Editorial Team of the NYMuniBlog

   

Harris Beach partner Edward A. Trevvett, Esq., recently presented a talk focusing on Employee Discipline – Process, Procedure & Off-Duty Misconduct to municipal officials at a New York Conference of Mayors (NYCOM) Personnel School held in Pittsford, New York.

The presentation discussed “just cause” standards, sound personnel practices, the importance of documentation, “notice documents,” performance appraisals, progressive disciplinary policy, investigations and off-duty misconduct, as well as due process and procedural requirements for public employers.

To view the material presented by Mr. Trevvett at the Personnel School, click on the link set out below:

View this document on Scribd

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

Available from the Public Employment Law Press

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Complying with probationary evaluation procedures set out in the collective bargaining agreement

Complying with probationary evaluation procedures set out in the collective bargaining agreement
2014 NY Slip Op 01236, Appellate Division, Third Department

The relevant collective bargaining agreement (CBA) containing a broad arbitration clause and a grievance procedure providing that any unresolved grievance is subject to arbitration.

After a probationer received a series of negative evaluations, probationer's administrators recommended that the probationer be denied tenure. The union filed a grievance on the probationer's behalf challenging, among other things, whether the employer had complied with the probationary evaluation procedures provided for in the CBA.

The employer denied the grievance and terminated the probationer's employment. The union filed a demand for arbitration. In response, the employer initiated an action in Supreme Court seeking a stay of arbitration pursuant to CPLR §7503(b).

Supreme Court granted the employer's petition, concluding that the subject matter of the grievance was not arbitrable because it actually challenged the employer’s tenure decision — over which the parties agree that employer had sole discretion — and not the alleged failure to comply with the agreed-upon evaluation procedures.*

This, said the Appellate Division, was incorrect and the employer’s petition should have been denied.

The Appellate Division explained that the court's role in determining applications to stay arbitration is limited and, as relevant in this action, requires a determination of whether the parties have agreed to arbitrate the dispute at issue.

As the union asserted a violation of the evaluation procedures agreed to by the parties and included as part of the CBA, the Appellate Division concluded that there was a rational relationship between the subject of the grievance and the CBA. Thus, said the court, “The question of whether the employer violated these procedures "goes to the merits of the grievance, not to its arbitrability."  

In the words of the Appellate Division, "[T]he fact that the substantive clauses of the contract might not support the grievances . . . is irrelevant on the threshold question of arbitrability. It is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

* In Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that "contractual provisions between a teachers association and a school district can provide procedural safeguards concerning the tenure decision without offending public policy [see, also, Matter of Clarkstown Central School District, 163 AD2d 670].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01236.htm

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An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation

An individual’s inconsistent statements to different parties can be deemed a willful false statement or misrepresentation
2014 NY Slip Op 01805, Appellate Division, Third Department

A civilian employee, [Claimant] working at a state correctional facility was dismissed from his employment after he was arrested for attempting to smuggle contraband, hidden in his lunch pail, into the facility.

The Unemployment Insurance Appeal Board found, among other things, Claimant “engaged in disqualifying misconduct and made willful false statements to obtain benefits” and reduced his right to receive future benefits and assessed a recoverable overpayment of benefits.

The Claimant appealed the Board’s determination.

The Appellate Division affirmed the Board’s decision, explaining that "A 'willful' false statement or misrepresentation is one which was made knowingly, intentionally or deliberately, and criminal intent . . . need not be shown."

As to whether a willful false statement was made is a question of fact for the Board to resolve. The record showed that when Claimant was arrested, he told the police that he knew that items found in his lunch pail were considered contraband and he was aware of the employer's policy prohibited bringing contraband into the facility.

In contrast, Claimant told the Department of Labor's representative when questioned about his loss of employment that he was unaware of any wrongdoing on his part and had done nothing wrong.

Such inconsistent statements, said the Appellate Division, provide substantial evidence to support the Board's finding that claimant made willful false statements in an effort to obtain unemployment insurance benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01805.htm
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Providing health insurance benefits to employee upon retirement

Providing health insurance benefits to employee upon retirement

2014 NY Slip Op 01496, Appellate Division, Third Department

A series of collective bargaining agreement (CBA) in effect from July 1996 to June 2002 provided that employees who retire with fifteen or more years of service to the District shall be entitled to District provided individual or family health insurance coverage, as applicable, at no cost to the retiree. The two successive CBAs contained that same provision with regard to retiree health insurance coverage, as well as a separate provision expressly addressing Medicare reimbursement that stated, "as of July 1, 2003, those who retire from Northeastern Clinton [Central School District] with 25 years of consecutive service in the [D]istrict shall be entitled to Medicare reimbursement for themselves and their spouse[s], while the retired employee is still living."

In 2010, after plaintiffs had retired, a successor CBA was executed between the District and the relevant collective bargaining unit which, among other things, provided that employees retiring on or after July 1, 2010 shall not be provided with Medicare reimbursement upon retirement. Shortly thereafter, defendant Board of Education, Northeastern Clinton Central School District adopted a resolution which, among other things, eliminated Medicare reimbursements for District retirees who were not already in receipt of such reimbursements as of July 1, 2010.

After receiving notice of the resolution, plaintiffs sued for breach of contract and for a declaratory judgment, claiming that they are entitled to Medicare Part B reimbursement under the CBAs in effect at the time of the employees' retirement.

One of the arguments advanced by the school district contended that, regardless of any contractual right to Medicare Part B reimbursements, the Insurance Moratorium Law (Chapter 594, Laws of 2009, Part B, §14) authorizes the school District to modify the retirees' coverage because a corresponding modification was made for active employees in the 2010-2014 CBA. 

The Appellate Division noted that this contention was rejected by the Court of Appeals in Kolbe v Tibbets, 22 NY3d 344.

In Kolbe the Court of Appeals said that “This case calls on us to decide whether certain collective bargaining agreements* conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law.”

The court held that the contracts establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.

In the words of the Court of Appeals, “we reject the District's argument that, regardless of plaintiffs' contractual right to the "same coverage," the 2009 Insurance Moratorium Law allows the District to modify plaintiffs' coverage because a corresponding modification was made in the 2007-2012 CBA for active employees.

“The statute provides, in relevant part, that, "From on and after June 30, 1994 a school district board of cooperative educational services, vocational education and extension board or a school district . . . shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such board or district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected [sic] from the present level during this period by such district or board from the corresponding group of active employees for such retirees" (L 1994, ch 729, as extended by L 2009, ch 30).

“The District's interpretation of the statute relies on the erroneous conclusion that the Legislature's silence regarding contracted-for health coverage should be read as an intention to abrogate contractual rights. However, the Insurance Moratorium Law's primary purpose was to prevent school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred as a matter of school district policy, not rights negotiated in the collective bargaining context (see New York State Assembly Memorandum in Support of L 1996, ch 83). The 1994 final report of the Temporary Task Force on Health Insurance for Retired Educational Employees, which originally recommended the legislation, proposed amending the then-temporary law to apply to contractually vested rights. Specifically, the Task Force proposed that the Legislature "mak[e] it clear that any negotiated health insurance benefits for present employees upon retirement can be affected in the same manner as any retiree's health benefits can be under the present temporary legislation; i.e., once retired a retiree's health insurance benefits may be diminished in a similar manner as negotiated for active employees without violation of the negotiated provision covering future retirees" (Final Report of the Temporary Task Force on Health Insurance for Retired Educational Employees, December 1, 1994, at 6 [emphasis supplied]). Significantly, the Legislature never adopted this proposal, or any of the Task Force's proposed amendments to the temporary statute then in effect, but instead enacted it into permanent law unchanged.

“In light of this legislative history, as well as the statute's plain language, Supreme Court correctly concluded that the statute only prescribed "a bottom floor, beneath which school districts and certain boards were forbidden to go in diminishing benefits. It was not meant to eviscerate contractual obligations and decades of contract law."

* The Court of Appeals commented that “despite the fact that the successor CBA was retroactively effective to 2007, it is undisputed that even those plaintiffs who retired in 2007 and 2008 effectively retired under the 2003-2007 CBA, since the subsequent CBA was not executed until 2010. This stipulation accords with the reality that these plaintiffs were not represented by the CSEA in the portion of the negotiations that took place after their retirement, and that the bargains struck in the 2007-2012 agreement would thus not be enforceable by them.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01496.htm
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Posted on the Blogs:

Posted on the Blogs:

The Digital Journal has posted an article prepared by White, Ricotta & Marks, P.C. [www.queensemploymentattorney.com] highlighting some of the recent changes to the disciplinary hearing procedures set out in Education Law §3020-a. The article is posted on the Internet at: http://www.digitaljournal.com/pr/1811847#ixzz2xJbx7vyV

James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling. Mr. Beyer's article is posted on the Internet at: http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

FindLaw has posted an article about a California case challenging teacher job protection laws in which it was alleged that "incompetent teachers in California are holding back poor and minority children." The decision could affect the way public school teachers are currently hired and terminated in the most populous state in the United States. The item is posted on the Internet at:

http://legalnews.findlaw.com/article/ecd85440c5b18ed47f23012934eb1340?DCMP=NWL-pro_top

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Individual declared ineligible for unemployment insurance benefits after failing to obtain a required license

Individual declared ineligible for unemployment insurance benefits after failing to obtain a required license

2014 NY Slip Op 01802, Appellate Division, Third Department

A former school teacher [Claimant] was found ineligible for unemployment insurance benefits. The Unemployment Insurance Appeals Board determined that Claimant voluntarily left his employment without good cause.

Claimant had been informed by his employer that he was required to obtain a Master's degree in education in order to be properly certified and be continued in his employment.

Although Claimant had been given three extensions of the deadline to meet this requirement, he failed to complete the degree at an accredited school before the expiration of the time allotted. Accordingly, Claimant’s employer terminated the employment due to lack of a valid teaching certificate.

Claimant challenged the Unemployment Insurance Appeals Board’s determination that he had voluntarily left his employment without good cause and he was charged with a “recoverable overpayment” based on the unemployment insurance benefits he had earlier been given.

The Appellate Division sustained the Board’s ruling, finding that the record established that Claimant had sufficient time to obtain the Master's degree from an accredited school prior to the deadline set by the employer. Finding that Claimant failed to take reasonable steps to protect his continuation in employment, the court ruled that substantial evidence supported the decision of the Unemployment Insurance Appeal Board that Claimant had voluntarily separated from his employment without good cause.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01802.htm
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Unless the collective bargaining agreement specifically so provides, the contract grievance procedure set out in the agreement is not available to a retiree

Unless the collective bargaining agreement specifically so provides, the contract grievance procedure set out in the agreement is not available to a retiree

2014 NY Slip Op 01845, Appellate Division, Fourth Department

A retired employee [Retiree] of the Village [Village] commenced this breach of contract action seeking to compel Village to pay 80% of his health insurance plan premiums, alleging that Village had paid him that percentage pursuant to the terms of a collective bargaining agreement (CBA) between the Village and the union when he was an active employee.

Village moved to dismiss Retiree’s complaint on the ground that the grievance procedure provided for in the CBA was the exclusive procedure by which Retiree could seek redress and that he was required to bring his claim through the grievance procedure despite his status as a retiree. Retiree opposed Village's motion, arguing that the CBA restricted the class of individuals who could file a grievance to active employees.

Supreme Court ruled that the language of the CBA contained no such restriction and granted Village's motion. The Appellate Division disagreed, concluding that Supreme Court erred in interpreting the CBA, and reinstated Retiree’s complaint.

The Appellate Division explained that except when the CBA provides otherwise, is well settled that an active employee may not invoke a grievance procedure set out in a CBA as an individual but must proceed, through the union, in accordance with the contract."*

Here, however, the complaining party is a retiree rather than an active employee. The court noted that the CBA uses the word "member" is used interchangeably with the word "employee," and several CBA provisions that apply to "members," such as provisions for holiday pay and annual physicals, clearly affect only active employees. Further, said the court, the CBA provides that Village recognizes the union "as the exclusive representative for collective negotiations with respect to salaries, wages, and other terms and conditions of employment of all full-time and part-time employees" (emphasis in the decision).

Giving the word "member" its plain meaning, and interpreting the contract as a whole, the Appellate Division said that it agreed with Retiree that the word "member" means a member of the union. It is undisputed that Retiree ceased to be a member of the union in the collective bargaining unit upon his retirement. According, said the court, the clear and unambiguous terms of the CBA meant that Retiree, who was no longer a "member" of the union when he became aggrieved, could not file a grievance.

Citing Matter of DeRosa v Dyster, 90 AD3d 1470, a case in which the collective bargaining agreement expressly permitted "grievances concerning retirement benefits" and expressly provided for health insurance benefits after retirement, the majority of DeRosa court held that because only an individual "employee" could file a grievance, DeRosa, a retired employee of City of Niagara Falls, could not have filed a grievance before commencing a CPLR Article 78 proceeding. 

The Appellate Division stated that fact that the CBA expressly provides for health insurance benefits after retirement does not necessarily mean that an individual retiree will be permitted to use the grievance procedure to enforce those provisions. In Retiree’s case, as in DeRosa, “the clear and unambiguous terms of the CBA prevented plaintiff from filing a grievance.”

* Other such exception recognized by the courts include: [1] a retiree may initiate a grievance in the event the act or omission complained of arose while he or she was an active employee; and [2] an employee may initiate the contract grievance procedure "when the union fails in its duty of fair representation" but, as a condition precedent to so doing, the employee must allege and prove that the union breached its duty to provide fair representation to the individual.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01845.htm
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Substantial evidence that police officer is able to perform the duties of his or her position precludes granting the individual General Municipal Law §207-c benefits

Substantial evidence that police officer is able to perform the duties of his or her position precludes granting the individual General Municipal Law §207-c benefits

2014 NY Slip Op 01883, Appellate Division, Fourth Department

A municipal police officer was injured while on duty and received General Municipal Law §207-c benefits*for a period of time. Those benefits were discontinued when the officer returned to work in a light-duty capacity. Returning to full duty later in the year, in January 2012, the officer stopped working and sought to resume receiving §207-c benefits.

A hearing was held and the Hearing Officer determined that the police officer could perform the duties of a police officer and denied his application for §207-c benefits.

The appointing authority adopted the Hearing Officer’s findings and determination. The police officer sued, seeking a court order annulling the appointing authority’s determination that he was not entitled to §207-c benefits.

The Appellate Division, finding that the Hearing Officer's determination that the police officer was able to perform his regular duties was supported by substantial evidence, affirmed the employer’s determination and dismissed the officer’s appeal.

* §207-c. of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of policemen and others involved in law enforcement suffering an injury or illness incurred in the performance of duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01883.htm
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The Warren M. Anderson Breakfast Series Seminar’s Infrastructure Funding session is scheduled for April 8, 2014

The Warren M. Anderson Breakfast Series Seminar’s Infrastructure Funding session is scheduled for April 8, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on April 8 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

The speakers
 

 ●Hon. Félix Ortiz, NYS Assemblymember & Sponsor, The Urban Restoration Bond Act of 2014

●Hon. Kathy Sheehan, Mayor, City of Albany

● Michael J. Elmendorf II, President & CEO, Associated General Contractors of NYS

●Denis Hughes, Senior Advisor, Brown & Weinraub PLLC & Former President, NYS AFL-CIO

 
will discuss Infrastructure Funding required for costly, yet essential repairs to aging roads and bridges, water supply systems and drainage. 

Pending legislation would allow the state to borrow $2 billion for infrastructure improvements.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer

Some critical procedural elements to be satisfied in order to provide the Commissioner jurisdiction to consider an application to remove a school board member or school district officer

Application for removal of the President and Member at Large of a school board. Decisions of the Commissioner of Education, Decision 16,594

The Commissioner never reached the merit of Petitioner's application seeking the removal of the President and member of the school board alleging that the individual was guilty of neglecting her duties, willfully violating the law on various; violating board policies concerning the conduct of board meetings and the supervision, management, and implementation of district business, including staffing, contractual matters, and legal obligations as well violating the Open Meetings Law and breaching her fiduciary duties to the school district. Finding that  Petitioner failed to satisfy certain procedural requirements, the Commissioner dismissed Petitioner's application.

Among the procedural omissions commented on by the Commissioner were the following:

1. An application must be timely filed as an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act [or omission] complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16). The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1)

2. A removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurredmore than 30 days before the application was instituted.*

3. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner, citing 8 NYCRR §276.5. The Commissioner explained that although this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent that are otherwise untimely.

4. The Commissioner will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the application.

5. The late filing of memoranda of law may be permitted by the Commissioner, in his sole discretion, upon written application setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal (see 8 NYCRR §276.4[a]).

6. Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office (8 NYCRR §277.1[b]) and the failure to comply with §277.1(b) is a fatally defective and does not secure jurisdiction over the intended respondent.** The Commissioner noted that the Petitioner used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310, explaining that the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings and the failure to comply with §277.1(b) necessarily results in a jurisdictional failure and requires dismissal of the application. 

7. In the event the petitioner claims that his or her petition is timely because the respondent’s conduct constitutes a continuing wrong, the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful the employment of an unqualified individual or certain ongoing expenditures under an austerity budget that did not comply with the law.

8. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief (8 NYCRR §275.10)

One issue, however, was addressed relevant to this application was considered on the merits -- the Respondent’s request that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1).

The Commissioner, noting that such certification is solely for the purpose of authorizing a school board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member, explained that it is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith.

The Commissioner granted the Respondent's request in view of the fact the application in this instance was denied on procedural grounds and there has been no finding that the Respondent acted in bad faith, indicating that he did so solely because, for the purpose of Education Law §3811(1), respondent “appears to have acted in good faith.”

* Here petitioner asserted that his delay should be excused because he “wanted to give an opportunity for Respondent to resign in light of” his  allegations. However, the petitioner must establish to the satisfaction of the Commissioner that there was “good cause for [the] delay.”

 

** The Commissioner noted that the applicant used the notice prescribed under §275.11(a) for an appeal brought pursuant to Education Law §310.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/D16594.pdf

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Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement

Litigating an alleged violation of a term in a collective bargaining agreement following the rejection of a non-binding arbitration award by party to the agreement

Civil Serv. Employees Assn., Inc. v Nassau Health Care Corp., 2014 NY Slip Op 01704, Appellate Division, Second Department

CSEA alleged that Nassau Health Care Corporation [NHCC] had violated the terms of a collective bargaining agreement [CBA] when it deemed certain employees reinstated to their former positions as "new" employees for purposes of determining their eligibility for health benefits, their seniority status, and their rate of leave accruals.*

NHCC and CSEA proceeded to nonbinding arbitration. The arbitrator issued an advisory award sustaining CSEA’s grievances. NHCC rejected the advisory award and CSEA sued, alleging breach of contract and sought declaratory relief and a court order directing NHCC to compensate the employees for expenses incurred by reason of such alleged violations. Supreme Court granted CSEA’s motion for summary judgment and NHCC appealed.

The Appellate Division modified the Supreme Court’s order, finding that NHCC had not violated the CBA with respect to its conduct towards former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

The court said that the CBA was clear and unambiguous with respect to treatment of those former employees reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period.

In contrast, the Appellate Division held that the CBA was not clear and was ambiguous with respect to those employees reinstated to a full-time position after one year or more after the interruption of their full-time employment with NHCC but less than a full year interrupted full-time service when periods of part-time employment were taken into account. Resolution of the ambiguity, said the court, is for the “trier of the fact,” remanding this issue to Supreme Court for its further consideration.

The court explained that "When a contract, read as a whole to determine its purpose and intent, plainly manifests the intent of the parties, relief may be granted by way of summary judgment.… Where, however, the contractual provision relied upon is ambiguous, the resolution of the ambiguity is for the trier of fact” to resolve.

Here, said the court, the CBA was clear and unambiguous with respect to treatment of former employees who were reinstated to a full time position a year or more after being laid off without having worked part time for NHCC during this period of their layoff. NHCC demonstrated prima facie that these employees were treated in conformity with those contractual provisions said the Appellate Division.

Thus the Appellate Division ruled that Supreme Court was incorrect in denying NHCC's motion for summary judgment declaring that it did not violate the CBA with respect to its treatment of employee absent from full time employment for one year or longer without having had any intervening part-time employment with NHCC.

The Appellate Division held that the CBA was not so clear and unambiguous with respect to NHCC's treatment of employees reinstated to a full-time position one year or more after being laid-off  but who had been employed by NHCC part-time during their absence following their laid-off.

Accordingly, the Appellate Division held that Supreme Court properly denied NHCC's motion seeking summary judgment in its favor with respect to employee having intervening part-time employment with NHCC but erred in granting CSEA's motion for summary judgment with respect to these employees. The issue was remitted to the Supreme Court for further proceedings with respect to those individuals employed by NHCC on a part-time basis during while absent from full-time employment by NHCC for one year or longer.

* The Appellate Division distinguished between to groups of employee: one group consisted of employees absent from their full time employment for more than one year and a second group of employees consisting of employees absent from their full time employment for more than one year but who had been employed by NHCC on a part-time basis during their absence from full-time employment with NHCC.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01704.htm
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2014 editions of electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

2014 editions of electronic books [e-books] focusing on New York State and Municipal Public Personnel Law now available:

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct

Factors that may serve to mitigate a disciplinary penalty upon a finding of misconduct

2014 NY Slip Op 01813, Appellate Division, First Department

2014 NY Slip Op 01814, Appellate Division, First Department

In both of these cases tenured teachers were terminated after a disciplinary arbitrator found them guilty of allegedly "engaging in what appeared to be sexually inappropriate behavior with a colleague" while on school property in an “unofficial capacity.”

Supreme Court sustained the arbitrator’s findings of misconduct but remanded the matter for a new hearing and the imposition of a lesser penalty. The Appellate Division, however, modified the Supreme Court’s decision “on the law” by [1] reinstating the findings of misconduct but vacated that part of the order directing a new hearing and [2] remanding the matter for the imposition of a lesser penalties.

Explaining that where the parties are subjected to compulsory arbitration, the arbitration award must be "in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78." Further said the court, “[a] hearing officer's determinations of credibility, however, are largely unreviewable because the hearing officer observed the witnesses and was able to perceive the inflections, the pauses, the glances and gestures - all the nuances of speech and manner that combine to form an impression of either candor or deception."

The Appellate Division found that Supreme Court “erred in substituting its judgment” for that of the hearing officer and the arbitrator's findings of misconduct “was supported by adequate evidence.”

 

The court, however, agreed with Supreme Court that the penalty of termination of employment was shockingly disproportionate to the misconduct of the respective employees. A result is shocking to one's sense of fairness, said the court, “if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals.” 

Another consideration in fixing an appropriate penalty: would be the prospect of deterrence of the individual or of others in like situations.

Before the incident, the court noted, the teachers involved had made many positive contributions to the school and had an unblemished disciplinary records.

Among the circumstances that could serve in mitigating the disciplinary penalty imposed on an employee, in this instance termination, cited by the court were the following:

1. The employee’s actions were not premeditated and the employee had a spotless record for five years.

2. The employee’s behavior demonstrated a lapse in judgment in the absence of evidence that the incident was anything but a one-time mistake.

3. That, with respect to an educator, the conduct did not involve some form of romantic involvement or other inappropriate conduct with a student, but rather appeared to be consensual sexual conduct with an adult colleague that was not in and of itself either criminal or otherwise improper.

4. The absence of any indication in the record that the educator's conduct will affect his or her ability to teach or that he or she intended to inflict any damage on any student.

5. The tenured educator had an unblemished disciplinary record and consistently satisfactory performance ratings.

The Appellate Division, in remanding the matter for the imposition of lesser penalties, commented that “While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination.”

N.B. James Beyer, Esq., writing in NYMUNIBLOB, has posted an article entitled Will Sex in School Decision Impact Teacher Discipline Process? in which he addresses a number of implications flowing from these ruling.

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Mr. Beyer's article is posted on the Internet at:http://nymuniblog.com/will-sex-in-school-decision-impact-teacher-discipline-process/

The decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01813.htm

and

http://www.nycourts.gov/reporter/3dseries/2014/2014_01814.htm

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Guidelines considered by the Commissioner of Education when adjudicating an application seeking the removal of a member of a board of education or a school officer

Guidelines considered by the Commissioner of Education when adjudicating an application seeking the removal of a member of a board of education or a school officer

Decisions of the Commissioner of Education, Decision 16,593

In considering this application seeking the removal of certain members of the school district’s board of education, the Commissioner first recited the litigation and other procedures over a number of years in which the parties to this application were involved and noted that “the history of dissention and conflict” affecting the school district is well documented by the numerous legal actions in recent years involving the district.

In the words of the Commissioner: “The record before me illustrates all too well how conflict and an atmosphere of this nature can interfere with the board’s ability to govern the affairs of the district and can undermine the public’s confidence in its elected school board. I strongly urge respondents and the board to engage in constructive discussions – not only as a board, but also with district staff and the community – aimed at eliminating conflict and achieving the best possible governance of the school district.”

After addressing a number of procedural matters, the Commission turned to the merits of the application in which it was alleged that conflicts of interest involving certain members of the school board had surfaced in the course of a board meeting and sought the removal of the board members.

In adjudicating an application seeking to remove a member of a board of education or a school officer the Commissioner noted the following criteria:

1. A member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

2. In an application for removal of a member of a board of education or a school officer brought pursuant to Education Law §306, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. *

3. Pursuant to §277.1(a) of the Commissioner’s regulations, the application “must distinctly state the willful violation of law, neglect of duty, or willful disobedience

of a decision, order or regulation of the commissioner charged against the officer....”

The petition submitted to the Commissioner seeking the removal of the board members alleged only that the named individuals violated board bylaws and policies, including §6110,**with respect to their conduct at a particular board meeting when they debated and voted upon various resolutions without publicly disclosing their alleged interests in such resolutions.

However, said the Commissioner, “it is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, does not constitute sufficient grounds for removal of a member of a board of education in a proceeding pursuant to Education Law §306.”

Here it was alleged that the conflict of interest provisions of Article 18 of the General Municipal Law were violated because the board members had friendships or personal relationships with the subjects of the resolutions voted on at the board meeting. However the Commissioner held that the petitioner failed to establish facts sufficient to warrant the removal of the board member pursuant to Education Law §306 on this basis.

The Commissioner explained that the conflict of interest provisions of the General Municipal Law***define an interest as "a direct or indirect pecuniary or material benefit accruing to a municipal officer or employee as the result of a contract with the municipality which such officer or employee serves." Further, said the Commissioner, there is no provision in the General Municipal Law that deems a board member to have an automatic interest in a contract between a friend and the district in which the board member serves. Citing Opinion of the State Comptroller No. 83-40, the Commissioner pointed out that such an interest would arise only if a board member was to derive a direct or indirect pecuniary or material benefit from the resolution.

In contrast to alleging or establishing that any board member received a pecuniary or material benefit from their actions, the petitioner “merely alleges that they had undisclosed personal relationships relating to their votes.”

Noting that the petitioner cited no authority for the proposition that a friendship or social relationship, by itself, creates a conflict of interest, the Commissioner ruled that the petitioner had failed to sustain his burden of demonstrating a clear legal right to the relief requested and denied his application to remove the board members.

* See 8 NY CRR §275.10.

** §6110(3)(e) of the district’s ethics policy, which states that a member of the board shall “publicly disclose on the official record the nature and extent of any direct or indirect financial or other interest he/she has” in a resolution before the board.

*** See General Municipal Law §800[3].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16593.pdf
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The failure to serve a necessary party requires the dismissal of the proceeding

The failure to serve a necessary party requires the dismissal of the proceeding

2014 NY Slip Op 01696, Appellate Division, First Department

The Article 78 action involved an individual [Petitioner] seeking a court order annulling a decision of the New York City Civil Service Commission [CSC].

Petitioner was terminated from his employment by the New York City Department of Sanitation. CSC affirmed the Department’s decision and Petitioner appealed CSC’s ruling.

The Appellate Division sustained the Supreme Court granting CSC’s motion to dismissed Petitioner’s action, pointing out that Petitioner “concededly” failed to timely serve CSC, which was a necessary party* because CSC was the agency that made the decision challenged by Petition. The court explained that “[t]his failure to serve a necessary party required the dismissal of the proceeding,” citing Solid Waste Services, Inc. v City of New York, 29 AD3d 318 [leave to appeal denied, 7 NY3d 710].

The Appellate Division also sustained the Supreme Court declining to grant Petitioner an extension of time to perfect his appeal “notwithstanding the apparent absence of prejudice,” because of the Article 78 petition's “lack of merit.” Further, said the court, “Were we to reach the merits, under the extremely narrow scope of review applicable as [Petitioner] administratively appealed to CSC, we would find that [Petitioner} fails to demonstrate that CSC acted illegally, unconstitutionally, or in excess of its jurisdiction.”

* A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01696.htm
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