Placing an employee on disability leave pursuant to Civil Service Law Section 72

Placing an employee on disability leave pursuant to Civil Service Law Section 72

Jimenez-Reyez' v State of New York, 2018 NY Slip Op 05649, Appellate Division, Third Department

§72 of the Civil Service Law provides for the placement of an employee unable to perform the duties of his or her position as the result on an injury or disease that is not "job related" on leave without pay.* The employee, however, may elect to use his or her leave credits to remain on the payroll until such leave credits are exhausted.

The basics with respect to placing an employee on disability leave pursuant to §72, except where the appointing authority determines that the individual's continued presence at the job site constitutes a danger to the individual or to his or her coworkers or agency clients within the meaning of §72.5 of the Civil Service Law, are as follows:

1. An employee may not be place on §72 leave until employee has been examined by a physician designated by the State Department of Civil Service or a municipal commission having jurisdiction;

2. In the event the physician certifies that the individual is unable to perform the duties of his or her position and the appointing authority decides to place the individual on §72 leave, the employee must be notified of this decision and of his or her right to appeal the determination before being placed on such leave and except as permitted by Section 72.5, the appointing authority may not place the individual on Section 72 leave until a final determination is made by the appointing authority.*

3. An individual placed on Section 72 leave has the right to appeal the appointing officer's "final determination" placing him or her of such leave to the "civil service commission having jurisdiction."

In contrast, in the event the appointing authority deems the employee's continued presence at the job site a danger to the individual or to his or her coworkers or agency clients, the employee may be placed on disability leave immediately and involuntarily pursuant to §72.5 of the Civil Service Law.

Johnny Jimenez-Reyez [Petitioner] was employed as a police officer by the State University of New York Downstate Medical Center [Downstate]. Petitioner was placed on immediate involuntary medical leave pursuant to §72.5 of the Civil Service Law after psychological testing conducted by an emergency health services physician determined that he was mentally unfit to perform the duties of his position at that time.

Petitioner's employment was terminated** one year later based on the written decision of a Hearing Officer who concluded that Petitioner had been properly placed on leave of absence involuntarily by the appointing authority because he was mentally unfit at that time he was placed on such leave pursuant to §72.5. The Hearing Officer also recommended that Petitioner be terminated from his position.

In an earlier proceeding initiated by Petitioner commenced after his employment was terminated by the Appointing Authority and his request for a post-termination hearing was denied, the Appellate Division "confirmed the determination placing [Petitioner] on involuntary leave, annulled the determination terminating his employment and remitted the matter to Downstate to conduct a post-termination hearing."

The "post-termination" Hearing Officer found that Petitioner failed to prove that he was mentally fit to return to work on the date of his termination and Downstate notified Petitioner that his employment was terminated. Petitioner thereupon commenced a second Article 78 proceeding seeking a court order annulling Downstate's determination to terminate his employment and reinstating him to his position with back pay and benefits.

Rejecting Petitioner's argument that the Hearing Officer incorrectly placed the burden of proof on Petitioner to demonstrate that he was mentally fit to return to work on the date of termination, the Appellate Division explained that the Civil Service Law requires that an employee who seeks reinstatement after being placed on leave pursuant to §72.1 or §72.5 to first apply for a medical examination to be conducted by a medical officer selected by the responsible civil service commission or personnel officer. Further, said the court, an employee absent on §72 for one year or longer may be terminated from his or her position in accordance with the provisions of Civil Service Law §72.4 of the Civil Service Law.***

In the event the individual is terminated, §73 of the Civil Service Law provides that the employee can be restored to employment only upon a finding that he or she is medically fit to perform the duties of the position and the individual must apply for such a medical examination within one year of the termination of his or her disability.

In this instance, said the Appellate Division, Petitioner failed to comply with the statutory requirement of applying for a medical examination to test his fitness for reinstatement nor did he submit proof at the post-termination hearing that his mental condition had sufficiently improved prior to the effective date of his termination to allow him to perform the duties of his position.

Finding that the record of the post-termination hearing was substantively the same record on which the Appellate Division based its prior determination that Petitioner was properly placed on leave because he was mentally unfit to perform the duties of his position, the court ruled that Petitioner's failure to produce evidence that he had become mentally fit to perform the duties of his position as of the effective date of his termination required the confirmation of the appointing authority decision to terminate his employment pursuant to §73 of the Civil Service Law.

* An employee suffering an "occupational injury or disease" as defined in New York State's Workers' Compensation Law may be placed on disability leave pursuant to §71 of the Civil Service Law.

** Typically the appointing authority's "final determination" placing an employee on leave pursuant to §72 is preceded by a hearing conducted by an "independent hearing officer" agreed upon by the employee and the appointing authority or as may be required pursuant to the terms and conditions of collective bargaining agreement. With respect to employees of the City of New York, such a hearing may be conducted by a hearing officer employed by the New York City Office of Administrative Trials and Hearings.

*** §72.4 of the Civil Service Law provides as follows: 4. If an employee placed on leave pursuant to this section is not reinstated within one year after the date of commencement of such leave, his or her employment status may be terminated in accordance with the provisions of section seventy-three of this article.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05649.htm

Determining if an employer-employee relationship existed for the purposes of determining providing unemployment insurance coverage to an individual

Determining if an employer-employee relationship existed for the purposes of determining providing unemployment insurance coverage to an individual

Matter of New York State Sheriffs' Assn., Inc. (Commissioner of Labor), 2018 NY Slip Op 05644, Appellate Division, Third Department

New York State Sheriffs' Association, Inc. [Association] is a nonprofit trade organization that represents, provides training and offers legal resources for elected sheriffs in New York State. The Association also advocates on behalf New York State Sheriffs.

The Department of Labor issued an initial "audit determination" that assessed the Association for additional unemployment insurance contributions on behalf of two individuals who provided service to the Association; one in marketing and communication services, and a second who provided bookkeeping services. Following the affirmation of that finding by an Administrative Law Judge, which was ultimately sustained by the Unemployment Insurance Appeals Board, the Association appealed the Board's determination.

The Appellate Division affirmed the Board's determination explaining "[w]hether an employer-employee relationship exists is a question of fact, to be decided on the basis of evidence from which it can be found that the alleged employer exercises control over the results produced . . . or the means used to achieve the results." Further, said the court, "... no one factor is determinative and the determination of the . . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion."

Here, said the court, both individuals were represented on the Association's website as staff members, and had email addresses and contact telephone numbers at the Association. They both were provided with office space, equipment and supplies, parking spots and the access code to enter the Association's offices.

With respect to the individual performing marketing and communication services, the decision notes that "she submitted a resume and was hired by the executive director of the Association, without a contract, to write the Association's weekly newsletter, maintain its website and social media information, and enlist vendors for the Association's biannual conference" among other duties. The Associationg provided her with business cards identifying her as the Association's marketing and communications manager and negotiated her rate of pay, as well as paid vacation. It paid her "in her personal capacity" and provided her with additional "employee benefits."

The individual providing bookkeeping service had been "the Association's bookkeeper for over 10 years," had been hired after submitting a resume in response to an advertisement by the Association, performed typical bookkeeper duties such as billing customers, paying bills, balanced accounts, wrote checks and processed the time records for the payroll. Although the bookkeeper "had a bookkeeping business," the Appellate Division noted that "he is no longer actively pursuing clients, no longer submits a business invoice to the Association for his services and is paid by the hour, biweekly through direct deposit to his personal account."

This, said the court, provides substantial evidence demonstrating that the Association retained overall control over important aspects of the services performed by these two workers "that they are employees, and the Department properly assessed the Association for additional unemployment insurance contributions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05644.htm

Positive drug test results rebutted as "false positive" by employee's expert witness

Positive drug test results rebutted as "false positive" by employee's expert witness

Office of Administrative Trials and Hearings, OATH Index No. 1717/18

A New York City correction officer who tested positive for morphine and codeine denied that he had used illegal drugs and claimed that the test result was a "false positive."

OATH Administrative Law Judge John B. Spooner found the officer's witness had rebutted the employer's allegation that the employee had tested positive as the result of having ingested unlawful drugs and he recommended dismissal of the charge. 

The ALJ credited the officer’s testimony that he had eaten bagels that contained poppy seed prior to the drug test. 

Judge Spooner found the qualifications of the officer’s expert, a toxicologist, were superior to those of petitioner’s expert, the lab manager. The toxicologist had testified that the relatively low levels of the drugs found in the officer’s urine could only be explained by eating poppy seed bagels because the quantities were at non-therapeutic doses and the relative proportions were inconsistent with heroin or morphine or codeine ingestion.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1717.pdf

SUNY student entititle to administrative due process in a disciplinary hearing involving allegations of violations of the student code of conduct

SUNY students entitled to administrative due process in a disciplinary hearing involving allegations of violations of a student code of conduct

Matter of Agudio v State Univ. of N.Y., 2018 NY Slip Op 05647, Appellate Division, Third Department

In this appeal to review a determination of the State University of New York at Albany [SUNY] that, following a Student Conduct Board [SCB] hearing, found the student petitioner [Petitioner] guilty of violating SUNY Albany's student code of conduct and expelled the student, the Appellate Division sustained the disciplinary action taken SUNY and the penalty imposed on the Petitioner.

The SCB found that Petitioner had found Petitioner guilty of three of the charges filed against her and imposed the sanction of dismissal from SUNY Albany. Petitioner appealed the SCB determination to an Appeal Board. Ultimately the SCB's determination and penalty was sustained by SUNY Albany's assistant vice-president for student affairs, based on a written recommendation from the Appeal Board.

The court  noted that a "college's determination that a student violated its code of conduct will be upheld if supported by substantial evidence in the record." Further, the decision notes that administrative determinations may be based entirely on hearsay evidence as long as "such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted." Here, said the Appellate Division, "the record contains direct evidence against [Petitioner], as well as hearsay."

Although the disciplinary action before the SCB was held "in absentia" as the result of Petitioners failure to appear at the hearing,* the court ruled that Petitioner's due process rights were not violated by SUNY Albany's student disciplinary procedures as Petitioner was given written notice of the charges prior to a hearing, the names of the witnesses against her, an opportunity to hear and confront evidence against her and to present a defense and to be advised in writing of the factual findings and discipline imposed.

Additionally, citing Matter of Miller v Schwartz, 72 NY2d 869 and other decision, the Appellate Division noted that "there is no general constitutional right to discovery in . . . administrative proceedings."

Finally, under the circumstances of this case, the Appellate Division concluded that the penalty of dismissal from SUNY Albany imposed on Petitioner was not disproportionate to the offense, citing Lampert v State Univ. of N.Y. at Albany, 116 AD3d 1292, leave to appeal denied, 23 NY3d 908.

*The decision notes that Petitioner [1] had an attorney who communicated with SUNY Albany's Community Standards Office prior to the hearing raising certain complaints regarding the procedure and stated that Petitioner would not attend if those complaints were not remedied and [2] that Petitioner could have attended the hearing with her attorney, who could have advised her, but she did not do so.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05647.htm

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Appeal of Nadav Zeimer, Decisions of the Commissioner of Education, Decision No. 17468

The relevant provision of the collective bargaining agreement [COB] required the Chancellor of the New York City Department of Education [Chancellor] issue a written decision within 15 days of the employee's request that the Chancellor review the arbitrator's decision.

When the Chancellor failed to comply with this provision of the COB, Nadav Zeimer [Petitioner] requested that the Commissioner of Education [Commissioner] to “disregard the Chancellor's [d]ecision and consider [Petitioner’s appeal letter] a direct appeal of the Arbitration Decision.”

The Commissioner noted that the Chancellor had issued a determination addressing Petitioner’s December 5, 2017 appeal well after the 15 days required by both the CBA and an earlier order of the Commissioner set out in Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357.*  This, noted the Commissioner, is not the first time that the Chancellor has missed this deadline, citing Appeal of Chou, 55 Ed Dept Rep, Decision No. 16,848.**

In the words of the Commissioner, "The Chancellor’s unexplained delay is particularly egregious because the record shows that NYCDOE filed a proceeding under Article 75 of the Civil Practice Law and Rules (“CPLR”) contesting the arbitrator’s reinstatement of petitioner, and that this proceeding was fully submitted on April 27, 2018, six days prior to the Chancellor’s determination at issue herein, which was required to be timely rendered by the Agreement and by my March 26, 2018 decision and order in Appeal of Zeimer (57 Ed Dept Rep, Decision No. 17,357)."

After admonishing the Chancellor "to review the provisions of the Agreement and its legal obligation to ensure that the Chancellor renders a determination within 15 days of an arbitrator’s determination pursuant to Article VII(J)(4)(a)(6) of the Agreement," the Commissioner, nevertheless, declined to strike the Chancellor’s determination in this case. However, said the Commissioner, in view of tthe "the lack of demonstrated prejudice to [Petitioner] and in the interests of justice," she declined "to strike the Chancellor’s determination in this case." The Chancellor was then "cautioned" that future noncompliance may warrant additional corrective measures.

* The Commissioner took judicial notice that at the time Petitioner initiated Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357, the Chancellor was Carmen Fariña.  The instant Chancellor is Richard A. Carranza.

** Indeed, observed the Commissioner, the Chancellor cited Appeal of Chou "for the proposition that 'the Commissioner previously authorized a decision by the Chancellor despite the delay in its issuance' to support consideration of the Chancellor’s late determination" in the instant appeal. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17468

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Serviss v Incorporated Vil. of Floral Park, 2018 NY Slip Op 05597, Appellate Division, Second Department

§75.1 of the Civil Service Laws generally bars the termination of a tenured officer or employee in the Competitive Class of Classified Service of the State or a political subdivision of the State "except for incompetency or misconduct shown after a hearing upon stated charges."

The Incorporated Village of Floral Park terminated Joseph Serviss without notice or a hearing. Serviss challenged his termination, contending that although the position from which he had been terminated was in the Labor Class of the Classified Service and employees serving in the Labor Class were generally not subject to the provisions of Civil Service Law §75.1, he was entitled to these protections provided by §75.1 because he served an "volunteer fire fighter with the Rocky Point Fire Department since September 30, 2013," citing  §75.1(b).

§75.1(b), in pertinent part, provides that "a person holding a position by permanent appointment or employment   in  the  classified  service  of  the  state  or  in the several cities,   counties, towns, or villages thereof, or in any other political or civil   division of the state or of a municipality,  or  in  the  public  school   service,  or in any public or special district, or in the service of any  authority, commission or  board,  or  in  any  other  branch  of  public  service,  who  was  honorably  discharged  or  released  under honorable  circumstances from the armed forces of the United States  having  served   therein  as such member in time of war as defined in section eighty-five   of this chapter, or who is an exempt volunteer firefighter as defined in   the general municipal law,  except  when  a  person  described  in  this paragraphholds the position of private secretary, cashier or deputy of  any official or department,...."

In response to Serviss' Article 78 petition challenging the Village's action, the Village  moved pursuant to dismiss Serviss' petition on the basis that it was deficient as a matter of law, contending that "the petitioner failed to allege in his petition that he was an 'exempt' firefighter as defined in General Municipal Law §200." Serviss then asked Supreme Court "for leave to renew his opposition to the Village's motion to dismiss the petition" and in support of that branch of his motion submitted a certificate and supporting documentation in an effort to establish that he was an "exempt" firefighter as defined in General Municipal Law §200.

Supreme Court denied that branch of Serviss' motion, holding that he failed to offer a reasonable justification for failing to submit the certificate in opposition to the Village's motion to dismiss. Serviss appealed from that order.

Addressing the merits of Serviss' appeal, the Appellate Division explained:

1. In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination.

2. The new or additional facts presented "either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion."

3. A reasonable justification' for the failure to present such facts on the original motion must be presented."

Noting that Supreme Court "lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion" the Appellate Division explained that "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." It then agreed with the Supreme Court's finding that the Serviss failed to offer a reasonable justification for his failure to present the documents relating to his status as an "exempt" firefighter in opposition to the original motion to dismiss.

However there are two procedural elements that must be met by an individual claiming exempt volunteer firefighter status for the purposes of §75.1(b) that should be noted.

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [see People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [see Badman v Falk, 4AD2d 149]. 

Presumably the courts would apply these two procedural elements in cases involving individuals claiming §75.1(b) military service benefits. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05597.htm

Evaluating the inclusion of "longevity allowance payments" in computing an employee's final average salary for retirement benefit purposes

Evaluating the inclusion of "longevity allowance payments" in computing an employee's final average salary for retirement benefit purposes

Bohlen v DiNapoli,2018 NY Slip Op 05720, Appellate Division, Third Department

In this action Petitioners ask the court to review the Comptroller determination excluding certain compensation from the final average salary in calculating the retirement benefits of 11 long-term, executive level key employees [Petitioners] of the Port Authority of New York and New Jersey [Authority], all members of New York State and Local Employees' Retirement System [System].

After the September 11, 2001 terrorist attack on the World Trade Center that resulted in the destruction of its headquarters, the loss of virtually all of its records and the death of over 70 of its employees, the Authority elected to participate in a temporary retirement incentive program that was passed by the Legislature for employees who were members of the System but advised Petitioners, who were all eligible to retire at that time without penalty, that they would be exempted from the program. Instead, the Authority offered each of them, in addition to their regular salary, a "parity" benefit described as a longevity allowance payment that was based on a percentage of their salary to be paid biweekly, provided that they continued their employment beyond December 31, 2002.

Petitioners each signed memorandum agreements accepting the offer and the Port Authority began making longevity allowance payments to them under what it called an "Employee Retention Program."

In 2012 the System concluded that the longevity allowance payments were not includable  in determining the final average salaries of certain then retiring Petitioners because they were paid "in anticipation of eventual retirement." The System also reevaluated the retirement benefits that were being paid to other of these Petitioners who had earlier retired and came to the same conclusion.

Petitioners challenged the determinations of the Retirement System and requested a hearing. The Hearing Officer found that the System acted reasonably in excluding the longevity allowance payments in computing Petitioners' final average salaries, consistent with the provisions of Retirement and Social Security Law §431. The Comptroller accepted the Hearing Officer's findings and Petitioners initiated a CPLR Article 78 proceeding challenging the Comptroller's decision contending that the longevity allowance payments should have been included in the calculation of their final average salaries.

The Appellate Division agreed with the Petitioners, indicating that:

1. There is no dispute that the 2002 enabling legislation establishing the retirement incentive authorized participating employers to determine which titles would be eligible;

2. The Authority was authorized to determine that Petitioners — all recognized as key employees eligible to retire — would be ineligible for the program;

3. The Authority entered into a memorandum agreement with each Petitioner that provided for a "longevity allowance in consideration of [petitioners] not retiring" (emphasis by the court); and 

4. The "consideration" factor is significant for the Authority was entitled to exclude Petitioners from the retirement incentive without providing any consideration, regardless of whether Petitioners intended to retire at that time.

The memorandum agreement, noted the Appellate Division, indicated that the longevity allowance would make Petitioners' pension calculation "roughly equivalent" to what it would have been under the retirement incentive, provided that they remained employed for three years beyond December 31, 2002. Significantly, said the court, "the additional payments were made on a biweekly basis in the same way as regular salary for services as they were performed."

These payments, in the view of the Appellate Division, "are more appropriately characterized as payments genuinely made to delay [P]etitioners' retirements, not to artificially inflate their final average salary in anticipation of retirement" as they were provided for the primary purposes of [a] retaining key employees following the September 11, 2001 terrorist attack and [b] to adequately compensate Petitioners for their dedication and commitment to remain in their vital positions.

Further, observed the court, there was "neither a lump-sum payment on the eve of retirement nor a disproportionate salary increase designed to artificially inflate a pension benefit that would be properly excluded from the computation of the final average salary."

Although both the System and the Hearing Officer, whose recommendation the Comptroller adopted, characterized the payments as having been made "in anticipation of eventual retirement" (emphasis provided in the decision) the Appellate Division noted that the term "eventual" is not part of the statutory standard and use of the term eventual actually reflects the Comptroller's own recognition that there was no actual retirement date anticipated in the memorandum agreement.

Justice Lynch, in an opinion in which Justices Devine and Pritzker concurred, held that the Comptroller's determination to uphold the System's exclusion of these payments from the computation of Petitioners' pension benefits was not supported by substantial evidence and that the final average salaries of the Petitioners for the purpose of determining their retirement benefits should be recalculated.  Justice Clark wrote a dissenting opinion in which Presiding Justice McCarthy concurred.

These decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05720.htm