Responsibility for granting tenure may not be surrendered

Responsibility for granting tenure may not be surrendered
Croman v City University of New York, App. Div., First Dept., 277 AD2d 185

It is well settled that as a matter of public policy an appointing authority such as a board of education may not surrender its ultimate responsibility for making tenure decisions or restrict its exclusive right to terminate a probationary employee's appointment and thus such the denial of tenure is not subject to grievance arbitration.

The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments” and thus such the denial of tenure is not subject to grievance arbitration.

In contrast, in Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that contractual provisions between an employee association and an appointing authority may set out procedural safeguards concerning the tenure decision that are subject to grievance arbitration procedures without offending public policy.

In other words, while a board's decision involving the “denial of tenure” is not arbitrable, alleged violations of the procedures to be followed in determining whether to grant or deny tenure are arbitrable.

Does public policy prohibit the arbitration of the disciplinary termination of tenured faculty?

This was the issue raised by Linda H. Young, a tenured faculty member, when she challenged her suspension without pay for six months from her position with the City University of New York by an arbitrator following a disciplinary hearing held in accordance with the provisions of a Taylor Law agreement.

Young's argument As Section 6212(9) of the Education Law “vests the power to remove tenured faculty solely in [University's] Board of Trustees,” public policy is violated by a collective bargaining agreement delegating the authority to discipline to an arbitrator at the employee's option

The Appellate Division, First Department, disagreed. The court said that “[a]bsent clear language in Education Law Section 6212(9) '[i]t is well settled that a contract provision in a collective bargaining agreement may modify, supplement or replace the more traditional forms of protection afforded public employees ...'”, citing Dye v New York City Transit Authority, 88 AD2d 899.

According to the ruling, the collective bargaining agreement allowed Young to either accept the disciplinary penalty recommended by appointing authority's designee or take the matter to arbitration. Young elected arbitration.

The Appellate Division dismissed Young's appeal, commenting that “[p]ublic policy does not nullify the choice she made.”

The leading cases addressing the issue of an individual’s electing a “negotiated disciplinary procedures” rather than an available statutory disciplinary procedure such as that provided by §75 of the Civil Service Law: Antinore v State of New York, 40 NY2d 6 and Abramovich v Board of Education, 46 NY2d 450.

Determining line-of-duty disability

Determining line-of-duty disability
Ertner v Chenango County, 280 AD2d 851

In considering the standard to apply in determining line-of-duty disability for the purpose of demonstrating eligibility for Section 207-c benefits, in the Ertner case, the Appellate Division, Third Department said that:

While it would be virtually impossible to enumerate each and every instance in which an employee would be entitled to General Municipal Law Section 207-c benefits as opposed to workers' compensation benefits (and such determinations must, of necessity, be made on an ad hoc basis), two rather classic examples come to mind: a police officer injured while pursuing a fleeing felon and a correction officer injured while attempting to quell a prison riot.

At the opposite end of that spectrum is a case such as this. It can hardly be said that an injury incurred while a correction officer is going up or down stairs at his or her place of employment is one incurred as the result of a heightened risk peculiar to the performance of the duties of such an officer.

Applying this analysis to the claim for Section 207-c benefits filed by Chenango County correction officer Tammy Ertner, the Appellate Division sustained the County's determination that Ertner was not injured “during the performance [of] a job function peculiar to a correction officer.”

Ertner was disabled as a result of her falling while going downstairs to inspect the first-floor cells of the jail, having just completed such an inspection of the second floor. She applied for and was awarded workers' compensation benefits. Ertner then applied for Section 207-c benefits.

Ertner's application was rejected on the basis that her injury was not “incurred during the performance [of] a job function peculiar to a correction officer” and she appealed the determination.

Noting that in Balcerak v County of Nassau, 94 NY2d 253, the Court of Appeals has ruled that entitlement to benefits under the Workers' Compensation Law and Section 207-c are discrete and entirely independent of one another, the Appellate Division dismissed Ertner's appeal.

The court pointed out that workers' compensation benefits are provided for injuries incurred in the course of ordinary and otherwise unqualified employment duties. In contrast, Section 207-c [and Section 207-a] benefits are provided to “compensate specified municipal employees for injuries incurred in the performance of ... work” peculiar to their specialized employment.

In contrast, in another recent case, Flannelly v NYC Police Pension Fund, decided December 19, 2000, the Appellate Division, First Department, ruled that tripping and falling over a tangle of television and VCR wires in the women's locker room of the police station where she worked, while performing a routine security inspection was, as a matter of law, a service-related accident entitling New York City police officer Diane Flannelly to an accident disability pension.

The court said that the wires were in an unexpected location at the entrance of the locker room, a situation that had been recently created by painters who, unknown to Flannelly or anyone else in the police station, had moved the television and VCR and unplugged their wires.

Disciplinary suspension without pay

Disciplinary suspension without pay
Wachtmeister v Andrus, 279 A.D.2d 82

Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without for up to thirty days pending a resolution of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.

In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeister on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.

On April 2, 1998, however, Wachtmeister was again removed from the payroll, this time in accordance with the terms of her signed “release.” The release provided that Wachtmeister agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.

As the Wachtmeister decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.

In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.

Wachtmeister, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeister sued for her back pay for the period she was suspended without pay in excess of thirty days.

The Appellate Division rejected Wachtmeister claim for back pay for this period as she had been removed from the payroll consistent with the terms of the “release.” It had no difficulty with concept of suspending the employee without pay under such circumstances.

The court also rejected Wachtmeister's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.

Further, the court rejected Wachtmeister's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeister's] misconduct.”

Qualifying for appointment to a position

Qualifying for appointment to a position
Thorsen v Nassau County Civil Service Commission, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Thorsen decision set out the proposition that a Civil Service Commission will be bound by its determination concerning the duties that are properly performed by the incumbent of any given title. This could be significant if its subsequent rulings are inconsistent with its earlier decision concerning the duties of the position in question as the Thorsen decision demonstrates.

George C. Thorsen was appointed to the non-competitive position of Assistant to the Director of Probation of the Nassau County Department of Probation on May 10, 1996 following a series of promotions within the Nassau County Department of Probation.

In 1997, while Thorsen was serving as Assistant to the Director of Probation, the position was reallocated two grades higher based on his performing duties that “encompasses both the areas of law enforcement management, administration, liaison, planning and research.” 

The Nassau County Civil Service Commission was notified of the reallocation and voiced no objection to the change in either the duties of the position nor the salary grade -- two grades higher -- to which the position was reallocated.

As to the authority of a municipal civil service commission in this area, Section 20.1 of the Civil Service Law provides that such a commission “shall prescribe, amend and enforce suitable rules ... including rules for the jurisdictional classification of the offices and employments in the classified service under its jurisdiction, [and] for the position classification of such offices and employments....” 

Section 2.11 of the Civil Service Law defines the term “position classification” to mean “a grouping together, under common and descriptive titles ... and scope of their duties and responsibilities and in the qualification requirements therefore;”

A municipal commission, however, does not have statutory authority to allocate positions subject to its jurisdiction to a salary grade as Section 20.1 also provides that “[n]othing in this chapter ... shall be construed to require that ... the salary grade to which a position in any jurisdictional class is allocated be specified in such rules.”

In August of 1999 the noncompetitive class position of Nassau County Director of Probation became vacant. The Nassau County Executive, Thomas Gulotta, nominated Thorsen for permanent appointment to the Director vacancy and certified his name to the Commission for approval.

The Commission disapproved the appointment on the grounds that Thorsen “lacked managerial experience” and was therefore unqualified for the position. Thorsen's appeal was rejected by the Commission on the grounds that Thorsen “does not posses the five years of managerial experience required for the [Director] position.”

The Commission's rationale:

The defined duties of the title “Assistant to the Director of Probation” do not include the defined managerial experience set forth in the training and experience requirements of the title “Director of Probation”.

State Supreme Court Justice Bruce D. Alpert decided that the Commission's position “is untenable in light of its failure to challenge the 1997 upgrade of [Thorsen's] position as Assistant to the Director of Probation which delineated the position's attendant defined duties and justification.”

By failing to challenge the upgrade, said the court, the Commission “tacitly recognized that the position of Assistant to the Director of Probation encompassed the areas of law enforcement management, administration, liaison planning and research in the administration of the Probation Department. Accordingly, it cannot now, in good faith, argue that [Thorsen's] managerial responsibilities and experience as set forth hereinabove were accomplished “out-of-title”, as that term is defined in Civil Service Law Section 61.2.”

Justice Alpert ruled that the Commission's determination that Thorsen was not qualified for appointment to the position of Director of Probation due to a purported lack of sufficient managerial experience was “without justification, factual predicate or sound basis in reason, and, thus, was both arbitrary and capricious.” The remedy: Justice Alpert directed the Commission to process Thorsen's application for appointment to the Director position.

Performing light duty may impact on eligibility for disability retirement

Performing light duty may impact on eligibility for disability retirement
Perez-Dunham v McCall, 279 AD2d 884

In June 1996, police officer Magarita Perez-Dunham applied for performance of duty disability retirement benefits based upon an injury sustained in November 1993.

The application was rejected on the ground that although Perez-Dunham's disability prevented her from performing the full duties of a police officer, she was not disabled from performing the light duties that she had been performing for more than two years prior to her application.

The Appellate Division pointed out that in the event an applicant for disability retirement benefits is serving in a light-duty assignment, the application must be determined on the basis of the applicant's ability to perform a full-duty assignment unless the applicant has served in a light-duty assignment for two years or more prior to the date on which the application was filed.

If the applicant has performed light duty for two or more years, his or her application must be reviewed on the basis of his or her ability to perform the light-duty assignment.

The Appellate Division ruled that the testimony of the police surgeon that Perez-Dunham was assigned to light duty following her injury provided substantial evidence to support the conclusion that she performed light duties for more than two years prior to her filing her application. While the surgeon conceded that petitioner might have returned to full duty briefly, this was consistent with Perez-Dunham testimony that before being assigned to light duty, she returned to full duty for about six months.

Finding that Perez-Dunham had been assigned and performed light duty for two or more years, the Appellate Division dismissed her appeal from the Comptroller's determination.

Enforcing a PERB order

Enforcing a PERB order
PERB v Westchester County, 280 A.D.2d 849

The Westchester County decision addresses a somewhat rare situation -- a party's claim that it is unable to comply with a PERB order on the grounds of impossibility.

The Public Employment Relations Board [PERB] concluded that Westchester County committed an improper employer practice -- subcontracting nursing services to a private entity. PERB ordered “the unlawfully terminated nurses be restored to the status quo ante and paid lost compensation.”

Westchester did not appeal PERB's ruling within the 30-day limitations period set out in Section 213 of the Civil Service Law. Neither did it take any action to comply with PERB's order. PERB eventually initiated legal action against Westchester seeking a court order enforcing its order.

Westchester asked the court to dismiss PERB's petition, contending that PERB's order was unenforceable “because the facility employing the nurses was removed from [Westchester's] control and replaced by a public benefit corporation.”

The Appellate Division sustained a State Supreme Court's dismissal of Westchester's motion, pointing out that in cases where PERB initiates an enforcement action after the expiration of the 30-day window for review of the merits of a final agency determination, courts are not at liberty to consider “either the determinative or the remedial provisions of the PERB orders.”

Thus, said the court, a party's ability to comply with a PERB order is irrelevant in an enforcement proceeding.

According to the Appellate Division's decision, a party's ability to comply with a PERB order is immaterial to a court's consideration of an enforcement petition, as the facts surrounding a party's failure or inability to comply with the order is a subject to be addressed not during the enforcement proceeding, but during a subsequent contempt proceeding, should one be initiated.