Retirees are not employees within the meaning of the Taylor Law

Retirees are not employees within the meaning of the Taylor Law
New Action and United Federation of Teachers, 30 PERB 3048

New Action, a retiree group, asked the United Federation of Teachers [UFT] for a list of the names and addresses of its retired members. When UFT refused, New Action complained to PERB, contending UFT violated Section 209-a.2(a) of the Taylor Law. Section 209-a.2(a) prohibits an employee organization from interfering with the rights given public employees under the Act.

PERB affirmed the Director of Public Employment Practices and Representation's dismissal of New Action's claims. It agreed with the Director that UFT was permitted to refuse to provide New Action with the names of its retired members because:

1. New Action was not an employee organization within the meaning of the Taylor Law;

2. New Action's demand was not related to the terms and conditions of employment; and

3. The information sought by New Action concerned matters internal to UFT.

While PERB noted that an employee organization has a "general duty" to provide information to the employees it represents concerning their terms and conditions of employment when asked, retirees are not public employees, have no terms and conditions of employment and are not in the UFT bargaining unit.

PERB also rejected New Action's theory that it was entitled to the names and address of UFT retirees because UFT supposedly "allows retirees to vote on ratification of collective bargaining agreements and in elections for union officers." Even if true, PERB ruled, this would not matter as such participation concerns internal union affairs falling outside the scope of the Taylor Law.

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Ignoring directives given by superiors

Ignoring directives given by superiors
Lowery v Office of Court Admin., App. Div., 244 AD2d 192

Patricia Lowery, an employee of the Office of Court Administration, was alleged to have "disregarded express directives" given to her by her supervisor.

Found guilty, Lowery was terminated from her position.

Was termination an excessive penalty to impose on Lowery for being insubordinate? The Appellate Division did not think it was and affirmed the decision of the Chief Administrative Judge to dismiss Lowery.
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Evaluating applications for disability retirement

Evaluating applications for disability retirement
Vasquez v Board of Trustees NYCFD, NYS Supreme Court [Not selected for publication in the Official Reports]
Furch v Bucci, Appellate Division, 245 AD2d 749, Motion to appeal dismissed as not a final order, 91 NY2d 953

The rejection of an application for accidental disability retirement typically hinge on the resolution of two important questions: (1) Did the individual suffer a line-of-duty injury? and, if so, (2) did the injury result in a permanent disability? The Vasquez and Furch consider the elements involved in making such determinations.

The Vasquez Case:

Vasquez, a New York City firefighter, claimed that he had sustained line-of-duty injuries including the rupture of his right Achilles tendon in 1983, a meniscus injury to his left knee in 1988, partial rupture of his left Achilles tendon in 1991, and a herniated disc in the cervical spine in 1993. The Fire Department filed an application for disability retirement on behalf of Vasquez on December 19, 1994 and on February 20, 1996 and on August 26, 1996, Vasquez filed his own applications for accident disability retirement. On September 10, 1996, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund [Trustees] decided to retire petitioner on ordinary disability retirement, not accidental disability retirement.

According to the ruling, the 1-B Medical Board concluded that the Achilles injuries and the lumbar degeneration were non-disabling; the herniated disc in the cervical spine was non-duty related; and the knee problem was not permanently disabling.

Vasquez sued, seeking a judgment annulling the Trustees' decisions. He argued there was no credible or substantive dispute as to his condition among the medical experts. The Trustees, on the other hand, argued that Vasquez failed to meet his burden of proof that his line-of-duty accidents caused his disability. Significantly, the Trustees contended that Vasquez had filed untimely line-of-duty injury reports concerning the events underlying his claims, "although over the years he had filed many."

Two fellow firefighters provided affidavits supporting Vasquez’s account of the events at issue. But the Trustees urged that the Court not give much weight to the fact that because the statements were dated more than a year and a half after the incident Vasquez claimed caused his disability.

Finally, the Trustees contended that the fact that Vasquez never returned to full duty "is not sufficient to overcome the copious medical evidence on the record."

Although the Medical Board's determination as to whether an applicant is disabled is binding upon the Trustees, the Court said that the issue of whether the disability is service-related is solely for the Board of Trustees to decide, citing Canfora v. Board of Trustees, 60 NY2d 347, 351. Commenting that there was an "exhaustive review of the objective and subjective evidence" by the 1-B Medical Board, the Court concluded that the record supported the Trustees' determination.

New York State Supreme Court Justice Belen noted the Trustee's vote was 6-6. Justice Belen commented that "if the Trustees' decision is based on a tie vote, the court cannot disturb an administrative determination unless it can find causation as a matter of law (City of New York v Schoeck, 294 NY 559, 570)." To prevail, Vasquez had to show that "the circumstances admit but one inference," i.e., that his line-of-duty injuries were the proximate cause of his disability. As he did not meet this test, "nor has he proved that they exacerbated a latent condition," the Court sustained the Trustees' determination and dismissed Vasquez's petition.

The Furch Case:

City of Binghamton firefighter James L. Furch applied for General Municipal Law Section 207-a benefits, claiming that he suffered from arteriosclerosis brought on by job-related factors. He claimed these job-related factors ultimately resulted in a heart attack while he was raising a flag while on duty at a fire station.

The hearing officer appointed by the City, Director of Personnel and Safety David W. Watkins, ruled that Furch's "myocardial infarction and underlying arteriosclerosis were not caused by the performance of his duties as a firefighter" and his application for Section 207-a benefits was rejected by the City.

Among the points made by the Appellate Division in the appeal that followed was the following:

The fact that a Workers' Compensation Law Judge ruled that Furch's myocardial infarction was causally related to his employment, the binding effect of the decision rendered in the workers' compensation proceeding did not preclude [Binghamton] from denying [Furch's] application for benefits pursuant to General Municipal Law Section 207-a.

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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Retirement benefits and divorce

Retirement benefits and divorce
Massaro v Massaro, NYS Supreme Court, [Not selected for publication in the Official Reports, see 2002 WL 243385]

In Massaro v Massaro, New York State Supreme Court Justice Blydenburgh answered an important question concerning the rights of a divorced spouse to benefits from a public retirement system such as the New York State Employees' Retirement System [ERS]. The question:

Should the final pension amount to be divided between divorced spouses include benefits due an employee at the time of his or her retirement that can be attributed to promotions received by the employee after the commencement of an action for divorce?

Both parties agreed that the divorced wife "is entitled to one half that pension that was earned as martial property." When the divorce action was commenced, the husband was a sergeant with the Suffolk County Police Department and a member of the Police and Firefighters Retirement System [PFRS].

Although there was no question that "an increase in the final pension amounts due solely to length of years in service, is marital property" and his former wife was entitled to share in that increase, Massaro argued that any increase because of promotions which came after the commencement of the divorce action are similar to a change of job, and no increase in his pension due to his increased salary because of promotions should be considered marital property. Massaro's theory was that "any promotion ... beyond Sergeant, coming not only after the commencement of this action, but subsequent to the divorce itself, could not be attributed to any action of [his former spouse] and for which she did not reasonably have any expectation."

His former wife, on the other hand, contended that she was entitled to her percentage of the retirement allowance actually paid to her former spouse, regardless of the reasons why his pension may have been increased.

According to Justice Blydenburgh, Massaro's promotion resulted from tests taken or lists established after the commencement of the divorce proceedings. Justice Blydenburgh reasoned that since neither party had any expectation of future pension increases due to promotions, any promotion earned by Massaro after the commencement of the divorce would have resulted from his actions alone.

Accordingly, the Court ruled that Massaro's former spouse was not entitled to share in any increase to his pension at the time of his retirement resulting from increases as a result of any post divorce promotions. What should she receive? The amount she would have been entitled to receive had Massaro not been promoted and retired from service as a Sergeant.

In dollars and cents, this means that Massaro's former spouse will be only entitled to that portion of Massaro's retirement allowance based on his "final average salary" as a Sergeant, but calculated using his total period of PFRS member service.

Massaro's portion of his retirement allowance, on the other hand, will be determined on the basis of his post-promotion "final average salary," which, presumably, would be higher than his "Sergeant final average salary," and his total member service credit in the system.
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Salary determinations by political subdivisions of the State

Salary determinations by political subdivisions of the State
Kent v Town of Niskayuna, Appellate Division, 244 AD2d 829

Peter E. Kent, Commissioner of Public Works for the Town of Niskayuna in Schenectady County, anticipated receiving an increase in his compensation as a Grade 27 employee in accordance with the salary table set out in the Town's employee handbook. But the Town decided to (1) change some of his duties and responsibilities and (2) eliminate all salary grades 26 and higher from the salary table effective January 1, 1996. As a result, Kent's 1996 salary was set at the salary rate for a "Grade 25, Step 5" employee instead of the salary for "Grade 27, Step 4" as he expected.

When his grievance seeking compensation at Grade 27, Step 4 was rejected by the Town, Kent sued. He contended that the Town did not have the authority to reduce the salary grade of his position and its action was arbitrary and capricious. A Supreme Court justice agreed and ordered the Town to reinstate Kent to the Grade 27 level with back pay "due to the [Town's] failure to comply with Civil Service Law Section 75 before it adjusted [Kent's] salary." However, the Appellate Division overturned that ruling.

The Appellate Division said that the authority to fix the salary of a town employee had been delegated to the town board employing the employee [Section 27, Town Law]. Citing Stetter v Amherst, 46 AD2d 1006, the Appellate Division observed that "courts will not interfere with the actions of such legislative bodies or inquire into their underlying motives 'absent fraud, corruption or oppression.'"

The Court decided that the Town presented evidence "indicating a need to tend to budgetary concerns." This, "coupled with the changes [in Kent's responsibilities and Kent's] failure to sustain a showing that the [Town's] action was done in contravention of, or in an attempt to circumvent, the protections afforded by Civil Service Law Section 75," provided substantial evidence supporting the Town's action.

The lesson here is that a municipal public employer may reallocate a position to a different salary grade consistent with the duties and responsibilities of the position provided its action is supported by substantial evidence and is neither arbitrary nor capricious. The employee has the burden of persuading the courts to the contrary.

It should be remembered that Kent was a municipal employee. The classification and allocation of positions in the service of the State to a salary grade, and the reclassification and reallocation of such positions, is controlled by Article 8 of the Civil Service Law.

Article 8, however, does not apply to classification and allocation of positions established by a political subdivision of the State.
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Eligibility of employee for unemployment insurance benefits following resignation

Eligibility of employee for unemployment insurance benefits following resignation
De Benedetto v Brookhaven, Appellate Division, 244 AD2d 740

Is an employee who agrees to resign rather than face disciplinary charges entitled to unemployment insurance benefits? As indicated by the De Benedetto decision by the Appellate Division, it depends on the circumstances.

Town of Brookhaven sanitation inspector Frank De Benedetto was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. The matter was "settled" when the De Benedetto agreed to resign and the Town agreed to withdraw the charges and to advise any prospective employers that he had "resigned for personal reasons." Although De Benedetto's application for unemployment insurance benefits initially was denied because "he had voluntarily left his employment without good cause," the Unemployment Insurance Appeals Board reversed, remanding the issue to the local office. The Board said that the question to be resolved was whether or not De Benedetto should be disqualified "because of misconduct."

The Appellate Division affirmed the Board's determination, holding that "there is precedent that a claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." The Court cited La Rocca v New York City Department of Transportation, 59 NY2d 683, in support of its ruling.
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Union dues a factor in a divorce proceeding

Union dues a factor in a divorce proceeding
Elizabeth A. v Hector S., NYS Supreme Court, Judge Bednar, [Not selected for publication in the Official Reports]

Would you think that union dues could be a factor in a divorce proceeding? It was in the case of Elizabeth A. v Hector S.

Hector was told that he had to pay $157.00 bi-weekly as child support. He objected, contending that the hearing examiner had miscalculated his adjusted gross income by neglecting to deduct his union dues from his gross income.

Judge Bednar ruled the hearing officer's calculations were correct. While the federal Internal Revenue Code allows a taxpayer to deduct union dues as a "miscellaneous itemized deduction," the Family Court Act [FCA] does not. Although FCA allows a limited number of exclusions from income when determining child support, union dues is not one of the enumerated deductions allowed by the Act in determining a parent's child support obligations.
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What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges

What is the result of an employee’s failure or refusal to file an answer to Section 75 disciplinary charges
Response to an inquiry from a NYPPL reader

A NYPPL reader asks: If an individual served with disciplinary charges pursuant to Section 75 of the Civil Service does not file an answer to the charges and specifications, may the appointing authority impose the proposed penalty without holding a disciplinary hearing?

Although it appears that this specific question has yet to be litigated, a close reading of Section 75 suggests such an action by an employer would not survive judicial scrutiny.

Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.

In contrast, Section 75 is silent with respect to requiring the employee submit any answer to the charges.

This suggests that the individual may remain mute without jeopardizing his or her Section 75 rights.

Indeed, should the accused individual attend the disciplinary hearing and remain mute and present no defense, the employer would still be required to "prove" the alleged misconduct or incompetency.

Clearly, Section 75 provides that the burden of proving incompetency or misconduct ... (is) upon the person alleging the same. In other words, the failure of an employee to offer a defense does not absolve the employer of the duty to prove incompetence or misconduct before imposing disciplinary sanctions.

Indeed, it is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled.

Given that the courts require employers to conduct a disciplinary hearing being conducted pursuant to Civil Service Law Section 75 even if an employee fails to appear at the proceeding, it seems unlikely that the courts would approve imposing a penalty on an individual because he or she failed to answer the disciplinary charges filed by the appointing authority.

Moreover, under Section 75 the employee need not ask for a hearing; it is to be provided as a matter of right.

In contrast, Section 3020-a of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires that the individual affirmatively act and request a disciplinary hearing.

Under Section 3020-a, not only is the accused individual required to tell to the employer whether or not he or she wishes to have a disciplinary hearing scheduled, "the unexcused failure of the employee to notify the [district's] clerk or secretary of his or her desire for a hearing ... shall be deemed a waiver of the right to a hearing ...."

Section 3020-a also provides that in the event the teacher or school administrator does not ask for a Section 3020-a hearing, by design or otherwise, the school board is to determine the case and fix the penalty in accordance with Section 3020-a.4 of the Education Law.

The Section 3020-a model is followed in most alternative disciplinary procedures negotiated pursuant to the Taylor Law. If the employee does not file a timely disciplinary grievance, the appointing authority usually is authorized to impose the penalty proposed in the notice of discipline served on the individual without further action on its part and without referring the issue to arbitration.

What would be the result should the charging party not participate in an administrative proceeding? The decision in Armata and United Federation of Teachers, 30 PERB 4713, is instructive in this regard.

Rebeca Armata elected not to attend the scheduled PERB hearing. The PERB hearing officer dismissed her complaint on the ground that she had failed to prosecute it.

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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Collecting a paycheck could be a work related activity

Collecting a paycheck could be a work related activity
Dandola v Workers' Compensation Board, App Div, 244 AD2d 729

William Dandola, a New York City Corrections Officer, slipped and fell, injuring his knee. According to the decision, Dandola fell in front of the Rikers Island correction facility while running to pick up his paycheck on his day off. Did Dandola suffer a work related injury entitling him to workers' compensation benefits? Yes, said the Workers' Compensation Appeals Board in a decision affirmed by the Appellate Division.

Although the City Department of Correction argued that Dandola's injury occurred while he was engaged in "an essentially personal errand on his day off," the Appellate Division said that it has been held that "an employee may be within the scope of employment when collecting his or her pay check while off duty." In this instance, the Court decided that Dandola was injured in the course of his employment.

Why? Because, the Court explained, Correction's "paycheck distribution procedures" indicate that although arrangements to mail an employee's paycheck to his or her residence can be made, the expected procedure is for employees to pick up their paycheck in person. According, said the Court, the Appeals Board's holding that Dandola's injury arose out of and in the course of his employment is supported by substantial evidence.
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