Defending and indemnifying officers and employees of the State involved in litigation

Defending and indemnifying officers and employees of the State involved in litigation

Public Officers Law §§17 and 19

In the event an officer or an employee of the State as the employer is sued in connection some alleged act or omission in the performance of his or her official duties, he or she may seek representation by the State and indemnification in the event he or she is held liable for damages and fees under certain circumstances.*

§17 of the Public Officers Law applies with respect to civil proceedings and provides for the defense and indemnification of officers and employees as defined in Subdivision 1 of §17 in the event such an individual is in a civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the individual was acting within the scope of his or her public employment or duties; or which is brought to enforce a provision of 42 USC 1981 or 42 USC 1983 [Federal Civil Rights Acts]. This duty, however, does not arise where the civil action or proceeding is brought by or on behalf of the State.

The State’s duty to defend or indemnify and save harmless the individual is subject to the following conditions::

1. The individual’s delivery of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he or she is served with such document to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State, and

2. The full cooperation of the individual in the defense of such action or proceeding and in defense of any action or proceeding against the State based upon the same act or omission, and in the prosecution of any appeal.

The timely delivery of such documents is deemed a request by the individual that the State provide for his or her defense and indemnification pursuant to §17.

§19 of the Public Officers Law applies in criminal actions and provides for the State to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an officer or employee of the State as the employer in his or her defense of a criminal proceeding in a State or Federal court:

1. arising out of any act which the individual was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or

2. incurred in connection with an appearance before a grand jury which returns no true bill against the individual where the individual's appearance was required as a result of any act which occurred while the individual was acting within the scope of his or her public employment or duties if such appearance did not occur in the normal course of the public employment or duties of the individual.

However, such reimbursement is also conditioned on (a) the individual’s timely delivery of a written request for such reimbursement of expenses together with, in the case of a criminal proceeding, the original or a copy of an accusatory instrument within ten days after he or she was arraigned pursuant to such instrument or, in the case of an appearance before a grand jury, written evidence of such an appearance. Such an item is to be delivered to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State.

In the event a request for reimbursement for reasonable attorneys' fees or litigation expenses or both made by, or on behalf of, the individual, the Attorney General is to investigate and review of the facts and circumstances involved and determine whether such reimbursement shall be paid. The Attorney General is to then notify the individual in writing of that determination.

Another condition to be met by the individual:seeking such reimbursement is his or her full cooperation in the defense of any action or proceeding against the State based upon the same act, and in the prosecution of any appeal.

* §18 of the Public Officers Law authorizes a political subdivision of the State to adopt a law, by-law, rule, resolution or regulation providing for the defense and indemnification of the entity’s officers and employees.
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An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits

An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits

Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York, 2014 NY Slip Op 03464, Appellate Division, First Department

Three members of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. The three were issued Release Time certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75) which provided the three elected PBA members with full-time leaves with pay and benefits.

A grand jury indicted the three members in connection with an alleged ticket-fixing scheme.* Pursuant to Civil Service Law §75(3-a), the three individuals were suspended without pay for 30 days, after which they were restored to modified duty. In addition the City rescinded their respective Release Time certificates. The PBA, however, declined the City’s offer to issue new Release Time certificates for three other employees of the union's choice, and filed a contract grievance with the City’s Office of Labor Relations.

After the grievance was denied, petitioners filed a demand for arbitration with the New York City Office of Collective Bargaining seeking to have the certificates reinstated on the ground that the rescission violated the parties' collective bargaining agreement and EO #75. In addition, the PBA filed an application in Supreme Court pursuant to CPLR Article 75 seeking a preliminary injunction barring the revocations of the Released Time Certificates pending arbitration.

Supreme Court granted the PBA a preliminary injunction enjoining the City from denying or revoking the "Release Time" certificates to the three PBA members pending resolution of arbitration proceedings.

CPLR §7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending The party seeking the preliminary injunction must demonstrate a probability of success on the merits, a danger of irreparable injury in the absence of a preliminary injunction preliminary injunction being issued, and a balance of the equities in its favor.

The City appealed. The Appellate Division, Judges Tom and Gische dissenting, vacated the Supreme Court’s preliminary injunction, explaining that the PBA, even assuming that an arbitration award in its favor would be render ineffectual without such provisional relief, failed to establish a likelihood of success on the merits of the claim to be arbitrated.

* The Appellate Division's opinion states “The indictments of the [three members] on charges related to a ticket-fixing scheme ... include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03464.htm

Removal of volunteer officers and volunteer members of a volunteer fire department

Removal of volunteer officers and volunteer members of a volunteer fire department
2014 NY Slip Op 03521, Appellate Division, Second Department

The Board of Fire Commissioners expelled a member of the Fire Department. The member sued and Supreme Court annulled the Board’s determination and remitting the matter for a hearing and a new determination.*  thereafter, and the petitioner cross-appeals from so much of the order as failed to grant the petition in its entirety.

The Appellate Division affirmed the lower court’s ruling, explaining that as the member was entitled to a hearing “upon due notice and upon stated charge” under General Municipal Law §209-l but was not afforded one, “the Supreme Court properly annulled the determination and remitted the matter for a hearing and a new determination thereafter.”

GML §209-l addresses the removal of volunteer officers and volunteer members of volunteer fire departments and, in pertinent part, provides:

1. The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.

2. Such officers and members of such departments and companies shall not be removed from office, or membership, as the case may be, by such authorities or by any other officer or body, except for incompetence or misconduct.**

3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.

* On a procedural note, in this instance, “on the Court's own motion,” the notice of appeal and the notice of cross appeal from the [Supreme Court’s] order was deemed to be applications for leave to appeal, and cross-appeal, respectively, and leave to appeal and cross-appeal is granted

** N.B. §209-l, however, further provides that  “The    provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03521.htm

 _____________________

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

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Discourtesy and failure to obey a lawful order

Discourtesy and failure to obey a lawful order

OATH Index No. 851/14

A computer aide was charged with discourtesy, refusal to obey orders, and inefficient performance.

OATH Administrative Law Judge Faye Lewis found that the aide was guilty of misconduct when she was rude and unhelpful to a day care provider who repeatedly called her for assistance and when she frequently failed to return that provider's telephone calls.

The ALJ also found the aide guilty of misconduct when she closed a door in a colleague's face after the colleague approached to say that a client was waiting to see her, and when she failed to obey orders to provide her supervisor with a case folder and to resubmit a form.

Judge Lewis, however, concluded that it was not misconduct for the aide to tell her colleagues she was on her lunch break and did not want to be bothered, as meal periods are not work time.

As the aide did not have any history of formal discipline, ALJ Lewis recommended that she be suspended without pay for 12 days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/00_Cases/14-851.pdf
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Acting beyond the scope of one's duties

Acting beyond the scope of one's duties

2014 NY Slip Op 03586, Appellate Division, First Department

The Police Commissioner of the City of New York terminated the employment of a New York City police officer [Plaintiff] based on substantial evidence Petitioner “unnecessarily acted outside his role as an undercover officer and discharged his firearm in violation of department guidelines.”

The Appellate Division sustained the Commissioner’s decision, commenting that under the circumstances “The penalty of termination is not so disproportionate to the offense as to shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03586.htm

______________________

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://booklocker.com/books/7401.html

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Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request

Home addresses of State employees and retirees may be excluded from disclosure in response to a FOIL request

Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2014 NY Slip Op 03193, Court of Appeals

In Empire Center for New York State Policy the Court of Appeals held that the Freedom of Information Law, commonly referred to as “FOIL,” permits the names, but not the addresses, of retirees who receive benefits from public employees' retirement systems to be disclosed in response to a FOIL request.

Empire Center submitted a FOIL with the New York State Teachers' Retirement System and the Teachers' Retirement System of the City of New York seeking the names of the retired members of the systems. When the retirement systems refused to provide the names, Empire Center filed CPLR Article 78 petitions to compel disclosure. Supreme Court dismissed both petitions, and the Appellate Division affirmed in each case.*

The Court of Appeals reversed the lower courts’ rulings, explaining that the controlling FOIL provision, Public Officers Law  §89(7), provides, in pertinent part, that:

"Nothing in this article [i.e., FOIL] shall require the disclosure of the home address of an officer or employee, former officer or employee, or of a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system ….”**

Thus the home address of a retiree – but not his or her name – fall within the available enumerated exceptions to disclosure set out in FOIL. In contrast, the court noted the name and, or, the home address of  "a beneficiary of a public employees' retirement system" – a person entitled to benefits upon the death of the retiree – may be excluded from disclosure in response to a FOIL request.

The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §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. A FOIL request is required only in the event the custodian of the public record[s] sought declines 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 record. 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.

Addressing the retirement systems’ argument that disclosure should be denied as an "unwarranted invasion of personal privacy" within the meaning of Public Officers Law §87 [2] [b]), the court concluded that  “the idea that anyone's privacy will be invaded is speculative” but in the event a FOIL request that seems to have such a purpose is made, that would be the time to consider the effect of the privacy exemption, including the provision addressing the "sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes."

* See Matter of Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 103 AD3d 1009 [3d Dept 2013]; Matter of Empire Ctr. for N.Y. State Policy v Teachers' Retirement Sys. of the City of New York, 103 AD3d 593 [1st Dept 2013]

** The Freedom of Information Law does not bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law, “to obtain the name or home address of any officer, employee or retiree of such employer, if such name or home address is otherwise available under this article."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03193.htm

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A complaint asserting a claim under Labor Law §740.(2) -- the Whistle Blower Law -- need not identify the specific "law, rule or regulation" allegedly violated by the employer

A complaint asserting a claim under Labor Law §740.(2) -- the Whistle Blower Law -- need not identify the specific "law, rule or regulation" allegedly violated by the employer

Webb-Weber v Community Action for Human Servs., Inc., 2014 NY Slip Op 03428, Court of Appeals

Civil Service Law §75-b* and Labor Law §740(2)** are commonly referred to as "whistleblower statutes,” and prohibit the employer from taking retaliatory personnel action against an employee because the employee discloses, or threatens to disclose to a supervisor or to a public body, an activity, policy or practice of the employer that is in violation of law, rule or regulation.

In Webb-Weber the “narrow issue” before the Court of Appeals was whether a complaint asserting a claim under §740(2) must identify the specific "law, rule or regulation" allegedly violated by the employer. 

The Court of Appeals concluded that there is no such requirement, holding that  “[t]he reasonable interpretation is that, in order to recover under a §740 claim, a plaintiff must show that [he or] she reported or threatened to report the employer's "activity, policy or practice." Quoting Richard A. Givens’ statement in Practice Commentaries,*** the Court of Appeals said that “the practice --- not the legal basis for finding it to be a violation — appears to be what must be reported."

Thus, for pleading purposes, the court ruled that the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct.

The Court of Appeals observed that in order to recover under a Labor Law §740 theory, the plaintiff has the burden of proving [1] that an actual violation occurred, in contrast to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred, citing Bordell v General Elec. Co., 88 NY2d 869, and [2] that the violation must be of the kind that "creates a substantial and specific danger to the public health or safety," citing Remba v Federation Empl. & Guidance Serv., 76 NY2d 801.

* Civil Service Law 75-b.2(a) provides as follows: A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. "Improper governmental action" shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.

** Labor Law §740(2) provides as follows: Prohibitions. An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following: (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud; (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.

*** Givens, Practice Commentaries, McKinneys Cons Laws of NY, Book 30, Labor Law §740, at 549 [1988 ed].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03428.htm
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Dishonesty ruled incompatible with individual’s employment as a peace officer

Dishonesty ruled incompatible with individual’s employment as a peace officer

OATH Index No. 1186/14

Disciplinary charges were filed against an enforcement agent [Employee] alleging that he failed to report a missing chemical spray canister and other agency equipment, and making false statements about what happened to them.

The agency’s attorney contended that in view of Employee’s status with the agency as a peace officer, the appropriate penalty was termination because of Employee’s admitted dishonesty is incompatible with his law enforcement position.

Noting that Employee persistently refused to provide a truthful explanation for the loss of the equipment, Oath Administrative Law Judge John B. Spooner recommended termination of employment as "integrity is vital" to Employee's job duties as a peace officer, which include providing truthful and accurate testimony at hearings.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/00_Cases/14-1186.pdf
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The 2014 Anderson Series Seminar’s Education Reform and The Common Core session is scheduled for May 20, 2014

The 2014 Anderson Series Seminar’s Education Reform and The Common Core session is scheduled for May 20, 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 May 20, 2014 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 speaker will discuss Education Reform and The Common Core.

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. 

The Comptroller has the authority to review and report on the billing practices of a medical provider not a participating physician within the NYSHIP Empire Plan network

The Comptroller has the authority to review and report on the billing practices of a medical provider not a participating physician within the NYSHIP Empire Plan network

Martin H. Handler, M.D., P.C. v DiNapoli, 2014 NY Slip Op 03191, Court of Appeals

Among the patients treated by a physician and a medical group [Providers] were individuals insured by the Empire Plan, New York State's primary health benefit plan. The Empire Plan pays about 80% of the charges billed for the medical services provided to individuals covered by the Empire Plan. Providers challenged the authority of the State Comptroller to review their records as part of an audit of billing practices in the health care industry for claims paid by the Empire Plan

The Comptroller contended that he had the authority to review and otherwise report on medical provider’s billing practices as part of its audit of State expenditures. The Court of Appeals agreed.

Among the issues considered by the court were “co-payments” incorporated in the fee structure.

Participating providers have an agreement with United that specifies the fees they may charge. These providers bill claims, less a patient “co-pay,” to United Healthcare Insurance of New York [United] which processes and pays claims made by Empire Plan beneficiaries. In contrast, non-participating providers charge market rates for their services and bill the patient directly. United then reimburses the patient 80% of either the actual fee charged or the "customary and reasonable charge" for the service, whichever is lower. The patient is responsible for paying the provider’s bill, including the 20% that is not paid by United, from his or her personal funds.

Non-participating providers have a legal duty to collect patients' co-payments and failure to collect these fees can result in civil and criminal penalties for insurance fraud.*  

According to the decision, the non-participating provider's failure to collect a co-payment from an Empire Plan member inflates a claim's cost and adversely impacts the State's fisc. A provider that charges $100 for a service, and who collects $80 in State money, must collect $20 from the Empire Plan member. In the event that the provider does not collect the co-payment, it has provided a medical service for $80, not $100, and the State should have paid only $64 of that cost.

After the Comptroller had examined Providers billing records for certain periods of time, the auditors found Providers routinely waived the co-pay that was to be paid by Empire patients and that this resulted in more than $1.500,000 in overpayments by United during this period. The Comptroller recommended that United recover the overpaid sums of money, advise Providers of the advantages of participating in the Empire Plan, and contact the Department of Civil Service to develop a plan for preventing future waiver of required co-payments. The Comptroller took no independent enforcement action.

Providers then filed separate combined Article 78 and declaratory judgment actions against the Comptroller and United, challenging the Comptroller's authority to audit their books and sought judicial relief that included enjoining publication of the results of the audit and enjoining United from collecting any alleged overpayments.

Supreme Court granted the petitions in part and enjoined United from taking action based on the Comptroller’s audit results. In separate decisions, Supreme Court concluded that the Comptroller lacked constitutional authority to audit Providers because Providers are "not a political subdivision of the State."

The Appellate Division found the Comptroller has a constitutional duty to audit payments made by the State, and, as a part of that duty, the Comptroller has the authority to conduct post-audit reviews of payments made to Providers. The Appellate Division explained that were the Comptroller to lack authority to audit health care providers' payment records, "no other entity . . . would retain oversight" to prevent overpayments that result from waived co-insurance fees. The Appellate Division remitted the cases to Supreme Court for further proceedings to address Providers’ claims that the audit findings were arbitrary and capricious and lacked a rational basis. Supreme Court dismissed Providers’ petitions and they appealed to the Court of Appeals ”as of right under CPLR 5601(d), bringing up the prior orders of the Appellate Division, which involved a substantial constitutional question.” 

Providers contended that the Comptroller's audits exceeded the constitutional limitations on its powers because, as non-participants in the Empire Plan, they neither have a contract with the State nor receive State funds, and the Comptroller cannot audit them. 

Under the current provisions of law, the Comptroller is to audit State payments and receipts and the Legislature is prohibited from assigning administrative tasks to the office in order to protect "the independent character of the Comptroller's audit function."

Further, Civil Service Law §167 (7), provides that the Comptroller is to audit payments to the State's health insurance vendors whereby "The amounts required to be paid to any contracting corporation under any contract [with NYSHIP] shall be payable from such health insurance fund as audited by and upon the warrant of the comptroller[.]"

Thus, said the court, both the Constitution and statutes require the Comptroller to ensure proper billing and payment for the Empire Plan. In order to accomplish its legally mandated duties to prevent unauthorized payments and overpayments, the Comptroller must perform both pre- and post-audit review of Empire Plan payments.

The Court of Appeals rejected Providers’ theory that United’s role as a conduit severs any connection between the State funds and the their billing practices, putting the records beyond the Comptroller's reach, explaining that the Constitution does not limit the Comptroller's authority in this way and the fact that the State relies on a third-party conduit, United, does not change the character of the funds.

Holding that the Comptroller's limited examination of Providers' billing records amounted to a post-audit of State payments and was permitted by the Constitution, the Court of Appeals ruled that the judgments of Supreme Court and the prior orders of the Appellate Division reviewed should be affirmed, with costs.

* (see Insurance Law §403 [c]; Penal Law § 176.05 [2]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03191.htm
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Disciplinary arbitrator’s treating one individual differently or less favorably than another similarly situated individual is not a reason to vacate the arbitration award.

Disciplinary arbitrator’s treating one individual differently or less favorably than another similarly situated individual is not a reason to vacate the arbitration award.

2014 NY Slip Op 03265, Appellate Division, Second Department

MTA Bus Co. had a policy banning cell-phone use while operating a bus. After the bus driver allegedly violated the MTA’s cell-phone policy three separate occasions and, in accordance with that policy, he had been suspended from employment for a period of 10 days.

Following the bus driver's fourth violation MTA terminated his employment. 

The bus driver’s union filed a grievance challenging the termination, and an arbitration hearing was conducted. After the hearing, the arbitrator concluded that the bus driver had committed a "cell phone violation," and that MTA's decision to terminate his employment was proper. The bus driver filed and Article 75 petition seeking a court order vacating the arbitration award.

Supreme Court denied the petition, in effect confirming the award and the bus driver appealed, contending that the arbitration award was irrational.

The Appellate Division, noting that "Judicial review of an arbitrator's award is extremely limited" said a court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) "only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further said the court, "Courts are bound by an arbitrator's . . . judgment concerning remedies [and] cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one." In addition the court commented that the fact “That the arbitrator may have treated the petitioner differently or less favorably than another similarly situated bus driver is not a ground to vacate the arbitration award.”

The Appellate Division held that the arbitrator's award was justified and, hence, rational as the record showed that the bus driver was aware of MTA’s cell-phone policy and had been previously suspended for 10 days for violating that policy. The court explained that violation of the MTA's cell-phone policy, which also violates New York law, constitutes appropriate grounds for termination of employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03265.htm
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On the Blogs: REAL-NY

On the Blogs: REAL-NY

On the Internet at: http://realny.org/

Powered by the legal information website, LawHelpNY, REAL-NY is a is a public-interest news blog that focuses on stories and organizations that matter to the lives of low-income New Yorkers in general and to access to justice in particular.

The Blog stories and resources that may help people solve problems and bring attention to issues that need more attention.  Built around a community service media model, this blog targets low-income New Yorkers and the community groups, nonprofits, and government agencies that assist them.

Using the power of design, multi-media, discussion forums, online polls, and short and informative plain- it posts articles to help New Yorkers learn about their legal rights as they apply to current events and community resources.

REAL-NY provides general information only. To find a lawyer in your area please visit http://www.lawhelpny.org/ and select a topic which best covers your legal problem.

For more information, contact the Technology Innovations Manager at LawHelpNY, Wilneida Negron at wnegron@nylawhelp.org.
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A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit

A collective bargaining agreement may obligate the employer to paying certain legal expenses incurred by an employee in the negotiating unit

Local 342, Long Is. Pub. Serv. Employees v Huntington, 2014 NY Slip Op 03271, Appellate Division, Second Department

Public Officers Law §18*permits a political or civil subdivision of the State whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation to “confer the benefits of the section” upon its employees, and (ii) to be held liable for the costs incurred under these provisions including the defense and indemnification its officers and employees, other than the sheriff of any county or an independent contractor.

This provision may be triggered in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the officer or employee was acting within the scope of his or her public employment or duties.

However, this duty to provide for a defense does not arise where such civil action or proceeding is brought by or on behalf of the public entity employing such employee.

As the Local 342 decision demonstrates, a political or subdivision of the State may also obligate itself to be liable for such costs by including such an obligation in a collective bargaining agreement.

An arbitrator determined that the Town of Huntington had breached a provision in a collective bargaining agreement by failing to pay certain legal fees on behalf of an employee in the collective bargaining unit.

The Appellate Division said that Supreme Court properly concluded that the arbitrator's determination did not clearly violate a strong public policy, was not totally or completely irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power.

The court explained that although the payment of a public employee's legal fees "would constitute an impermissible donation from the public purse in instances where there is no prior legal obligation on the part of the State or a municipality to provide reimbursement, the reimbursement is proper and considered additional remuneration where there is a prior legal obligation" to do so.

In this instance, said the Appellate Division, the relevant collective bargaining agreement expressly created a prior legal obligation on the part of the Town to pay the subject legal fees incurred by the individual.**

* Public Officers Law §17, provides for the defense and indemnification of officers and employees of the State as the employer by the State. .

** See Civil Service Law Section 204-a

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03271.htm
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A public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large

A public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large

Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 2014 NY Slip Op 03189, Court of Appeals

Members of a teachers' union picketing on a public street in front of a district school) displayed picketing signs from their cars parked where parents were dropping their children off at school district’s Woodland School. East Meadow Union Free School District brought disciplinary charges for misconduct against certain teachers, alleging that the teachers had created a health and safety risk by parking their cars so that students had to be dropped off in the middle of the street instead of at curbside.

After their respective hearings, the arbitrators found the teachers guilty of the misconduct charge and imposed a fine as the penalty. The arbitrators, acknowledging that the parking demonstration was conducted on public property while teachers were off-duty, and that their cars were legally parked, nonetheless concluded that teachers "intended to (and did) disrupt the student drop off and that the parked cars created a health and safety risk to children who had to be dropped off in the middle of a busy street in the rain." The Court of Appeals noted that although it was "fortunate" that no child was injured, the arbitrators determined that fact was irrelevant to their findings that teachers’ intentional conduct posed a potential threat to student safety.

The teachers than sued, seeking to vacate the arbitration awards in which they were found guilty of misconduct, contending that the disciplinary proceedings commenced against them, and the discipline ultimately imposed them, a fine, violated their right to free speech under the First Amendment to the United States Constitution.

Supreme Court denied the petitions but the Appellate Division reversed in each case. Applying the two-part balancing test from Pickering v Board of Educ. of Township High School Dist. 205, Will County Ill, 391 US 563,* the. Appellate Division decided that the teachers’ speech addressed a matter of public concern and, second, that the District failed to meet its burden of demonstrating that teachers' exercise of their free speech rights "so threatened the school's effective operation as to justify the imposition of discipline."

Although the Court of Appeals said it agreed with the Appellate Division with respect to the picketing demonstration, a form of "speech" protected by the First Amendment, addressed a matter of public concern, it disagreed with the Appellate Division’s conclusions with respect to the second step of the Pickering test and reversed the lower courts’ rulings.

The Court of Appeals said that viewing the record evidence in light of established federal precedent, it concluded that “the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations at Woodland.”

The school district, said the court, also satisfied its burden of proving that the discipline imposed here was justified because the teachers created a potential yet substantial risk to student safety and an actual disruption to school operations.

Addressing the Free Speech argument advanced by the teachers, the Court of Appeals said that “It is well settled that a public employer may not discharge or retaliate against an employee based on that employee's exercise of the right of free speech” but “Equally well settled, however, is that ‘the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general,’" citing Pickering,

Accordingly, said the court, public employers "may impose restraints on the First Amendment activities of its employees that are job-related even when such restraints would be unconstitutional if applied to the public at large." Thus, although "public employees like . . . teacher[s] do not leave their First Amendment rights at the schoolhouse door, . . . it is plain that those rights are somewhat diminished in public employment." Accordingly, the Court of Appeals, holding that the teachers’ demonstration constituted "speech" subject to First Amendment strictures, considered “that speech” in the context of the Pickeringbalancing test.

On the record, said the court, the teachers’ speech was on a matter of public concern and entitled to First Amendment protection. It then moved on the the “second test,” weighing the employee's First Amendment rights against the public employee's interest " in promoting the efficiency of the public services it performs through its employees'.

The interests the District asserted: “ensuring the safety of its students and maintaining orderly operations at Woodland” are legitimate said the court. As the evidence at the hearings showed that the parking demonstration created dangerous traffic conditions in front of the school that could have injured a student and that caused actual disruption to the school's operations, the school district contented that this was sufficient to justify its discipline of the teachers and that it was not required to prove that a student was actually injured for the Pickering balance to tip in the District's favor.

The majority of the Court of Appeals agreed and reversed the Appellate Division’s ruling, with costs and confirmed the arbitration award.

N.B. Justice Smith concurred but “only in the result, because [he did] not agree with the majority's view that the conduct of these teachers was speech or expression protected by the First Amendment,”  stating that he was “troubled by the implication that intentionally disruptive and dangerous conduct can, if it is designed for the purpose of calling attention to the actor's message, qualify for First Amendment protection.” In contrast, Justice Rivera dissented, stating that “I dissent from the majority's decision because I can find no legal or factual error in the Appellate Division's application of the Pickering balancing test to the facts of these cases. I would affirm the Appellate Division's orders and its conclusion that the District violated the teachers' free speech rights.”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” was posted earlier on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03189.htm
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The State’s reduction of its employer contribution for health insurance premiums for judges was an unconstitutional diminution of judicial compensation

The State’s reduction of its employer contribution for health insurance premiums for judges was an unconstitutional diminution of judicial compensation
Bransten v State of New York, 2014 NY Slip Op 03214, Appellate Division, First Department

Sitting and retired members of the New York State Judiciary challenged the State’s recent decrease in its employer contribution to the cost of the judges' health insurance premiums, contending that it violated the Compensation Clause of the New York State Constitution which provides "compensation [of a judge] shall be established by law and shall not be diminished during the term of office for which he or she was elected or appointed."*

The Appellate Division agreed, finding that the reduced contribution, which in turn increased the amounts withheld from judicial salaries as employee contribution towards health insurance premiums, constitutes an unconstitutional diminution of judicial compensation.

The court explained that the reduction in the State’s employer contribution for health insurance premiums occurred in 2011 when the State, faced with a serious budget shortfall, threatened to lay off thousands of workers unless employees in State's several collective bargaining units made wage and benefit concessions that included bearing more of the cost of their health insurance premium.

The State Legislature in August 2011 amended Civil Service Law §167.8 to provide that “The president [of the Civil Service Commission], with the approval of the director of the budget, may extend the modified state cost of premium or subscription charges for employees or retirees** not subject to an agreement referenced above and shall promulgate the necessary rules or regulations to implement this provision.”

The President, with the State Budget Director's approval, then adopted a Regulation that reduced the State's contribution for health insurance premiums not only for employees in State’s several negotiating units that had agreed to the reductions through collective bargaining, but also for some “nonunionized employees” and retirees of the State as the employer.

In accordance with these new Regulations, in September 2011 the State notified judges that it would reduce its contribution to sitting judges' health insurance premiums by 6% and reduce its contributions to retired judges' health insurance premiums by 2%.

The State argued that the Compensation Clause does not prohibit the State from decreasing its contributions to the health insurance premiums because any reduction to judicial compensation was "indirect" and nondiscriminatory.

Supreme Court, however, found that the State's reduced contribution amounted to a direct diminution of judicial compensation because it increased the amount withheld from judicial salaries.

On appeal, the State did not contend that reducing its contribution for health insurance premiums did not directly diminish judges' compensation but rather that its contribution to judges' health insurance premiums is not "compensation" within the meaning of the Compensation Clause.

The Appellate Division rejected that argument, explaining “it is settled law that employees' compensation includes all things of value received from their employers, including wages, bonuses, and benefits” and the Appellate Division, Second Department has expressly found that “health insurance benefits are a component of a judge's compensation,” citing Roe v Board of Trustees of the Village of Bellport, 65 AD3d 1211.

In contrast to State employees who either consented to the State's reduced contribution in exchange for immunity from layoffs or were otherwise compensated by the State's promise of job security, the decision points out that judges were forced to make increased contributions to their health care insurance premiums without receiving any benefits in exchange. The Appellate Division noted that the judiciary “had no power to negotiate with the State with respect to the decrease in compensation,” and they “received no benefit from the no-layoffs promise because their terms of office were either statutorily or constitutionally mandated.” 

Thus, said the court, “§167.8 uniquely discriminates against judges because it imposes a financial burden on them for which they received no compensatory benefit.”***

Accordingly, said the Appellate Division, the State’s motion to dismiss was properly denied by Supreme Court.

* New York State Constitution, Article VI, §25[a]. 

** With respect to retirees, prior to the 2011 amendment to Civil Service Law §167.8 it provided that employer contribution for health insurance premiums may be increased pursuant to the terms of a collective bargaining agreement but that such increase “shall not be applied during retirement.”

*** Much the same argument would apply to retirees of the State as the employer, including retired judges,  who retired prior to the effective date of the President’s Regulation as such retirees are not employees within the meaning of the Taylor Law nor did they receive any benefit with respect to job security as, like sitting judges, retirees cannot be “laid off.”

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03214.htm

The Supreme Court's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23175.htm
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Attempt to obtain a "judicial reformation" of a provision in a collective bargaining agreement on the ground of "mutual mistake" fails

Attempt to obtain a "judicial reformation" of a provision in a collective bargaining agreement on the ground of "mutual mistake" fails

Source: NYMuniBlog

Attorneys James E. Beyerand Kate L. Hill of Harris Beach writing in NYMuniBlog summarized a Pennsylvania court decision, Matter of A.S. and R.S. v. Office of Dispute Resolution (Quakertown Community School District), that they characterize as “unequivocally a cautionary tale of contract law.” Their summary of the court's ruling is posted on the Internet at http://nymuniblog.com/lessons-in-diligence-reviewing-settlement-agreements-post-negotiation/

It appears that a Pennsylvania school district signed off on a settlement agreement in an Individuals with Disabilities Education Act (IDEA) matter without reviewing a signed copy of the revised original agreement it received from the student’s parents. The parents had amended their copy of the settlement agreement before returning it to the school.

This came to light when parents submitted an invoice for reimbursement for educational services that had been denied during negotiations. The parents argued that the approval of the settlement agreement by the district was the result of the district’s negligence rather than fraud on the part of the parents.

The court agreed with the parents and explained that the district’s fatal error was failing to have its counsel review the agreement [as] the district could have easily discovered the changes if someone compared the two agreements.

Perhaps the classic New York Personnel Law decision illustrating the unintended consequence that may be visited on a party to a contract is the fall-out from a collective bargaining agreement negotiated by a city and its police officers' union. 

A contract provision -- referred to as the "207-c benefits" clause – in the agreement  provided that permanently disabled police officers injured in the line of duty would receive the same benefits provided firefighters receiving an accidental disability retirement allowance pursuant to General Municipal Law §207-a.

In a nutshell, the disabled firefighter’s employer supplements his or her disability retirement allowance whereby the firefighter “shall continue to receive from the municipality or fire district by which he [or she] is employed, until such time as he [or she] shall have attained the mandatory service retirement age applicable to him [or her] or shall have attained the age or performed the period of service specified by applicable law for the termination of his [or her] service, the difference between the amounts received under such allowance or pension and the amount of his[or her] regular salary or wages." Such a salary supplementation is not available to permanently disabled police officer pursuant to GML §207-c.

According to the decision, the employer proposed to include language tracking the “disability” provisions of the General Municipal Law §207-c in the collective bargaining agreement and provided the union with a number of examples, including police contracts that cited GML §207-c as well as the employer's own agreement with its firefighters which cited GML §207-a. The proposed agreement with the police unit was prepared by the employer and included language providing police officers eligible for a GML §207-c benefit would be provided with the same benefit that a disabled firefighter eligible for a GML §207-a(2) salary supplement would receive.

Although the employer subsequently claimed it had discovered the "mistaken inclusion of this [§207-a] benefit" in 1966, the Appellate Division noted that “matters remained essentially dormant until February 4, 1997, when a disabled police officer applied for the supplemental [§207-a salary] payments provided under the parties' 207-c agreement.”

In response to the employer’s refusal to provide the police officer with this “contract benefit,” the union demanded that the matter be submitted to contract arbitration, whereupon the employer filed a petition seeking a judicial stay of the arbitration and for a "reformation of the 207-c agreement on the ground of mutual mistake."

The Appellate Division* ruled that the matter should submitted to arbitration.

Ultimately, the arbitrator, Howard A. Rubenstein, Esq., decided that the language used in the collective bargaining agreement controlled and thus the employer was required to provide its police officers disabled in the performance of their law enforcement duties the benefits provided firefighters mandated by General Municipal Law Section 207-a in accordance with the terms of the agreement.
NYPPL

* The Appellate Division's decision is summarized at http://publicpersonnellaw.blogspot.com/2010/11/claim-of-mistake-does-not-permit-party.html

Computer help desk specialist found guilty of insubordination after ignoring supervisor’s instructions not to answer phone calls with a “robotic voice”

Computer help desk specialist found guilty of insubordination after ignoring supervisor’s instructions not to answer phone calls with a “robotic voice”

OATH Index No. 108/14

A computer specialist employed by the City of New York was charged with insubordination for answering phone calls to the IT Help Desk in a robotic voice and failing to properly and timely process IT Help Desk tickets.

The employee denied answering calls in a robotic voice, and asserted that he was following the greeting script provided by his supervisor and speaking slowly and clearly so callers would understand him.

The employee’s supervisor, on the other hand, had sent a number of e-mail to the employee including one in which she stated that “a caller had asked whether there was a new automated answering system, and had hung up when she heard “the robot” answer the phone because she needed to speak to a human about her issue.”

OATH Administrative Law Judge Kara J. Miller found that employee was capable of answering calls in a normal tone but chose to use a robotic voice despite being directed by his supervisor to stop. She found his conduct to be insubordinate, observing that “An employee is obligated to obey the lawful order of a supervisor and, if he disagrees with it or feels it to be improper, to grieve it at a later time through available procedures.”

Judge Miller also found that employee disobeyed his supervisor’s orders by failing to properly and timely process IT tickets.

The ALJ recommended that the employee be suspended without pay for 20 days.

The decision is posted on the Internet at:’

http://archive.citylaw.org/oath/11_Cases/14-108.pdf

New York State Comptroller Thomas P. DiNapoli issues fiscal stress scores for upstate political subdivisions of the State

New York State Comptroller Thomas P. DiNapoli issues fiscal stress scores for upstate political subdivisions of the State
Monitoring System Has Evaluated Nearly 2,300 Local Governments

On May 2, 2014 New York State Comptroller Thomas P. DiNapoli announced fiscal stress rankings for several upstate cities. With today’s announcement, DiNapoli’s office has completed the initial scoring for all local governments and school districts in New York.

The creation of the ‘early warning’ monitoring system is the centerpiece of the Comptroller’s fiscal stress initiative. The Fiscal Stress Monitoring System is based on financial information provided to DiNapoli’s office by local communities and uses financial indicators that include year-end fund balance, cash position and patterns of operating deficits, to create an overall fiscal stress score. The system uses a 100-point scale to classify whether a municipality is in significant fiscal stress (65-100%), in moderate fiscal stress (55-65%), is susceptible to fiscal stress (45-55%), or no designation (below 45%).

Since implementing the system in 2013, the Comptroller’s staff has evaluated the fiscal condition of nearly 2,300 municipalities and school districts across the state.To date, DiNapoli’s monitoring system has identified a total of 142 municipalities in some level of fiscal stress. This includes 16 counties, 18 towns, five cities, 16 villages and 87 school districts.

The fiscal stress scores for 15 cities and villages with fiscal year ends that range from March 31, 2013 to July 3, 2013 announced on May 2, 2014 includes the cities of Batavia (0%), Buffalo (15.8%), Corning (15.8%), Olean (11.7%), Rochester (20.4%), Syracuse (34.2%) and Watertown (9.6%). These municipalities were each classified in the no designation category.

To search for a specific local government’s fiscal stress scores, visit:
http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsi1a.cfm

For an overview of Comptroller DiNapoli’s Fiscal Monitoring System, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm
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Employee benefits available to retirees set out in a "memorandum of agreement" to a collective bargaining agreement

Employee benefits available to retirees set out in a "memorandum of agreement" to a collective bargaining agreement
Port Auth. of N.Y. & N.J. v Local Union No. 3, 2014 NY Slip Op 03025, Appellate Division, First Department

A Memorandum of Agreement (MOA) supplementing the collective bargaining agreement between the parties provided that "During the term of the Agreement [June 4, 2002 through June 3, 2006], employees in the covered membership will continue to be eligible to receive employee commutation passes and personal passes as per the current practice."

As to retired negotiating unit employees, the relevant portion of the MOA included the following provision: "Retired employees . . . receive the same allowance to which they would be entitled if their Port Authority service was not interrupted."

An arbitrator ruled that this language in the MOA supported Local Union #3’s contention that the Port Authority may not unilaterally eliminate the "E-ZPass" benefit, i.e., free passage at Port Authority bridges and tunnels, for retirees. 

In addressing the Port Authority's challenge to the arbitration award the Appellate Division said that the arbitrator did not "give a totally irrational construction to the contractual provisions in dispute."

Thus, said the court, the arbitrator’s ruling did not constitute a remaking of the collective bargaining agreement between the parties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03025.htm

Employer’s unilateral discontinuing its past practice of paying the full cost of health insurance for its retirees held a violation of §209-a.1(d) of the Taylor Law

Employer’s unilateral discontinuing its past practice of paying the full cost of health insurance for its retirees held a violation of §209-a.1(d) of the Taylor Law

Improper Employer Practice Case No. U-31625 [PERB]

A collective bargaining agreement [CBA] with a term of June 1, 2003 to May 31, 2007, was the last agreement that a former collective bargaining representative negotiated with the Village. Article 15, §4 of that agreement provides that the Village will pay the full cost of health insurance premiums for unit employees hired before December 31,1988, and that employees hired after that date will contribute to the cost of their health insurance premiums if future annual increases exceed a certain amount. Article 15 also authorizes the Village to collect the amount of the employee contribution through payroll deduction. That provision was first included in the 1988-1991 CBA and was continued unchanged in all subsequent agreements, up to and including the 2003-2007 CBA.

Despite the existence and continuation of language set out in the 1988-1991 CBA providing for a contribution to health insurance premiums by post-1988 employees, for seventeen years the Village never sought to require unit employees to pay such contributions. However, on June 1, 2005, the Village began deducting the contractual health insurance contribution from the pay of post-1988 employees.

A contract grievance was filed and the arbitrator, in an award dated June 23, 2006, found that the Village did not violate the CBA when it began collecting the contractual health insurance contribution in 2005.

The first CBA negotiated by a successor collective bargaining representative with the Village had a term of June 1, 2007 to May 31, 2012 and provided for employee contributions for health insurance.   

However, all CBAs up to and including the 2003-2007 agreement were silent with respect to the payment of health insurance benefits to employees during their retirement from the Village and until August 2011, the Village paid the entire cost of health insurance premiums for all unit employees upon and during their retirement. Further, there was testimony in the record in the instant hearing that when the parties were negotiating employee contributions towards health care premiums, they were discussing contributions to be paid by active employees and that as the “offer letter” that resulted in the new CBAs did not contain the word “active,” it was subsequently added “to ensure that the health insurance provision [in the collective bargaining agreement] was not interpreted to apply to retirees.”

The parties stipulated that two post-1988 employees retired in, respectively, April and September, 2004, and that the Village paid the full cost of health insurance for them while they were employed and has continued to do so during their retirement

In August 2011 a unit employee, who had initially commenced his employment with the Village after December 31, 1988, retired. Immediately before his retirement, the employee was contributing towards the  cost of his health insurance premium and the Village was paying the remainder. Upon his retirement, the Village continued to charge the individual a ten percent contribution and to pay the remainder of the cost of his health insurance premium. This individual was the first unit employee who, upon retirement, was required to pay a contribution towards the cost of his health insurance premium.

A Public Employment Relations Board Administrative Law Judge found that the 2007-2012 CBAs, and all prior agreements, “simply does not refer to retirees or what health insurance benefit current employees will receive in retirement.” Further, the ALJ found §4 of Article 15 of the 1988-1991 agreement is appropriately interpreted as silent with respect to the practice here in issue. This finding, said the ALJ, was supported not only by the plain language of that provision but by the fact that "when the parties intended to affect a benefit granted to current employees that continues into retirement, they specifically so state.”

Further, said the ALJ, “the record evidence regarding the negotiations for the 2003-2007 CBA clearly shows that the parties did not negotiate the issue of what current employees would receive in retirement.”

Addressing the employee organization’s alleged past practice claim, the Administrative Law Judge explained that “To establish an enforceable past practice that cannot be unilaterally changed without negotiation, the charging party must demonstrate that the ‘practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected unit employees that the [practice] would continue.’ In addition, the practice must concern a mandatory subject of negotiation.”

As to the argument advanced by the Village that PERB lacked jurisdiction and the employee organization lacked standing to consider the employee organization's allegations because the complaint pertains to retirees, the ALJ said that the charge filed by the employee organization “makes clear that it is not seeking to enforce the rights of already retired persons, but to enforce the practice with respect to current employees who retire in the future.”

The Village also contended that the subject matter in issue is nonmandatorily and not negotiable because it pertains to retirement benefits,* The ALJ pointed out that although PERB has held that a demand for health insurance benefits for former employees who have already retired is nonmandatory, the subject of health insurance benefits for current employees upon their retirement constitutes a form of deferred compensation and is mandatorily negotiable.

The Administrative Law Judge found that an employer’s unilateral change of an enforceable past practice concerning health care benefits for current employees upon their retirement violates §209-a.1(d) of the Taylor Law.The ALJ also found that the record shows that the unit employees were aware of the practice regarding their receipt of fully paid health insurance during retirement and that they expected the practice to continue.

Holding that the Village violated §209-a.1(d) of the Taylor Law, the Administrative Law Judge ordered the Village to:

1. Rescind its directive that unit employees hired after December 31, 1988, will be required to pay a health insurance contribution during retirement; and

2. Not unilaterally change the past practice of paying the full cost of health insurance premiums for current unit employees during retirement; and

3. Make whole any unit employees who retired during or after August 2011 and who have been required to contribute towards the cost of health insurance.

* In Lippman v Sewanhaka Central High School District, 66 NY2d 313, the court held that health insurance was not a retirement benefit within the meaning of Article 5, Section 7, of the State Constitution.
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