Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.

Collective bargaining under the Taylor Law contemplates negotiations will be an executive rather than a legislative process.

Matter of the Town of Dresden, PERB decision U-7383

The genesis of this decision was the Town Supervisor refusal to sign the negotiated Taylor Law agreement because he contended that he lacked the authority to reach a final agreement without the prior approval of the Town Board. As a result, the Union filed an improper practice charge with PERB.

Distinguishing between the different roles played administrators and legislators in Taylor Law negotiations. PERB said that the Taylor Law contemplates negotiations will be an executive rather than a legislative process.* Thus an agreement is between the administrative and the Union negotiating teams is binding on the parties.

However, certain provisions set out in the agreement may require the approval by the legislative body having jurisdiction such as a County Legislature, a Town Board or a School Board before they may take effect  Typically these provisions requiring the appropriation of funds necessary to implement the terms and conditions of the agreement and such terms and conditions agreed upon are not enforceable until the necessary legislative action is taken.

§204-a.1 of the Civil Service Law provides that “Any written agreement between a public employer and an employee organization determining the terms and conditions of employment of public employees shall contain the following notice in  type not smaller than the largest type used elsewhere in such agreement:

"It is agreed by and between the parties that any provision of this agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval."

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PERB has also determined that a legislative body may not unilaterally reserve the power to ratify the entire agreement although the parties may agree that the result of their negotiations will be subject to the legislative body's ratification.

Further, in the event members of the legislative body actually participates in the negotiations, such members' agreements are binding as to them and such persons cannot later vote against the agreement on the theory that they are now wearing their "legislative" hat as PERB’s decision in Matter of Jeffersonville-Youngsville CSD, U-6341, demonstrates.

In this instance the School District’s team consisted of the School Superintendent and three School Board members. The District’s negotiating team and the Union’s negotiating teams had agreed upon all terms of a proposed collective bargaining agreement except a "2nd year salary offer." The District’s team obtained authority to place an additional $2,000 "on the table" from the seven member School Board. However, during the final day of negotiations the Union accepted a "2nd year salary offer." offer that provided for more money than the additional $2,000 earlier authorized by the Board.

Although the Union's member subsequently ratified the agreement, the full School Board did not, with two to the three Board members of the District's negotiating team voting against the "ratification."

When the Superintendent refused to execute a "memorandum agreement," the Union filed an improper employer practice claim with PERB. PERB directed the Superintendent to sign the memorandum agreement with the Union and, if requested, to sign "a formal ... contract" reflecting the salary agreements the District’s team had reached with the Union.

In addition, PERB indicated that as to the two Board Members on the District’s negotiating team voting against ratification in their "Board Member" capacity, "each member of a negotiating team is obligated to support every part of an agreement unless the other party has been advised that he (or she) dissented from the part of the agreement which he subsequently opposed" in the course of negotiations.

As noted above, the Taylor Law provides that any provision of an agreement that requires action by the relevant legislative body such as the allocation of necessary funds is not to take effect until the legislative body concerned acts to provide the required monies. In this instance presumably all three "District negotiating team/Board members" are required to vote in favor of the allocation of additional funds ultimately agreed upon by the District and employee negotiating teams consistent with their "District team position" in their capacity as a member of the School Board.

The Jeffersonville-Youngsville CSD decision illustrates the " unintended consequences" that could result when a member of the relevant legislative body serves on the employer's negotiating team.. 

* Civil Service Law §201.12 provides as follows: 12. The term "agreement" means the result of the exchange of mutual promises between the chief executive officer of a public employer and an employee organization which becomes a binding contract, for the period set forth therein, except as to any provisions therein which require approval by a legislative body, and as to those provisions, shall become binding when the appropriate legislative body gives its approval." [See, also, Civil Service Law §204-a.1]

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Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute

Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute
Town of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 06322, Appellate Division, Second Department

The Town of Islip had discontinued assigning vehicles to certain employees for their use in commuting between home and work. The employee organization filed an improper practice charge with the Public Employment Relations Board [PERB] and PERB issued a decision requiring the Town to [1] "restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008," and [2] “make whole unit employees for the extra expense incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest as the maximum legal rate.”

The Appellate Division issued a judgment dated March 13, 2013 confirming PERB’s determination.* The Town appealed and the Court of Appeals modified the Appellate Division’s decision and judgment** “with directions to remand the matter to the New York State Public Employment Relations Board for further proceedings in accordance with its opinion.

The Court of Appeals had determined that the remedial order issued by PERB in this matter was "unduly burdensome under the circumstances, and d[id] not further the goal of reaching a fair negotiated result." 

The Court of Appeals explained that courts review “the remedies imposed by PERB with deference to its expertise” and courts should sustain a remedy fashioned by PERB for an improper practice “if reasonable.” However, said the court, “[i]t is for the courts to examine the reasonable application of PERB's remedies.”

In this instance the Court of Appeals determined PERB's remedial order requires the Town to “[f]orthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.” However a PERB injunction was not sought to preserve the status quo ante, and” the Town sold some or all of the cars formerly permanently assigned to blue- and white-collar unit employees.” Accordingly, PERB order, said the court, would force the Town to invest significant taxpayer dollars to replace these vehicles, holding that this would be “unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.”

The court cited Matter of Manhasset Union Free School Dist., 61 AD3d 1231, in explaining its ruling.

In Manhasset the Appellate Division held that enforcing a PERB order for the school district to restore the personnel and facilities of its former transportation department was unreasonable where the district had sold its buses and leased its garage, and compliance with the order might require taxpayer approval. The Appellate Division then remitted the matter to PERB so that it “may fashion a remedy that grants commensurate, practical relief to the employees subject to the improper practice without requiring the school district to purchase a whole new fleet of vehicles with an uncertain future."

As to the Islip appeal, the Appellate Division held that “in light of the determination of the Court of Appeals, we remit the matter to PERB for further proceedings in accordance with that determination.”

* Town of Islip v PERB, 104 AD3d 778.

** Town of Islip v PERB, 23 NY3d 482

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06322.htm
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Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Appeal of United Federation of Teachers, Local 2, and the New York City Department of Education, Decisions of the Commissioner of Education, Decision  No. 16,668

United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO [Local 2], the exclusive Taylor Law collective bargaining representative for library media specialists (“LMSs”) and assistant library media specialists (“ALMSs”), filed an appeal with Commissioner of Education pursuant to 310 of the Education Law in which it alleged that the New York City Department of Education (“NYCDOE”) failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations, [8 NYCRR 91.2].

The Commissioner dismissed Local 2’s appeal for a number of procedural reasons, including:

1. Lack of standing to represent an individual or class of individuals: The Commissioner said that Local 2’s appeal must be dismissed to the extent Local 2 attempted to assert claims on behalf of students. The Commissioner explained that “Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310” and while Local 2 may have, under certain circumstances, standing to assert claims on behalf of its members, it lacks standing to assert the rights of others, in this instance “students” in certain schools.

2. Lack of organizational standing. Here, said the Commissioner, Local 2 failed to demonstrate that it met the first requirement of the three-part test for "organizational standing" required to assert claims on behalf of its members.  In order to establish organizational standing, Local 2 was required to demonstrate [1] that one or more of its members has standing to sue, [2] that the interests advanced in the matter “are sufficiently germane to the individual members’ purposes” such that the organization is an appropriate representative of those interests, and [3] that the participation of the individual members is not required to assert the claim.

With respect to the first test, the Commissioner found that Local 2 failed to allege that any of its individual members had, in fact, suffered harm but, rather, alleged only that such members cannot “seek placement” in certain schools.

3. Mootness. The Commissioner noted that Local 2 challenged NYCDOE’s compliance with the Commissioner’s regulation for the 2011-2012 school year. Thus, said the Commissioner, the appeal must also be dismissed as moot as that school year had since ended. In the words of the Commissioner, “[t]he Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”*

However, the Commissioner said that although he was “constrained to dismiss the appeal” for procedural reasons, he was troubled by the fact that NYCDOE had admitted only “substantial” compliance with the regulation and asserted that "it is in the midst of developing a waiver process” through which its schools “could request the Commissioner to approve an ‘alternate arrangement,’ pursuant to §91.2.”** Further, said the Commissioner, the record indicates that NYCDOE has failed to staff certain secondary schools with the required number of LMSs or ALMSs or to provide an alternative arrangement approved by the Commissioner. 

The Commissioner then took administrative notice*** that, subsequent to the commencement of the instant appeal, NYCDOE had submitted a request to the State Education Department for a waiver but subsequently withdrew its request with assurances that it would be submitting a comprehensive strategic plan for libraries that would address the need to properly staff schools with LMSs and ALMSs. To date, said the Commissioner, no such comprehensive plan has been submitted.  

In view of this, the Commissioner directed NYCDOE to comply with the requirements of 8 NYCRR §91.2 in the 2014-2015 school year and thereafter.

In addition, the Commissioner directed the State Department of Education’s Office of Curriculum and Instruction to provide guidance and technical assistance to NYCDOE to this end.

*The Commissioner noted that the appeal did not fall within an exception to the “mootness doctrine” as the determination of issues involving the NYCDOE’s compliance with the regulation’s staffing requirements “are necessarily fact-specific and can be addressed in a subsequent appeal that presents a live controversy.”

** 8 NYCRR 91.2

*** See * NYCRR 276.6.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16668
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Handbooks focusing on New York State and Municipal Public Personnel Law

Handbooks focusing on New York State and Municipal Public Personnel Law

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

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.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

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

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Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Matter of Jackson (Commissioner of Labor), 2014 NY Slip Op 06237, Appellate Division, Third Department

The employer chose not to grant a probationary teacher [Probationer] tenure but did offer to extend Probationer’s probationary term for one year if she executed an agreement requiring her to "waive any rights, claims or causes of action" related to tenure or the extension of her probationary period.*  Despite being aware that she could lose her job if she did not sign the agreement, Probationer refused to do so. The employer then told her that it was not “certifying completion” of her probationary period so her employment was terminated.**

In response to Probationer’s applying for unemployment insurance benefits following her termination, the Unemployment Insurance Appeal Board ruled that Probationer's refusal to sign the agreement constituted “insubordination that rose to the level of misconduct" so as to disqualify her from receiving benefits.

The Appellate Division disagreed, holding that although “[r]efusing to comply with an employer's reasonable directive to sign a document can constitute insubordination” and thus support a finding of “disqualifying misconduct” for the purposes of eligibility for unemployment insurance benefit, Probationer’s situation did not constitute such misconduct under the circumstances.

The court explained that unlike situations in which an employee is asked, and refuses, to sign a document that was necessary to the operation of the employer's business, in this instance the employer chose not to grant Probationer tenure and, instead, offered her an extension of probation. In contrast to refusing to perform a job duty, here Probationer merely declined to enter into a new contract with the employer under the terms it offered.

The court pointed out that Probationer’s refusal to sign the extension agreement could possibly be classified as her voluntarily leaving employment without good cause while the employer was offering continuing work, which would be a basis for the Board's denying her application for unemployment insurance benefits. However the employer did not contend that Probationer had quit her job but testified that Probationer had been terminated by the employer.

In any event, the Unemployment Insurance Appeals Board did not rely on the ground of “voluntarily leaving employment” in denying Probationer’s claim for benefits but rather based its denial on “misconduct” for alleged insubordination in refusing to agree to an extension of her probationary period as offered by the employer. This, said the Appellate Division was “factually incorrect” under the circumstances as the employer's termination letter indicated that Probationer was “based on the operation of law … not based on insubordination.”

Observing that “[r]efusing to renew a contract does not constitute employee insubordination or misconduct, the court explained that even if the employer would have been warranted in firing Probationer for not signing the extension agreement, her refusal to sign would not constitute disqualifying misconduct if she had a legitimate reason to refuse to do so. Finding that Probationer had not engage in any act of insubordination and, therefore, did not commit disqualifying misconduct, the Appellate Division ruled that “the Board's decision cannot stand.”

* The decision stated that Probationer “was concerned that those provisions would cause her to waive her rights to argue that the denial of tenure and proffered extension were retaliation for her pursuing a sexual harassment claim.”

** Education Law §2573 (1) provides that the employer must either [1] grant the teacher tenure, [2] terminate the teacher’s employment or [3] agree to an extension of the teacher’s probationary term once he or she has completed the three year probationary period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06237.htm

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Providing confidential information to a drug dealer

Providing confidential information to a drug dealer

OATH Index No. 556/14; adopted, Bd. Dec. COIB Case No. 2013-258

The New York City Conflicts of Interest Board (COIB) adopted in full OATH Administrative Law Judge Kara J. Miller’s finding that a former clerical associate [Accused] employed by the Staten Island District Attorney's Office violated the Conflicts of Interest Law by offering confidential information to a drug dealer.

The drug dealer asked Accused if he was under investigation in exchange for providing cocaine to Accused's husband. On another occasion Accused  displayed her District Attorney’s Office identification to detectives in an attempt to prevent her husband's arrest.

The ALJ found that although Accused submitted an answer denying the charges, the record established that Accused was properly served with the notice of hearing and advised of the consequences of a failure to appear at the hearing. Notwithstanding being so advised, Accused failed to appear at a settlement conference and her attorney filed a motion to withdraw as counsel, stating that Accused was not responding to her telephone calls or letters.

After further conversations with Accused, Judge Miller ultimately proceeded to hold the hearing in absentia*when Accused failed to appear for a scheduled hearing. The ALJ found Accused was in default based upon her written and actual notice of the hearing, her demonstrated reluctance to participate, and her failure to appear. The Administrative Law Judge also granted Accused’s attorney’s motion to be relieved as counsel.

The ALJ sustained the charges, setting out the following findings and conclusions:

1. Accused was properly served with charges and notice of the hearing.

2. COIB proved that Accused attempted to use her position for personal advantage by offering to provide confidential information to a drug dealer in exchange for narcotics, in violation of §2604(b)(3) of the City Charter.

3. COIB proved that Accused displayed her employee identification for a non-City purpose in violation of §2604(b)(2) of the City Charter.

4. COIB proved that Accused attempted to use her position for personal advantage in violation of §2604(b)(3) of the City Charter when she identified herself to the police as an employee of the District Attorney’s office in the course of their investigation of her husband for his allegedly participating in a drug transaction.

COIB adopts Judge Miller's recommended penalty of imposing a $10,000 fine on the former associate clerk.

By law, an OATH report and recommendation in an enforcement action brought by the Conflicts of Interest Board is confidential until the Conflict of Interest Board determines that a violation has occurred.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia. The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held “in absentia.” [Source: The Discipline Book, http://booklocker.com/books/5215.html ]

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-556.pdf
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A municipality may discontinue a retiree’s health insurance benefit in the absence of a contract or provision of law granting the retirees a vested right to such a benefit

A municipality may discontinue a retiree’s health insurance benefit in the absence of a contract or provision of law granting the retirees a vested right to such a benefit

Iasillo v Pilla, 2014 NY Slip Op 06056, Appellate Division, Second Department

Former mayors and former members of the Board of Trustees of the Village of Port Chester [Plaintiff] continued to receive health care benefits payable by the Village pursuant to Board of Trustee resolutions dated June 1, 1988, and November 2, 1994 upon retirement.

On April 21, 2010, the then Board rescinded both the June 1, 1988, and November 2, 1994, resolutions, thereby terminating the post-retirement health care benefits being provided to Plaintiff by the Village.

Plaintiff sued, seeking a court decision declaring that the resolution dated April 21, 2010, “null and void and without legal effect” as to them. In addition, Plaintiff sought a “permanent injunction enjoining the [Village] from terminating or otherwise modifying [Plaintiff’s] post-retirement health care benefits.”

Plaintiff argued that [1] the Village was contractually obligated to provide them with post-retirement health care benefits, and that [2] the Village was estopped from terminating those benefits.

Supreme Court dismissed Plaintiff’s complaint, holding that the Village’s resolution dated April 21, 2010, was neither “null and void” nor “without legal effect.”

The Appellate Division affirmed Supreme Court’s ruling, holding that the Village had established, prima facie, its entitlement to judgment as a matter of law by demonstrating that the then sitting Board was entitled to terminate the post-retirement health care benefits afforded by the June 1, 1988, and November 2, 1994, resolutions. Those resolutions, said the Appellate Division, did not establish a vested interest in those post-retirement health care benefits, explaining that "A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights."

The court also noted that the Village was not barred by the doctrine of equitable estoppel from terminating Plaintiff’s post-retirement health care benefits.

In McDonald PBA v City of Geneva, 92 N.Y.2d 326, the Court of Appeals concluded that "there is no legal impediment to the municipality's unilateral alteration of the past practice" regarding its providing health insurance benefits to its retirees and their dependents where there was neither a Taylor Law agreement nor some other contract or provision of law granting retirees a vested right to such a benefit.

The Court of Appeals has also ruled that health insurance for retirees is not a retirement benefit protected against being diminished or impaired by the State's Constitution [see Lippman v Sewanhaka Central High School District, 66 NY2d 313].

The Iasillo decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06056.htm

Selected reports and information published by New York State's Comptroller

Selected reports and information published by New York State's Comptroller

Click on text highlighted in color  to access the full report

On Friday, September 12, 2014, New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued by his office:

Office of Children and Family Services (OCFS): Day Care Licensing (2013-S-66)

OCFS’s licensing and inspection activities assure licensed and registered child care facilities are in compliance with applicable laws and are safe for children. Although the office investigates complaints about unlicensed or unregistered child care providers, it does not have proactive measures in place to identify illegal child care providers and otherwise mitigate illegal operations.

New York City Department of Education (DoE): Accuracy of Reported Discharge Data (2014-F4)

An initial audit issued in March 2011 found DoE classified some students as discharged without sufficient documentation under state guidelines to support a discharge classification. By classifying them as discharged, DoE’s reported graduation rate was higher than the actual rate and the reported dropout rate was lower than actual. In a follow-up, auditors found DoE has made significant progress in addressing the issues identified in the initial report and has implemented the report’s three recommendations.

Office of General Services (OGS): ReStacking Occupancy Initiative (2013-S-68)

OGS’ implementation of the ReStacking initiative, aimed at decreasing the amount of leased property occupied by State agencies, was successful in achieving - and in fact exceeding – the cost savings expectations established by the SAGE commission and the Division of the Budget. OGS has achieved about $51 million in lease costs savings which, after adjusting for move costs that total about $18 million, resulted in about $33 million in net savings. However, OGS calculated cost savings separately from expenses and only accumulated costs on an agency by agency basis, not at a statewide level.

Department of Health (DOH): Multiple Same-Day Procedures on Ambulatory Patient Groups Claims (2012-S-163)

The Medicaid program, run by DOH, reimburses outpatient services through the use of the Ambulatory Patient Groups (APG) payment methodology, which is based on patient condition and complexity of service. Auditors found Medicaid made $1,083,836 in actual and potential APG claim overpayments. Of this amount, payments of $614,260 were made for the same medical procedure billed multiple times on the same date of service, and $469,576 was paid for rehabilitation services beyond the allowed limits. Medicaid also made questionable APG claim payments totaling $10,195,755 for dental clinic claims that were processed without sufficient scrutiny of the propriety or frequency of the services billed.

State Education Department (SED): Controls over Cash Advance Accounts (2014-S-11)

Cash advances are issued to state agencies for purposes such as petty cash, travel and other funding needs. Advances are issued from agency appropriations and the cash is transferred from the State Treasury to a local bank account for use by the agency. SED was authorized to have three advance accounts with a total value of $300,000 as of March 31, 2012. Auditors found SED no longer issues checks for travel advances and infrequently issues checks for petty cash expenses. However, SED does not routinely resolve old outstanding items or review any paid checks and consequently has no assurance that potentially improper or fraudulent transactions are detected.

New York State Thruway Authority: Travel Plaza Revenues and Capital Improvements (Follow-Up) (2014-F-8)

In an initial audit report from January 2010, auditors found that the authority’s efforts were adequate to ensure fuel and food concessionaires pay full rent on time and make required capital improvements. Auditors also found some improvement opportunities and discovered that a fuel concessionaire under reported its fuel deliveries in one month tested, and as a result underpaid its rent for that month. In a follow-up, auditors found six of seven recommendations had been implemented while another was no longer applicable.
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Circumstantial evidence used to establish employee’s misconduct

Circumstantial evidence used to establish employee’s misconduct

OATH Index Nos. 587/14 & 1545/14

A laboratory assistant was charged with committing errors in processing specimens. OATH Administrative Law Judge Astrid B. Gloade found that the hospital met its burden of proving that the laboratory assistant had [1] sent a patient's specimen for testing which was accompanied by the documentation for a different patient and that the laboratory assistant and [2] had entered the wrong code on a requisition form for the testing of a patient’s specimen, which resulted in the wrong test being performed on the specimen, based solely on circumstantial evidence.*

The ALJ noted that although there was no direct evidence that the laboratory assistant was responsible for the errors underlying the charges, “circumstantial evidence supports finding that [the laboratory assistant] made the error." Judge Gloade then explained that “In a disciplinary proceeding, where the burden of proof is by a preponderance of the credible evidence, misconduct may be established solely by circumstantial evidence" [citations omitted]. 

Further, said the ALJ, “[i]n order to establish a fact in issue by circumstantial evidence, the inference sought to be drawn must be based on proven facts. The inference must be reasonably taken from the proven collateral facts.” Although the charging party “need not disprove all other possible explanations or inferences in order to sustain its case, it must show that the inference drawn is the only one that is fair and reasonable.”

Judge Gloade recommended that the laboratory assistant be terminated in view of her prior disciplinary history and because her misconduct endangered the safety of others.

* The ALJ's decision notes that "Circumstantial evidence is defined as ‘evidence of a collateral fact, that is, of a fact other than a fact in issue, from which, either alone or with other collateral facts, the fact in issue may be inferred,’" citing Richardson on Evidence §4-301.

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Petition dismissed after former employee failed to rebut employer’s prima facie evidence that it did not unlawfully discriminate against him

Petition dismissed after former employee failed to rebut employer’s prima facie evidence that it did not unlawfully discriminate against him 
2014 NY Slip Op 05959, Appellate Division, Second Department

Plaintiff appealed Supreme Court's dismissal of his “second cause of action” that alleged he had suffered unlawful discrimination in employment because of his disability. Plaintiff contended that his former employer’s failed to provide a reasonable accommodation of his disability and its refusal to renew plaintiff’s term appointment as a clinical associate professor was the result of unlawful discrimination.

The Appellate Division sustained Supreme Court’s ruling, explaining that although New York State’s Human Rights Law provides  that it is an unlawful discriminatory practice for an employer to refuse to provide reasonable accommodations to the known disabilities of an employee, “[t]he modified work schedule accommodation the plaintiff sought involved his schedule at the nonparty Kings County Hospital Center, which, although 'affiliated' with the plaintiff's now former employer, the defendant State University of New York, Downstate College of Medicine (hereafter SUNY), is not a facility owned and operated by SUNY.”

Further, said the court, SUNY established, prima facie, its entitlement to judgment as a matter of law with evidence showing that, while the plaintiff suffered from a disability related to surgery, he never proposed a reasonable accommodation that [SUNY] refused to make.

As to plaintiff’s allegation concerning SUNY’s refusal to renew his term appointment, the Appellate Division said that SUNY had demonstrated, prima facie, that its action “not to renew the plaintiff's term appointment as a clinical associate professor at SUNY was motivated by legitimate nondiscriminatory reasons.”

SUNY’s prima facie rebuttal of plaintiff’s allegations shifted the burden of going forward to plaintiff to show that SUNY’s explanations were merely subterfuge for unlawful discrimination. However, said the Appellate Division, plaintiff [1] “failed to raise a triable issue of fact with evidence that he proposed a reasonable accommodation that [SUNY] refused to make” nor did plaintiff [2] “raise a triable issue of fact with evidence from which one could infer that the reasons not to renew his term appointment as a clinical associate professor at [SUNY] were pretextual.”

Thus, said the court, “Supreme Court correctly granted that branch of [SUNY’s] motion which was for summary judgment dismissing the second cause of action, which alleged employment discrimination based on disability.”

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In a disciplinary hearing the employer bears the burden of proving the charges filed against an employee by a preponderance of the credible evidence

In a disciplinary hearing the employer bears the burden of proving the charges filed against an employee by a preponderance of the credible evidence

OATH Index No. 789/14

A New York City correction officer was charged with leaving her residence while on sick leave without permission and without having logged out with the employer's Health Management Division.

The City’s Department of Corrections alleged that an Absence Control Investigator had visited the employee's home during her sick leave, telephoned her five times, knocked on the door of Apartment 2I, the apartment number listed in the Department’s records, twenty times and “slipped a notice” under the door of that apartment.

In rebuttal, the employee provided evidence and testimony that she had never left her apartment and that the Absence Control Investigator had never entered her apartment building that day.

Further, the employee testified that she lived Apartment 2L and also testified that she had provided her employer with the correct information as to her residence, i.e., Apartment 2L. In addition, the ALJ, noted that the record shows the only other apartment on the floor was Apartment 2R.

OATH Administrative Law Judge Kara J. Miller found the employee’s testimony to be more credible than the testimony of the employer’s witness.

Noting that in a disciplinary proceeding, the employer bears the burden of proof by a preponderance of the credible evidence and that a preponderance has been defined as the burden of persuading “the trier of fact to believe that the existence of a fact is more probable than its nonexistence,” Judge Miller recommended that the charge brought against the employee be dismissed.
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The date of the meeting on which a school board took formal action to appoint an individual is critical to determining “commencement of service” for the purposes of determining seniority in the event of a layoff

The date of the meeting on which a school board took formal action to appoint an individual is critical to determining “commencement of service” for the purposes of determining seniority in the event of a layoff

Decisions of the Commissioner of Education, Decision #16,657

In this appeal challenging the board of education’s decision concerning determining seniority of educators for the purposes of layoff the Commissioner of Education indicated that “the general principles regarding seniority calculation are well settled.”

When a board of education [board] abolishes a position, it is required by Education Law §§2510(2) and 3013(2) to discontinue the services of the teacher having the least seniority in the system within the tenure of the position abolished.

1. The first criterion for determining seniority is actual full-time service rendered.

2. If such full-time service is equal, the teachers' respective appointment dates are to be used for determining seniority

Teacher A, a certified mathematics teacher, was appointed by the board to a full-time leave replacement position on July 6, 2005, effective September 1, 2005. Teacher B, a certified mathematics teacher was appointed by the board on September 14, 2005, effective September 1, 2005.

Both A and B served as full-time substitutes in the mathematics tenure area from September 1, 2005 through June 30, 2006.  At its May 9, 2006 board meeting, both teachers were terminated from their full-time leave replacement positions.  At the board’s May 9, 2006 meeting the board granted B a probationary appointment in the mathematics tenure area, effective September 1, 2006.  On June 14, 2006, the board granted A a probationary appointment in the mathematics tenure area, effective September 1, 2006.  Following a successful three-year probationary period, which included the year of service as full-time substitutes, on March 12, 2008, both A and B were granted tenure effective September 1, 2008.

Subsequently the board found it necessary to abolish two positions in the mathematics tenure area effective June 30, 2013.  In calculated the seniority credit for teachers A and B, the board determined B to be the more senior of the two and Teacher A was laid off.

Teacher A objected, contending that he was improperly excessed because he had greater seniority in the mathematics tenure area than did Teacher B and that the board violated the law but incorrectly and arbitrarily used the probationary appointment date to determine which of the two teachers should be excessed, Teacher A or Teacher B.

The board, conceding that both A and B had eight years of service within the district when it abolished the position in the mathematics tenure area, argued that A was properly excessed as having less seniority than B in the mathematics tenure area because using the probationary appointment date was a reasonable and rational means to break the tie in actual full-time service rendered.  Thus, said the board, it properly exercised its discretion when it determined B was the more senior teacher based on B’s probationary appointment date, May 9, 2006, as A’s date of appointment as a probationary teacher was June 14, 2006.

Addressing the merits of A’s appeal, the Commissioner said that in determining the order of seniority of teachers within a district "it is clear that the teacher whose appointment occurred first had a longer seniority ... than the teacher who was appointed upon a later resolution ….However, if teachers have equal service, a board of education must evaluate whether the teachers' appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority.”

The District contended that a teacher’s right to seniority credit includes service as a full-time substitute when such service immediately precedes a probationary appointment but that service as a full-time substitute does not accrue unless it is followed by a probationary appointment and “it is the probationary appointment which must be considered when determining seniority for excessing purposes.” The Commissioner rejected this argument.

The board also argued that its use of the probationary appointment date to determine seniority in a case of equal seniority was proper for the board to use as a  reasonable means to break the tie.  Again the Commissioner disagreed, noting that “[i]f teachers have equal service, a board of education must evaluate whether the teachers’ appointment dates are identical and if they are, then the board may use an objective means to break the tie in determining seniority.”*

Citing Matter of Ducey, et al., 65 St Dept Rep 65, an appeal decided in 1943, the Commissioner explained “[t]he date when a teacher commenced her [or his] service in the system is the date she [or he] started her probationary period, if that was the first date that she [or he] became connected with the system.  If she [or he] had been employed by the board as a regular substitute prior to the service as a probationary teacher, the date of the commencement of regular substitute service is the date of commencement of her [or his] seniority.  Teachers employed on a regular substitute basis are ordinarily, and should be, employed pursuant to board action.”

Here, said the Commissioner, both A and B commenced service as regular full-time substitutes on September 1, 2005 and the record shows that A was appointed to the full-time regular substitute position on July 6, 2005, more than two months before B was appointed by board action on September 14, 2005. Accordingly, the Commissioner applied “the long-settled principles of Ducey,” holding that A’s July 6, 2005 appointment to the regular full-time leave replacement position, which occurred pursuant to board action, indicates his commencement of service within the system, it is that initial appointment date from which both the seniority calculation and appointment date determination should have been made.” 

While the board properly calculated the service time of A and B to include their full-time leave replacement positions, the district “erred in selecting the 2006 probationary appointment dates as the dates which established seniority.”

The Commissioner then ordered the board to reinstate A “to the position to which he is entitled in accordance with this decision, and provide him with back pay and benefits and seniority credit from June 30, 2013, less any compensation he may have earned in the interim.”

*See Matter of Kulick, 34 Ed Dept Rep 613, Decisions of the Commissioner of Education, Decision No. 13,428.

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Redacting the name of the accused employee from the decision following a disciplinary hearing

Redacting the name of the accused employee from the decision following a disciplinary hearing

OATH Index #1536/14

In the course of a disciplinary hearing the employee placed certain of his personal medical information in the hearing record. He then submitted a post-hearing request in which he asked OATH Administrative Law Judge Alessandra F. Zorgniotti “to remove his name from the [disciplinary] report and recommendation because it discusses his medical history.”

Judge Zorgniotti denied the employee’s request explaining that “Requests for redaction are generally denied where, as here, respondent placed private health matters in issue by way of a defense and the request was made after respondent placed medical documents in the record and testified about them at a hearing.”

The ALJ said that the employee’s medical information in the record concerned a medical condition, high blood pressure, which condition “did not carry much or any stigma,” and the employee had shared information about his medical condition with a number of his co-workers prior to the incident that resulted in disciplinary charges being filed against him.

Sometimes the request for “redaction” takes the form of a request for anonymity by substituting “Anonymous” for the name of the employee. Such a request was considered in connection with a §3020-a decision by the Commissioner of Education in Decisions of the Commissioner of Education #12993, an disciplinary appeal dealing with an alleged sexual relationship between a teacher and a student. The teacher asked that the Commissioner refer to her as Anonymous "to prevent public dissemination of her name and potentially injurious information the record."

The Commissioner said that there was no requirement in law that confidentiality be maintained in an appeal from a determination of a §3020-a hearing panel nor does the potential for publicity require that he substitute “Anonymous” for the teacher’s name. He said that "the large amount of publicity following the hearing does not require that [he] take any additional steps to prevent public dissemination of the teacher's name. Also denied was the request to prevent public dissemination of material in the record "to the extent that such information is subject to disclosure under the Freedom of Information Law."

In Anonymous v Mexico CSD, 162 Misc 2d 300, the issue concerned disclosure the name of an educator involved in a disciplinary action.In this instance disciplinary charges filed against a teacher were settled before a "formal final decision" was issued. In the settlement document the teacher admitted guilt to certain of the charges.

When the District indicated that it was about to disclose the terms of the settlement agreement in response to a Freedom of Information Law [FOIL] request, the teacher asked Supreme Court to restrain the District from releasing this information. Supreme Court ruled that the settlement agreement was not exempt from disclosure under FOIL and must be provided to those seeking a copy of the agreement.

However, there may be some aspects or statements set out in a disciplinary settlement agreement that could be suppressed or redacted without offending the Freedom of Information Law.

In LaRocca v Jericho UFSD, 220 AD2d 424, the settlement agreement contained references to charges that the accused individual denied or were not admitted, together with the names of certain teachers. The Appellate Division ruled that disclosure of those parts of the settlement agreement setting out charges that were denied or not admitted and, presumably, the names of "certain teachers" would constitute an unwarranted invasion of privacy within the meaning of FOIL.

Significantly, the Appellate Division said that "as a matter of public policy, the Board of Education cannot bargain away the public's right to access to public records." The court ruled that the settlement agreement or any part of it providing for confidentiality or purporting to deny the public access to the document "is unenforceable as against the pubic interest."

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Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.

Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.

2014 NY Slip Op 05719, Appellate Division, Fourth Department

A code enforcement officer [Officer] terminated from his position sued the Town alleging that his "termination was in retaliation for his refusal to perform" unauthorized functions and for his "act[ing] as a whistle-blower in reporting" those unauthorized directives "to the Town's outside attorney and others" in violation of Civil Service Law §75-b, the public employees' whistle blower statute.* Officer contended that he was terminated after he refused to issue a stop work order when directed to do so by the Supervisor because of his belief that he "could not legally" issue a stop work order to a developer working on a project because "the developer had all of the necessary permits."

One of the issues considered by the Appellate Division was the Town’s contention that Supreme Court incorrectly denied its motion to dismiss Officer’s retaliation claim “for failure to state a cause of action.”

The Appellate Division rejected the Town’s argument concerning the alleged retaliation, explaining that Civil Service Law §75-b “prevents a public employer from … terminating a public employee because the employee discloses to a governmental body information . . . which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action."

As to the meaning of "improper governmental action," the court said that the refers to "any action by a public employer or employee, or an agent" thereof, "which is undertaken in the performance of [his or her] official duties . . . and which is in violation of any federal, state, or local law, rule or regulation," citing § 75-b [2] [a]. In this action, said the court, the governmental bodies to which disclosure may be made included “a member of a town's legislature.”

Other requirements include that an employee, prior to disclosing the information, must have "made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and . . . provide[d] the appointing authority or designee a reasonable time to take appropriate action."

Significantly, the Appellate Division noted that Officer had adequately alleged that he reasonably believed that he had been directed to perform an unlawful act and Civil Service Law §75-b does not require an actual violation of the law for an employee to subsequently allege that he or she had been terminated because he or she acted as a “whistle blower.” In such a situation the employee need have had only "a reasonable belief of a possible violation" of the law.

Construing Officer’s complaint liberally, and accepting his factual allegations and all possible favorable inferences as true, the Appellate Division concluded that Officer had “adequately alleged that he believed that he had been ordered to commit an unlawful act and that his belief was reasonable.”

* Labor Law Article 20-c, Retaliatory Action By Employers, provides similar protections to employees in the private sector.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05719.htm
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Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed

Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed

OATH Index #1804/14

The employee had been charged with (1) violating department rules, (2) negligently operated his employer’s vehicle and (3) displaying "vulgar decals" in the department’s truck. Finding that the evidence did not support charges (1) and (2), OATH Administrative Law Judge recommended the department dismiss those charges filed against the employee.

However, Judge Addison sustained the charge filed against the employee that alleged that he had pinned vulgar decals to the interior of the truck and recommended that he be suspended for 15 days without pay. Noting that the employee had served a 30-day pre-hearing suspension without pay, the ALJ then recommended that [1] the employee be credited with "time served" and [2] that he be reimbursed 15-days pay of the 30-days of his pre-hearing suspension without pay.

Civil Service Law §75.3 provides, in pertinent part, that “that the time during which an officer or employee is suspended without pay may be considered as part of the penalty.”

In Bollin v City of Kingston, 89 A.D.2d 658, the penalty imposed, two months suspension without pay, in addition to the 30-day suspension when the charges were preferred, and a fine of $100, was held neither harsh nor excessive. Bollin had been charged with, and found guilty of, [1] incompetence by allowing his bus to run out of gas on five separate occasions and [2] misconduct for smoking while operating a bus.

In general, Courts have viewed the penalties authorized by Civil Service Law §75 as mutually exclusive. In Bollin, in addition to the 30-day suspension without pay during the pendency of charges, which is not viewed as a "penalty," the employee was both suspended without pay and fined. It may be that this reflects two different penalties for the two different charges filed against him, incompetence and misconduct, which were consolidated for purposes of appeal.

Further, in Figueroa v NYS Thruway Authority, 251 A.D.2d 773, the court held that multiple §75 thirty-day suspensions without pay were permitted where additional disciplinary charges were subsequently filed against the employee
.

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An individual’s domicile and residence distinguished

An individual’s domicile and residence distinguished
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department*

A person may have only one domicile at a time but he or she may have many residences simultaneously.

From time to time, however, the term “residence” is used as a substitute for the term “domicile.” This was demonstrated in Weiss v Teachout.

Seeking to invalidate the petition designating Zephyr R. Teachout as a candidate for the office of governor, Harris Weiss alleged that Teachout did not meet the constitutional residency requirements for the office of governor.

Article IV, §2 of the State Constitution, in pertinent part, requires that an individual seeking election to the office of governor “shall have been five years next preceding the election a resident of this state” while Election Law §1-104.22 states that the term residence “shall be deemed to mean that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return."

The Appellate Division explained that as used in the Election Law, and presumably in the State Constitution, the term ‘residence' is being used to denote an individual's legal status that is more accurately described as his or her “domicile."

Crucial to the determination as to whether an individual satisfies the constitutional “residency” requirement, said the court, is that the individual manifests an intent [to reside there], coupled with physical presence without any aura of sham [see People v. O'Hara, 96 NY2d 378].**

The Appellate Division sustained Supreme Court's determination that the Weiss failed demonstrate that Teachout did not meet the constitutional residency requirements for the office of governor is warranted by the facts.

The Appellate Division held that although both the Constitution and the Election Law use the “residence,” it was five years as a “domiciliary” of New York State that was required to satisfy such “residence” requirements and the fact that Teachout had has resided in several different residences within the City of New York during the relevant time period, while maintaining close connections to her childhood domicile of Vermont, constituted “nothing more than an ambiguity in the residency calculus.”

* See, also, Jones v Blake, 2014 NY Slip Op 05919, Appellate Division, First Department, an appeal arising “out of a special proceeding in which petitioner sought to establish that respondent did not satisfy the residency requirements for the public office of Member of the Assembly.”

** In Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), [Not selected for publication in the Official Reports], Supreme Court Judge Dennis M. Kehoe held the where the record revealed that the individual elected to public office [1] rented the upstairs apartment from his wife four days before the election, for an annual rental of $1.00, for a period which extends through December 31, 2012, the date his term as Mayor expires; [2] that the furnishings of the apartment consist of one bed with a crate used as a night table, had no appliances such as a refrigerator, stove, or microwave - and no television or computer; [3] that he did not move his personal belongings to the apartment; and [4] that he regularly ate dinner with his wife and children at the residence in the Town of Sodus; and spent the majority of his nights there, he must conclude that the Allen’s attempt to establish a residence in the Village of Sodus was contrived for the purpose of making him eligible to run for the office of Mayor.” Judge Kehoe noted that he was aware of the fact that “his decision will result in an immediate vacancy in the office of the Mayor of Sodus Village, but this outcome is mandated by the Public Officers Law §30(1)(d), unless otherwise stayed by a higher court.”

The Weiss decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05888.htm

The Village of Sodus decision is posted on the Internet at:

http://www.nycourts.gov/reporter/pdfs/2011/2011_31035.pdf

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Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation

Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation

Appeal of Arnold Goldberg, Decisions of the Commissioner of Education, Decision No. 16,635

Arnold Goldberg held a tenured appointment as Director of Personnel in the tenure area of  "Director of Personnel." The School Board subsequently created a new position, Assistant Superintendent for Human Resources and Professional Development, and appointed Dr. Marlene Zakierski to fill this new position  effective August 1, 2005. On August 16, 2005, the Director of Personnel position was abolished and Mr. Goldberg was "excessed" effective August 26, 2005, and his name was placed on a “preferred eligible list “

Mr. Goldberg challenged the failure of the School District to appoint him to the newly created Assistant Superintendent position.** The then Commissioner of Education issued a decision dismissing the appeal, holding that Mr. Goldberg was not entitled to an appointment to the Assistant Superintendent position.  Subsequently Supreme Court vacated the Commissioner’s decision and remanded the matter to the School District for a hearing pursuant to Education Law §3013 on the sole issue of whether or not the two positions were similar.

Following five days of hearing, the School Board issued a decision finding that “the newly created position of Assistant Superintendent for Human Resources and Professional Development was not similar to [Mr. Goldberg’s] position of Director of Personnel,” whereupon Mr. Goldberg initiated a second CPLR Article 78 proceeding against the School District seeking to set aside the School District’s decision.  Supreme Court, however, ruled that the Commissioner of Education has primary jurisdiction over this matter and Mr. Goldberg initiated the instant appeal with the Commissioner of Education.

Mr. Goldberg asserted that more than 50 percent of the duties he performed as Director of Personnel were being performed by the incumbent of the newly created position of Assistant Superintendent* and thus, he argued, he should have been appointed to the position pursuant to Education Law §3013 and asked that the Commissioner set aside the School District’s decision that the two position were not similar “as arbitrary and capricious” and direct the School District to appoint him to the Assistant Superintendent position with back pay, seniority and all other benefits. 

The Commissioner ruled that Mr. Goldberg’s appeal concerning “the district’s failure to recall him from the preferred eligibility list” had to be dismissed for failure to join a necessary party. The Commissioner noted that although Mr. Goldberg named “Ronald O. Grotsky” as a respondent in the caption of his appeal, the record indicates that Marlene Zakierski had been appointed by School Board to the Assistant Superintendent position. As Dr.Zakierski’s rights could be adversely affected were the decision in this appeal in Mr. Goldberg’s favor because “she was not named or served with a notice of petition or petition,” he “must dismiss the appeal for failure to join necessary parties.”

Further, the Commissioner said that Mr. Goldberg failed to meet his burden of demonstrating that he was entitled to the Assistant Superintendent position.

In order for an individual to be entitled to appointment to a vacant position from a preferred list, explained the Commissioner, the position must be similar to that of his or her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by individual in his or her former position and the two positions must be in the same tenure area.

Based on the record before him, the Commissioner said that he found that the two positions were in different tenure areas, noting that the School Board had approved the probationary appointment of an individual to an Assistant Superintendent position in the tenure area of “Assistant Superintendent of Human Resources and Professional Development" while Mr. Goldberg had been granted tenure in the administrative tenure area of “Director of Personnel.”

The Commissioner also noted that “even if the two positions were in the same tenure area, the appeal must be dismissed because a review of the job descriptions for both positions and the record before him “reveals that, within the meaning of Education Law §2510(3), [Mr. Goldberg’s] position as Director of Personnel was not similar to the position of Assistant Superintendent for Human Resources and Professional Development.”

The Commissioner then dismissed Mr. Goldberg's appeal.

* Mr. Goldberg also asserted that the hearing provided by the School Board did not meet the due process requirements of the Fifth and Fourteenth Amendments of the United States Constitution and, in addition, he alleged several violations of the Open Meetings Law and the Freedom of Information Law. The Commissioner rejected Mr. Goldberg’s due process claims and with respect to his Open Meetings Law and Freedom of Information claims noted that New York State Supreme Court has exclusive jurisdiction with respect to adjudicating such claims and any “alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

** The test applied is whether 50% or more of the duties being performed by the incumbent of the newly created position were previously being performed by the incumbent of the position that had been abolished not whether 50% or more of the duties of the abolished position were being performed by the incumbent of the new position. For example, the incumbent of the new position could have assumed all of the duties of the abolished position yet those duties could be less than 50% of all of the duties assigned to the incumbent of the new position.

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

http://www.counsel.nysed.gov/Decisions/volume54/d166351

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