State Comptroller DiNapoli reports that school aid payments have been made

State Comptroller DiNapoli reports that school aid payments are being processed
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reported that school aid to school districts and BOCES totaling nearly $1.6 billion, is being processed. These payments are typically made by June 1, but because of the State’s “cash crunch in March” the Governor delayed these payments until the end of June.

The Governor also delayed the March school aid payments until June 1, which totaled about $2.1 billion.

A list of the State Aid distributed to each BOCES and to each school district is posted on the Internet at: http://www.osc.state.ny.us/press/releases/june10/schoolaidpd.pdf

Appointment of an eligible from an expired eligible list is impossible as a matter of law

Appointment of an eligible from an expired eligible list is impossible as a matter of law
Matter of Farrison, 2010 NY Slip Op 51113(U), Decided on June 24, 2010, Supreme Court, New York County, Judge Hunter [Not selected for publication in the Official Reports]

John D. Farrison filed a petition pursuant to CPLR Article 78 seeking an appointment as a New York City Correction Officer. Farrison contended that the Department of Correction's [DOC] decision not to select him from the eligible list resulting from Correction Officer Examination 2004 for such an appointment to one of three available vacancies was arbitrary, capricious, and contrary to law.

Supreme Court dismissed Farrison’s petition, commenting that the redress he sought would require that he be appointed from the eligible list resulting from Correction Officer Examination No. 4002, a list that had expired prior to his initiation of his Article 78 action.

In view of this, Judge Hunter said Farrison claim that that DOC's decision not to appoint as a Correction Officer was arbitrary, capricious, and contrary to law, is without merit. The court explained that once a civil service eligible list expires, it cannot be revived and an individual whose name appears on an expired eligibility list cannot be appointed to a civil service position on that basis.

As the Court of Appeals said in Cash v Bates, 301 NY 258, appointment to a civil service title from an expired civil service eligible list a "legal impossibility."*

In addition, Judge Hunter cited Hancock v. City of New York, 272 AD2d 80, in which the Appellate Division, held that a "plaintiff, whose name appears on a now-expired civil service list, is no longer entitled to be hired as a correction officer, notwithstanding that he was improperly declared to have been ineligible for the job."

* To provide for a remedy for the "impossiblitity" of appointing an individual from an expired eligible list, Section 243.7 of the Military Law authorizes the establishment of "special eligible lists" to accommodate situations involving an eligible list that expired while a candidate is on ordered military service. It provides that "Any person whose name is on any eligible list ... while in military duty ... is reached for certification during his [or her] military duty ... [his or her name] shall be placed on a special eligible list in the order of his [or her] original standing ... [and such special eligible] list shall be certified before certification shall be made from a subsequent open competitive or promotion eligible list for the same position .... Such names shall remain on such special eligible list for a period of two years after the termination of such military duty...."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51113.htm

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?
Roberson v Ward, App. Div., First Dept., 278 A.D.2d 180; motion for leave to appeal denied, 96 N.Y.2d 717

When must a public officer,* arrested and convicted of a crime, be given a disciplinary hearing in contrast to being summarily terminated? As the Roberson decision demonstrates, it depends on the nature of the offense.

In Bratton v Foley, 92 NY2d 981, the Court of Appeals held that a police officer is removed from his or her position by operation of law if he or she is convicted of a particular crime falling in the "oath of office" or “the conviction of a felony “ category pursuant to Public Officers Law Section 30.1(e).**

In contrast, said the high court, for other convictions -- i.e., those not constituting a violation of the police officer's oath of office, or in cases where Section 30.1(e) is not cited as authority for the termination, "a public hearing is required...." If the police officer is not given such a hearing, he or she may demand one.

The lesson in the Roberson decision is that in the latter type of situation, the police officer must make a timely demand for the hearing.

In 1989 Cedric T. Roberson, was “automatically terminated” from his position as a New York City police officer upon his misdemeanor conviction of menacing in the third degree. Apparently the department relied on an administrative rule as authority for his "automatic termination" rather than Section 30.1(e) of the Public Officers Law.

Some ten years later he asked the court to annul his dismissal, claiming that he was entitled to a "hearing" before he could be terminated from his position.In response to Roberson's claim that he was entitled to a pretermination hearing as announced in Bratton, the court said that "the proceeding is barred by laches...."***

According to the ruling, "[i]t is no excuse for any subsequent delay in challenging his termination that he believed, as a result of advice from his attorney, who opined that any proceeding he might bring to challenge his termination would be futile unless his menacing conviction was overturned on appeal, which did not occur."

What is a "reasonable delay?" It appears that to be "reasonable," it must be a delay of less than two years. According to the decision, Robinson also attempted to obtain a copy of the "order of termination" pursuant to the Freedom of Information Law subsequent to his termination from the police force. However, said the court, this two-year delay "was also unreasonable."


* Although not all public employees are public officers, all public officers are public employees. A police officer is a public officer.

** However, the public officer is entitled to a so-called Bratton Hearing under certain circumstances. A Bratton Hearing flows from Public Officers Law §30.1(e), which provides that a public officer removed from office following his or her conviction of a felony, or a crime involving a violation of his or her oath of office, other than an elected officer, “may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.”

*** A party is guilty of laches if he or she unreasonably delays taking action to enforce his or her legal right[s].

Conducting an administrative hearing

Conducting an administrative hearing
Flood v NYSERS, App. Div., First Dept., 279 A.D.2d 304

Clearly an individual may not be found guilty of disciplinary charges not alleged in the notice of discipline served on the employee. Similarly, a hearing officer in an administrative hearing may not rely on evidence in the record in making his or her determination if the other party was not permitted to challenge or rebut such evidence.

Theresa Flood, a teacher's assistant, was injured aboard a bus during a field trip in November 1990. The New York State Employee's Retirement System denied her application for accidental disability retirement benefits on the grounds that she had not been "incapacitated ... as the natural and proximate result of an accident sustained in ... service". Flood appealed and the issues were framed by the initial Hearing Officer designated to consider the matter as follows:

1. Was there an accident?

2. Is the applicant permanentlyincapacitated? and

3. If so, is the incapacity a proximate result ofthe accident?

The appeal was eventually considered by a different Hearing Officer. Flood's attorney framed the issue before the new hearing officer as simply whether Flood's disability was "the natural and proximate result of an accident sustained in . . . service".

The new hearing officer agreed, cutting off any questioning on "incapacity" on the grounds that there was no "notice to the applicant on that point." He said "causation" was the sole issue to be resolved.

At the conclusion of the hearing the second hearing officer, after acknowledging that the hearings had been limited to the issue of causation, said that "all three questions (accident, incapacity and causation) were once again at issue." His decision, based on the Retirement System's expert's testimony: Flood had failed to establish a "permanent incapacity." That being the case, he denied her appeal without considering the issue of proximate cause.

The Appellate Division vacated the hearing officer's determination, pointing out that Flood "never had an opportunity to pursue or challenge [NYSERS's] testimonial evidence because the issue at the hearing, as framed in the notice, was limited to the question of causation."

The Appellate Division said that "[i]f the issues are to be expanded to cover accident and incapacity as well, then the interests of fairness dictate that [Flood] should have an opportunity to cross-examine the witness and present her own evidence in that respect."

The matter was returned to the Retirement System for a new hearing.

Demanding negotiations concerning changes in the employer's payroll system

Demanding negotiations concerning changes in the employer's payroll system
CSEA and Nassau County, 31 PERB 3032

Nassau County employees in a negotiating unit represented by the Civil Service Employees Association [CSEA] had been receiving their regular pay in one check and any payment for overtime in a second, supplemental check.

The County unilaterally discontinued its practice of issuing two separate paychecks to employees entitled to overtime when it adopted a new payroll system. The new system allowed it to combine an employee’s regular pay and his or her overtime pay, and other payments due the employee, in a single paycheck. The new payroll system also resulted in other processing and payment schedule changes.

CSEA filed an unfair labor practice charge with PERB contending that the payroll change initiated by Nassau County changed or affected mandatory subjects of negotiations and therefore Nassau was barred from making the change unilaterally.

PERB upheld its ALJ’s dismissal of the charge, ruling that Nassau County did not violate the Taylor Law by unilaterally deciding to include overtime [and other payments] in the employees regular paycheck.

Another issue involved the recording of leave accruals and usage. CSEA claimed that the County had discontinued providing unit members with a report of their time and leave record at the beginning of each year. The employees would then use the report to record their accrual and use of leave credits.

PERB said that this had not changed. Rather, the County had discontinued manually entering time and leave information on time cards for record keeping purposes and maintained that information using its new payroll system program. Employees wishing to check their leave and accrual records could do so by viewing a computer screen or reading a computer print out rather than reviewing a traditional “time card.”

Significantly, PERB said that an employer may maintain a record of attendance of its employees and the maintenance of such a record is not mandatorily negotiable.

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims

Binding arbitration demanded for deciding General Municipal Law Section 207-c claims
Watertown v PERB, 95 N.Y.2d 73

In the course of collective bargaining under the Taylor Law the Watertown Police Benevolent Association [PBA] demanded that the question of a police officer’s eligibility for disability benefits pursuant to General Municipal Law Section 207-c be submitted to arbitration.*

When Watertown declined to negotiate the proposal on the grounds that it was not a mandatory subject of negotiations, PBA filed an unfair practice charge with PERB. PERB decided that “because 207-c benefits are a form of wages, procedures which condition, restrict or potentially deny an employee’s receipt of those benefits are terms and conditions of employment and, therefore, are subject to mandatory bargaining” [30 PERB 3072].

PERB also decided that arbitration was an appropriate means of resolving such disputes, holding that “the method for review of a municipality’s determination of eligibility under 207-c is such a procedure.”

Noting that Watertown conceded that “the establishment of 207-c procedures is subject to mandatory negotiations (because the procedure affect terms and conditions of employment), Justice Donahue rejected Watertown’s argument that “the interjection of arbitration in the 207-c eligibility process ‘simply guts’ the municipality’s right to determine eligibility and that [Civil Practice Law and Rules Article 78] is the exclusive method of review.”**

The Court of Appeals agreed, holding that he procedures for contesting the employer’s determinations made pursuant to General Municipal Law Section 207-c were mandatory subject of bargaining.

* General Municipal Law Section 207-c provides disability benefits for police officers injured in the line of duty, including the continuation of the officer in full pay status and the payment of his or her medical expenses associated with the injury. Section 207-a of the General Municipal Law provides for similar benefits for firefighters injured in the line of duty.

** A challenge to an arbitration award is processed pursuant to Article 75 of the Civil Practive Rules and Law rather than via an Article 78 action.

Provisional employee has no right to continued employment as a provisional

Provisional employee has no right to continued employment as a provisional appointee
Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]

In the Singletarly case Judge Gammerman sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,* ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.

Singletarly was serving as a permanent Fraud Investigator, a position in the noncompetitive class. The New York City Department of Homeless Service provisionally appointed him to a vacant Associate Fraud Investigator position, a competitive class position, effective February 20, 1998.

On June 8, 1998 the Department reinstated him to his permanent title, Fraud Investigator. Claiming that this change constituted a “demotion,” thus entitling him to notice and a hearing within the meaning of Section 75 of the Civil Service Law, Singletarly sued.

Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination** for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”

Describing Singletarly’s status as a provisional employee as that of “an employee at will” Justice Gammerman concluded that Singletarly “could be terminated from any position without good cause.”***

The court also briefly analyzed the status of a provisional employee, commenting that when there is no appropriate eligibility list available for filling a [wholly] vacancy in the competitive class the position may be filled on a provisional basis.

A provisional employee, however, has no expectation of tenure rights, including the right to notice or hearing prior to termination, or being given the reason for his or her termination. Thus, said the court, “a provisional employee may be terminated at any time without charges proffered, a statement of reasons given or a hearing held.”

* The “rare exception” referred to by the Justice Gammerman is probably the one leading to the decision in Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611. In Roulett the court held that the continued provisional employment of a person eligible for permanent appointment to the position when the individual is qualified for permanent appointment from a nonmandatory eligible list results in that individual being deemed permanent in the position upon the completion of the period of probation otherwise required [Section 64.5, Civil Service Law].

** Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.

*** This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights.

Judicial review of the disciplinary penalty imposed on an employee by the appointing authority

Judicial review of the disciplinary penalty imposed on an employee by the appointing authority
Matter of Rutkunas v Stout, 8 N.Y.3d 897

Anthony Rutkunas, a senior maintenance mechanic (carpenter) with the Westchester County Department of Parks, was found guilty of disciplinary charges that alleged that he (1) failed to bring wood to a job site; (2) failed to complete certain work, despite being asked to do so and (3) threw a coffee cup and at least two, four-inch nails from a height of “approximately fifteen feet in the direction of other employees who were working below him,” two of which struck an employee in the back and chest.

The Hearing Officer recommended a suspension without pay for a minimum of sixty days but noted that termination would be “equally appropriate.” The appointing authority, Joseph Stout, Commissioner of the Westchester County Department of Parks, Recreation, and Conservation, adopted the finding of the Hearing Officer but chose to terminate Rutkunas from his position rather than suspend him without pay.

Supreme Court ruled that Stout did not abuse his discretion in imposing the sanction of termination, stating “It cannot seriously be argued that the penalty is so disproportionate to the offense as to be shocking to one's sense of fairness.”

The Appellate Division disagreed, ruling that although the determination that the Rutkunas was guilty of misconduct was supported by substantial evidence, but “Under the circumstances, including, but not limited to, [Rutkunas’] lack of a prior disciplinary history, minimal prospects of alternative employment, and the devastating impact the sanction of termination imposes on his ability to support his family, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

The Appellate Division remanded the case to the Commissioner, stating that a penalty less severe than termination of Rutkunas employment should be imposed. The Commissioner appealed.

The Court of Appeals reversed the Appellate Division’s ruling, holding that Rutkunas’ petition should be dismissed “in its entirety…”

The decision notes that Rutkunas’ conduct jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked. Accordingly, said the Court of Appeals, “we cannot conclude that the penalty of dismissal imposed . . . shocks the judicial conscience as a matter of law,” citing a number of decisions, including Matter of Will v Frontier Central School District Board. of Education. 97 NY2d 690, and Matter of Pell v Board of Education, 34 NY2d 222.

The court observed that: “The Appellate Division has no discretionary authority or interest of justice jurisdiction in this Article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation,” citing Matter of Kelly, 96 NY2d at 38.

Preexisting condition does not bar receiving GML §207-c if the claimant shows that the job duties were a direct cause of the disability

Preexisting condition does not bar receiving GML §207-c if the claimant shows that the job duties were a direct cause of the disability
D'Accursio v Monroe County, 2010 NY Slip Op 05455, Decided on June 18, 2010, Appellate Division, Fourth Department

Paul D’Accursio, a "Deputy Sheriff Jailor" with the Monroe County Sheriff's Department, filed a petition pursuant to CPLR Article 78 proceeding seeking to annul the denial of his application for General Municipal Law §207-c benefits. His application had been rejected on the ground that D’Accursio did not sustain the injury on which he based his claim in the performance of his job duties.

Supreme Court properly concluded that the determination was arbitrary and capricious and granted the petition.

The Appellate Division agreed, holding that General Municipal Law § 207-c, which provides for the payment of full regular salary or wages to certain law enforcement officers injured in the performance of their duties or taken sick as a result of the performance of their duties so as to necessitate medical or other lawful remedial "does not require that [officers] additionally demonstrate that their disability is related in a substantial degree to their job duties."

Citing White v County of Cortland, 97 NY2d 336, the Appellate Division ruled that “an officer ‘need only prove a direct causal relationship between job duties and the resulting illness or injury."

Further, the court observed that a preexisting condition does not bar recovery under section 207-c if the officer establishes "that the job duties were a direct cause of the disability."

Sustaining Supreme Court’s ruling the Appellate Division said that it concluded that D’Accursio had established "such a direct causal relationship and thus demonstrated his entitlement to benefits under General Municipal Law §207-c."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05455.htm

Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA

Did I say “and”? I meant “or” – Department of Labor’s Reinterpretation of In Loco Parentis requirements under FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

On June 22, 2010, the US Department of Labor reinterpreted the existing requirements for an in loco parentis relationship for FMLA leave due to the birth, adoption, foster care placement or serious health condition of a son or daughter. The FMLA permits an eligible employee-parent to take FMLA leave to bond with a newborn or newly adopted/foster care placed son/daughter, or to care for a son or daughter with a serious health condition.

Parent includes in loco parentis relationships- meaning situations where there is not a biological or legal relationship between parent and child, but the person assumes the role of the parent toward the child. Under the existing regulation, 29 CFR 825.122(c)(3), an in loco parentis relationship has two requirements: (1) day-to-day care of the child; and (2) financial support.

In the memorandum, the DOL announced that the regulations only requires that the employee who intends to assume the responsibilities of a parent to either provide day-to-day care for the child OR financial support, but not both. The DOL's "interpretation" is at direct odds with the plain reading of the regulation.

Mr. Bosland Comments: The DOL Memorandum received a lot of Press because of it confirmed that same-sex partners who satisfy the definition could be an in loco parentis parent for purposes of FMLA leave. While that has always been a distinct possibility, it is noteworthy that the DOL has put in it writing. The substantive change is that the DOL has reduced the burden for establishing an in loco parentis parental relationship with a child from two requirements to one by interpreting "and" in the existing regulation to mean "or." My guess is that the DOL will formalize the change when it gets around to issuing regulations to implement the 2010 National Defense Authorization Act changes to military family leave.

The DOL Memorandum is available on the Internet at: http://www.feedblitz.com/t2.asp?/121772/2190912/0/http://www.dol.gov/opa/media/press/WHD/WHD20100877.htm