Establishing positions in the public service

Establishing positions in the public service

Charleson v City of Long Beach, 297 AD2d 777

Establishing a new classified service position in the public service of a municipality is typically a fairly routine operation: the civil service commission having jurisdiction reviews the municipality's application and then classifies the position based on its duties as described in the application.*

Once classified, the appointing authority provides for its establishment in accordance with the controlling budgetary procedures.

The Charleson case concerned a variation of this: the establishment of a municipal position claimed to be a "public office." However, although public officers are public employees, not all public employees are public officers.

Carl R. Charleson and his co-plaintiffs filed a "taxpayers' action pursuant to General Municipal Law Section 51." They sought a court order declaring the positions of Director of Operations, Special Projects Manager, and Executive Assistant to the Director of Operations established in the City of Long Beach unlawfully established public offices. The three positions were included in budgets approved by the City Council.

Charleson contended that all three positions had been unlawfully created and thus the appointments of the incumbents, Eugene C. Cammarato, Robert Piazza, and Michelle Meiselman, respectively, to those positions were illegal. According to Charleson, "given the nature of the positions at issue, including the powers, duties, and authority thereunder, and the titles and salaries, the positions are de facto public or city offices that can only be lawfully created by legislative enactment" not merely by inclusion of such positions in a budget.

The Appellate Division's decision notes that "[t]he challenged positions ... are not among the lawfully created offices set forth in City Charter, Article 2, Section 11, which positions may be filled by appointment by the City Manager."

The City argued that the challenged positions were not de facto public or city offices and that the powers and authority exercised by the incumbents are not commensurate with those of public or city offices that may only be lawfully created by legislative enactment. Rather, said the City, the positions were "duly-created civil service positions that require no legislative action and that they were filled by the City Manager in a proper exercise of his general powers under the City Charter, rather than Article 2, Section 11 of the Charter."

After observing that Charleson’s and the City's arguments raised triable issues of fact, the court noted that aspects of the litigation was moot because "the disputed positions of Special Projects Manager and Executive Assistant to the Director of Operations no longer exist ... that Piazza and Meiselman have been reassigned to existing civil service positions, and that the position of Director of Operations has since been duly established as an appointive office by the City Council."

* A municipal position in the classified service is automatically in the competitive class unless placed in a different jurisdictional classification by law or by the State Civil Service Commission pursuant to the procedures set out in Section 20 of the Civil Service Law.

Public Employee Federation members to vote on new proposed collective bargaining agreement

Public Employee Federation members to vote on new proposed collective bargaining agreement

Sources: The Public Employees Federation; Office of the Governor

The Executive Board of the New York State Public Employees Federation (PEF) on October 17, 2011 voted to send a revised contract agreement with the State to the full union membership for ratification.

Ballots for ratification will be mailed immediately to union members. Votes must be returned by Thursday, November 3 for counting that day by the American Arbitration Association in Manhattan.
PEF President Ken Brynien said:

“Today’s vote gives hope to the 3,496 members who face losing their jobs if the contract is not approved. The revised agreement balances the needs of all of our members and I am strongly encouraging our membership to ratify the new agreement to save the jobs of their co-workers while preserving the level of service to taxpayers"

In a press release dated October 16, 2011, Governor Cuomo said of this new, proposed agreement: "The Administration has worked very hard with the PEF leadership to make modifications which the leadership believes will address the concerns of the membership. The contract modifications are revenue neutral to the state and achieve the same level of savings as the first proposal.”

A summary of the key provisions of the tentative agreement is available on the Internet at:

http://www.pef.org/storage/files/hoa.pdf

The entire agreement, 229 pages of text, is posted on the Internet at:

http://www.pef.org/storage/files/tent_contract.pdf

Termination recommended after employee refused to answer job related questions after being granted “use immunity”

Termination recommended after employee refused to answer job related questions after being granted “use immunity”

New York City Department of Corrections v  Lasonde, OATH Index #2526/11

A New York City correction officer, Chandra Lasonde, was served with disciplinary charges pursuant to Civil Service Law §75 alleging that she engaged in misconduct when she refused to answer questions during an interview conducted under Mayor’s Executive Order Number 16 (MEO-16).

MEO-16 section 4(b) provides, in relevant part, that designated City officials may require any officer or employee of the City to answer questions concerning any matter related to the performance of his or her official duties … after first being advised that neither their statements nor any information or evidence derived therefrom will be used against them in a subsequent criminal prosecution other than for perjury or contempt arising from such testimony. The refusal of an officer or employee to answer questions on the condition described in this paragraph shall constitute cause for removal from office or employment or other appropriate penalty.

Lasonde denied engaging in misconduct and asserted that she had constitutionally protected rights not to answer questions that did not involve her official duties as a correction officer notwithstanding having been granted “use immunity” which meant that her statements could be used against her were she subsequently prosecuted for a crime. 

OATH Administrative Law Judge Alessandra F. Zorgniotti found that Lasonde had engaged in misconduct as charged and recommend that her employment be terminated for refusing to answer questions at an official interview.

During the investigation, claiming 5^th Amendment protection, the correction officer, refused to answer questions about her union activities dispite being granted “use immunity” which meant that her statements could be used were she to be prosecuted for a crime.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that Lasonde was clearly informed of her obligation to answer under Mayor’s Executive Order No. 16, and the consequences should she refuse to do so. Finding that Lasonde had no legitimate basis for refusing to answer questions after immunity was granted. The Administrative Law Judge  recommended that Lasonde be terminated from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2526.pdf

The issue of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals in Matt v LaRocca, 71 NY2d. In the Matt case the Court of Appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with with is terminated transactional or use immunity." Other cases addressing use immunity include Gardner v Broderick, 392 US 273 and People v Corrigan, 80 NY2d 326. These ruling discuss the parameters of use immunity in connection with compelling a public officer or employee to answer questions concerning his or her performance of official duties.

In the event an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent any false answer the individual might give the investigator from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

Further, the Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

Statutory rights to due process in a disciplinary action

Statutory rights to due process in a disciplinary action  

Matter of Soleyn v New York City Department of Educ., 2011 NY Slip Op 32604(U), Supreme Court, New York County, Docket Number: 106290/10, Judge: Emily Jane Goodman. Not selected for publications in the Official Reports.

Although Earl Soleyn, a teacher employed by the New York City Department of Education, was informed of his right to a disciplinary hearing, and participated in the proceeding with counsel, he challenged the process claiming that he was denied due process because disciplinary charges were not initially reviewed by the governing school board for a finding of probable cause. Instead, Soleyn contended, his school principal made the finding of probable cause.

Soleyn also alleged that his right to due process was violated because the disciplinary action was heard by a single arbitrator not withstanding his request that a three-member panel hear the charges filed against him.

As to Solon’s claim that the school board, rather than his principal, was required to make a finding of probable case, Judge Goodman said that Education Law §3020-a (1), in pertinent part, provides that "[a111 charges against a person enjoying the benefits of tenure . . . shall be in writing and filed with the clerk or secretary of the school district or employing board . . . after receipt of charges, the employing board, in executive session, shall determine by a vote of a majority of all the members of such board, whether probable cause exits to bring a disciplinary proceeding against an employee pursuant to this section.

Here, however, the Department contended that due process was not violated because on August 16, 2007, then-Chancellor Joel Klein delegated, pursuant to Education Law §2590h(19), the power to initiate and resolve disciplinary charges against teaching and supervisory staff members who have completed probation, to all high school principals.

Although Soleyn argued that such delegation would mean that the accuser makes the finding of probable cause, Judge Goodman disagreed and held that Chancellor Klein’s delegation did not constitute a violation of due process, where, as here, the ultimate fact finder is a neutral decision maker.

Addressing Soleyn’s claim that his due process rights were violated because the matter was heard by a single arbitrator, instead of a three-member panel, Judge Goodman said that the Department had rebutted this argument by citing Article 23 Section G of the DOE-UFT Collective Bargaining Agreement, which provides for a single arbitrator. 

Probably the seminal case addressing the impact of a collective bargaining agreement’s establishing alternate disciplinary procedures to those set out in law is Matter of Antinore v State of New York, 40 NY2d 6. Here the Court of Appeals ruled that a union could bargain away the employee’s statutory disciplinary rights if the alternate procedure so negotiated provided constitutional due process protections equivalent to those available under the statute.

The Soleyn decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2011/2011_32604.pdf

EEOC claims tempered by arbitration award

EEOC claims tempered by arbitration award

Collins v NYC Transit Authority, CA2, 305 F.3d 113

An employee is terminated from his or her position. The dismissal is sustained by an independent tribunal such as an arbitrator. The employee claims that he or she was really terminated by the employer in retaliation for his or her filing a compliant alleging that the employer violated his or her civil rights. Such an allegation, however, is difficult to prove if the employee's dismissal "for cause" has been upheld by an independent arbitrator. The facts and decision in Collins' case demonstrates this proposition.

New York City Transit Authority [NYCTA] Power Maintainer's Helper James Collins, an African American, was disciplined for insubordination after he refused to drive a truck he alleged had faulty brakes.

Collins subsequently filed a complaint with the New York State Division of Human Rights [SDHR] alleging that he was subjected to actions that he characterized as constituting unlawful discrimination such as his supervisor telling him that he could not attend a meeting of his work crew. After Collins filed this complaint with the Division, he contended that his supervisor accused him of using NYCTA equipment -- a vacuum cleaner -- for purposes unrelated to his work and that the supervisor used racial slurs against him when confronting him with this accusation.

In September of 1988, Collins was placed on an involuntary medical leave without pay as a result of his having "failed" a hearing test. Collins demanded, and was given, a retest of his hearing by a different physician. As a result of this second test, Collins was reinstated to his position. Claiming that he was placed on involuntarily leave because of his race, causing him to lose a significant amount of salary; Collins filed another discrimination claim with the SDHR/EEOC.

Collins' relationship with both his co-workers and his supervisors continued to deteriorate following his return from this leave. In the summer of 1990, Collins was disciplined following a dispute with a co-worker. In this instance, however, the arbitration board ruled there was not enough evidence to substantiate the claim and thus discipline was not warranted.

A new supervisor was assigned to Collins' unit. Collins' new supervisor reported three incidents of alleged misconduct and insubordination to the Superintendent of the Electrical Department. The supervisor also claimed that Collins had threatened him. The Superintendent, concluding that there was not sufficient evidence to support initiating disciplinary action against Collins, suggested that Collins be transferred to another unit. Collins said that he viewed this recommendation as retaliation.

In June of 1991, Collins was involved in another incident with his supervisor, which culminated with Collins allegedly punching the supervisor. As a result, NYCTA terminated Collins. Collins then filed a disciplinary grievance, which was ultimately considered by an arbitration panel in accordance with the terms set out in the Collective Bargaining Agreement. The arbitration panel sustained Collins' termination in a decision dated October 22, 1991.

After receiving a copy of the panel's decision, Collins filed yet another complaint with SDHR. SDHR transmitted the complaint to the Equal Employment Opportunity Commission [EEOC] for processing. After receiving a "right to sue" letter from EEOC in 1993, Collins sued NYCTA claiming that the Transit Authority, among other violations of law:

1. Discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964; and

2. Retaliated against him in violation of the 1st Amendment of the Constitution of the United States.

A federal district court judge granted the Authority's motion for summary judgment dismissing Collins' discrimination complaint and he appealed. The 2nd Circuit Court of Appeals sustained the lower court's ruling, observing that although a plaintiff's burden of demonstrating a prima facie case is minimal, Collins failed to satisfy even this minimal standard.*

The Second Circuit ruled that Collins failed to establish that his termination was a result of either retaliation or discrimination. Thus, said the court, he did not establish a prima facie case of unlawful discrimination.

In particular, the court found it significant that the final decision to terminate Collins was based on substantial evidence after a hearing before an independent board of arbitrators. The court noted that the arbitration panel conducted three days of hearings and issued a 14-page decision. The Circuit Court also noted that the board of arbitrators was a creature of a Collective Bargaining Agreement and was "undisputedly independent, neutral, and unbiased."

More often than not, the most difficult aspect of demonstrating a prima facie case is establishing the causal link between the protected activity and the adverse employment decision. In this case the Court apparently relied on the fact that Collins' dismissal was sustained after being considered by an independent arbitration panel after a hearing.

The Court noted that the fact that an arbitration panel finds an individual guilty of misconduct and sustains his or her termination does not in and of itself preclude the possibility of the individual proving a prima facie case. The fact that an independent body found "just cause" for dismissing the individual just makes the task more difficult.

In such a situation, said the court, the individual must present strong evidence to support his or her allegations of unlawful discrimination. Such strong evidence could include demonstrating that the arbitration process itself was somehow tainted. No such proof was presented by Collins.

This decision suggests that if an employee alleges he or she was terminated in violation of Title VII and the termination was sustained by an independent arbitrator, it may be advisable for the individual to first attempt to vacate the arbitrator's award before attempting to demonstrate a prima facie case of unlawful discrimination.

* To establish a prima facie case, the individual must show that (1) he or she was engaged in protected activity; (2) that the employer was aware of the activity; (3) that he or she suffered an adverse employment decision; and (4) that there was a causal link between the protected activity and the adverse employment decision.

Conflicting expert testimony

Conflicting expert testimony

Irish v McCall, 297 AD2d 895
Myers v McCall, 2 AD3d 1250, 1251 [2003], lv denied 2 NY3d 702 [2004]
Washington v McCall, 297 AD2d 901

If the decision maker credits the testimony of one expert over that of another in an administrative proceeding and the decision hinges on that expert's testimony, does the losing party have any recourse if it disagrees with the decision maker's determination regarding the credibility of the experts? In a word, YES! But the burden of proof to be satisfied by the party challenging the ruling is an extremely difficult one to meet.

For example, insofar as challenges to the Comptroller's reliance on the opinion of the New York State Employees' Retirement System's [ERS] medical expert is concerned, the Appellate Division had held that unless the "expert's opinion is so lacking in foundation or rationality as to preclude [the Comptroller] from exercising the authority to evaluate conflicting medical opinions," the court has no basis to disturb the Comptroller's decision. The court cited Harper v McCall, 277 AD2d 589, as its authority for this view.

The Comptroller's determination as to the creditability of the testimony of medical experts was the subject of three appeals recently considered by the Appellate Division, Third Department.

All three decisions challenged the Comptroller's sustaining rulings made by ERS based on the opinions of ERS's medical experts rather than the testimony of the medical experts produced by the applicants.

In each of the cases ERS had rejected applications for disability retirement benefits and the Comptroller had denied the applicants' appeals from those rulings.

In all three cases (Irish v McCall, Myers v McCall, and Washington v McCall), there was no factual dispute regarding the existence of injury; rather, the dispute in each case concerned whether or not the respective injuries sustained were so debilitating as to permanently disable the employee from performing his or her duties.

Each employee presented expert medical expert testimony by a physician at the administrative hearing in which, in all three cases, the medical expert concluded that the employee was permanently incapacitated from working. ERS, on the other hand, produced its own expert medical expert in each of the hearings. The thrust of the testimony of ERS's expert in each case was the employee-applicant was capable of performing the duties of the position.

While all three disability applicants argued there wasn't substantial evidence in the record to justify the rejection of their respective disability retirement applications, their underlying argument was that the Court should consider the testimony of their respective experts and weight it against the medical expert's testimony relied upon by the Comptroller.

The Court rejected this approach and stated that the relevant statute is very clear concerning determining the existence of a disability for the purposed of approving an application for a disability retirement allowance.

Citing Section 605(3c) of the Retirement and Social Security Law, the Appellate Division said that:

If the retirement system determines that the member is physically or mentally incapacitated for the performance of gainful employment, and that he was so incapacitated at the time he ceased his performance of duties and ought to be retired for disability, he shall be so retired.

Here ERS denied the applications submitted by the three workers based on the testimony of its medical expert. The hearing officer sustained ERS's determination and the Comptroller adopted the findings of the hearing officer.

Courts, said the Appellate Division, have consistently ruled that they will defer to a hearing officer's determination with respect to credibility issues. The Third Department said it was not persuaded as to the need to change that practice and upheld the Comptroller's denial of benefits in all three cases.

The test applied by the courts in such situations:

Where there is an articulated, rational and fact-based medical opinion offered, inconsistencies or other alleged deficiencies in the expert's testimony present questions of credibility for the administrative fact finder, rather than the courts, to resolve.

In all probability the same standard would be applied in cases challenging the appointing authority's reliance on the opinion of its medical expert in situations involving disability claims the involving Sections 71, 72 and 73 of the Civil Service Law or Sections 207-a and 207-c of the General Municipal Law.

Community of interest for the purposes of collective bargaining

Community of interest for the purposes of collective bargaining
Local 282 and Regional Transit Service, Inc., 35 PERB 3022

Individual, although paid at a supervisory pay level and substituted for the supervisor when the supervisor was absent, was determined to share a community of interest with unit employees and thus could not be excluded from the negotiating unit without evidence that the individual performed supervisory duties such as assigning work and overtime to employees, evaluating employees, approving leave requests, disciplining workers, or other supervisory duties.