Loss of a required license or permit to perform the duties of the position

Loss of a required license or permit to perform the duties of the position

2014 NY Slip Op 50585(U),  Supreme Court, Dutchess County, Judge James D. Pagones (Not selected for publication in the Official Reports.)

In this Article 78 action a former employee of a State agency [Petitioner] challenged his summary dismissal from his position on the grounds that he did not possess a valid driver’s license to operate a motor vehicle in New York State. Petitioner asked Supreme Court to (1) annulling the Employer’s terminating him from his position, (2) directing his reinstatement to his position with back pay, benefits, service time, seniority and other fringe benefits; and (3) award him the costs and disbursements of this proceeding, together with reasonable attorney's fees.

Petitioner’s employer had notified Petitioner that his employment would be terminated because he did not meet the "minimum qualifications" of his position as he had not secured and/or maintained a valid New York State driver's license.” Alleging that the Employer’s determination was arbitrary, capricious and made in bad faith, Petitioner argued that:

(1) he should have been afforded the protections mandated by Civil Service Law Section 75, and as outlined in Article 33 of the Collective Agreements between the State of New York and the New York State Civil Service Employees Association;

(2) while minimum qualifications of employment may not rise to acts of misconduct that would invoke disciplinary procedures mandated by the Civil Service Law, a driver's license was not a minimum qualification at the time of his appointment; and

(3) the class specification for his position does not clearly identify a valid driver's license as a minimum qualification.

Judge Pagones said that it is well settled that the failure to maintain a minimum qualification for employment is not an act of misconduct nor one related to job performance that would invoke the disciplinary procedures mandated by Civil Service Law §75, citing Matter of NYS Office of Children and Family Services v Lanterman, 14 NY3d 275. 

Courts have viewed employees who lack licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Common examples include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position.*

Thus, explained the court, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it" and dismissed Petitioner’s action.

* See, for example: Fowler v City of Saratoga Springs, 215 A.D.2d 819 (City Engineer lawfully dismissed for failure to obtain Professional Engineer’s license by a specified date); Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspension of teachers was lawful because their teaching licenses had expired); and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator was not discriminated against when a private employer terminated him after his driver’s license was suspended)

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_50585.htm
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Probationary employee improperly terminated entitled to back salary

Probationary employee improperly terminated entitled to back salary

92 AD2d 259

A probationary teacher was found to have been “improperly terminated” by her school principal. One year later the Chancellor of the Board of Education, City of New York, reinstated the educator to her former position. 

As the Court of Appeals noted in Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, where there has been an unlawful removal from service, back pay is authorized upon reinstatement.
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Goggle Statistics – March 2014

Goggle Statistics – March 2014

Goggle Statisticsreports the following have been the most frequently accessed NYPPL items as of March 31, 2014.

Essentials of the “Pickering Balancing Test”             2721 “hits”

The legal distinction between domicile and residence            1655 “hits”

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively            1234 “hits”

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct                   1070 “hits”

Two different complaints; two different forums            970 “hits”
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New York State Comptroller Thomas P. DiNapoli offers proposal to encourage better local government budgeting practices

New York State Comptroller Thomas P. DiNapoli offers proposal to encourage better local government budgeting practices

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli has introduced a proposed bill* aimed at helping local governments across New York improve their long-term budget planning. The bill would provide reimbursement from the state to municipalities for costs incurred for hiring financial advisors to assist in the development of multi-year budget plans.

Key elements of the proposed legislation include providing for counties, cities, towns and villages identified as fiscally stressed to be reimbursed by the state’s Financial Restructuring Board for Local Governments for all or part of the costs associated with long-term budget planning and multi-year financial planning to enable these entities to develop revenue and expenditure trends, establish long-term priorities and goals, and take into consideration the impact of near-term budgeting decisions on future fiscal years.

* Comptroller’s Program Bill #35. The proposed legislation is part of the Comptroller’s fiscal stress initiative that includes the creation of a Fiscal Stress Monitoring System for local governments. The system, implemented in 2013, uses financial indicators that include year-end fund balance, cash position and patterns of operating deficits to create an overall fiscal stress score which classifies whether a municipality is in “significant fiscal stress,” in “moderate fiscal stress,” is “susceptible to fiscal stress,” or “no designation.” As of April 22, 2014, DiNapoli’s monitoring system has identified a total of 142 municipalities in some level of fiscal stress. This includes 16 counties, 18 towns, five cities, 16 villages and 87 school districts.

The Comptroller’s proposal is posted on the Internet at:
http://www.osc.state.ny.us/legislation/2013-14/oscb35.htm
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The Warren M. Anderson Breakfast Series Seminar’s Campaign Finance session is scheduled for April 29, 2014

The Warren M. Anderson Breakfast Series Seminar’s Campaign Finance session is scheduled for April 29, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on April 29 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

Richard Brodsky and John Faso will discuss Campaign Finance.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Applying for accidental disability retirement and performance of duty disability retirement benefits

Applying for accidental disability retirement and performance of duty disability retirement benefits

2014 NY Slip Op 02120, Appellate Division, Third Department

The Appellate, considering the application of a correction officer [Plaintiff] to review a determination of New York Employees’ Retirement System that denied her applications for accidental disability and performance of duty disability retirement benefits, dismissed the action on the grounds that Petitioner’s application for such benefits was untimely filed.

Petitioner was injured when she slipped on ice while on her way to the building where her locker was located in order to change out of her uniform. Thereafter, she returned to work for only one day and received her last payroll check in July 2009. Petitioner was then placed on unpaid approved medical leave of absence and received workers' compensation benefits.

In January 2011, Petitioner applied for accidental disability retirement benefits under Retirement and Social Security Law §507-a, alleging that she was permanently incapacitated as a result of the injuries she sustained when she slipped on ice some two years earlier. In the alternative, Plaintiff filed an application for performance of duty disability benefits pursuant to §507-b of the Retirement and Social Security Law.

In February 2011, Petitioner was terminated and issued a check representing her accrued vacation pay. In the alternative, Plaintiff filed an application for performance of duty disability benefits. Both applications were denied and petitioner timely requested a hearing and redetermination.

Addressing the issue of the timeliness of Petitioner’s applications for accidental disability retirement benefits the Appellate Division explained that §507-a(b)(2) specifically provides that such an application "must be filed within three months from the last date the member was being paid on the payroll or within twelve months of the last date he [or she] was being paid on the payroll provided he [or she] was on a leave of absence for medical reasons without pay during such twelve month period provided the member was disabled at the time he [or she] ceased being paid."

Noting that Petitioner did not file her application for accidental disability retirement benefits within these time limits, the court ruled that neither her receipt of workers' compensation benefits nor the check she received for accrued vacation time qualifies as payments "on the payroll" for purposes of the statute, citing Matter of Schwartz v McCall, 300 AD2d 887.

Accordingly, the Appellate Division held that the Retirement Systems determination “that [Petitioner's] application [for accidental disability retirement benefits] was untimely is rational and supported by substantial evidence."

Turning to the denial of Petitioner's §507-b application for performance of duty disability retirement benefits, the court conclude that there was substantial evidence supporting Retirement System's determination as both Petitioner and her counsel conceded at the hearing that the January 2009 incident was not caused by an act of an inmate and no proof that would support such a finding was produced at the hearing. Thus, said the Appellate Division, Petitioner's current claim that her fall must have been caused by negligent maintenance on the part of an inmate is speculative and lacks support in the record.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2014/2014_02120.htm

Temporary appointments

Temporary appointments

130 A.D.2d 72, affirmed 72 N.Y.2d 986

§64.3 of the Civil Service Law provides that “Notwithstanding the provisions of subdivisions one and two of this section, the civil service department or municipal commission having jurisdiction may authorize a temporary appointment, without examination, when the person appointed will render professional, scientific, technical or other expert services (1) on an occasional basis or (2) on a full-time or regular part-time basis in a temporary position established to conduct a special study or project for a period not exceeding eighteen months. Such appointment may be authorized only in a case where, because of the nature of the services to be rendered and the temporary or occasional character of such services, it would not be practicable to hold an examination of any kind.”

However, §64.2, which provides for “Temporary appointments from eligible lists,” states that ”A temporary appointment for a period not exceeding three months may be made without regard to existing eligible lists. A temporary appointment for a period exceeding three months but not exceeding six months may be by the selection of a person from an appropriate eligible list, if available, without regard to the relative standing of such person on such list. Any further temporary appointment beyond such six month period or any temporary appointment originally made for a period exceeding six months shall be made by the selection of an appointee from among those graded highest on an appropriate eligible list, if available.”

When Suffolk County dismissed its consulting firm supervising the construction of a sewer project, the State and Federal governments threatened to cut off funds unless the County provided for the required supervision of the project.

Relying on §64.3 of the Civil Service Law, which provides for temporary appointments without examination, the County hired an inspection staff without making such appointments from available eligible lists. The Court found that such lists could have been used for the appointments.

Holding that exceptions to the general civil service policy of filling vacancies in the classified service from appropriate eligible lists is to be strictly construed, the court declared the §64.3 appointments unlawful.

Although §64.3 permits appointments without the use of eligible lists, such appointments are authorized only in exceptional cases. Significantly, the provision requires that it would not be practical to hold an examination of any kind to fill the vacancy. The court's finding that suitable eligible lists were already available proved to be a critical consideration as it obviated any argument that it would not be practical to hold such tests.
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