A “conclusory affidavit” by the custodian of the records that are the target of a FOIL request insufficient to trigger a FOIL “statutory exception”
Matter of Capital Newspapers Div. of the Hearst Corp. v City of Albany, 2010 NY Slip Op 05704, Decided on July 1, 2010, Court of Appeals
The Court of Appeals held that the City of Albany failed to meet its burden of demonstrating that the records sought by Capital Newspapers pursuant to a FOIL request were "personnel records "or police officers within the meaning of Civil Rights Law §50-a.
The court found that the police chief’s “conclusory affidavit” did not establish that the documents were "used to evaluate performance toward continued employment or promotion," as required by that statute.
Accordingly, said the court, the unredacted gun tags do not fall squarely within a statutory exemption and are subject to disclosure under the Freedom of Information Law (FOIL) (see Public Officers Law § 87 [2]).
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05704.htm
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
July 08, 2010
Nonmembers of an employee organization required to pay agency shop fees are entitled to a refund of such fees used for union organizing activities
Nonmembers of an employee organization required to pay agency shop fees are entitled to a refund of such fees used for union organizing activities
David H. Scheffer, et al, v The Civil Service Employees Association, Local 828; Civil Service Employees Association; AFSCME, Local 1000, USCA, 2nd Circuit, Docket No. 07-3683-cv, Decided: June 28, 2010
In considering an appeal from a judgment of the United States District Court for the Western District of New York dismissing claims brought by public-sector employees who, as nonmembers of CSEA,* the union that represents them for collective-bargaining purposes, challenging the organizing fees assessed by the union, the Circuit Court of Appeals concluded that “although the union’s fee disclosure procedures met the relevant constitutional standards, charging these nonmembers “their proportionate share of the costs associated with some of the union’s organizing activities,” violates their First Amendment rights.
The Circuit Court of Appeals also noted that Civil Service Law §208(3)(a) provides that the union must “refund to any employee demanding the return any part of an agency shop fee deduction which represents the employee’s pro rata share of expenditures by the organization in aid of activities or causes of a political or ideological nature only incidentally related to terms and conditions of employment.”
* The decision notes that approximately nine percent of the employees represented by CSEA [approximately 18,700 employees statewide] are not members of the union but who nonetheless are obligated to pay agency shop fees to CSEA.
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/542c6566-bb30-452f-9aec-d6b9856a5341/11/doc/07-3683-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/542c6566-bb30-452f-9aec-d6b9856a5341/11/hilite/
David H. Scheffer, et al, v The Civil Service Employees Association, Local 828; Civil Service Employees Association; AFSCME, Local 1000, USCA, 2nd Circuit, Docket No. 07-3683-cv, Decided: June 28, 2010
In considering an appeal from a judgment of the United States District Court for the Western District of New York dismissing claims brought by public-sector employees who, as nonmembers of CSEA,* the union that represents them for collective-bargaining purposes, challenging the organizing fees assessed by the union, the Circuit Court of Appeals concluded that “although the union’s fee disclosure procedures met the relevant constitutional standards, charging these nonmembers “their proportionate share of the costs associated with some of the union’s organizing activities,” violates their First Amendment rights.
The Circuit Court of Appeals also noted that Civil Service Law §208(3)(a) provides that the union must “refund to any employee demanding the return any part of an agency shop fee deduction which represents the employee’s pro rata share of expenditures by the organization in aid of activities or causes of a political or ideological nature only incidentally related to terms and conditions of employment.”
* The decision notes that approximately nine percent of the employees represented by CSEA [approximately 18,700 employees statewide] are not members of the union but who nonetheless are obligated to pay agency shop fees to CSEA.
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/542c6566-bb30-452f-9aec-d6b9856a5341/11/doc/07-3683-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/542c6566-bb30-452f-9aec-d6b9856a5341/11/hilite/
Employment Law Daily recaps of the labor and employment decisions handed down by the US Supreme Court
Employment Law Daily recaps of the labor and employment decisions handed down by the US Supreme Court during its October 2009 term, as well as the non-employment rulings that promise to have a significant impact on labor and employment law
Source: CCH Workday at http://cch-workday.blogspot.com/ Reproduced with permission. Copyright© CCH 2010, All rights reserved. [Click on citation to access the opinion.]
Skilling v United States (Dkt No 08-1394). The High Court narrowed the scope of the federal criminal statute for “honest services” fraud, vacating the conviction of former Enron CEO Jeff Skilling and instructing that such indictments must be supported by evidence that the defendant had solicited or accepted bribes or kickbacks. The Court rejected the government’s construction of the statute, which would broadly proscribe the “taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty.” Skilling is a welcome ruling for attorneys representing high-level corporate executives in criminal matters (June 24, 2010).
Granite Rock v Int’l B’hood of Teamsters (Dkt No 08-1214). In a 7-2 decision, the Supreme Court ruled that a dispute between Granite Rock and the Teamsters union over the ratification date of a bargaining agreement was a matter for a federal court, not an arbitrator, to decide. A court may apply the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous as to whether it covers the dispute at hand, and then may order arbitration only where the presumption of arbitrability is not rebutted, reasoned the Court. Here, whether or not the agreement was validly ratified went to the very existence of the agreement to arbitrate. However, the unanimous Court concluded that the employer’s tortious interference claim against the Teamsters was not cognizable under Section 301 of the LMRA (June 24, 2010).
Rent-A-Center, West, Inc v Jackson (Dkt No 09-497). The Supreme Court held in a 5-4 decision that under the Federal Arbitration Act, where parties to an arbitration agreement include a provision that delegates to the arbitrator the gateway question of enforceability of the agreement, if a party specifically challenges the enforceability of the particular agreement, a district court will consider the challenge, but if a party challenges the enforceability of the agreement as a whole, the arbitrator will consider the challenge (June 21, 2010).
City of Ontario v Quon (Dkt No 08-1332). Even assuming that a SWAT officer had a reasonable expectation of privacy in the text messages he sent from his work pager, the city of Ontario, California, and its police department and chief did not violate the officer’s Fourth Amendment rights by obtaining and reviewing transcripts of his text messages because the search was reasonable, the US Supreme Court held in a unanimous judgment. The Court did not resolve the officer’s privacy expectation question, however (June 17, 2010).
New Process Steel, LP v NLRB (Dkt No 08-1457). The National Labor Relations Board lacked the statutory authority to delegate its full powers to a two-member quorum, the Supreme Court ruled in a 5-4 decision, because under Section 3(b) of the National Labor Relations Act, a delegee group must have three members in order to exercise the delegated authority of the Board. The Court’s decision could potentially invalidate almost 600 cases decided by the two-member panel from December 31, 2007 until March 27, 2010 (June 17, 2010). In response to the Court’s decision, the NLRB announced July 1 that it will review 96 cases pending in the courts (six at the Supreme Court and 90 in various Courts of Appeals) that had been issued by the two-member Board; the Board decided nearly 600 decisions while operating with only two members. Each of the remanded cases will be considered by a three-member panel of the Board that will include Chairman Wilma Liebman and Board Member Peter Schaumber (who made up the two-member panel that initially ruled on each case). Consistent with Board practice, the two members not selected to preside over a particular case may nonetheless elect to participate in the case. It is unclear at this time how many of the two-member Board rulings not already challenged in the appellate courts can or will be contested and how many may now be moot.
Hardt v Reliance Standard Life Ins Co (Dkt No 09-448). An employee need not be a “prevailing party” to be eligible for an attorney’s fees award under ERISA’s fee-shifting provision (§1132(g)(1)), held the Supreme Court in a unanimous decision, finding that courts may award fees and costs to a fee claimant so long as he or she has achieved “some degree of success on the merits” (May 24, 2010).
Lewis v City of Chicago (Dkt No 08-974). An employee who does not file a timely EEOC charge challenging the adoption of a practice still may assert a Title VII disparate impact claim in a timely EEOC charge challenging the employer’s later application of that practice as long as the employee alleges each of the elements of a disparate impact claim, the Supreme Court ruled in a unanimous opinion (May 24, 2010).
Stolt-Nielsen S.A. v AnimalFeeds Int’l Corp (Dkt No 08-1198). In a commercial arbitration case that has implications for class-wide arbitration of employment disputes, the US Supreme Court ruled in a 5-3 decision that imposing class arbitration on parties that have not agreed to authorize class arbitration is inconsistent with the Federal Arbitration Act (April 27, 2010).
Perdue v Kenny A (Dkt No 08-970). An attorney’s superior performance can result in enhanced attorney’s fees but only in extraordinary circumstances, held the Supreme Court in a 5-4 decision; the Court affirmed its position that attorney’s fees based on a lodestar calculation, under federal fee-shifting statutes, can be enhanced in certain situations. The lodestar calculation is used to award attorney’s fees and is based on reasonable hours worked and a reasonable hourly rate. The Court’s decision has broad implications for the award of fee enhancements under more than 100 federal laws, including fees in employment discrimination and wage-hour cases (April 21, 2010).
Conkright v Frommert (Dkt No 08-810). In a 5-3 decision, the Supreme Court held that where Xerox’s pension plan provisions gave the plan administrator the power to construe disputed terms, a federal district court should have deferred to the administrator’s reasonable interpretation of the disputed provisions (April 21, 2010).
Graham County Soil and Water Conservation Dist v US ex rel Wilson (Dkt No 08-304). An internal audit and a state agency report were “public disclosures” of wrongdoing under the False Claims Act’s public disclosure bar, which prohibits individual qui tam actions if the alleged fraud has already been disclosed by certain administrative reports, audits or investigations, the Supreme Court held, overruling the Fourth Circuit’s holding that only federal administrative reports may trigger the FCA’s public disclosure bar. The ruling ultimately will have little traction: the Patient Protection and Affordable Care Act included whistleblower provisions that beefed up the FCA clause at issue. Because the amendment was not retroactive, however, it could not save the employee whistleblower here (March 30, 2010).
Hertz Corp v Friend (Dkt No 08-1107). A corporation’s principal place of business is the place where its officers direct, control, and coordinate its activities, a unanimous Supreme Court ruled, adopting a “nerve center” test for determining corporate citizenship and rejecting a “plurality of business activities” approach for analyzing whether diversity jurisdiction exists (February 23, 2010).
Citizens United v Federal Election Comm’n (Dkt No 08-205). The Supreme Court struck down a federal campaign finance reform law that restricted corporate spending on election campaigns. The constitutionally impermissible provision had applied to labor unions as well, although union spending was not directly at issue in this case. While the decision did not expressly lift the campaign spending curb for unions, Court observers have suggested that it did so by implication (January 21, 2010).
Mohawk Industries, Inc v Carpenter (Dkt No 08-678) Resolving a circuit split, a unanimous Supreme Court ruled that a discovery order requiring Mohawk Industries to compel information related to a shift supervisor’s interview with its outside counsel during an internal investigation into a separate RICO class action, as well as information related to the company’s later decision to fire him, did not qualify for immediate appeal by the company until a final judgment had been entered in the underlying action. Mohawk was the first opinion issued in the High Court’s new term and it was also the first opinion written by Supreme Court Justice Sonia Sotomayor (December 8, 2010).
Union Pacific RR. Co v Locomotive Eng’rs and Trainmen Gen Comm of Adjustment, Central Region (Dkt No 08-604). The National Railroad Adjustment Board erred when it dismissed five employee grievances for lack of jurisdiction because the union did not submit evidence of prearbitration union-employer “conferencing” as required by the Railway Labor Act, a unanimous Supreme Court ruled; the conference requirement was not jurisdictional but merely a “procedural rule,” and the Board erred in presuming it had the authority to declare such a rule to be a jurisdictional requirement. Neither the RLA nor its procedural rules “could plausibly be read to require, as a prerequisite to the NRAB’s exercise of jurisdiction, submission of proof of conferencing,” wrote the Court. Thus, the NRAB erred in refusing to hear the grievances “on the false premise that it lacked power to hear them.” (December 8, 2010).
Source: CCH Workday at http://cch-workday.blogspot.com/ Reproduced with permission. Copyright© CCH 2010, All rights reserved. [Click on citation to access the opinion.]
Skilling v United States (Dkt No 08-1394). The High Court narrowed the scope of the federal criminal statute for “honest services” fraud, vacating the conviction of former Enron CEO Jeff Skilling and instructing that such indictments must be supported by evidence that the defendant had solicited or accepted bribes or kickbacks. The Court rejected the government’s construction of the statute, which would broadly proscribe the “taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty.” Skilling is a welcome ruling for attorneys representing high-level corporate executives in criminal matters (June 24, 2010).
Granite Rock v Int’l B’hood of Teamsters (Dkt No 08-1214). In a 7-2 decision, the Supreme Court ruled that a dispute between Granite Rock and the Teamsters union over the ratification date of a bargaining agreement was a matter for a federal court, not an arbitrator, to decide. A court may apply the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous as to whether it covers the dispute at hand, and then may order arbitration only where the presumption of arbitrability is not rebutted, reasoned the Court. Here, whether or not the agreement was validly ratified went to the very existence of the agreement to arbitrate. However, the unanimous Court concluded that the employer’s tortious interference claim against the Teamsters was not cognizable under Section 301 of the LMRA (June 24, 2010).
Rent-A-Center, West, Inc v Jackson (Dkt No 09-497). The Supreme Court held in a 5-4 decision that under the Federal Arbitration Act, where parties to an arbitration agreement include a provision that delegates to the arbitrator the gateway question of enforceability of the agreement, if a party specifically challenges the enforceability of the particular agreement, a district court will consider the challenge, but if a party challenges the enforceability of the agreement as a whole, the arbitrator will consider the challenge (June 21, 2010).
City of Ontario v Quon (Dkt No 08-1332). Even assuming that a SWAT officer had a reasonable expectation of privacy in the text messages he sent from his work pager, the city of Ontario, California, and its police department and chief did not violate the officer’s Fourth Amendment rights by obtaining and reviewing transcripts of his text messages because the search was reasonable, the US Supreme Court held in a unanimous judgment. The Court did not resolve the officer’s privacy expectation question, however (June 17, 2010).
New Process Steel, LP v NLRB (Dkt No 08-1457). The National Labor Relations Board lacked the statutory authority to delegate its full powers to a two-member quorum, the Supreme Court ruled in a 5-4 decision, because under Section 3(b) of the National Labor Relations Act, a delegee group must have three members in order to exercise the delegated authority of the Board. The Court’s decision could potentially invalidate almost 600 cases decided by the two-member panel from December 31, 2007 until March 27, 2010 (June 17, 2010). In response to the Court’s decision, the NLRB announced July 1 that it will review 96 cases pending in the courts (six at the Supreme Court and 90 in various Courts of Appeals) that had been issued by the two-member Board; the Board decided nearly 600 decisions while operating with only two members. Each of the remanded cases will be considered by a three-member panel of the Board that will include Chairman Wilma Liebman and Board Member Peter Schaumber (who made up the two-member panel that initially ruled on each case). Consistent with Board practice, the two members not selected to preside over a particular case may nonetheless elect to participate in the case. It is unclear at this time how many of the two-member Board rulings not already challenged in the appellate courts can or will be contested and how many may now be moot.
Hardt v Reliance Standard Life Ins Co (Dkt No 09-448). An employee need not be a “prevailing party” to be eligible for an attorney’s fees award under ERISA’s fee-shifting provision (§1132(g)(1)), held the Supreme Court in a unanimous decision, finding that courts may award fees and costs to a fee claimant so long as he or she has achieved “some degree of success on the merits” (May 24, 2010).
Lewis v City of Chicago (Dkt No 08-974). An employee who does not file a timely EEOC charge challenging the adoption of a practice still may assert a Title VII disparate impact claim in a timely EEOC charge challenging the employer’s later application of that practice as long as the employee alleges each of the elements of a disparate impact claim, the Supreme Court ruled in a unanimous opinion (May 24, 2010).
Stolt-Nielsen S.A. v AnimalFeeds Int’l Corp (Dkt No 08-1198). In a commercial arbitration case that has implications for class-wide arbitration of employment disputes, the US Supreme Court ruled in a 5-3 decision that imposing class arbitration on parties that have not agreed to authorize class arbitration is inconsistent with the Federal Arbitration Act (April 27, 2010).
Perdue v Kenny A (Dkt No 08-970). An attorney’s superior performance can result in enhanced attorney’s fees but only in extraordinary circumstances, held the Supreme Court in a 5-4 decision; the Court affirmed its position that attorney’s fees based on a lodestar calculation, under federal fee-shifting statutes, can be enhanced in certain situations. The lodestar calculation is used to award attorney’s fees and is based on reasonable hours worked and a reasonable hourly rate. The Court’s decision has broad implications for the award of fee enhancements under more than 100 federal laws, including fees in employment discrimination and wage-hour cases (April 21, 2010).
Conkright v Frommert (Dkt No 08-810). In a 5-3 decision, the Supreme Court held that where Xerox’s pension plan provisions gave the plan administrator the power to construe disputed terms, a federal district court should have deferred to the administrator’s reasonable interpretation of the disputed provisions (April 21, 2010).
Graham County Soil and Water Conservation Dist v US ex rel Wilson (Dkt No 08-304). An internal audit and a state agency report were “public disclosures” of wrongdoing under the False Claims Act’s public disclosure bar, which prohibits individual qui tam actions if the alleged fraud has already been disclosed by certain administrative reports, audits or investigations, the Supreme Court held, overruling the Fourth Circuit’s holding that only federal administrative reports may trigger the FCA’s public disclosure bar. The ruling ultimately will have little traction: the Patient Protection and Affordable Care Act included whistleblower provisions that beefed up the FCA clause at issue. Because the amendment was not retroactive, however, it could not save the employee whistleblower here (March 30, 2010).
Hertz Corp v Friend (Dkt No 08-1107). A corporation’s principal place of business is the place where its officers direct, control, and coordinate its activities, a unanimous Supreme Court ruled, adopting a “nerve center” test for determining corporate citizenship and rejecting a “plurality of business activities” approach for analyzing whether diversity jurisdiction exists (February 23, 2010).
Citizens United v Federal Election Comm’n (Dkt No 08-205). The Supreme Court struck down a federal campaign finance reform law that restricted corporate spending on election campaigns. The constitutionally impermissible provision had applied to labor unions as well, although union spending was not directly at issue in this case. While the decision did not expressly lift the campaign spending curb for unions, Court observers have suggested that it did so by implication (January 21, 2010).
Mohawk Industries, Inc v Carpenter (Dkt No 08-678) Resolving a circuit split, a unanimous Supreme Court ruled that a discovery order requiring Mohawk Industries to compel information related to a shift supervisor’s interview with its outside counsel during an internal investigation into a separate RICO class action, as well as information related to the company’s later decision to fire him, did not qualify for immediate appeal by the company until a final judgment had been entered in the underlying action. Mohawk was the first opinion issued in the High Court’s new term and it was also the first opinion written by Supreme Court Justice Sonia Sotomayor (December 8, 2010).
Union Pacific RR. Co v Locomotive Eng’rs and Trainmen Gen Comm of Adjustment, Central Region (Dkt No 08-604). The National Railroad Adjustment Board erred when it dismissed five employee grievances for lack of jurisdiction because the union did not submit evidence of prearbitration union-employer “conferencing” as required by the Railway Labor Act, a unanimous Supreme Court ruled; the conference requirement was not jurisdictional but merely a “procedural rule,” and the Board erred in presuming it had the authority to declare such a rule to be a jurisdictional requirement. Neither the RLA nor its procedural rules “could plausibly be read to require, as a prerequisite to the NRAB’s exercise of jurisdiction, submission of proof of conferencing,” wrote the Court. Thus, the NRAB erred in refusing to hear the grievances “on the false premise that it lacked power to hear them.” (December 8, 2010).
Failing to report to work or to provide medical documents as requested supports the conclusion that the employee has abandonment the position
Failing to report to work or to provide medical documents as requested supports the conclusion that the employee has abandonment the position
McKnight v NYS Dormitory Auth., App. Div., 267 A.D.2d 708, Motion for leave to appeal denied, 94 N.Y.2d 762
Lucille M. McKnight, a New York State Dormitory Authority [SDA] employee, stopped coming to work. From time to time “she presented belated, back-dated, sketchy notes and letters from health care providers that consistently evaded SDA’s request for information” concerning her ability to work.
SDA told McKnight that either she return to work or present medical documentation that she was totally unable to perform her duties. SDA also offered to provide a “reasonable accommodation” that would allow her to resume work. Ultimately SDA wrote McKnight that if she did not return to work by January 13, 1997, or provide satisfactory medical evidence of her inability to do so, it would deem her to have abandoned her position. When McKnight failed to report as directed, SDA terminated her.
McKnight sued, complaining that SDA terminated her in bad faith and that it had denied her sick leave at half-pay after she had exhausted all of her leave credits on December 2, 1996. She also claimed that she was entitled to 12 weeks of leave under the Family Medical Leave Act [FMLA] before she could be lawfully terminated and that she had not received proper notice concerning her eligibility for FMLA leave.
Justice Harold J. Hughes ruled that, under the circumstances, SDA’s ultimatum was appropriate. He decided that McKnight had abandoned her position by failing to either report to work or provide satisfactory medical documents supporting her continued absence.
According to the ruling, McKnight’s failure complies with this directive “could serve as a legitimate basis” for SDA’s conclusion that McKnight had abandoned her position “notwithstanding [McKnight’s] continued interest in her job.”
The Appellate Division agreed and dismissed McKnight’s appeal.
McKnight v NYS Dormitory Auth., App. Div., 267 A.D.2d 708, Motion for leave to appeal denied, 94 N.Y.2d 762
Lucille M. McKnight, a New York State Dormitory Authority [SDA] employee, stopped coming to work. From time to time “she presented belated, back-dated, sketchy notes and letters from health care providers that consistently evaded SDA’s request for information” concerning her ability to work.
SDA told McKnight that either she return to work or present medical documentation that she was totally unable to perform her duties. SDA also offered to provide a “reasonable accommodation” that would allow her to resume work. Ultimately SDA wrote McKnight that if she did not return to work by January 13, 1997, or provide satisfactory medical evidence of her inability to do so, it would deem her to have abandoned her position. When McKnight failed to report as directed, SDA terminated her.
McKnight sued, complaining that SDA terminated her in bad faith and that it had denied her sick leave at half-pay after she had exhausted all of her leave credits on December 2, 1996. She also claimed that she was entitled to 12 weeks of leave under the Family Medical Leave Act [FMLA] before she could be lawfully terminated and that she had not received proper notice concerning her eligibility for FMLA leave.
Justice Harold J. Hughes ruled that, under the circumstances, SDA’s ultimatum was appropriate. He decided that McKnight had abandoned her position by failing to either report to work or provide satisfactory medical documents supporting her continued absence.
According to the ruling, McKnight’s failure complies with this directive “could serve as a legitimate basis” for SDA’s conclusion that McKnight had abandoned her position “notwithstanding [McKnight’s] continued interest in her job.”
The Appellate Division agreed and dismissed McKnight’s appeal.
July 07, 2010
Abolishment of probationer’s position prior to attaining tenure results in his or her appointment from a preferred list as a probationer
Abolishment of probationer’s position prior to attaining tenure results in his or her appointment from a preferred list as a probationer
Dickinson v Board of Education of the Deer Park Union Free School District, et al, Decisions of the Commissioner of Education, Decision No. 16,082
[Consolidated appeals: (1) reinstatement from a preferred list and (2) probationary termination]
Dickinson v Board of Education of the Deer Park Union Free School District, et al, Decisions of the Commissioner of Education, Decision No. 16,082
[Consolidated appeals: (1) reinstatement from a preferred list and (2) probationary termination]
Mary Dickinson was appointed as a remedial reading teacher by the Deer Park Union Free School District and on April 24, 2007 was granted tenure in reading effective August 31, 2007. However, on June 30, 2007 Dickinson’s was abolished and her name was placed on the district’s preferred list for a reading teacher position.
Deer Park then appointed Dickinson to a new position as a teacher of English Language Arts (“ELA”) effective September 1, 2007, a position in a separate tenure area from reading.
In March 2008 announcements were posted for anticipated vacancies for the 2008-2009 school year, including a vacancy for a reading teacher. Later that March Dickinson was notified that her position as an ELA teacher was abolished.
After learning that school board subsequently appointed another individual, Lynn Hadity, to the vacant reading teacher position Dickinson appealed, seeking reinstatement to the reading teacher position, with back pay, seniority and other benefits.
Dickinson contended that Deer Park “failed to notify her, and then recall her to the vacant reading teacher position, in violation of Education Law §3013.”
Deer Park's defense: Although it did not make any attempt to contact Dickinson directly about the vacancy, it took steps to publicize the available position and that it was Dickinson’s responsibility to notify the district of her interest in the vacant position.
The Commissioner said that “in accordance with Education Law §3013, the board placed [Dickinson’s] name on the preferred eligibility list and [Dickinson] was entitled to be appointed to any vacancy in a corresponding or similar position in the district for seven years, or on or until June 30, 2014.
Rejecting Deer Park's argument that “it was [Dickinson’s] obligation to notify the district that she was interested in the vacancy,” the Commissioner said there was “no such obligation in the Education Law.”
On the contrary, said the Commissioner, “since the district maintains the preferred eligibility list and manages vacancies, it is implicit that the district is required to make a reasonable effort to notify eligible persons of vacancies so that such persons may be afforded the opportunity to accept or decline a position.”
Finding that Deer Park “should have made a reasonable effort to directly notify [Dickinson] of the vacant position” and in failing to do so the school district violated Dickinson’s rights to reinstatement from the preferred list, the Commissioner ruled that she must be reinstated to a reading teacher position with back pay, seniority and benefits.
Accordingly, on June 23, 2009, the school board appointed Dickinson from the preferred list and placed her in a “different probationary reading position, effective July 1, 2009.” It simultaneously rescinded Dickinson’s April 24, 2007 “conditional tenure appointment … in the reading tenure area.”
At its July 28, 2009, the board voted to terminate Dickinson’s services effective August 31, 2009 and, again, Dickinson appealed to the Commissioner.
Dickinson argued that the board violated Education Law §§3013, 3020 and 3020-a when it recalled her to a probationary reading position on June 23, 2009, rescinded its prior conditional tenure appointment and terminated her services. She asked the Commissioner to void the board’s actions.
The board responded that Dickinson “was terminated prior to the attainment of tenure and that she is not entitled to the procedural protections set forth in §§3020 and 3020-a.”
Citing In Remus v. Bd. of Educ. for Tonawanda City School District, 96 NY2d 271, the Commissioner dismissed Dickinson’s appeal. In Remus, said the Commissioner, the Court of Appeals held that “a board of education resolution that grants tenure to a teacher effective on a specified future date ‘confers tenure upon the teacher only as of that specified future date.’”
Concluding that under the circumstances, Dickinson’s tenure never took effect because she had been laid off prior to "the effective date of her tenure," the Commissioner ruled that when Dickinson was recalled to a reading teacher position in June 2009, “she was a probationary employee and not entitled to the procedural protections of §§3013, 3020 and 3020-a.”
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16082.htm
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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Out-of-title work
Out-of-title work
Macrae v Dolce, Appellate Division, 2nd Dept., 249 A.D.2d 476
City of White Plains firefighters brought an Article 78 action contending that the City was requiring them to regularly perform out-of-title work by serving as fire lieutenants in violation of Section 61.2 of the Civil Service Law. Section 61.2 bars out-of-title work except “during the continuance of a temporary emergency situation....”
Although the City persuaded the Supreme Court to dismiss the petition on the grounds that Macrae had failed to exhaust his administrative remedy “as required by their collective bargaining agreement,” the Appellate Division reversed the lower court’s action.
Article XVIII, the contract clause relied on by Supreme Court in making its determination, tracked the exception set out in Section 61.2 and provided that “no firefighter shall be ordered or required to perform outside of his job description except in an emergency situation.”
The Appellate Division said that this clause “was not intended to cover [Macrae’s] claim that firefighters are regularly required to perform the duties of fire lieutenant duties.” Accordingly, Macrae’s claim is outside the scope of the grievance procedure set out in the collective bargaining agreement and thus it was not necessary to “proceed to arbitration” before commencing this Article 78 proceeding.
Significantly, the Appellate Division noted that “... when the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and the parties’ reasonable expectations.”
Further, a court may not under the guise of construction, write into a contract conditions that were not included by the parties, nor may it construe contract language so as to distort the contract’s apparent meaning.
The error of the Supreme Court was that it viewed Article XVIII as requiring Macrae to file a contract grievance and arbitrate the claims. Because the alleged out-of-title work assignments were characterized as being “regularly assigned” to firefighters rather than the result of an “emergency situation,” the Appellate Division ruled that the firefighters were not compelled to “exhaust their administrative remedy” - here arbitration - before proceeding with this motion for a “declaratory judgment.”
The matter was returned to Supreme Court for its further consideration, including “the entry of an appropriate declaration.”
Macrae v Dolce, Appellate Division, 2nd Dept., 249 A.D.2d 476
City of White Plains firefighters brought an Article 78 action contending that the City was requiring them to regularly perform out-of-title work by serving as fire lieutenants in violation of Section 61.2 of the Civil Service Law. Section 61.2 bars out-of-title work except “during the continuance of a temporary emergency situation....”
Although the City persuaded the Supreme Court to dismiss the petition on the grounds that Macrae had failed to exhaust his administrative remedy “as required by their collective bargaining agreement,” the Appellate Division reversed the lower court’s action.
Article XVIII, the contract clause relied on by Supreme Court in making its determination, tracked the exception set out in Section 61.2 and provided that “no firefighter shall be ordered or required to perform outside of his job description except in an emergency situation.”
The Appellate Division said that this clause “was not intended to cover [Macrae’s] claim that firefighters are regularly required to perform the duties of fire lieutenant duties.” Accordingly, Macrae’s claim is outside the scope of the grievance procedure set out in the collective bargaining agreement and thus it was not necessary to “proceed to arbitration” before commencing this Article 78 proceeding.
Significantly, the Appellate Division noted that “... when the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and the parties’ reasonable expectations.”
Further, a court may not under the guise of construction, write into a contract conditions that were not included by the parties, nor may it construe contract language so as to distort the contract’s apparent meaning.
The error of the Supreme Court was that it viewed Article XVIII as requiring Macrae to file a contract grievance and arbitrate the claims. Because the alleged out-of-title work assignments were characterized as being “regularly assigned” to firefighters rather than the result of an “emergency situation,” the Appellate Division ruled that the firefighters were not compelled to “exhaust their administrative remedy” - here arbitration - before proceeding with this motion for a “declaratory judgment.”
The matter was returned to Supreme Court for its further consideration, including “the entry of an appropriate declaration.”
July 06, 2010
A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation
A union is not required to carry every grievance to the highest level to satisfy its duty of fair representation
Delsante v CSEA Local 1000, AFSCME AFL-CIO, 2010 NY Slip Op 51145(U), decided on June 15, 2010, Supreme Court, Richmond County, Judge Judith N. McMahon [Not selected for publication in the Official Reports.]
Camille Delsante was serving her probationary period. After she received her first "Probationary Progress Report," which indicated that her time and attendance was unsatisfactory, she submitted her resignation stating that "I hereby offer my resignation from my position with the New York State Office of Parks, Recreation and Historic Preservation to seek other employment effective August 6th, 2008."
Kalliopi Zervos, a CSEA Labor Relations Specialist, met with Delsante to discuss her resignation and subsequently met with the Department's Associate Personnel Administrator, Joseph Lescinski, in an effort to resolve the dispute and possibly negotiate a rescission of the resignation.
After reviewing Delsante’s personnel record, Lescinski said that the appointing authority “would not rescind the resignation.” Zervos then advised Delsante that because of her probationary status she could not further pursue any grievance.
Delsante, contending that CSEA breached the duty of fair representation by failing to pursue a claim on her behalf, sued the union. In rebuttal, CSEA argued that it had fully represented Delsante but because of her probationary status the collective bargaining agreement limited the options for pursuing her claim. Accordingly, CSEA argued that it did not act in bad faith in not pursuing Delsante's claim.
Although Judge McMahon dismissed Delsante’s petition as untimely, she noted that although “academic,” Delsante’s petition would have been dismissed on the merits as CSEA “did not act arbitrary, discriminatory or in bad faith in addressing Delsante's claims.”
The court noted that with respect to claims based upon the alleged breach of a duty of fair representation, the charging party must establish that the union acted "deliberately invidious, arbitrary and founded in bad faith." Here, said the court, CSEA established that it pursued the avenues available to assist Delsante in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement Article §33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment".
Significantly, CSEA demonstrated that its representative met with Delsante; spoke with Mr. Lescinski in an effort to negotiate her reinstatement; and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited.
Citing Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, Judge McMahon said "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.”
The court granted CSEA’s motion for summary judgment, dismissing Delsante’s petition in its entirety.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51145.htm
Delsante v CSEA Local 1000, AFSCME AFL-CIO, 2010 NY Slip Op 51145(U), decided on June 15, 2010, Supreme Court, Richmond County, Judge Judith N. McMahon [Not selected for publication in the Official Reports.]
Camille Delsante was serving her probationary period. After she received her first "Probationary Progress Report," which indicated that her time and attendance was unsatisfactory, she submitted her resignation stating that "I hereby offer my resignation from my position with the New York State Office of Parks, Recreation and Historic Preservation to seek other employment effective August 6th, 2008."
Kalliopi Zervos, a CSEA Labor Relations Specialist, met with Delsante to discuss her resignation and subsequently met with the Department's Associate Personnel Administrator, Joseph Lescinski, in an effort to resolve the dispute and possibly negotiate a rescission of the resignation.
After reviewing Delsante’s personnel record, Lescinski said that the appointing authority “would not rescind the resignation.” Zervos then advised Delsante that because of her probationary status she could not further pursue any grievance.
Delsante, contending that CSEA breached the duty of fair representation by failing to pursue a claim on her behalf, sued the union. In rebuttal, CSEA argued that it had fully represented Delsante but because of her probationary status the collective bargaining agreement limited the options for pursuing her claim. Accordingly, CSEA argued that it did not act in bad faith in not pursuing Delsante's claim.
Although Judge McMahon dismissed Delsante’s petition as untimely, she noted that although “academic,” Delsante’s petition would have been dismissed on the merits as CSEA “did not act arbitrary, discriminatory or in bad faith in addressing Delsante's claims.”
The court noted that with respect to claims based upon the alleged breach of a duty of fair representation, the charging party must establish that the union acted "deliberately invidious, arbitrary and founded in bad faith." Here, said the court, CSEA established that it pursued the avenues available to assist Delsante in her grievance but because of her probationary status, the options were limited pursuant to the CSEA Collective Bargaining Agreement Article §33.1 which specifically states "[t]he disciplinary procedure provided herein is not applicable to review the removal of an employee from a probationary appointment".
Significantly, CSEA demonstrated that its representative met with Delsante; spoke with Mr. Lescinski in an effort to negotiate her reinstatement; and wrote a letter on her behalf but, again, because of her probationary status any further grievance options were limited.
Citing Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, Judge McMahon said "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.”
The court granted CSEA’s motion for summary judgment, dismissing Delsante’s petition in its entirety.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51145.htm
Court holds arbitrator’s misconstruing or disregarding the contract's plain meaning of no consequence as the determination was not irrational
Court holds arbitrator’s misconstruing or disregarding the contract's plain meaning of no consequence as the determination was not irrational
Matter of Buffalo Council of Supervisors v Board of Educ. of City School Dist. of Buffalo, 2010 NY Slip Op 05898, Decided on July 2, 2010, Appellate Division, Fourth Department
Buffalo had earlier negotiated with the Council and other employee unions in an attempt to persuade the unions to accept a single health insurance carrier plan in place of the multiple health insurance carrier plan then required by each union's collective bargaining agreement.* The Council refused to consent to the change and obtained an injunction to prevent respondent from imposing the single health insurance carrier plan on its members. After the School District laid off 26 of its members, allegedly “in anticipation of the budgetary shortfall” because of such refusal, the Council filed two contract grievances.
The Buffalo Council of Supervisors prevailed but Judge Donna M. Siwek, Supreme Court, Erie County, denied the Council CPLR Article 75 petition seeking to confirm the arbitration award that directed the Board of Education to reinstate 17 of its members that had been earlier laid off.
The Appellate Division, however, said that Supreme Court was incorrect in denying the Council’s petition in its entirety as the role of the courts with respect to disputes submitted to binding arbitration pursuant to a collective bargaining agreement is limited, and a court should not substitute its judgment for that of the arbitrator. Unless the arbitration award "is clearly violative of a strong public policy, . . . is totally or completely irrational, or . . . manifestly exceeds a specific, enumerated limitation on the arbitrator['s] power," the award must be confirmed.
As the arbitrator’s interpretation of the agreement to provide the Association with “an opportunity to be heard on the layoff and method of layoff of 26 assistant principals” is rationally based on the plain language of the relevant contract provision and to “the extent, if any, to which ‘the arbitrator may have misconstrued or disregarded the plain meaning of the contract’ is of no moment where, as here, the arbitrator's determination is not irrational.”
In contrast, said the Appellate Division, Supreme Court “properly refused to confirm that part of the arbitration award determining that [the school district violated Article 4 of the CBA] and directing [the school district] to reinstate all but the nine least senior assistant principals who had been laid off."
The arbitrator explicitly recognized that school district had the authority to lay off employees for economic reasons without violating the CBA but nevertheless concluded that the Council “bore a disproportionate share of the projected budgetary shortfall.” This was was incorrect as it was based on "the financial savings that resulted from the layoffs of Council's members against the $800,000 projected budgetary shortfall directly related to its refusal to accept the single health insurance carrier plan rather than against the $12 million projected overall budgetary shortfall for the fiscal year."
The court also faulted the arbitrator for failing to account for those laid-off employees who were not members of Council in his “determination of proportionality.” Accordingly, said the Appellate Division, “that part of the arbitration award is irrational because ‘there is no proof whatever to justify [it].'”
* (see generally Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503, lv denied 11 NY3d 708).
The Council decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05898.htm
Matter of Buffalo Council of Supervisors v Board of Educ. of City School Dist. of Buffalo, 2010 NY Slip Op 05898, Decided on July 2, 2010, Appellate Division, Fourth Department
Buffalo had earlier negotiated with the Council and other employee unions in an attempt to persuade the unions to accept a single health insurance carrier plan in place of the multiple health insurance carrier plan then required by each union's collective bargaining agreement.* The Council refused to consent to the change and obtained an injunction to prevent respondent from imposing the single health insurance carrier plan on its members. After the School District laid off 26 of its members, allegedly “in anticipation of the budgetary shortfall” because of such refusal, the Council filed two contract grievances.
The Buffalo Council of Supervisors prevailed but Judge Donna M. Siwek, Supreme Court, Erie County, denied the Council CPLR Article 75 petition seeking to confirm the arbitration award that directed the Board of Education to reinstate 17 of its members that had been earlier laid off.
The Appellate Division, however, said that Supreme Court was incorrect in denying the Council’s petition in its entirety as the role of the courts with respect to disputes submitted to binding arbitration pursuant to a collective bargaining agreement is limited, and a court should not substitute its judgment for that of the arbitrator. Unless the arbitration award "is clearly violative of a strong public policy, . . . is totally or completely irrational, or . . . manifestly exceeds a specific, enumerated limitation on the arbitrator['s] power," the award must be confirmed.
As the arbitrator’s interpretation of the agreement to provide the Association with “an opportunity to be heard on the layoff and method of layoff of 26 assistant principals” is rationally based on the plain language of the relevant contract provision and to “the extent, if any, to which ‘the arbitrator may have misconstrued or disregarded the plain meaning of the contract’ is of no moment where, as here, the arbitrator's determination is not irrational.”
In contrast, said the Appellate Division, Supreme Court “properly refused to confirm that part of the arbitration award determining that [the school district violated Article 4 of the CBA] and directing [the school district] to reinstate all but the nine least senior assistant principals who had been laid off."
The arbitrator explicitly recognized that school district had the authority to lay off employees for economic reasons without violating the CBA but nevertheless concluded that the Council “bore a disproportionate share of the projected budgetary shortfall.” This was was incorrect as it was based on "the financial savings that resulted from the layoffs of Council's members against the $800,000 projected budgetary shortfall directly related to its refusal to accept the single health insurance carrier plan rather than against the $12 million projected overall budgetary shortfall for the fiscal year."
The court also faulted the arbitrator for failing to account for those laid-off employees who were not members of Council in his “determination of proportionality.” Accordingly, said the Appellate Division, “that part of the arbitration award is irrational because ‘there is no proof whatever to justify [it].'”
* (see generally Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of City School Dist. of City of Buffalo, 50 AD3d 1503, lv denied 11 NY3d 708).
The Council decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05898.htm
Disciplinary penalty reduced by court
Disciplinary penalty reduced by court
Catena v Village of Southampton, App. Div., 289 A.D.2d 487
The Village of Southampton dismissed Jeffrey Catena from his position as maintenance mechanic. Although Catena admitted his guilt, he appealed, contending that the penalty of dismissal was too harsh under the circumstances.
As a result Catena won a court order directing his reinstatement to his former position. In addition, the Supreme Court justice directed that Catena be given 60 days back pay and benefits. The Village appealed, contesting only that portion of the court's ruling requiring it to pay Catena 60 days of back pay.
The Appellate Division modified the back pay award, holding that the Village only had to pay Catena 30 days of back pay.
The Appellate Division said although Catena had admitted his guilt, which was supported by substantial evidence, "under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness" citing Pell v Board of Education, 34 NY2d 222.
In modifying the disciplinary penalty, the Appellate Division commented the Catena had 10 years of satisfactory service with the Village and his misconduct was an isolated event. The Village apparently agreed that dismissal was too harsh a penalty, as it did not appeal that portion of the Supreme Court's decision directing it to reinstate Catena to his former position.
Accordingly, said the court, Supreme Court properly granted the petition reinstating Catena. But the Supreme Court was incorrect when it awarded Catena 60 days back pay and benefits. Apparently the Supreme Court based this award on its belief that Catena was suspended for 60 days without pay or benefits.
The record indicated that Catena was actually suspended without pay for a period of only 30 days. The Appellate Division ruled that under the circumstances, his suspension for 30 days without pay or benefits is an appropriate penalty.
Catena v Village of Southampton, App. Div., 289 A.D.2d 487
The Village of Southampton dismissed Jeffrey Catena from his position as maintenance mechanic. Although Catena admitted his guilt, he appealed, contending that the penalty of dismissal was too harsh under the circumstances.
As a result Catena won a court order directing his reinstatement to his former position. In addition, the Supreme Court justice directed that Catena be given 60 days back pay and benefits. The Village appealed, contesting only that portion of the court's ruling requiring it to pay Catena 60 days of back pay.
The Appellate Division modified the back pay award, holding that the Village only had to pay Catena 30 days of back pay.
The Appellate Division said although Catena had admitted his guilt, which was supported by substantial evidence, "under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness" citing Pell v Board of Education, 34 NY2d 222.
In modifying the disciplinary penalty, the Appellate Division commented the Catena had 10 years of satisfactory service with the Village and his misconduct was an isolated event. The Village apparently agreed that dismissal was too harsh a penalty, as it did not appeal that portion of the Supreme Court's decision directing it to reinstate Catena to his former position.
Accordingly, said the court, Supreme Court properly granted the petition reinstating Catena. But the Supreme Court was incorrect when it awarded Catena 60 days back pay and benefits. Apparently the Supreme Court based this award on its belief that Catena was suspended for 60 days without pay or benefits.
The record indicated that Catena was actually suspended without pay for a period of only 30 days. The Appellate Division ruled that under the circumstances, his suspension for 30 days without pay or benefits is an appropriate penalty.
New York State Comptroller concludes State agencies could save millions by eliminating service contracts
New York State Comptroller concludes State agencies could save millions by eliminating service contracts
Source: Office of the State Comptroller
New York State agencies could save millions of dollars annually by maximizing available revenues and by eliminating unneeded personal and miscellaneous service contracts, according to three audits released on June 30, 2010 by State Comptroller Thomas P. DiNapoli.
The full text of the Comptroller’s press release, including links to the relevant audit reports, is posted on the Internet at:http://www.osc.state.ny.us/press/releases/july10/070110a.htm
Source: Office of the State Comptroller
New York State agencies could save millions of dollars annually by maximizing available revenues and by eliminating unneeded personal and miscellaneous service contracts, according to three audits released on June 30, 2010 by State Comptroller Thomas P. DiNapoli.
The full text of the Comptroller’s press release, including links to the relevant audit reports, is posted on the Internet at:http://www.osc.state.ny.us/press/releases/july10/070110a.htm
Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave
Employee’s alerting the employer “after-the-fact” failed to place the employer on notice that the employee may have been seeking FMLA leave
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.
Joe Lane requested and was granted six months of intermittent FMLA leave to "care for " his mother, who suffered from diabetes, high blood pressure, weight loss, and arthritis. The medical certification he provided established that Lane would use the leave to assist his mother with meals and take her to doctors appointments, which he did without incident for approximately four months. Lane was absent four consecutive days beginning July 23, 2008. In violation of company policy, he did not call in his absences. When contacted, Lane explained that he took the last three consecutive days off because of flooding in the basement of his mother's home where he was staying. The company fired Lane.
Lane sued, alleging that his termination interfered with his FMLA rights as he should have been granted FMLA leave for the three-day period to clean up the flooded basement. He argued that he needed to clean up the basement because the sitting water was a breeding ground for disease that would aggravate his mother's hepatitis. An immediate problem was Lane's concession that he had not previously informed the company that his mother suffered from hepatitis. The company moved for summary judgment, arguing that the absence to clean up the flooded basement was not covered by the FMLA. The court agreed with the company.
The court initially noted that the absence to clean up the flooded basement fell outside the parameters of his approved certification for FMLA leave to provide his mother meals and take her to doctor's appointments. The court further noted that Lane had failed to offer evidence establishing that cleaning his mother's flooded basement fell with the FMLA's definition of "needed to care for" a covered family member due to a serious health condition. He did not offer evidence to back up his claim that his mother suffered from hepatitis, how such a condition constituted a "serious health condition" within the meaning of the FMLA, or how his mother's hepatitis was in danger of being aggravated if Lane did not immediately clean the flooding. Nor did he establish how cleaning the flooded basement fell within the requirement that physical or psychological care address the basic medical, hygienic, nutritional or safety needs of his mother. 29 CFR 825.124(a).
Finally, the court found that alerting his employer (after-the-fact) that he needed leave to clean his mother's flooded basement failed to place the employer on notice that the employee may have been seeking FMLA leave.
Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010).
http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Mr. Bosland Comments: The decision demonstrates that, while broad, the "caring for" component of FMLA leave is not unlimited. Note the court's interest in the absence of evidence establishing how cleaning the flooded basement "cared for" the mother's condition. Courts have generally favored activities that directly provide care to the seriously ill family member over those, such as in this case, that may only indirectly provide physical or psychological care. Arguably, by cleaning up the mess himself, Lane may have relieved his mother from performing an activity that, with arthritis, she could not perform easily, if at all. He may have also provided her psychological care by relieving her of this responsibility. Sitting water may have presented safety issues as well. Apparently, these arguments were not sufficiently developed for the court.
One could argue that the court's interpretation of "caring for" is overly restrictive. For example, Lane goes over to his mother's home to make her a meal. In addition to providing her with physical care (the meal), he is providing her with psychological care by being with her. While his mother eats he goes down into the basement for something. In so doing, has he lost FMLA protection because he momentarily left the room where his mother is eating? Is physical and psychological care so limited? If Lane made lunch and, while his mother was eating, he slipped out of the house to get the mail from the mailbox at the curb, can he be fired for exceeding his medical certification? What if Lane was taking care of his mother a great distance from where he lived and worked and could not get back to work easily. Do FMLA protections turn on and off like a light switch depending on whether Lane is in the room with his mother? Is that what the FMLA is all about?
At the end of the day, Lane's failure to call-in his absence for four consecutive days without a credible explanation likely doomed his FMLA case.
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.
Joe Lane requested and was granted six months of intermittent FMLA leave to "care for " his mother, who suffered from diabetes, high blood pressure, weight loss, and arthritis. The medical certification he provided established that Lane would use the leave to assist his mother with meals and take her to doctors appointments, which he did without incident for approximately four months. Lane was absent four consecutive days beginning July 23, 2008. In violation of company policy, he did not call in his absences. When contacted, Lane explained that he took the last three consecutive days off because of flooding in the basement of his mother's home where he was staying. The company fired Lane.
Lane sued, alleging that his termination interfered with his FMLA rights as he should have been granted FMLA leave for the three-day period to clean up the flooded basement. He argued that he needed to clean up the basement because the sitting water was a breeding ground for disease that would aggravate his mother's hepatitis. An immediate problem was Lane's concession that he had not previously informed the company that his mother suffered from hepatitis. The company moved for summary judgment, arguing that the absence to clean up the flooded basement was not covered by the FMLA. The court agreed with the company.
The court initially noted that the absence to clean up the flooded basement fell outside the parameters of his approved certification for FMLA leave to provide his mother meals and take her to doctor's appointments. The court further noted that Lane had failed to offer evidence establishing that cleaning his mother's flooded basement fell with the FMLA's definition of "needed to care for" a covered family member due to a serious health condition. He did not offer evidence to back up his claim that his mother suffered from hepatitis, how such a condition constituted a "serious health condition" within the meaning of the FMLA, or how his mother's hepatitis was in danger of being aggravated if Lane did not immediately clean the flooding. Nor did he establish how cleaning the flooded basement fell within the requirement that physical or psychological care address the basic medical, hygienic, nutritional or safety needs of his mother. 29 CFR 825.124(a).
Finally, the court found that alerting his employer (after-the-fact) that he needed leave to clean his mother's flooded basement failed to place the employer on notice that the employee may have been seeking FMLA leave.
Lane v. Pontiac Osteopathic Hospital, Case No. 09-12634 (E.D. Mich. June 21, 2010).
http://scholar.google.com/scholar_case?case=16361142005570212643&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Mr. Bosland Comments: The decision demonstrates that, while broad, the "caring for" component of FMLA leave is not unlimited. Note the court's interest in the absence of evidence establishing how cleaning the flooded basement "cared for" the mother's condition. Courts have generally favored activities that directly provide care to the seriously ill family member over those, such as in this case, that may only indirectly provide physical or psychological care. Arguably, by cleaning up the mess himself, Lane may have relieved his mother from performing an activity that, with arthritis, she could not perform easily, if at all. He may have also provided her psychological care by relieving her of this responsibility. Sitting water may have presented safety issues as well. Apparently, these arguments were not sufficiently developed for the court.
One could argue that the court's interpretation of "caring for" is overly restrictive. For example, Lane goes over to his mother's home to make her a meal. In addition to providing her with physical care (the meal), he is providing her with psychological care by being with her. While his mother eats he goes down into the basement for something. In so doing, has he lost FMLA protection because he momentarily left the room where his mother is eating? Is physical and psychological care so limited? If Lane made lunch and, while his mother was eating, he slipped out of the house to get the mail from the mailbox at the curb, can he be fired for exceeding his medical certification? What if Lane was taking care of his mother a great distance from where he lived and worked and could not get back to work easily. Do FMLA protections turn on and off like a light switch depending on whether Lane is in the room with his mother? Is that what the FMLA is all about?
At the end of the day, Lane's failure to call-in his absence for four consecutive days without a credible explanation likely doomed his FMLA case.
July 01, 2010
Is there a right to §207-c benefits if an individual refuses to perform light duty?
Is there a right to §207-c benefits if an individual refuses to perform light duty?
Matter of Park v Kapica, 8 N.Y.3d 302
John Park, a police officer employed by the Town of Greenburgh, underwent surgery in June 2002 after sustaining an injury in the line of duty. He requested, and was approved for, General Municipal Law §207-c(1) benefits.
In March 2003, the Town of Greenburgh’s medical examiner said that Park could return to work in a sedentary capacity. Accordingly, Parks was told to report for light duty starting April 21, 2003.
Park objected and submitted a report from his treating physician indicating that he had a “permanent total disability”* and requested a hearing on the issue of his ability to return to work.
A hearing was scheduled and a hearing officer was designated. Park, however, objected, contending that “any hearing had to be conducted before the Town Board pursuant to the Westchester County Police Act [WCPA].”** Supreme Court denied Park's application to stay the hearing. Park, however, refused to participate and the hearing was held in absentia.
The Hearing Officer concluded that Park (1) was fit to return to light duty, (2) that his refusal to do so was without justification, and (3) that the Town could recoup any §207-c benefits it paid to Park from April 21, 2003 until such time as he returned to work.
Rather than return to work, Park retired on August 26, 2003.
Park then filed a second lawsuit, seeking, among other things, the annulment of the Hearing Officer's determination that the Town could recoup §207-c benefits paid to him.
Supreme Court granted the petition, ruling that the Town had no authority to recoup payments made to Park prior to the Hearing Officer's finding that he was fit for light duty and the Appellate Division affirmed the lower court’s ruling.
Ultimately the Court of Appeals was asked to review these rulings.
The court initially observed that:
1. The continued receipt of §207-c disability payments is not absolute, however. A municipality is entitled to its own medical examination of its employee and if, in that physician's opinion, the officer can perform “specified types of light duty,” payment of the full amount of salary or wages may be discontinued should the officer refuse to return to work if a light-duty assignment “is available and offered to him”
2. The right to receive §207-c disability payments constitutes “a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated,” and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of “continued total disability.”
In response to Park's claim that the Town should have provided for his §207-c hearing in accordance with §7 of the WCPA, the Court of Appeals said that §7 applies to disciplinary actions and because Park was not subject to discipline or to the threat of termination for contesting the medical examiner's light-duty determination, neither it, nor Civil Service Law §75, applied in this situation.
It ruled that the Appellate Division “erred in stating that Civil Service Law §75 should be read in conjunction with General Municipal Law §207-c, a holding that implies that all due process hearings pursuant to §207-c must comply with Civil Service Law §75.”
Such is not the case, said the court. It was only concerned with whether Park was afforded due process in contesting the Town’s medical examiner's determination, which bears no relation to a disciplinary proceeding. However, the court did affirm the Appellate Divisions order “because the procedure employed by the Town concerning Park's challenge to the medical examiner's light-duty determination comported with procedural due process.”
In the absence of a statutory prescription with respect to conducting such hearings or a procedure established by collective bargaining pursuant to the Taylor Law for this purpose, the Court of Appeals said that “the Town was free to fashion a hearing remedy so long as its procedure afforded Park due process.”
Finding that Park's interest in the continued receipt of disability benefits was adequately protected by the Town's due process procedure, the court ruled that while he elected not to participate in the hearing, Park was, nevertheless, given the opportunity to contest the Town’s medical examiner's light-duty determination by presenting his own witnesses and cross-examining the Town's witnesses.
As to the Town’s right to recoup §207-c payments made to Park between April 21, 2003, the date he was initially directed to begin his light-duty assignment, and August 4, 2003, the date he was directed to begin his light-duty assignment after the Hearing Officer affirmed the medical examiner's findings, the Court of Appeals ruled that there was no such right available to the Town.
In the words of the court: “There is no provision in §207-c allowing the recoupment of disability payments made to an officer who is later found to be able to work.”
In contrast, a municipality may discontinue disability payments once its medical examiner finds that the officer can perform a light-duty assignment and the officer “refuse[s] to perform” that duty.” Should an officer refuse to return to work and fail to provide medical proof that he is unable to do so, the medical examiner's opinion is dispositive and §207-c disability payments may be discontinued without a hearing.***
However, a municipality is not permitted to recoup §207-c payments where, as here, the officer avails himself of due process protections by challenging the appointing authority’s medical examiner's determination because such a challenge cannot be equated to his or her refusal to return to duty.
* §207-c(2) provides, in pertinent part, that “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement … If application for such retirement allowance or pension is not made by such policeman, application therefore may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed.”
** Section 7 of the Westchester County Police Act, entitled “Discipline and charges,” states that no member of a police department “shall be fined, reprimanded, removed or dismissed” until the charges have been investigated, and further provides that the trial of those charges “shall not be delegated and must be heard by the town board or the full board of police commissioners.”
*** The Court of Appeals noted that its decision was based “solely” on it reading of the applicable statutes and it should not be viewed as suggesting that “there would be any constitutional bar to a recoupment of benefits in a situation like this one, had the Legislature so provided.”
Matter of Park v Kapica, 8 N.Y.3d 302
John Park, a police officer employed by the Town of Greenburgh, underwent surgery in June 2002 after sustaining an injury in the line of duty. He requested, and was approved for, General Municipal Law §207-c(1) benefits.
In March 2003, the Town of Greenburgh’s medical examiner said that Park could return to work in a sedentary capacity. Accordingly, Parks was told to report for light duty starting April 21, 2003.
Park objected and submitted a report from his treating physician indicating that he had a “permanent total disability”* and requested a hearing on the issue of his ability to return to work.
A hearing was scheduled and a hearing officer was designated. Park, however, objected, contending that “any hearing had to be conducted before the Town Board pursuant to the Westchester County Police Act [WCPA].”** Supreme Court denied Park's application to stay the hearing. Park, however, refused to participate and the hearing was held in absentia.
The Hearing Officer concluded that Park (1) was fit to return to light duty, (2) that his refusal to do so was without justification, and (3) that the Town could recoup any §207-c benefits it paid to Park from April 21, 2003 until such time as he returned to work.
Rather than return to work, Park retired on August 26, 2003.
Park then filed a second lawsuit, seeking, among other things, the annulment of the Hearing Officer's determination that the Town could recoup §207-c benefits paid to him.
Supreme Court granted the petition, ruling that the Town had no authority to recoup payments made to Park prior to the Hearing Officer's finding that he was fit for light duty and the Appellate Division affirmed the lower court’s ruling.
Ultimately the Court of Appeals was asked to review these rulings.
The court initially observed that:
1. The continued receipt of §207-c disability payments is not absolute, however. A municipality is entitled to its own medical examination of its employee and if, in that physician's opinion, the officer can perform “specified types of light duty,” payment of the full amount of salary or wages may be discontinued should the officer refuse to return to work if a light-duty assignment “is available and offered to him”
2. The right to receive §207-c disability payments constitutes “a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated,” and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of “continued total disability.”
In response to Park's claim that the Town should have provided for his §207-c hearing in accordance with §7 of the WCPA, the Court of Appeals said that §7 applies to disciplinary actions and because Park was not subject to discipline or to the threat of termination for contesting the medical examiner's light-duty determination, neither it, nor Civil Service Law §75, applied in this situation.
It ruled that the Appellate Division “erred in stating that Civil Service Law §75 should be read in conjunction with General Municipal Law §207-c, a holding that implies that all due process hearings pursuant to §207-c must comply with Civil Service Law §75.”
Such is not the case, said the court. It was only concerned with whether Park was afforded due process in contesting the Town’s medical examiner's determination, which bears no relation to a disciplinary proceeding. However, the court did affirm the Appellate Divisions order “because the procedure employed by the Town concerning Park's challenge to the medical examiner's light-duty determination comported with procedural due process.”
In the absence of a statutory prescription with respect to conducting such hearings or a procedure established by collective bargaining pursuant to the Taylor Law for this purpose, the Court of Appeals said that “the Town was free to fashion a hearing remedy so long as its procedure afforded Park due process.”
Finding that Park's interest in the continued receipt of disability benefits was adequately protected by the Town's due process procedure, the court ruled that while he elected not to participate in the hearing, Park was, nevertheless, given the opportunity to contest the Town’s medical examiner's light-duty determination by presenting his own witnesses and cross-examining the Town's witnesses.
As to the Town’s right to recoup §207-c payments made to Park between April 21, 2003, the date he was initially directed to begin his light-duty assignment, and August 4, 2003, the date he was directed to begin his light-duty assignment after the Hearing Officer affirmed the medical examiner's findings, the Court of Appeals ruled that there was no such right available to the Town.
In the words of the court: “There is no provision in §207-c allowing the recoupment of disability payments made to an officer who is later found to be able to work.”
In contrast, a municipality may discontinue disability payments once its medical examiner finds that the officer can perform a light-duty assignment and the officer “refuse[s] to perform” that duty.” Should an officer refuse to return to work and fail to provide medical proof that he is unable to do so, the medical examiner's opinion is dispositive and §207-c disability payments may be discontinued without a hearing.***
However, a municipality is not permitted to recoup §207-c payments where, as here, the officer avails himself of due process protections by challenging the appointing authority’s medical examiner's determination because such a challenge cannot be equated to his or her refusal to return to duty.
* §207-c(2) provides, in pertinent part, that “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement … If application for such retirement allowance or pension is not made by such policeman, application therefore may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed.”
** Section 7 of the Westchester County Police Act, entitled “Discipline and charges,” states that no member of a police department “shall be fined, reprimanded, removed or dismissed” until the charges have been investigated, and further provides that the trial of those charges “shall not be delegated and must be heard by the town board or the full board of police commissioners.”
*** The Court of Appeals noted that its decision was based “solely” on it reading of the applicable statutes and it should not be viewed as suggesting that “there would be any constitutional bar to a recoupment of benefits in a situation like this one, had the Legislature so provided.”
Agreeing to a disciplinary suspension without pay in exchange for a postponement of the scheduled disciplinary hearing
Agreeing to a disciplinary suspension without pay in exchange for a postponement of the scheduled disciplinary hearing
Wachtmeiser v Andrus, App. Div., Third Dept., 279 A.D.2d 822
Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without pay for up to thirty days pending resolutions of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.
In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeiser on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.
April 2, 1998, however, Wachtmeiser was again removed from the payroll, this time in accordance with the terms of her signed "release." The release provided that Wachtmeiser agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.
As the Wachtmeiser decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.
If an employee seeks such a postponement, typically he or she will be required stipulate to being removed from the payroll for a period equal to the length of postponement of the hearing he or she requests. In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.
Wachtmeiser, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeiser sued for her back pay for the period she was suspended without pay in excess of thirty days.
The Appellate Division rejected Wachtmeiser's claim for back pay for this period as she had been removed from the payroll consistent with the terms of the "release." It had no difficulty with concept of suspending the employee without pay under such circumstances.
The court also rejected Wachtmeiser's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.
Further, the court rejected Wachtmeiser's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeiser's] misconduct.”
Wachtmeiser v Andrus, App. Div., Third Dept., 279 A.D.2d 822
Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without pay for up to thirty days pending resolutions of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.
In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeiser on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.
April 2, 1998, however, Wachtmeiser was again removed from the payroll, this time in accordance with the terms of her signed "release." The release provided that Wachtmeiser agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.
As the Wachtmeiser decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.
If an employee seeks such a postponement, typically he or she will be required stipulate to being removed from the payroll for a period equal to the length of postponement of the hearing he or she requests. In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.
Wachtmeiser, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeiser sued for her back pay for the period she was suspended without pay in excess of thirty days.
The Appellate Division rejected Wachtmeiser's claim for back pay for this period as she had been removed from the payroll consistent with the terms of the "release." It had no difficulty with concept of suspending the employee without pay under such circumstances.
The court also rejected Wachtmeiser's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.
Further, the court rejected Wachtmeiser's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeiser's] misconduct.”
Failure to maintain a residence within the employer’s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes
Failure to maintain a residence within the employer’s geographic jurisdiction deemed disqualifying misconduct for unemployment insurance purposes
Matter of Dwaine E. Williams v Commissioner of Labor, 47 AD3d 994
Dwaine E. Williams, a school safety agent with the New York City Police Department for some six years, lived in Westchester County. The City discharged Williams from his position for failing to comply with a provision of the New York City Administrative Code that mandated that he maintain a residence within New York City.
His application for unemployment insurance benefits was rejected on the grounds that his employment was terminated due to misconduct; i.e., failing to comply with his employer’s residency rules.
Finding that City’s residency requirement is a reasonable rule that Williams elected to ignore, the Appellate Division sustained the rejection of Williams’ application for unemployment insurance benefits, holding that "[i]t is well settled that the failure to comply with an employer's reasonable rules can constitute misconduct disqualifying one from receiving unemployment insurance benefits."
Matter of Dwaine E. Williams v Commissioner of Labor, 47 AD3d 994
Dwaine E. Williams, a school safety agent with the New York City Police Department for some six years, lived in Westchester County. The City discharged Williams from his position for failing to comply with a provision of the New York City Administrative Code that mandated that he maintain a residence within New York City.
His application for unemployment insurance benefits was rejected on the grounds that his employment was terminated due to misconduct; i.e., failing to comply with his employer’s residency rules.
Finding that City’s residency requirement is a reasonable rule that Williams elected to ignore, the Appellate Division sustained the rejection of Williams’ application for unemployment insurance benefits, holding that "[i]t is well settled that the failure to comply with an employer's reasonable rules can constitute misconduct disqualifying one from receiving unemployment insurance benefits."
June 30, 2010
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
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
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].
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.
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.
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.
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.
June 29, 2010
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.
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.
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.
June 28, 2010
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
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
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
Drug dependency not a disability under New York’s Human Rights Law
Drug dependency not a disability under New York’s Human Rights Law
Matter of Michael Kirk v City of New York, 47 AD3d 406
Michael Kirk was terminated from his position with the New York City Fire Department after testing positive for cocaine in a random drug test.
The Appellate Division rejected Kirk’s contention that the Department’s random drug testing policy is unconstitutional and decided that the penalty of termination for substance abuse “does not shock the conscience,” citing Reinhard v City of New York, 34 AD3 376, leave to appeal denied, 8 NY3d 808.
The court pointed out that while alcohol dependency qualifies as a disability under the New York State Human Rights Law, drug abuse does not and Kirk was unable to prove that his drug abuse was causally related to his alcoholism.
The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2008/2008_00037.htm
Matter of Michael Kirk v City of New York, 47 AD3d 406
Michael Kirk was terminated from his position with the New York City Fire Department after testing positive for cocaine in a random drug test.
The Appellate Division rejected Kirk’s contention that the Department’s random drug testing policy is unconstitutional and decided that the penalty of termination for substance abuse “does not shock the conscience,” citing Reinhard v City of New York, 34 AD3 376, leave to appeal denied, 8 NY3d 808.
The court pointed out that while alcohol dependency qualifies as a disability under the New York State Human Rights Law, drug abuse does not and Kirk was unable to prove that his drug abuse was causally related to his alcoholism.
The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2008/2008_00037.htm
Two-part test applied in resolving union’s improper practice charge
Two-part test applied in resolving union’s improper practice charge
Matter of Social Service Employees Union, Local 371, (Aubrey Norris) v New York City Bd. of Collective Bargaining, 47 AD3d 417
The Appellate Division upheld a determination by the New York City Board of Collective Bargaining that denied Local 371’s claim that the New York City Administration for Children’s Services [ACS] committed an improper practice petition when it denied a union official access to its headquarters to perform his duties as a union official.
Aubrey Norris, a Local 3761 officer, claimed that security officers employed by ACS “had interfered with access to ACS headquarters to perform his duties as a union official, in violation of the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-306[a]).”
The Board decided that Norris failed to establish a violation under the applicable two-part test: [1] proof that the employer's agent responsible for the allegedly discriminatory act had knowledge of the employee's protected union activity, and [2] that such activity was a motivating factor for the employer's action.
The Board found that while it was undisputed these ACS employees knew of Norris's union activity, the evidence indicated their actions were motivated by personal animus toward Norris rather than toward him as a union representative, noting that other union representatives had no difficulty gaining access to the building for union business, and Norris was never actually prevented from entering the building.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_00052.htm
Matter of Social Service Employees Union, Local 371, (Aubrey Norris) v New York City Bd. of Collective Bargaining, 47 AD3d 417
The Appellate Division upheld a determination by the New York City Board of Collective Bargaining that denied Local 371’s claim that the New York City Administration for Children’s Services [ACS] committed an improper practice petition when it denied a union official access to its headquarters to perform his duties as a union official.
Aubrey Norris, a Local 3761 officer, claimed that security officers employed by ACS “had interfered with access to ACS headquarters to perform his duties as a union official, in violation of the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-306[a]).”
The Board decided that Norris failed to establish a violation under the applicable two-part test: [1] proof that the employer's agent responsible for the allegedly discriminatory act had knowledge of the employee's protected union activity, and [2] that such activity was a motivating factor for the employer's action.
The Board found that while it was undisputed these ACS employees knew of Norris's union activity, the evidence indicated their actions were motivated by personal animus toward Norris rather than toward him as a union representative, noting that other union representatives had no difficulty gaining access to the building for union business, and Norris was never actually prevented from entering the building.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2008/2008_00052.htm
Former employees alleged they were the target of selective prosecution in administrative disciplinary action
Former employees alleged they were the target of selective prosecution in administrative disciplinary action
Bey v New York City Civil Service Commission, Supreme Court, Justice Madden, 2001 NY Slip Op 30058(U), [not officially reported]
New York City conducted an investigation to determine which employees were claiming tax-exempt status or were claiming an excessive number of exemptions. About 1,400 City employees were identified, including the Bey correction officers.
Pedro Rivera Bey, Oba Hassan Wat Bey, Edward Ebanks, Herbert L. Hinnant, and Michael Nichols [hereinafter collectively referred to as Bey] are former tenured New York City Correction Department officers.
Identifying themselves as "Black and of Moorish national origin,” and believing that they were exempt from federal and state taxes, they filed Federal and New York State tax forms claiming exemptions from income tax withholdings. Some of these correction officers also filed IRS forms for nonresident aliens or filed self-made forms entitled "Certificates of Foreign Status for Moorish-Americans."
In April 1998, the Correction Department served disciplinary charges alleging that the Bey employees had engaged in conduct unbecoming an officer by: 1) knowingly submitting Federal and State tax forms falsely claiming exemption from taxation; 2) submitting false tax information with the intent to defraud the State of New York; and 3) violating their oaths of office by submitting documents disclaiming their United States citizenship.
The City's Office of Administrative Trials and Hearings [OATH] held a joint hearing for 17 Correction Department employees pursuant to Civil Service Law Section 75. OATH found that Bey and his co-plaintiffs were guilty of all charges filed against them except their alleged "disclaiming of their United States citizenship." The Department imposed the penalty recommended by OATH: termination.
In response to an appeal filed by the Bey employees pursuant to Section 76 of the Civil Service Law, the City's Civil Service affirmed the Correction Department's dismissal Bey correction officers.
Bey's appeal to State Supreme Court set out several claims but only one survived: the claim that "[t]he charges, the hearing procedures and the discharge of the [Bey officers] violated their statutory and constitutional rights." The Supreme Court justice ruled that Bey raised a triable issue when he alleged that employees who were not Moorish-Americans and who engaged in the same or similar misconduct, were permitted to change their W-4s and, further, these employees were not discharged.
Justice Madden ruled that assuming that the allegations in Bey's petition were true, it is sufficient to raise the only issue here subject to judicial review pursuant to Article 78 of the Civil Practice Law and Rules: the constitutional claim of selective prosecution.
In making a claim of selective prosecution, the individual alleges that he or she has been denied his or her constitutional right to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution forbidding a public authority from applying or enforcing an admitted valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances.
According to the decision, both the "unequal hand" and the "evil eye" requirements must be proven: i.e., there must be not only a showing that the law was not applied to others similarly situated but also "that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification."
The court said that Bey's petition alleges that he and his co-correction officers were singled out based upon their race, religion and, or, national origin, because the Correction Department and other City agencies permitted "other employees" who were not "Moorish-American" to change their withholding forms, and no disciplinary charges were filed against them and they were not discharged.
As these allegations were found sufficient to state a cause of action for impermissible discriminatory prosecution, the court dismissed all of Bey's allegations except those dealing with the selective prosecution claim and said that a trial was required to resolve this issue.
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2001/2001_30058.pdf
Bey v New York City Civil Service Commission, Supreme Court, Justice Madden, 2001 NY Slip Op 30058(U), [not officially reported]
New York City conducted an investigation to determine which employees were claiming tax-exempt status or were claiming an excessive number of exemptions. About 1,400 City employees were identified, including the Bey correction officers.
Pedro Rivera Bey, Oba Hassan Wat Bey, Edward Ebanks, Herbert L. Hinnant, and Michael Nichols [hereinafter collectively referred to as Bey] are former tenured New York City Correction Department officers.
Identifying themselves as "Black and of Moorish national origin,” and believing that they were exempt from federal and state taxes, they filed Federal and New York State tax forms claiming exemptions from income tax withholdings. Some of these correction officers also filed IRS forms for nonresident aliens or filed self-made forms entitled "Certificates of Foreign Status for Moorish-Americans."
In April 1998, the Correction Department served disciplinary charges alleging that the Bey employees had engaged in conduct unbecoming an officer by: 1) knowingly submitting Federal and State tax forms falsely claiming exemption from taxation; 2) submitting false tax information with the intent to defraud the State of New York; and 3) violating their oaths of office by submitting documents disclaiming their United States citizenship.
The City's Office of Administrative Trials and Hearings [OATH] held a joint hearing for 17 Correction Department employees pursuant to Civil Service Law Section 75. OATH found that Bey and his co-plaintiffs were guilty of all charges filed against them except their alleged "disclaiming of their United States citizenship." The Department imposed the penalty recommended by OATH: termination.
In response to an appeal filed by the Bey employees pursuant to Section 76 of the Civil Service Law, the City's Civil Service affirmed the Correction Department's dismissal Bey correction officers.
Bey's appeal to State Supreme Court set out several claims but only one survived: the claim that "[t]he charges, the hearing procedures and the discharge of the [Bey officers] violated their statutory and constitutional rights." The Supreme Court justice ruled that Bey raised a triable issue when he alleged that employees who were not Moorish-Americans and who engaged in the same or similar misconduct, were permitted to change their W-4s and, further, these employees were not discharged.
Justice Madden ruled that assuming that the allegations in Bey's petition were true, it is sufficient to raise the only issue here subject to judicial review pursuant to Article 78 of the Civil Practice Law and Rules: the constitutional claim of selective prosecution.
In making a claim of selective prosecution, the individual alleges that he or she has been denied his or her constitutional right to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution forbidding a public authority from applying or enforcing an admitted valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances.
According to the decision, both the "unequal hand" and the "evil eye" requirements must be proven: i.e., there must be not only a showing that the law was not applied to others similarly situated but also "that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification."
The court said that Bey's petition alleges that he and his co-correction officers were singled out based upon their race, religion and, or, national origin, because the Correction Department and other City agencies permitted "other employees" who were not "Moorish-American" to change their withholding forms, and no disciplinary charges were filed against them and they were not discharged.
As these allegations were found sufficient to state a cause of action for impermissible discriminatory prosecution, the court dismissed all of Bey's allegations except those dealing with the selective prosecution claim and said that a trial was required to resolve this issue.
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2001/2001_30058.pdf
June 25, 2010
In the absence of any “expressed” contractual limitations, an arbitrator is free to fashion a fitting and necessary remedy to a contract dispute
In the absence of any “expressed” contractual limitations, an arbitrator is free to fashion a fitting and necessary remedy to a contract dispute
Matter of City of New York v District Council 37 AFSCME, 2010 NY Slip Op 05671, Decided on June 24, 2010, Appellate Division, First Department
An arbitrator ruled that a number of individuals employed as New York City Public Health Advisors (PHAs) by the City’s Department of Health and Mental Hygiene were entitled to $1,800 for each year since the filing of the grievance claiming that they had been performing out-of-title work.
The City appealed, contending that any monetary remedy for the out-of-title work should be “the difference in pay between existing titles covered under the parties' collective bargaining agreement, and not some "new term" of compensation "created" by the arbitrator.” The City argued that the remedy provided by the arbitrator was “in excess of her powers under the collective bargaining agreement and contrary to the public policy that compensation be negotiated.”
Supreme Court dismissed the City’s appeal and the Appellate Division sustained the lower court’s determination.
The Appellate Division said that regardless of any arbitral precedent there might be for such a limitation on the arbitrator's remedy-fashioning powers under collective bargaining agreements like this one, “it plainly can have no application where, as here, there is no dispute that the hybrid out-of-title duties performed by the PHAs do not match the job specifications of any other existing titles.”
Under the circumstances, said the court, “an arbitrator's powers are not limited, as the City appears to argue, to a cease and desist order.”
As there was no “plain and express contractual limitation” in the collective bargaining agreement limiting the powers of the arbitrator, “the arbitrator properly directed the parties to negotiate; when the negotiations reached an impasse, the arbitrator properly invited the parties to submit proof of the value of the out-of-title services performed, including their last best offers; and, on that basis, fashioned fitting and necessary relief.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05671.htm
Matter of City of New York v District Council 37 AFSCME, 2010 NY Slip Op 05671, Decided on June 24, 2010, Appellate Division, First Department
An arbitrator ruled that a number of individuals employed as New York City Public Health Advisors (PHAs) by the City’s Department of Health and Mental Hygiene were entitled to $1,800 for each year since the filing of the grievance claiming that they had been performing out-of-title work.
The City appealed, contending that any monetary remedy for the out-of-title work should be “the difference in pay between existing titles covered under the parties' collective bargaining agreement, and not some "new term" of compensation "created" by the arbitrator.” The City argued that the remedy provided by the arbitrator was “in excess of her powers under the collective bargaining agreement and contrary to the public policy that compensation be negotiated.”
Supreme Court dismissed the City’s appeal and the Appellate Division sustained the lower court’s determination.
The Appellate Division said that regardless of any arbitral precedent there might be for such a limitation on the arbitrator's remedy-fashioning powers under collective bargaining agreements like this one, “it plainly can have no application where, as here, there is no dispute that the hybrid out-of-title duties performed by the PHAs do not match the job specifications of any other existing titles.”
Under the circumstances, said the court, “an arbitrator's powers are not limited, as the City appears to argue, to a cease and desist order.”
As there was no “plain and express contractual limitation” in the collective bargaining agreement limiting the powers of the arbitrator, “the arbitrator properly directed the parties to negotiate; when the negotiations reached an impasse, the arbitrator properly invited the parties to submit proof of the value of the out-of-title services performed, including their last best offers; and, on that basis, fashioned fitting and necessary relief.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05671.htm
Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction
Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction
Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department
The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.”
James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.”
As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.
Johnson sued and asked the court to annul his termination by the Town of Amherst based on its “residency requirement” that Town employees to be domiciliaries of the Town. Supreme Court sustained the Town’s decision and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."*
Noting that "[j]udicial review of an administrative determination following a hearing required by law is limited to whether the determination is supported by substantial evidence," the Appellate Division said that the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”
The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.
The Appellate Division also commented that Johnson was fully apprised of the evidence that the Town would consider in making its determination and that he was given "numerous opportunities to respond and to present his own evidence" to establish that he, in fact, was domiciled in Amherst but that he failed to come forward with such evidence.
* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm
Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department
The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.”
James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.”
As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.
Johnson sued and asked the court to annul his termination by the Town of Amherst based on its “residency requirement” that Town employees to be domiciliaries of the Town. Supreme Court sustained the Town’s decision and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."*
Noting that "[j]udicial review of an administrative determination following a hearing required by law is limited to whether the determination is supported by substantial evidence," the Appellate Division said that the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”
The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.
The Appellate Division also commented that Johnson was fully apprised of the evidence that the Town would consider in making its determination and that he was given "numerous opportunities to respond and to present his own evidence" to establish that he, in fact, was domiciled in Amherst but that he failed to come forward with such evidence.
* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm
Sovereign immunity
Sovereign immunity
Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159
The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sovereign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.
In 1991, Benjamin Alston and 102 other State parole officers sued the State, claiming that it had failed to pay them overtime in violation of the Fair Labor Standards Act. In 1997, the United States District Court, Northern District of New York, dismissed the action based on the US Supreme Court's ruling in Seminole Tribe of Florida v Florida, 517 US 44. In Seminole the high court said that Article I of the Constitution did not give Congress the power to defeat a states' Eleventh Amendment sovereign immunity from suits commenced or prosecuted in Federal courts.
Alston appealed to the Second Circuit United States Court of Appeals, but the parties agreed to a voluntary dismissal of the action in view of the fact that the Second Circuit had ruled against other claimants in a similar case.
In 1998, Alston filed the same lawsuit in the New York's State Court of Claims. The Court of Claims dismissed the complaint holding that it lacked subject matter jurisdiction because Alston's petition was untimely.
The Appellate Division affirmed the Court of Claims' ruling. It said that "when New York waived its immunity subject to a six-month Statute of Limitations for FLSA claims brought against it as provided by the Court of Claims Act Section 10 ..., such limitation could not be overridden by the Article I powers delegated to Congress, whereby a two or three-year Statute of Limitations was created for FLSA claims." In other words, Alston should have filed his petition with the Court of Claims within six months of the "accrual of his cause of action." The Court of Appeals sustained the Appellate Division's determination.
In the words of the Court of Appeals:
"The issue before us is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act Section 8, the State retained its immunity as to these claims because claimants failed to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver was conditioned."
The court's conclusion: the State retained its immunity. Why? Because, explained the court, although Section 8 of the Court of Claims Act provides that "the state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."
Accordingly, the State's waiver of sovereign immunity was not absolute, but was conditioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.
The Court of Appeals ruled that "because claimants failed to file their claims in the Court of Claims within six months after their accrual ... and did not timely seek relief from the court under Court of Claims Act 10(6), the State was entitled to dismissal of this claim on sovereign immunity grounds.
Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159
The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sovereign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.
In 1991, Benjamin Alston and 102 other State parole officers sued the State, claiming that it had failed to pay them overtime in violation of the Fair Labor Standards Act. In 1997, the United States District Court, Northern District of New York, dismissed the action based on the US Supreme Court's ruling in Seminole Tribe of Florida v Florida, 517 US 44. In Seminole the high court said that Article I of the Constitution did not give Congress the power to defeat a states' Eleventh Amendment sovereign immunity from suits commenced or prosecuted in Federal courts.
Alston appealed to the Second Circuit United States Court of Appeals, but the parties agreed to a voluntary dismissal of the action in view of the fact that the Second Circuit had ruled against other claimants in a similar case.
In 1998, Alston filed the same lawsuit in the New York's State Court of Claims. The Court of Claims dismissed the complaint holding that it lacked subject matter jurisdiction because Alston's petition was untimely.
The Appellate Division affirmed the Court of Claims' ruling. It said that "when New York waived its immunity subject to a six-month Statute of Limitations for FLSA claims brought against it as provided by the Court of Claims Act Section 10 ..., such limitation could not be overridden by the Article I powers delegated to Congress, whereby a two or three-year Statute of Limitations was created for FLSA claims." In other words, Alston should have filed his petition with the Court of Claims within six months of the "accrual of his cause of action." The Court of Appeals sustained the Appellate Division's determination.
In the words of the Court of Appeals:
"The issue before us is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act Section 8, the State retained its immunity as to these claims because claimants failed to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver was conditioned."
The court's conclusion: the State retained its immunity. Why? Because, explained the court, although Section 8 of the Court of Claims Act provides that "the state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."
Accordingly, the State's waiver of sovereign immunity was not absolute, but was conditioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.
The Court of Appeals ruled that "because claimants failed to file their claims in the Court of Claims within six months after their accrual ... and did not timely seek relief from the court under Court of Claims Act 10(6), the State was entitled to dismissal of this claim on sovereign immunity grounds.
Terminating an employee during a disciplinary probation period
Terminating an employee during a disciplinary probation period
Fortner v NYC Dept. of Corrections, 280 A.D.2d 381
In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement.
Steven T. Fortner was serving a disciplinary probation period following the settlement of disciplinary charges that had been filed against him by the New York City Department of Corrections.
The department terminated him, contending that "he violated the terms of his limited probation as set forth in his negotiated plea agreement."
Fortner sued, alleging that he had been terminated in bad faith. The court disagreed, finding that Fortner produced no evidence to support his claim that his dismissal was motivated by bad faith.
Fortner had also asked the court to annul his termination and have the matter remitted to the Department "for reconsideration of the sanction."
The Appellate Division decided that such action was not appropriate under the circumstances since Fortner's termination did not "shock the judicial conscience."
Further, said the court, terminating Fortner for violating the terms of his disciplinary probationary period did not constitute an abuse of discretion on the part of the appointing authority.
The lesson here is that the courts will sustain the termination of an individual serving a disciplinary probation period without a hearing if the employee is discharged for violating or failing to comply with the terms of the disciplinary probation agreed upon.
Suppose the court finds that the employee's termination was inconsistent with the terms and conditions of his or her disciplinary probationary period?
As the Taylor decision indicates [Taylor v Cass, 505 NYS2d 929], in such a situation the individual will be reinstated with back salary.
The Taylor court determined that under the terms of Taylor's disciplinary probation, he could be terminated without any hearing if, in the opinion of his superior, Taylor's job performance was "adversely affected" by his "intoxication on the job."
The court said the appointing authority gave two reasons for it terminating Taylor for violating the terms of his disciplinary probationary period:
1. Taylor's "failing to give a fair day's work"; and
2. Taylor's "sleeping during scheduled working hours."
However, the court found that Taylor's termination was improper because Taylor was not terminated for the sole reason specified in the settlement: his intoxication on the job adversely affecting his performance of the job.
Sometimes the disciplinary probation established resulting from the settlement of the disciplinary action does not limit the appointing authority's discretion in terminating the employee. The Wright case demonstrates such a situation.
In Wright v City of New York, 596 NYS2d 372, the Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents.
In other words, under the terms of Wright's disciplinary probation he was treated as a "new employee" and he could be summarily terminated for any lawful reason.
Fortner v NYC Dept. of Corrections, 280 A.D.2d 381
In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement.
Steven T. Fortner was serving a disciplinary probation period following the settlement of disciplinary charges that had been filed against him by the New York City Department of Corrections.
The department terminated him, contending that "he violated the terms of his limited probation as set forth in his negotiated plea agreement."
Fortner sued, alleging that he had been terminated in bad faith. The court disagreed, finding that Fortner produced no evidence to support his claim that his dismissal was motivated by bad faith.
Fortner had also asked the court to annul his termination and have the matter remitted to the Department "for reconsideration of the sanction."
The Appellate Division decided that such action was not appropriate under the circumstances since Fortner's termination did not "shock the judicial conscience."
Further, said the court, terminating Fortner for violating the terms of his disciplinary probationary period did not constitute an abuse of discretion on the part of the appointing authority.
The lesson here is that the courts will sustain the termination of an individual serving a disciplinary probation period without a hearing if the employee is discharged for violating or failing to comply with the terms of the disciplinary probation agreed upon.
Suppose the court finds that the employee's termination was inconsistent with the terms and conditions of his or her disciplinary probationary period?
As the Taylor decision indicates [Taylor v Cass, 505 NYS2d 929], in such a situation the individual will be reinstated with back salary.
The Taylor court determined that under the terms of Taylor's disciplinary probation, he could be terminated without any hearing if, in the opinion of his superior, Taylor's job performance was "adversely affected" by his "intoxication on the job."
The court said the appointing authority gave two reasons for it terminating Taylor for violating the terms of his disciplinary probationary period:
1. Taylor's "failing to give a fair day's work"; and
2. Taylor's "sleeping during scheduled working hours."
However, the court found that Taylor's termination was improper because Taylor was not terminated for the sole reason specified in the settlement: his intoxication on the job adversely affecting his performance of the job.
Sometimes the disciplinary probation established resulting from the settlement of the disciplinary action does not limit the appointing authority's discretion in terminating the employee. The Wright case demonstrates such a situation.
In Wright v City of New York, 596 NYS2d 372, the Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents.
In other words, under the terms of Wright's disciplinary probation he was treated as a "new employee" and he could be summarily terminated for any lawful reason.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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