Payment of hazardous duty pay while receiving GML Section 207-c benefits

Payment of hazardous duty pay while receiving GML Section 207-c benefits
Town of Carmel v PERB, Appellate Division, 246 A.D.2d 791

Prior to January 1995, Town of Carmel police officers assigned to “light duty” pursuant to Section 207-c of the General Municipal Law performed desk duty. Such light duty personnel wore “Class D uniforms,” did not carry a weapon and were assisted by a full-status officer, fully armed, dressed in a “Class A” uniform, at all times.

The Town changed this policy in January 1995, requiring officers on light duty status to wear a Class A uniform, including weapon and to perform desk duty unassisted by a “full-status” officer.

The Town of Carmel PBA, contending that this change adversely affected the safety of officers, both those on light duty status as well as those in full-status, demanded that the Town negotiate “safety stipends” for both the light duty and full-status officers. When the Town refused, the PBA filed an improper practice charge with PERB.

The PBA sought $100 a day for light duty officers serving without assistance; $15 an hour for full-status officers responsible for a prisoner while a light duty officer was the only other officer present and $10 an hour for a full-service officer assigned to desk duty when only a light duty officer was present.

A PERB administrative law judge [ALJ] dismissed the charge, finding that the additional compensation demanded for light duty officers “did not comport with the legislative scheme of General Municipal Law Section 207-c,” and thus constituted a prohibited subject of negotiations. PERB disagreed and reversed the ALJ’s ruling.

PERB decided that the salary demands advocated by the PBA were mandatory subjects for collective bargaining “not unlike hazardous duty pay.” The Town appealed, contending that it could not be compelled to negotiate wages to be paid an officer assigned to light duty above the amount to which he or she would have been entitled were he or she able to perform “regular duties.”

The issue to be resolved: did the demand for a safety stipend constitute a term and condition of employment, thus making it mandatorily negotiable, or did it constitute salary or wages in excess of that which are provided for under the clear and plain language of the Section 207-c.

The Appellate Division agreed with a lower court’s affirmation of PERB’s decision, concluding that the PBA’s demand involved a term and condition of employment since it directly relates to safety issues arising as a result of the change in policy. Further, said the Appellate Division, nothing in Section 207-c makes the PBA’s demand a prohibited subject of negotiations.

According to the decision, while the legislature intended to insure that Section 207-c police officers assigned light duty would receive an uninterrupted salary, “it did not simultaneously intend to prevent those same officers from bargaining for what they may perceive to be job-related risks.”

N.B. An Internal Revenue Service private letter opinion [#0104.02.00] advised that if an individual is assigned light duty, any compensation paid pursuant to Sections 207-a or 207-c is fully taxable.

Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion

Employer’s failure to provide disciplinary hearing to a temporary employee after having initiated disciplinary action an abuse of discretion
Matter of Kaefer v New York State Off. of Parks Recreation & Historical Preserv., 2010 NY Slip Op 51503(U), Decided on July 16, 2010, Supreme Court, Nassau County, Judge Ute Wolff Lally, [Not selected for publication in the Official Reports]

Robert Kaefer had been employed as a “seasonal temporary” lifeguard for 18 years* by Jones Beach State Park [Parks].

Returning from an absence following surgery performed by a Dr. Halpern, Kaefer was told that he needed a doctor's note before returning to work. As Dr. Halpern was unavailable, Kaefer handed in a false doctor's note allegedly written by a Dr. Persaud, which he had obtained with the help of another lifeguard, James Green.** Subsequently Kaefer obtained an appropriate doctor’s note from Dr. Halpern.

Dr. Persaud's note, however, had raised some suspicion and Kaefer was told to provide evidence verifying its accuracy. Kaefer, in response, submitted “another bogus note from Dr. Persaud.”

Parks allowed Kaefer to continue serving as a lifeguard for the rest of the swim season.***

Thereafter Susan Guliani, Director of Jones Beach State Park, notified Kaefer to appear for a Step 1 disciplinary hearing concerning the first bogus note -- the first formal step in the process taking disciplinary action against a lifeguard. The hearing, however, was adjourned to but prior to the rescheduled date Kaefer received a letter advising him that the step 1 hearing "has been postponed and will be rescheduled at a future date to be determined".

No notification of a rescheduled or cancelled Step 1 hearing was ever sent to Kaefer.

Ultimately Kaefer was refused reemployment as a lifeguard and he filed an Article 78 petition seeking a court order setting aside Parks decision banning from serving as a lifeguard, contending that the decision was arbitrary and capricious because:

1. Parks failed to adhere to its own policies and procedures; and

2. Parks imposed a different penalty than it has applied its prior determinations on essentially the same alleged acts of misconduct by barring him from employment as a life guard.

Judge Lally rejected Parks’ argument that Kaefer’s petition should be dismissed because he had “failed to exhaust his administrative remedies because he did not inquire into and/or request to have the Step 1 hearing rescheduled," holding that the duty of providing for the rescheduling and notifying Kaefer of such a hearing was Parks'.

In contrast, Judge Lally ruled that Kaefer had the burden of proving that his punishment — a lifetime bar from employment as a lifeguard -- was so disparate from the treatment accorded to similarly situated lifeguards, that it was arbitrary and capricious.

In this regard, said the court, Kaefer failed to meet his burden as, except for James Green, Kaefer was unable to point to any lifeguard who was found guilty of submitting a bogus doctor's note. Further, Judge Lally said that he would not substitute his judgment for that of Parks, finding that there was no abuse of discretion as a matter of law in Parks’ treatment of Kaefer compared to its treatment of other lifeguards convicted of crimes.

As to Parks’ argument that it had merely exercised its discretion to terminate a “seasonal temporary” lifeguard pursuant to its authority to do so "for any reason without prior notice," Judge Lally ruled that it could not now rely on such discretion to excuse its failure to follow through with the disciplinary procedure it earlier initiated. In the words of the court, “Having invoked its authority [to discipline Parks] was obliged to comply with it. [Parks] scheduled, rescheduled and then canceling the rescheduled hearing with a promise to provide a new date."

In effect, "once initiated, [Parks] was required to complete the disciplinary process in accordance with the provisions set out in the collective bargaining agreement and by failing to do so it violated its own policies and procedures, which deprived Kaefer of any opportunity to explain his action and/or to plead his case."

In determining the appropriate redress to be given Kaefer to cure Parks’ “abuse of discretion in violating its policies and procedures,” Judge Lally said that he must consider the particular circumstances of Kaefer’s employment.

The court explained that although hired for numerous seasons, Kaefer consistently had been an employee for a fixed term for each season and he had no right to be rehired. However, in barring Kaefer from “taking the new hire test without having afforded him a Step 1 hearing,” Parks had, essentially, made a disciplinary decision without giving Kaefer the benefit of such a hearing.

Accordingly, Judge Lally directed Parks “to provide to [Kaefer] the hearings he is entitled to” and to permit him to take “the new hire test unless and until a determination after the appropriate hearings ban him from such service for life.”

Significantly, the court, noting that Parks had “wrongfully prohibited” Kaefer from taking the new hire tests, commented that “there is no certitude that [Kaefer] would have passed same or that an opening existed.” Accordingly, Judge Lally declined to award Kaefer “lost wages.”

In contrast, however, as the prevailing party, the court said that Kaefer was entitled to attorney fees pursuant to the New York State Equal Access to Justice Act (CPLR §8601).

* "Seasonal Appointment Letters" sent to Kaefer stated that "You should understand, however, that your employment relationship with the Office of Parks, Recreation & Historic Preservation is only temporary. It may be terminated at any time, either by you or by the agency, for any reason and without prior notice...."

** James Green, Kaefer's co-conspirator in obtaining the bogus doctor's notes, had agreed as part of a plea bargain to a lifetime ban of employment as a lifeguard at Parks.

*** Subsequently Kaefer was charged by the Nassau County District Attorney with a felony and plead guilty to a Class A misdemeanor, submitting a false instrument for filing.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51503.htm

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Employee terminated after refusing to accept reassignment to another location

Employee terminated after refusing to accept reassignment to another location
Dippell v Hammons, 246 A.D.2d 450

Dagmar Dippell, an attorney employed by the New York City Human Resources Administration, refused to report to her new assignment in Queens. This resulted in Dippell’s demotion following a disciplinary hearing.

When she continued to refuse to report to the new location, a second hearing was conducted and she was terminated. Dippell appealed, contending that the determinations by the two Administrative Law Judges [ALJs] were not supported by substantial evidence.

Commenting on the hearings that preceded Dippell’s dismissal, the Appellate Division cited the “obey now, grieve later” principle. The Court said that the first ALJ had ample grounds to conclude that Dippell had no basis for disregarding that principle. Although Dippell’s physician had recommended a “non-stressful job” for her, that, standing alone, “was inadequate to establish that the reassignment would be unduly debilitating to her health.”

The ALJ found that Dippell’s testimony lacked credibility and that she came across as “stubborn and misguided.” According to the decision, the ALJ credited the testimony of a department witness that Dippell was reassigned because of her failure to return from a Florida vacation on time and her “longstanding poor relationship with her immediate supervisor.”

The second proceeding was held before a different ALJ. The Appellate Division noted that Dippell failed to appear at that hearing. The Appellate Division said that the second ALJ “properly concluded” that dismissal was the only appropriate penalty, because Dippell had previously been demoted for similar misconduct.

Participating in an arbitration may bar extrication from the process

Participating in an arbitration may bar extrication from the process
Suffolk County v Faculty Asso. of SCCC, App. Div., 247 A.D.2d 472

Suppose a party appears at a grievance arbitration but later decides that it didn’t have to. May it ask to have the arbitration award vacated?

This was the significant issue in the Suffolk County case. The Appellate Division indicated that once a party has appeared in an arbitration and a decision had been rendered, it may be too late for the party to extricate itself the process.

Suffolk County participated in a grievance arbitration proceeding involving the Faculty Association of Suffolk County Community College. The county challenged the arbitration and won a court order vacating the award made by the arbitrator after persuading a New York State Supreme Court justice that “there was no agreement to arbitrate the grievance in question” between the parties.

The Faculty Association appealed and the Appellate Division reversed the lower court’s ruling, reinstating the award. The Court said, “the absence of an agreement to arbitrate is not a basis upon which a party who participated in the arbitration may seek to have the resulting award vacated.”

The Court also rejected the County’s alternative argument, in which it contended that the arbitration award violated public policy, on a technical ground. Why? Because, said the Court, the County did not raise the “public policy” argument in its motion to vacate the arbitration award at the Supreme Court level. Accordingly, the County’s “public policy” theory was not properly before it on appeal.

Selected bills recently signed into law

Selected bills recently signed into law
Source: New York State Legislature

Chapter 423 of the Laws of 2010: Provides that employers who provide funeral leave for family members of deceased shall not deny such leave for same-sex committed partners of the deceased.

Chapter 426 of the Laws of 2010: Requires New York City school districts to notify parents of bedbug infestations.

Chapter 430 of the Laws of 2010: Relates to health insurance coverage for surviving spouses or domestic partners of members of the New York City Department of Correction.

Chapter 480 of the Laws of 2010: Relates to the residence of peace officers employed as fire protection inspectors, urban park rangers and traffic enforcement agents level IV by a city with a population over one million [i.e., the City of New York].

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State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored

State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored
Source: Office of the State Comptroller, Audit 2009-S-42

The State Comptroller’s auditors found that the Office of Mental Health (OMH) had 819 state-funded contracts for personal and miscellaneous services during a three-year audit period totaling $61.7 million.

The focus of the audit: Was OMH adequately justifying the need to initially contract out for such services and then periodically reassessing whether such contracts could be deferred, eliminated or reduced. The report indicates that “this was not adequately done.”

A sample of 50 of the 819 Service Contracts was selected for study. The auditors reviewed available documentation to determine whether the need for the services and the decision to contract for services was justified with supporting documentation.

According to the Comptroller’s report, OMH was able to demonstrate that it had formally evaluated and justified the need for only 15 of these 50 contracts totaling $13.5 million. The Department did not produce documentation showing that it formally evaluated the justification for the remaining 35 contracts, which totaled $48.2 million.

Although OMH officials agreed that all of the decisions pertaining to contracting for Services were not documented, they indicated that "this is not a feasible task, as decisions are made at many levels in many forms." OMH said that it believe it had effectively communicated the intent of the relevant budget bulletins to all OMH divisions and facilities. The auditors, in contrast, said they “did not find sufficient evidence that OMH had contracted out only when there was a clearly documented need for the services.”

The contracts involved providing for mental health services, information technology, maintenance, and security services.

The full text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093010/09s42.pdf
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Politically motivated removals from public employment

Politically motivated removals from public employment
Coogan v Smyers, et al, CA2, 134 F.3d 479

In a series of rulings concerning the removal of public employees for political reasons, the U.S. Circuit Court of Appeals, Second Circuit [New York] set out a number of tests and guidelines it uses to determine if a particular termination is Constitutionally permissible. The Coogan case involved the termination of a City Clerk by a City Council.

James A. Coogan, who had served as Tonawanda’s City Clerk for five consecutive two-year terms, sued members of the City of Tonawanda after the new Republican council majority decided not to reappoint him for another two-year term.

According to Coogan, the Council’s action was motivated by his political activities on behalf of the Democratic Party. Claiming that his civil rights were violated, Coogan filed his action pursuant to 42 USC 1983 and argued that the Council’s action violated his First and Fourteenth Amendments rights.

The Circuit Court of Appeals reversed a federal District Court judge’s dismissal of Coogan’s petition and remanded the matter to the lower court for its further consideration. The Circuit Court pointed out that:

1. As a general rule, a public employee is protected from adverse employment decisions based upon the employee’s exercise of his or her First Amendment rights.

2. Political patronage or party affiliation is impermissible reasons for dismissing government employees absent a showing that “party affiliation is an appropriate requirement for the effective performance of the public office involved.”

3. While there is no property interest or entitlement to be reappointed to a government position, failure to reappoint solely because of party affiliation is impermissible.

Ironically, the Tonawanda City Clerk’s position historically has been one filled through political patronage. While the Court conceded that Coogan himself may have enjoyed a patronage appointment, this fact is irrelevant: a history of patronage does not render the practice Constitutional.

Coogan claimed that the only legal way to take away his job was to have reasons relating to his job performance. The Circuit Court said this was simply incorrect. The only Constitutional limit placed on a city council’s appointment power is that it may not make employment decisions based upon an employee’s protected conduct.

In cases of this type, courts frequently use a “burden-shifting” test. This requires that the individual first establish, by a preponderance of the evidence, that:

(1) his or her political activities constituted a substantial or motivating factor in the employment decision; and

(2) his or her conduct on behalf of a particular political party was constitutionally protected. If the individual is able to do this, the burden of going forward shifts to the employer, which must prove by a preponderance of the evidence that it would have made the same employment decision notwithstanding the individual’s protected conduct.

A critical element in this case was the parties’ stipulation that the City Clerk’s position is a non-policymaking and non-confidential government position. Therefore, political party affiliation could not be required for effective service as City Clerk. On this point the Court referred to the U.S. Supreme Court’s decision in Branti v Finkel, 445 U.S. at page 518.

Also, the Court emphasized the significance of the fact that the City Clerk’s position was not tenured -- it carried a two-year term. Coogan was merely a “prospective employee” and he had no property right or entitlement to the position or reappointment to it.

Accordingly, the Council was not required to “show cause” for failing to reappoint him. The Constitutional prohibition on patronage dismissal “does not give a permanent appointment to the City Clerk.” The legislative body is always free to dismiss or fail to rehire the Clerk for legitimate, apolitical reasons.

However, if a nontenured employee like Coogan shows there was unlawful political motivation in the failure to reappoint, the burden shifts to the legislative body to show a lawful reason for its decision. The Circuit Court said that if a public employer has two reasons for an employment decision, one lawful (e.g. incompetence) and one unlawful (e.g. removing a person because of some Constitutionally protected speech he or she made), the employment decision may be upheld on the basis of the lawful reason. The Court called this the “dual-motive” test.

The Circuit Court agreed with the District Court that Coogan’s political activity and affiliation were “a substantial or motivating factor” in the Council’s decision not to reappoint him.

But the Circuit Court disagreed with the District Court’s conclusion that the Council “presented sufficient evidence to demonstrate that they would not have reappointed Mr. Coogan regardless of his active participation in the Democratic Party.”

The Circuit Court decided that “the present record is inadequate” to enable it determine if the Coogan would have been denied reappointment regardless of his political affiliation or activity. Therefore, it remanded the case for further findings of fact by the trial court. The District Court was directed to analyze the reasons underlying the reasons given by the individual Council members for their votes concerning Coogan’s reappointment.

In another decision handed down by the U.S. Circuit Court of Appeals, Second Circuit, Danahy v. Buscaglia, 134 F.3d 1185, the Court said that a public employer was entitled to a qualified immunity from law suit for patronage dismissals if the employer was reasonable in making its decision with respect to whether or not the employees terminated qualified as “the kind of policymaking and confidential employees who may be lawfully dismissed because of their political views.”

The case involved the dismissal of seven former employees of the Attorney General’s Medicaid Fraud Unit who claimed that their terminations were politically motivated in violation of their First Amendment Rights.

The full text of the decision may be found at:
http://nypublicpersonnellawarchives.blogspot.com/ [Registration required]

Sick building syndrome

Sick building syndrome
Knapp v Vestal CSD, App Div, 247 A.D.2d 667,

From time to time there are reports of individuals becoming ill because of the quality of a building’s environment. This can result in the filling of a workers’ compensation claim.

Donna K. Knapp, a music teacher employed by the Vestal Central School District, filed such a complaint. She claimed that her health began to deteriorate after working in the Vestal Central School District’s African Road School for about a year.

Knapp said that her symptoms included “aches and pains, headaches and memory and hearing loss.” Initially diagnosed as suffering from “sick building syndrome,” she was later diagnosed as having “multiple chemical sensitivity.”

Contending that the African Road School was a “sick building,” Knapp applied for workers’ compensation benefits. Ultimately the Workers’ Compensation Appeals Board disallowed Knapp’s claim, ruling that the record did not demonstrate any “unusual workplace hazard” to support her application for accidental injury due to a hazardous exposure. The Board said that there was “no evidence presented to support a recognizable link between [Knapp’s] multiple chemical sensitivity and her occupation as a teacher.”

The Appellate Division affirmed the Board’s determination. The Court observed that to prevail Knapp had to establish an unusual environmental condition or something extraordinary which caused an accidental injury even if she could not pin-point the exact date on which the event occurred.

Concluding that Knapp failed to show that she sustained an accidental injury, the Court dismissed her appeal. In so doing, the Appellate Division commented that Knapp’s theory that the African Road School was “a sick building” was undercut by the fact that she admitted that she experienced similar symptoms at other locations.

In contrast, the Appellate Division ruled that the Workers’ Compensation Board’s decision that New York City school teacher Morris Palevsky suffered a “posttraumatic stress disorder” as a result of his being injured in the course of a fight between students at a school for emotionally disturbed children was supported by evidence in the record and dismissed the City’s appeal from urging a reversal of the Board’s ruling [Palevsky v New York City Board of Education, 246 AD2d 836, lv to appeal dismissed, 92 NY2d 876, lv denied, 93 NY2d 818) ].

Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law

Report alleges NYS Department of Corrections’ former Food Production Center director violated the Public Officers Law
Source: The Office of the State Comptroller

The former director of the State Department of Corrections’ (DOCS) prison food production operation and his staff routinely traded favors and gifts with favored businesses that were rewarded with millions of dollars in state purchases according to a report released by State Comptroller Thomas P. DiNapoli and State Inspector General Joseph Fisch dated August 31, 2010.

DiNapoli’s and Fisch’s audit and investigation centered on Howard Dean, the former director of the Food Production Center, and his staff. The Comptroller's Office said that DiNapoli and Fisch have forwarded the findings of their report to the Oneida County District Attorney’s Office and the State Commission on Public Integrity.

Comptroller DiNapoli said “Corruption should never be tolerated on any level. But the abuses we discovered here, at a state criminal justice agency, committed at a time when New York’s taxpayers are finding it harder and harder to make ends meet, are beyond the pale. And all of this mushroomed in a culture of acceptance at DOCS. We’re referring our findings to law enforcement and public integrity officials.”

State's Inspector General Fisch commented that “Once again, we witness another distressing spectacle by this public official who did not hesitate to violate the law and his oath of office in order to reap personal reward and benefits. For 13 years, Dean enjoyed free parties and picnics while not only steering $2.5 million in business to favored vendors, but to vendors who are prohibited from doing business in New York State.”

Among the findings:

1. In violation of the State's Public Officers Law, "for at least 13 years, Dean and other DOCS staff were provided free meals by at least two vendors – Global Food Industries (GFI) and Good Source – that had $2.5 million annually in purchases with the Food Production Center. "

"2. Dean directed Sysco Food Services to use these two vendors as suppliers, thereby guaranteeing them $1.7 million annually in business with DOCS.

"3. Sysco’s purchase of products from the South Carolina-based GFI at Dean’s direction helped Dean and GFI skirt around New York State Finance Law which prohibits state agencies from doing business directly with companies that reside in states, like South Carolina, that discriminate against NYS businesses.

"4. Likewise, Dean directed NYS Industries for the Disabled, a preferred source of state purchases, to purchase products from GFI, again allowing GFI to make money off of state purchases contrary to the law. GFI made $796,000 annually through this arrangement.

"5. Dean and his staff solicited free food and donations from vendors for an annual Christmas party and a three-day-long annual picnic. Any left-over moneys were deposited in an employee benefit fund and used for food production center employee benefits throughout the year, including morning bagels.

"In addition, the Comptroller and the Inspector General stated that 'Vendors often bid on donated items with proceeds going to the employee benefit fund. All Correctional Services employees, including those at the highest levels of the organization, were invited to the picnic at no cost. Management should have questioned how such an event could be hosted by a state agency at no cost to employees or their families.'"

"DiNapoli’s auditors found no documentation demonstrating that millions of dollars in purchases were based on open competition. In fact, one favored vendor was tipped off about the potential missing ingredient essential in the production of cheese sauce the Food Production Center wished to utilize. Because none of the other vendors had this inside information, the favored vendor received the state’s business.

"Internal controls that might have prevented Dean from engaging in this conduct were virtually non-existent at DOCS. One supervisor, Russell DiBello, former Correctional Services Chief Fiscal Officer, stated that he saw no need to monitor Dean – despite that Dean managed a $55 million budget – because he received no inmate complaints about food.

"DiNapoli and Fisch have recommended that DOCS officials institute safeguards to ensure these abuses don’t occur in the future, and assist the Oneida County District Attorney and the State Commission on Public Integrity as needed. State law requires the DOCS commissioner to report to the Governor, Comptroller and leaders of state legislative committees what corrective action the department has taken, and if action is not taken, why."

The complete text of the report is posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093010/09s6.pdf
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