Releasing annual employee financial disclosure statements to the public

The petitioner [Plaintiff] in this CPLR Article 78 action challenged the Suffolk County Legislature action [Resolution] directing the Suffolk County Board of Ethics [Board] to provide the Plaintiff's financial disclosure statements to the Ways and Means Committee of the Suffolk County Legislature. Supreme Court denied Plaintiff's petition and dismissed the proceeding whereupon Plaintiff appealed the lower court's determination, contending that the County Legislature's Resolution was, inter alia, arbitrary and capricious, an abuse of discretion, and in excess of the County Legislature's authority.

Suffolk County, as authorized by General Municipal Law §811(1), had adopted a local law requiring certain county employees to file annual financial disclosure statements with the Board. The Board was required to review each financial disclosure statement filed with it and determine whether there had been compliance with the disclosure requirements.

The County Code provided that an employee, at the time a financial statement was filed, could request that the Board withhold information from public disclosure on the ground that such disclosure would constitute an unwarranted invasion of privacy or a risk to an individual's safety or security.* Further, when the Board produces a financial statement for public inspection, it was required to notify the employee of the production and of the name of the person to whom it was provided.  

A newspaper published in Suffolk County submitted a request to the Board for release of the Plaintiff's financial disclosure statements. The request was denied by the Board and the newspaper did not challenge the Board's determination. Subsequently the County Legislature, citing sections of the New York Freedom of Information Law and the United States Code, adopted the Resolution directing the Board to provide the Plaintiff's financial disclosure statements for the period "2000 to the present" to the Ways and Means Committee of the County Legislature based the Board's denial of the newspaper's request for the petitioner's financial disclosure statements.**

Ultimately Supreme Court stayed the public release of the Plaintiff's financial disclosure statements and required that the statements be submitted to the court, in camera. The County Legislature submitted "a memorandum of law, an amended memorandum of law, and an affirmation of counsel to the County Legislature"  asserting that "members of the County Legislature have stated that the Board's determination was inconsistent with the intent and understanding of the [County] Legislature in enacting the financial disclosure statute."*** 

The Supreme Court reviewed the submitted financial disclosure statements and "redacted confidential information to protect the Plaintiff and his family." The court also directed the Board to produce redacted copies of the financial disclosure statements to the Ways and Means Committee of the County Legislature. The Board complied with the court's directive and the Plaintiff appealed the court's ruling to the Appellate Division.

Citing Marbury v Madison , 1 Cranch [5 US] 137, the Appellate Division explained that a legislative body may not usurp a court's power to interpret and apply the law to the particular circumstances before it and it is beyond the authority of the County Legislature to determine that the Board's decision to withhold the Plaintiff's financial disclosure statements from public inspection was incorrect and "to take it upon itself to obtain the statements and provide for their public release." In the words of the court, "the County Legislature wrongly placed itself in the position of a reviewing court", opining that this action "is particularly disturbing where the purportedly aggrieved newspaper took no steps to vindicate its rights to disclosure of the financial statements by the Ethics Board."

Noting that the County Legislature entrusted to the Board the responsibility for receiving and resolving requests for access to financial disclosure statements filed with the Board, the Appellate Division indicated that the "proper remedy for seeking review of a Board determination denying public access to a governmental record is to seek judicial review, not for the County Legislature to arrogate to itself a judicial function reserved for the courts and the courts alone."

The Appellate Division also disagreed with Supreme Court's determination to redact "confidential information to protect the [Plaintiff] and his family" not withstanding its holding that Plaintiff's financial disclosure statements were subject to public disclosure.  The court observed that while the Board is required to redact information pertaining to categories of value from all financial disclosure statements made available for public inspection, Supreme Court cited no authority for its decision to make further redactions.

The County Legislature also contended that the resolution could be sustained as a valid exercise of its oversight authority. However, said the Appellate Division, the record before it did not reflect that either the County Legislature or its Ways and Means Committee was conducting any oversight of the Board. Rather, noted the court, "it is undisputed on the record" before it that the resolution was adopted "for the purpose of circumventing the Ethics Board's determination to deny public release of the petitioner's financial disclosure statements."

The Appellate Division thought it significant that that the County Legislature determined, without examining the Board's determination, that the Board was wrong and took it upon itself to reverse this specific determination through the enactment of the resolution. Neither federal, state, nor county law countenance such a procedure. Thus, ruled the court, Plaintiff's petition must be granted, and the Resolution adopted by the County Legislature annulled.

* Even if no request to withhold information from public inspection is made by an employee, the County Code provides that categories of value are confidential and that such information is to be redacted by the Board before a financial disclosure statement is made available for public inspection.

** The Resolution also stated that the County Code "says that financial disclosure statements are available for public inspection and there appear[ ] to be no exceptions in the law that justify withholding a financial disclosure statement from public inspection" and that "in enacting the financial disclosure law, it was the intent of this Legislature that financial disclosure statements be available to the public."

*** The Board, although named as a respondent, did not appear before the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05779.htm

Determining the date on which the four month statute of limitations for filing a timely CPLR Article 78 action begins to run

The Court of Appeals has defined "final and binding" in terms of completeness and exhaustion of administrative remedies as follows: "[f]irst, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party."*

Petitioner [Plaintiff] commenced this CPLR Article 78 proceeding seeking to compel the New York State Department of Education [DOE] to issue a school building leader certificate for which he had applied in 2014. DOE, contending that Plaintiff had not paid a necessary fee before the applicable deadline, had declined to issue the certificate and issued a notice of uncompleted requirements for certification on July 23, 2014. Plaintiff was also advised that he would be required to meet newly-enacted examination requirements.

In June 2016 inquiry Plaintiff contacted DOE concerning the status of his application. DOE responded, citing its July 2014 notice of uncompleted requirements. Ultimately DOE, in response to Plaintiff additional inquiry and request for "an official appeal," sent Plaintiff two documents dated December 9, 2016 entitled "Notice of Uncompleted Requirements for Certification" explaining that Plaintiff's application had been disapproved and restated that there was "no legal means by which [DOE could] overlook" the initial missed deadline for the required payment.** Plaintiff was also advised that should he wish "to further pursue the certification, he would need to reapply and meet all additional requirements."

DOE moved to dismiss Plaintiff's petition as untimely because the proceeding was commenced on April 28, 2017, more than four months after DOE's issued its December 9, 2016 determination. In rebuttal, Plaintiff contended that the statute of limitations began to run when he received the second, identical, notice dated January 3, 2017. Supreme Court granted DOE's motion to dismiss the petition, and Plaintiff appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining that the definitive position stated in DOE's January 2017 notice is no different from that DOE expressed in its initial December 2016 notice. Further, said the court Plaintiff "does not argue that he was attempting to pursue further administrative remedies or took any additional action after the December 2016 notice was issued."

Accordingly, the Appellate Division ruled that Supreme Court's dismissal of Plaintiff's petition as untimely was correct, noting that DOE's determination became final and binding and the statute of limitations period began to run on December 9, 2016. Further, said the court, although there is a potential for prejudice in a case where a petitioner receives a subsequent, additional notice and then provides that postdated determination to his or her attorney, in this instance the Appellate Division opined "that no such prejudice has been alleged, nor was any justification for petitioner's failure to commence a proceeding based upon the December 2016 notice provided."

* See Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30.

** The Appellate Division's decision notes that "for reasons still unknown and unexplained within the record or briefs," DOE issued the second identical notice dated January 3, 2017.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05610.htm

By failing to seek a stay of arbitration a party to the arbitration runs the risk of the arbitrator finding that the subject matter of the dispute is covered under the controlling collective bargaining agreement

A City School District [District] appealed a Supreme Court's decision that granted the Employee Organization's [Union] petition to confirm an arbitration award and denied District's cross petition to vacate that award.

A member of the Union was terminated by the District because she did not possess a valid registration card required by General Business Law §89-g(1)(a) for employment as a security guard. The Union filed a grievance on behalf of its  member and ultimately filed a demand for arbitration.

The District did not move to stay arbitration and the arbitrator subsequently issued an award that directed the District to rescind the termination of the Union's member and reimburse the member for her loss of pay from the date her registration card as a security guard was renewed. The District then appealed the Supreme Court ruling.

The Appellate Division rejected the District's contention that the arbitration award violated public policy requiring the registration of security guards.  Citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, the court said that "[T]he public policy exception to an arbitrator's power to resolve disputes is extremely narrow" and the Court of Appeals has promulgated "a two-prong test for determining whether an arbitration award violates public policy."

The first test: a court, "without engaging in any extended fact-finding or legal analysis that a law prohibits, in an absolute sense, the particular matters to be decided ... by arbitration ...," determines that an arbitrator cannot act. If the arbitration award survives this first test, the court is then to determine if the "award itself violates a well-defined constitutional, statutory or common law of this State."

In contrast, the Appellate Division opined that a court "may not vacate an award on public policy grounds when vague or attenuated considerations of a general public policy are at stake. Courts shed their cloak of noninterference [, however,] ... where the final result creates an explicit conflict with other laws and their attendant policy concerns, focusing on the result, the award itself."*

The Appellate Division concluded that the first prong of the public policy exception has not been met here because nothing in General Business Law §89-g prohibits the resolution of this matter by arbitration, particularly considering an arbitrator's " broad power to fashion appropriate relief'.

As to the second prong of the test, the court said that it had not been met either as the arbitration award did not compel the District to employ the union member as a security officer during the period that she did not have the required registration card. Indeed, opined the Appellate Division, the arbitrator ordered that the union member's termination be rescinded and that she be awarded back pay only from the time when she received her renewed registration card.

Also rejected by the court was the District's argument that the arbitrator exceeded his authority by finding that the collective bargaining agreement (CBA) allowed arbitration of this dispute. While couched in terms of the arbitrator exceeding his authority, the Appellate Division held that "in reality [the District] is contending that 'the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.'"

However, said the court, by submitting to arbitration, the District ran the risk that the arbitrator would find the dispute covered under the CBA, as he did, notwithstanding District's position that the termination of an employee for failing to maintain a required registration card was outside the agreement's scope.

Concluding that the other arguments advanced by the District were "without merit," the Appellate Division sustained the Supreme Court's decision in this matter.

* In support of this observation, the Appellate Division cited Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05451.htm

New York State Governor Andrew M. Cuomo signed bill limiting educational institutions' power to authorize the possession of a weapon on school grounds

Stating that "The answer to the gun violence epidemic plaguing this country has never been and never will be more guns, and today we're expanding New York's nation-leading gun safety laws to further protect our children," Governor Andrew M. Cuomo has signed legislation limiting an educational institution's ability to authorize any person who is not primarily employed as a school resource officer, law enforcement officer or security guard to carry a firearm on school grounds.

The bill amends §265.01-a of the New York State Penal  Law to read as follows [text in italics is new.]: 

§265.01-a[.] Criminal possession of a weapon on school grounds.

A person is guilty of criminal possession of a weapon on school  grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes, of any school, college, or university, except the  forestry lands, wherever located, owned and maintained by the State  University of New York college of environmental science and forestry, or  upon a school bus as defined in section one hundred forty-two of the  vehicle and traffic law, without the written authorization of such  educational institution; provided, however no school, as defined in subdivision ten of section eleven hundred twenty-five of the education law, shall issue such written authorization to any teacher, school administrator, or other person employed at the school who is not primarily employed as a school resource officer, police officer, peace officer, or security guard who has been issued a special armed guard registration card as defined in section eighty-nine-f of the general business law, regardless of whether the person is employed directly by such school or by a third party.

Criminal possession of a weapon on school grounds is a class E felony.

August 2019 issues of AELE's three periodicals have been posted on the Internet

The August 2019 issues of AELE's three periodicals have been uploaded. The current issues, back issues since 2000, and case digests since 1975 are FREE. AELE invites all readers to read, print or download AELE publications without charge.

Law Enforcement Liability Reporter

This issue has cases on assault and battery: physical, dogs, firearms related: intentional use, First Amendment, immigrants and immigration issues, insurance, malicious prosecution, off-duty/color of law: firearms related, race discrimination, and search and seizure: person.
View at: http://www.aele.org/law/2019all08/LR2019AUG.html 

Fire, Police & Corrections Personnel Reporter

This issue has cases on collective bargaining: duty to bargain, First Amendment, handicap/abilities discrimination: accommodation in general, handicap/abilities discrimination: obesity, pensions, privacy, race discrimination, retaliatory personnel actions, sexual harassment, and taxation.
View at: http://www.aele.org/law/2019all08/FP2019AUG.html

Jail and Prisoner Law Bulletin

This issue has cases on diet, foreign prisoners and immigrants, medical care, medical care: mental health. prisoner assault: by officers, prisoner death/injury, and probation.
View at: http://www.aele.org/law/2019all08/JB2019AUG.html

AELE's main menu is at: http://www.aele.org/law

Workers' Compensation Board rejected a claimant's application for review of a Workers' Compensation Law Judge's decision because it was not filled out completely

The Workers' Compensation Board ruled that a Claimant failed to comply with the requirements of 12 NYCRR 300.13 (b) and denied review of a decision by the Workers' Compensation Law Judge. The Board found that the application for Board review was defective because it was not filled out completely and, as a result, denied Claimant's application.

Claimant appealed, contending that the Board abused its discretion in denying her application for Board review based upon her failure to comply with the rules governing the content of such applications that require the application to be filled out completely. The Appellate Division disagreed and sustained the Board's determination.

The court noting that "the Board 'may adopt reasonable rules consistent with and supplemental to the provisions of [the Workers' Compensation Law],' and the Chair of the Board 'may make reasonable regulations consistent with the provisions of [the Workers' Compensation Law],''' explained that where, as here, the Board's regulations provide that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [of the Board]" and "must be filled out completely."

Here Claimant was represented by counsel and filed her Form RB-89 application for Board review. Although question number 13 on that application requested that claimant provide the "[h]earing dates, [t]ranscripts, [d]ocuments, [e]xhibits, and other evidence" that she would rely upon in her administrative appeal and advised to "see [the] instructions for details," it is not disputed that Claimant's application failed to provide the requested information by leaving the box for question number 13 blank.

As the Board explains in its guidance document on this issue, the "RB-89 [form] is the application for review itself, and [it] is not merely a coversheet." By requiring an applicant to completely fill out the application for Board review, "the 'completeness doctrine' assists the responding party in identifying the exact issues, grounds and evidence used in support of the application in determining the issues and crafting a timely and effective rebuttal. Having a complete application . . . also assists the Board in providing timely and effective review of the application . . . as it eliminates confusion over which evidence is involved in the application and which issues are preserved for appeal."

Completion of an application for Board review, opined the Appellate Division, means that "each section or item of [the application or rebuttal] is completed in its entirety pursuant to the instructions for each form" and that a form is not filled out completely "when a party responds to sections or items on the form merely by referring to the attached legal brief or other documentation without further explanation." Accordingly, said the Appellate Division citing 12 NYCRR 300.13 [b] [4] [i], the Board may deny an application for review where the party seeking review, other than a claimant who is not represented by counsel, fails to fill out completely the application or otherwise fails to "comply with prescribed formatting, completion and service submission requirements" [Emphasis supplied].

The Appellate Division said that in its view, "the Board's format requirements for applications for Board review submitted by represented claimants are reasonable given the reasons identified by the Board and were promulgated pursuant to its statutory authority and "broad regulatory powers" and sustained the Board's decision that Claimant's application was defective because it was not filled out completely.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05365.htm

Appointing authority rejects hearing officer's recommendation to continue benefits being provided police officer pursuant to General Municipal Law §207-c after the police officer suffered a job-related injury

The petitioner [Police Officer] in this CPLR Article 78 action suffered a job-related injury and was granted benefits pursuant to General Municipal Law §207-c* by the appointing authority Subsequently Police Officer  returned to work on a light-duty assignment and later was examined by a physician on behalf of the appointing authority. The physician reported that Police Officer was capable of returning to work on full duty as a police officer without restrictions.

The appointing authority terminated the Police Officer's §207-c benefits and directed that "he return to full duty, without restrictions." In accordance with the relevant provisions set out in a collective bargaining agreement [CBA], the Police Office requested a hearing and ultimately the designated hearing officer recommended that Police Officer continue to be provided with GML §207-c benefits. Notwithstanding the hearing officer's recommendation, the appointing authority issued a final determination denying the Police Officer's application for §207-c benefits finding that "based on the entire record" Police Officer was capable of performing his full duties as a police officer. Upon being notified that his light-duty assignment was terminated and being directed to return to work full time, without restrictions, Police Officer commenced this CPLR Article 78 proceeding, which Supreme Court transferred to the Appellate Division for its consideration.

The Appellate Division, citing Matter of Campo v City of Mount Vernon, 156 AD3d 694, explained that "[j]udicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Here, said the court, the hearing procedures were negotiated by the appointing authority and the Police Officer's union and memorialized in a CBA. The CBA provided that hearing officer was to issue findings of fact and make a recommendation on the questions certified to him. The appointing authority, however, retained full power and authority to render the final determination on the questions.

Noting that the hearing officer's findings are entitled to considerable weight, the Appellate Division explained that such findings "are not conclusive and may be overruled by the administrative authority, provided that the final determination is supported by substantial evidence."

Here, said the court, there was conflicting medical evidence and "it was for the administrative agency to choose between the conflicting opinions, and the courts are not free to reject the choice made by the administrative agency where room for choice exists." In words of the Appellate Division, [t]he testimony and opinion of the physician who examined the [Police Officer] on behalf of the [appointing authority] was rational and fact-based and, since a reasonable mind could accept that testimony and opinion, the determination of the [appointing authority] is supported by substantial evidence."  

The Appellate Division confirmed the appointing authority's determination terminating Police Officer's  light-duty assignment and directing him to return to work full time and dismissed the Police Officer's petition "on the merits, with costs."

* GML 207-c provides for the payment  of the salary, wages, medical and hospital expenses of   law enforcement personnel suffering injuries or illness incurred in the performance  of their law enforcement  duties. GML 207-a provides similar benefits to firefighting personnel suffering injuries of illness incurred in the performance of their firefighting duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05670.htm

_________

Disability Benefits for fire, police and other public sector personnel - A handbook addressing retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html

Relying on the continuing wrong doctrine to determine if an Article 78 petition was timely filed

CPLR Article 78 requires that a challenge to an administrative determination be commenced within four months of the time the determination becoming "final and binding upon the petitioner." An administrative determination becomes final and binding for the purpose of trigging the running of the statute of limitations when the determination "has its impact" on the petitioner.

In this instance the petitioner [Plaintiff] commenced her CPLR Article 78 action seeking judicial review an administrative determination by her employer [Town] that classified her as an employee hired after December 31, 2014. This determination made her subject to a 15% health insurance premium contribution requirement set out in the controlling Taylor Law collective bargaining agreement.

Town moved to dismiss Plaintiff's petition as untimely, well as for other reasons. The court concurred with the Town's argument that as its administrative decision was made, in effect, on December 31, 2014, Plaintiff's Article 78 action  commenced more than two years later was untimely and dismissed her petition. Plaintiff appealed the court's ruling.

The Appellate Division opined that an administrative determination regarding payment of salary or pay adjustments is final and binding, and a challenge thereto accrues, when the employee receives a check or salary payment reflecting the administrative determination, noting that the new, now required 15% health insurance premium contribution was reflected in Plaintiff's first paycheck issued in April 2015, more than two years prior to the commencement of this Article 78 action.*

Addressing Plaintiff's argument that her Article 78 was timely under the "continuous wrong doctrine," the Appellate Division, citing Selkirk v State of New York, 249 AD2d 818, indicated that the continuing wrong doctrine "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct." In other words, courts distinguish between a single wrong that has continuing effects or impacts and [2] "a series of independent, distinct wrongs" in order to determine if the continuing wrong doctrine is viable under the facts alleged in this action.

As the Town had decided that Plaintiff was an employee hired after December 31, 2014, triggering her being required to pay a 15% health insurance premium contribution, Plaintiff first felt the impact of this administrative determination upon receiving her first paycheck issued to her in April 2015, more than two years before Plaintiff filed her Article 78 petition, the Appellate Division opined that "[e]ach subsequent paycheck deduction 'represent[ed] the consequences of [that allegedly] wrongful act in the form of continuing damages,' and was not an independent wrong in itself."

Accordingly, the court ruled that the doctrine "does not apply here to toll the statute of limitation and  sustained the Supreme Court's determination dismissing Plaintiff's petition as untimely.

* The Appellate Division also noted that Plaintiff's untimely filing of a grievance did not toll the running of the statute of limitations which, for the purposes of perfecting her Article 78 action, commenced when, at the latest, Plaintiff received her first paycheck issued in April 2015.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05671.htm

Attaining tenure in a position is conditioned on the appointee being deemed to have completed the required probationary period

The Plaintiff in this CPLR Article 78 action contended that he was entitled to a Civil Service Law §75 pretermination hearing as a condition precedent to his being terminated from his position, Title A. Plaintiff alleged that he had attained tenure in Title A by reason of his having been appointed to a higher level position "in the line of promotion," Title B, while serving as a probationary employee in Title A.

Plaintiff had been appointed to Position B as a temporary employee about 9 weeks after completing the designated minimum period of probation but before the end of his Title A maximum probationary period. Plaintiff was subsequently appointed to the Title B position as a provisional employee. Some 16 months later Plaintiff was advised that he was being terminated from Title B, reinstated to Title A and, on the same day, further advised that [1] he would be terminated from the Title A and [2] was placed on "administrative leave" until the effective date of his dismissal from his Title A position.

The appointing authority had determined that on the effective date of Plaintiff's termination there were 25 days remaining until the end of Plaintiff's maximum period of probation and thus he had not yet attained tenure in Title A. Accordingly, argued the appointing authority, Plaintiff was not entitled to a pretermination hearing pursuant to Civil Service Law §75 or any applicable collective bargaining agreement.

Supreme Court dismissed the petition, finding that Plaintiff was in fact a probationary employee at the time of his discharge and that he failed to make a prima facie showing that the decision to terminate him from his employment in Title A was retaliatory or made in bad faith. Plaintiff appealed the Supreme Court's ruling to the Appellate Division.

As to Plaintiff's status in Title A as a "probationary employee," the Appellate Division said that "A probationary employee's appointment becomes [a tenured appointment] either after the completion of the probationer's maximum period of [probationary] service or upon earlier written notice following the completion of the minimum period of probation."

Noting that "in the discretion of the appointing authority," Plaintiff's service in Title B could be considered as satisfactory probationary service in Title A "and may be counted as such in determining the satisfactory completion of such probationary term," 4 NYCRR 4.5[i] provides that "[a]t any time after the expiration of the minimum period of the probationary term, or the entire probationary term if it be one of fixed duration, the appointing authority shall, on request of such probationer, furnish his [or her] decision in writing as to whether or not service in such higher level position shall be considered as satisfactory probationary service."

Here the court found that the record established that the appointing authority determined, in its discretion, that Plaintiff's temporary and, or, provisional service in Title B would not count toward his completion of his probationary term for the Title A position. Further, said the Appellate Division, "it is undisputed that, after the expiration of his maximum probationary term ... [Plaintiff] ... did not request a determination as to whether his temporary or provisional service would be counted toward his probationary term [in Title A] and, therefore, he did not trigger [the appointing authority's] regulatory obligation to issue a written determination as to how it would exercise its discretion."

Further, opined the court, the appointing authority was not required to advise Plaintiff prior to his discharge that his service in the higher title would not be counted toward the completion of his Title A maximum probationary term.*

Accordingly, although the Appellate Division commented that it was troubled that Plaintiff was terminated after nearly 2½ years of service, the court said that "we are constrained to agree with Supreme Court that, at the time of his termination, [Plaintiff] was still a probationary employee." In the words of the Appellate Division, Plaintiff "was a probationary employee at the time of his termination from employment and ... failed to satisfy [his] burden of showing that [he] was dismissed in bad faith or for an improper or impermissible reason [thus] Supreme Court properly dismissed [his] petition."

As a general rule, an individual appointed to a position on a "permanent basis" attains "permanent status" in the position on the effective date of his or her permanent appointment but does not attain tenure in the title until [1] he or she satisfactorily completes his or her maximum period of probation or [2] acquires tenure by estoppel** or [3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

In York v McGuire, 63 NY2d 760, the Court set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.” This reflects the view that the individual should be provided with a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. Should the appointing authority elect to dismiss a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to "notice and hearing" otherwise accorded a "tenured employee."

Another element that may be relevant with respect to determining the effective date of a probationary employee attaining tenure in the position is the requirement that, in addition to satisfactorily completing a probationary period,  the individual successfully complete a  required "traineeship." Distinguishing between ""probationary status" and "traineeship status" was a factor in Sergeants v Brooklyn Developmental Center, 56 NY2d 628.

In Sergeants, a number of probationary employees were terminated at the end of their respective probationary periods. They sued for reinstatement contending that they had not been provided with the 200 hours of training required by department regulations. 

Dismissing their appeal, the Court of Appeals first affirmed the principle that "... the employment of a probationary employee may be terminated at the end of the probationary term without a hearing and without specific reasons being stated."

The court then rejected Sergeants' "traineeship argument," commenting that the mandated training involved would not have addressed the particular demonstrations of poor performance leading to their respective terminations. The evidence in the record, said the court, indicated that the poor performance was related "to fitness for the position" rather than job performance elements that the training provided for by regulation could remedy. Among the examples of poor performance cited by the court were sleeping on the job, habitual lateness, unscheduled absence, failure to perform overtime assignments and similar poor work habits. The decision also indicated that the only issue for review was whether the appointing officer acted in good faith in terminating the employee.

As the Appellate Division ruled in Matter of Loren v New York City Dept. of Educ., 126 AD3d 419, an individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee.

In Loren, the appointee [Trainee] had been accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of this seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the appointing authority’s determination to dismiss him from the traineeship. Supreme Court granted the appointing authority’s motion to dismiss Trainee’s petition and Trainee appealed.

Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee, consistent with the limitation set out by the Court of Appeals in York v McGuire, 63 NY2d 760, "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."

The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.” The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her. Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.

The lesson here: Satisfactory completion of probation and satisfactory completion of a traineeship are two different requirements that must be met by the appointee and he or she must satisfy both in order to be continued in service. Where the successful completion of a traineeship is required in order to be continued in service, however, that condition should be communicated to the individual in the examination announcement or in the offer of his or her appointment to the position.

As to the authority for requiring the completion of a traineeship, the rules of the State Civil Service Commission concerning traineeships are set out in 4 NYCRR 4.3 and provide as follows:

Section 4.3 Trainee appointments and promotions. The Civil Service Department may require that permanent appointments or promotions to designated positions shall be conditioned upon the satisfactory completion of a term of service as a trainee in such a position or in an appropriate, lower, training title or the completion of specified training or academic courses, or both. The period of such term of training service shall be prescribed by the department. Upon the satisfactory completion of such training term, and of specified courses if required, an appointee shall be entitled to full permanent status in the position for which appointment was made. Any appointment hereunder shall be subject to such probationary period as is prescribed in [Section 4.5 of] these rules. Also, the employment of such person may be discontinued at the end of the term of training service if his conduct, capacity or fitness is not satisfactory, or at any time if he fails to pursue or continue satisfactorily such training or academic courses as may be required.

Many municipal civil service commissions have adopted similar rules concerning traineeships.

* The Appellate Division noted that "although the Department of Civil Service State Personnel Management Manual places an affirmative duty on [the appointing authority] to inform an employee whether temporary or provisional service in another position will be counted toward his or her probationary term (see State Personnel Management Manual, 2010 Probation, §234[C][1]), such requirement is inconsistent with the governing regulation and, thus, under the Manual's own provisions, the regulation takes precedence (see State Personnel Management Manual, Introduction, §142)."

** See https://publicpersonnellaw.blogspot.com/2013/07/tenure-by-estoppel-tenure-by.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

Determining the date on which the four month statute of limitations for filing a timely CPLR Article 78 action begins to run

The Court of Appeals has defined "final and binding" in terms of completeness and exhaustion of administrative remedies as follows: "[f]irst, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party."*

Petitioner [Plaintiff] commenced this CPLR Article 78 proceeding seeking to compel the New York State Department of Education [DOE] to issue a school building leader certificate for which he had applied in 2014. DOE, contending that Plaintiff had not paid a necessary fee before the applicable deadline, had declined to issue the certificate and issued a notice of uncompleted requirements for certification on July 23, 2014. Plaintiff was also advised that he would be required to meet newly-enacted examination requirements.

In June 2016 inquiry Plaintiff contacted DOE concerning the status of his application. DOE responded, citing its July 2014 notice of uncompleted requirements. Ultimately DOE, in response to Plaintiff additional inquiry and request for "an official appeal," sent Plaintiff two documents dated December 9, 2016 entitled "Notice of Uncompleted Requirements for Certification" explaining that Plaintiff's application had been disapproved and restated that there was "no legal means by which [DOE could] overlook" the initial missed deadline for the required payment.** Plaintiff was also advised that should he wish "to further pursue the certification, he would need to reapply and meet all additional requirements."

DOE moved to dismiss Plaintiff's petition as untimely because the proceeding was commenced on April 28, 2017, more than four months after DOE's issued its December 9, 2016 determination. In rebuttal, Plaintiff contended that the statute of limitations began to run when he received the second, identical, notice dated January 3, 2017. Supreme Court granted DOE's motion to dismiss the petition, and Plaintiff appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining that the definitive position stated in DOE's January 2017 notice is no different from that DOE expressed in its initial December 2016 notice. Further, said the court Plaintiff "does not argue that he was attempting to pursue further administrative remedies or took any additional action after the December 2016 notice was issued."

Accordingly, the Appellate Division ruled that Supreme Court's dismissal of Plaintiff's petition as untimely was correct, noting that DOE's determination became final and binding and the statute of limitations period began to run on December 9, 2016. Further, said the court, although there is a potential for prejudice in a case where a petitioner receives a subsequent, additional notice and then provides that postdated determination to his or her attorney, in this instance the Appellate Division opined "that no such prejudice has been alleged, nor was any justification for petitioner's failure to commence a proceeding based upon the December 2016 notice provided."

* See Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30.

** The Appellate Division's decision notes that "for reasons still unknown and unexplained within the record or briefs," DOE issued the second identical notice dated January 3, 2017.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05610.htm

New York State's Student Intern Program exposes next generation of leaders to careers in public service

The New York State Department of Civil Service announced more than 250 new student internship opportunities currently available for the upcoming fall semester throughout New York State government and reminded students to apply prior to the September 13, 2019 application deadline. Internships are available across a wide array of State agencies and include opportunities in human services, environmental conservation, criminal justice, health care, and engineering.

The Department of Civil Service has created a one-stop website – www.nysinternships.cs.ny.gov– that allows applicants to view job descriptions, create profiles, specify occupational interests, and upload resumes, writing samples, and letters of recommendation.

A list of available internships for the fall 2019 Session is available by visiting:

  www.nysinternships.cs.ny.gov/nnyl/main/viewinternships.cfm.

“Under Governor Cuomo’s leadership, New York State is attracting and developing our future leaders in State government and providing them with valuable skills and hands-on experience that will assist them as they step out into the workplace,” said Lola W. Brabham, Acting Commissioner of the New York State Department of Civil Service. “Today and every day, let us thank our student interns for their valuable contributions to State government and their efforts in building a better and stronger New York for all.”

The Student Intern Program is part of Governor Cuomo’s New New York Leaders Initiative, which focuses on attracting new and highly-skilled individuals to State government through both internship and fellowship programs. Through this program, students are exposed to the work of governing, while gaining valuable hands-on experience serving the people and interacting with government leaders and policy-makers.

Student internships are available to undergraduate and graduate students at colleges and universities throughout New York State, as well as New York residents enrolled elsewhere. Each intern works in a particular area within an Executive Branch agency or department.

Opportunities include both paid and unpaid positions. Academic credit may be given for internships depending on the policy of the intern’s educational institution.

Featured internships for the fall 2019 session include:

Classification & Compensation Intern (Department of Civil Service – Albany): As part of the Department’s Division of Classification and Compensation, interns will gain an exposure to human resource management, division operations, and how budget considerations affect agency operations. Intern duties will consist of a range of activities that include position classification and reclassification, title allocation and reallocation, preparation of Classification Standards, review and analysis of requests for salary differentials, and occupational studies.

Accounting & Investigative Intern (Gaming Commission – New York City): Student interns will work within the Office of the Gaming Inspector General and will assist staff with investigations of allegations of corruption, fraud, criminal activity or abuse in the Commission. Interns will be exposed to a number of different experiences, including attending public meetings, participating in interviews, and preparing data analysis and/or memoranda.

Social Work Intern (Office of Children and Family Services - Rensselaer): Working within the Bureau of Behavioral Health Science, the student intern will learn how to process applications for Medicaid waiver services, and receive supervision to develop a short-term wellness program for staff. In addition, the intern will learn about the process of assessing and treating youth with mental health diagnoses.

Program Services Intern (Department of Corrections and Community Supervision – Gowanda): Student interns will assist staff in completing initial assessments, risk assessments, and participate in the development of treatment plans for inmate clients. In addition, interns will become familiarized with the Criminal Justice System, from courts, to incarceration and release to the community. They will also develop clinical skills and professionalism, while maintaining ethical standards in the field.

N.B. Students Must Apply by September 13, 2019

If a party objects to arbitrating a provision in a Taylor Law collective bargaining agreement courts will require a showing that it is lawful to arbitrate the dispute and that the parties agreed to arbitrate such a dispute

About three months after collective bargaining agreement [CBA] between the School District[District] and the Employee Organization [Local 811] had expired the parties entered into a memorandum of agreement that extended the CBA, with certain modifications, through 2020. These modification included changes with respect to  employee prescription drug benefits. Local 811 subsequently filed a grievance with the District challenging the change to the prescription drug coverage as applied to retirees.

The District denied the grievance, finding that [1] it was untimely; [2] Local 811 did not represent retirees;*and [3] there was nothing in the CBA prohibiting this change. When, ultimately, Local 811 demanded that the grievance be submitted to arbitration, the District initiated a CPLR Article 75 action seeking a court order to permanently stay arbitration.

Supreme Court found that the matter was arbitrable, dismissed the District's petition and the District appealed Supreme Court's ruling to the Appellate Division. The Appellate Division sustained the Supreme Court's ruling.

Explaining that the court's role in reviewing applications to stay arbitration is a limited one, the Appellate Division said that central inquiry is whether the dispute is arbitrable, citing City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273. The Appellate Division then opined that to show that a CBA dispute is arbitrable requires proof that [a] it is lawful to arbitrate the dispute and [b] the parties have agreed to arbitrate such a dispute. In this action, however, the court said that the only question to resolve was [b] -- whether the parties agreed to arbitrate the dispute at issue.

To determine whether parties so agreed requires the court to examine the [CBA] to ascertain whether CBA contains a "broad arbitration clause," and if it does the court will find an "agreement" to arbitrate if "there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA." In contrast, specific contentions related to the scope of the CBA or interpretation of its substantive provisions are to be determined by an arbitrator.

In this instance the court found that the CBA's grievance procedure was intended to "establish a more harmonious and cooperative relationship between the non-instructional staff and [the District]" which, in this context said the Appellate Division, mandates that the CBA's provisions to be "liberally construed for the accomplishment of this purpose."

Further, the CBA broadly defines a grievance as "any claimed violation, misinterpretation, or inequitable application of [the CBA] or of any laws, rules, procedures, regulations, administrative order or work rules of the [individual designated by management to review and resolve grievances], or those matters affecting employees' health or safety, physical facilities, materials or equipment furnished to the employees or supervision of employees, or any other matter(s), in which the employee feels he [or she] has been dealt with unfairly." The CBA's grievance procedure provides, as the final step in the processing of a grievance, arbitration of the dispute.

Considering "the breadth of this language, lack of any exception for grievances concerning retirement benefits, and the CBA's provisions expressly addressing [prescription drug] coverage for retirees ..." the Appellate Division concluded that there was a reasonable relationship between the dispute and the subject matter of the CBA such that the dispute was arbitrable.

Although the District sought to read the terms "staff" and "employee" to narrow the ambit of the arbitration clause and specifically to exempt retirees from having the right to bring a grievance, the Appellate Division held that such a specific contention is not relevant to the threshold analysis of arbitrability but, instead, concerns the scope and substance of the CBA. Accordingly, the court ruled that the issue should be "determined by an arbitrator" rather than the court.

* Typically retirees are not in the collective bargaining negotiating unit but may be entitled to certain benefits set out in a collective bargaining agreement where specifically so provided.

The decision is posted on the Internet:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05619.htm

New York State's State Comptroller Thomas P. DiNapoli finds schools falling short on emergency planning

Schools are not doing enough to prepare for emergency situations like shootings, according to an audit of safety planning at 19 schools released on July 25, 2019 by New York State Comptroller Thomas P. DiNapoli.

Auditors found none of the schools met the minimum planning or training requirements of the State Education Department (SED), which oversees safety planning for schools. Alarmingly, two schools did not have district-wide safety plans even though plans were mandated nearly 20 years ago.

“New York’s schools must be better prepared for emergencies and violent incidents. My auditors looked at a sample of big and small schools in urban, suburban and rural settings. We found too many schools had gaps in their safety plans that could leave them unprepared if a shooting or life-threatening incident occurred,” DiNapoli said. “Helping our schools get strong safety plans in place will require more guidance and more resources from state policymakers. I urge the State Education Department to re-engage the NYS Safe Schools Task Force to make sure our children and school personnel are safe. Emergency planning must be a priority for all New York schools.”

This audit is part of DiNapoli’s initiative focused on educational issues. His auditors have completed three audits that examined safety planning at more than 40 school districts. The audits have found significant problems at schools, including no safety plans, plans filled with errors and plans not being shared with local law enforcement.

In New York, the Safe Schools Against Violence in Education (SAVE) Act, enacted in 2000, mandates training and instruction for preventing and responding to incidents of school violence and establishes a statewide uniform system for reporting violent incidents.

The SAVE Act also requires public school districts, charter schools and BOCES programs to develop comprehensive safety plans and building-level emergency response plans. SED regulations were developed to provide additional guidance and details on school safety planning requirements. The requirements outlined in the law and regulations do not apply to private schools.

For the audit released on July 25, 2019, DiNapoli’s auditors looked at safety planning efforts at 16 school districts and two charter schools from 2017 to 2018, and 2019 for one school district. 

These entities include: Argyle Central School District, Candor Central School District, Commack Union Free School District, East Meadow Union Free School District, Fayetteville-Manlius Central School District, Genesee Community Charter School, Green Tech High Charter School, Haverstraw-Stony Point Central School District, Hendrick Hudson Central School District, Indian River Central School District, Lancaster Central School District, Levittown Union Free School District, Longwood Central School District, Naples Central School District, Niagara Falls City School District, Port Chester-Rye Union Free School District, Schenectady City School District, Syracuse City School District, and Wappingers Central School District.

Auditors found:

Two schools did not have safety plans and 17 others had incomplete safety plans. None of the schools met all 19 minimum safety plan requirements.

Overall, half the safety plan requirements were met, but seven schools did not meet a majority of the requirements. For instance, most schools did not designate a chief emergency officer in their safety plans or identify duties for this critical position.

They also did not include specifics on how they would collaborate with state and local law enforcement officials.

Sixteen school boards did not adopt a safety plan within the time requirements, properly submit it to SED or give the public the opportunity for input. Thirteen schools did not hold a public hearing on the safety plan or offer a public comment period.

Eighteen schools either did not have a safety team or did not have all the required members.

No schools met all of the annual safety training requirements, yet they certified to SED that they trained staff.

Because of the sensitive nature of the findings, the Comptroller’s office will not publicly release school-specific details. However, it has released two confidential audits to each school district and SED: one on examining district-wide safety plans and one on building-level emergency response plans. Auditors made a series of general recommendations as part of the audit and specific recommendations in the confidential reports given to each school district.

School boards are required to seek public input on their safety plans, including holding a 30-day comment period and adopting safety plans by Sept. 1. The Comptroller encourages school boards to publicly discuss how they are addressing the audit findings as they prepare for the upcoming school year. By law, building-level emergency response plans are deemed confidential and details cannot be shared.

Although nine schools did not respond to the public audit, two schools suggested the formation of a communication platform to foster school safety communication and collaboration. See the audit for more commentary.

Read the audit, or go to:

https://www.osc.state.ny.us/localgov/audits/swr/2019/safe-schools/global-2019-ms-1.pdf

DiNapoli’s office has also probed the reporting of bullying, discrimination, harassment and violence at schools, which are often the underlying causes that can lead to major incidents if not addressed.

Prior school safety audits include:

Audit of State Education Department Oversight (released in April): https://www.osc.state.ny.us/audits/allaudits/093019/sga-2019-18s34.pdf.

Audit of NYC Planning (released in June): https://www.osc.state.ny.us/audits/allaudits/093019/sga-2019-18n2.pdf.