Not every mischance resulting in an injury is an "accident" for the purpose of receiving an accidental disability retirement allowance

Not every mischance resulting in an injury is an "accident" for the purpose of receiving an accidental disability retirement allowance
Matter of Kenny v DiNapoli, 11 NY3d 873

Paul G. Kenny challenged the Comptroller’s decision to deny his application for accidental disability retirement benefits. Kelly contended that he was entitled to such benefits as a result of his having slipped on a wet ramp.

The Comptroller found that Kelly knew that the ramp was wet and, therefore, knew of the hazard that led to his injury before the incident occurred. Accordingly, the Comptroller concluded that Kelly’s injury was not the result of an "unexpected event."

The Court of Appeals sustained Comptroller’s determination, indicating that an “accident” for the purposes of being eligible for accidental disability retirement benefits must result from a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

Further, said the Court, "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury."

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09857.htm

PERB holds employer's refusal to supply documents requested by union in connection with its processing a grievance violated the Taylor Law

PERB holds employer's refusal to supply documents requested by union in connection with its processing a grievance violated the Taylor Law
Hampton Bays Teachers' Association, NYSUT, AFT, AFL-CIO and Hampton Bays Union Free School District, U-26980 [Source: PERB’s Recent Decisions posting on the Internet]

The Board affirmed the decision of the ALJ finding that the District violated §§209a.1(a) and (d) of the Act when it refused the Association's requests for certain information and documents it sought for the investigation of a potential grievance and, following the filing of the grievance, for its processing on behalf of a probationary teacher.

The Board reiterated that, under the Act, an employee organization has a general right to receive documents and information, requested from an employer, for use by the employee organization in collective negotiations, the resolution of negotiation impasses and the administration of agreements including, but not limited to, the investigation of a potential grievance, the processing of a grievance and in the preparation for a grievance hearing and/or arbitration.

This general right to receive requested documents and information is subject to three primary limitations: reasonableness, relevancy and necessity.

The Board rejected the District's arguments that the Association's request for information and documents was not reasonable, relevant or necessary under the Act because it allegedly related solely to procedures under Education Law §3031 and that the Association lacked a legitimate contractual basis under the agreement to request information and documents.

The Board found that the Association's request was reasonable, relevant and necessary to the investigation into and processing of the grievance based upon the negotiated procedures applicable during the course of a teacher's probationary period.

Overtime accruals excluded in calculating narcotics bureaus investigator’s retirement allowance

Overtime accruals excluded in calculating narcotics bureaus investigator’s retirement allowance
Source: Findlaw’s Weekly Government Benefits Newsletter – A Thomson Company, Copyright ©2010 by Findlaw, redistributed with permission. For subscription information go to: http://newsletters.findlaw.com/nl/

Stevenson v. Bd. of Ret. of the Orange County Employees' Ret. Sys. , California Court of Appeal, 07/07/2010

In plaintiff's petition for administrative mandate challenging the decision of the Board of Retirement of the Orange County Employees Retirement System (Board), excluding his overtime in calculating his pension allowance, trial court's denial of the petition is affirmed as the administrative record contains substantial evidence showing plaintiff's grade or class within the meaning of section 31461 was that of investigator, and as such, the overtime he worked that was unique to investigators in the narcotics bureaus was properly excluded from his "compensation earnable".

[Click on Case Cite to read the full decision (Free registration required)]

An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis

An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis
Pereira v Nassau County Civ. Serv. Commn., 2010 NY Slip Op 51209(U), Decided on June 14, 2010, Supreme Court, Nassau County, Judge Thomas Feinman, [Not selected for publications in the Official Reports]

The Nassau County Civil Service Commission disqualified Victor Pereira for appointment as a Police Officer after he had passed the written test for the position. Claiming that the Commission’s decision “was made in violation of lawful procedure, was arbitrary and capricious, as abuse of discretion, and effected by law, and not supported by substantial evidence, Pereira as the court to vacated the Commission’s action.

The basis for the Commission’s action was that Pereira failed to meet the physical agility examination for the position.

Pereira was in an age group of applicants that were required to complete 35 sit-ups in one minute in order to avoid disqualification and move on to the final test, a1.5 mile run.

However, Pereira examiner determined that he only completed 28 sit-ups in the necessary and correct form, and therefore, he was disqualified from further evaluation for the appointment as a police officer. Pereira, on the other hand that he had completed 44 sit-ups and that the monitor failed to give him the appropriate credit for his performance.

Judge Feinman said that the Commission’s determination is subject to review under the "arbitrary and capricious" standard of CPLR §7803(3). In applying this standard, said Judge Feinman, an administrative determination will not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith."

"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" and the court's inquiry is limited strictly to a determination of whether a rational basis exists for the agency's actions.

After considering the evidence presented by the Commission concerning the administration and rating of Pereira's sit-ups during the physical agility test, the court ruled that the Commission’s determination was neither arbitrary nor capricious and had a rational basis for its determination and dismissed Pereira’s petition.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51209.htm

Changes in New York State’s Personnel Management Manual: Part 2000 Probation

Changes in New York State’s Personnel Management Manual: Part 2000 Probation
Source: The New York Department of Civil Service Transmittal Memorandum No. 67

The New York Department of Civil Service has distributed Transmittal Memorandum No. 67 updating its State Personnel Management Manual materials addressing “probation.”

The revised or new material clarify that:

A probationer who is transferred may not have the probationary period waived.

Upon cover-in to the appropriately classified service position in accordance with Civil Service Law §45(2) and as determined by the Civil Service Commission, an incumbent is required to serve a probationary period consistent with §4.5 (4NYCRR) for the Classified Service.

The appointing authority’s and the Department of Civil Service’s responsibilities concerning the administration of the probationary process.

Other changes include:

An additional example of probation being appropriately extended rather than terminated;

Explaining that under certain circumstances, service in same-level and lower-level positions now to count toward completion of probation in the position from which the employee is on leave;

Illustrate a situation in which a trainee may have a probationary period extended.

If you wish to print Transmittal Memorandum 67, it is provided in a pdf format at:
http://www.cs.state.ny.us/ssd/pdf/TM_67.pdf

Employee disciplined for making false statements in the course of an administrative investigation

Employee disciplined for making false statements in the course of an administrative investigation
Abbate v Safir, App. Div., First Dept., 279 A.D.2d 260

Not being truthful in responding to questions posed in the course of an official investigation may result in disciplinary action.

New York City police officer Anthony Abbate was found guilty of charges that he "lied at his official interview" when he denied that he had "uttered profanities to another officer," and, in a separate incident, "was discourteous and disrespectful to another officer in uttering racial epithets in an argument." The penalty imposed: dismissal from the force.

Abbate's appeal from the determination and the penalty imposed was dismissed by the Appellate Division. The court said that there was substantial evidence to support a finding that Abbate was guilty of the charges.

As to Abbate's challenge to his dismissal, the Appellate Division decided that in view of Abbate's "poor disciplinary record" the penalty of dismissal satisfied the Pell standard [Pell v Board of Education, 34 NY2d 222]. In the words of the court, "the penalty does not shock our sense of fairness."

Apparently the Appellate Division gave substantial weight to the fact that Abbate had been found guilty of lying in an "official investigation" as the Calhoun case demonstrates.
New York City police officer Gary Calhoun appealed his being found guilty of using racial epithets in the course of making an arrest [Calhoun v Safir, Appellate Division, First Department, 279 A.D.2d 295].

Calhoun had been found guilty of disciplinary charges alleging that he used "excessive force and racial epithets" in arresting a suspected car thief. The penalty imposed: suspension without pay for thirty days as a result.

The Appellate Division, again referring to the Pell doctrine, sustained the Commissioner's determination, commenting that "[T]he 30-day suspension does not shock our sense of fairness and is a minimal penalty in light of the conduct."

A multi-year employment contract between an educator and a school board necessarily binds successor school boards

A multi-year employment contract between an educator and a school board necessarily binds successor school boards
Decisions of the Commissioner of Education, 13958, 13960

School superintendents and their deputies are usually employed pursuant to a written contract that sets out the terms and conditions of their employment. Each time a school board enters into a multi-year contract “it necessarily binds successor boards,” the Commissioner of Education ruled in two cases involving the Mount Vernon City School District in Westchester County.

On June 12, 1997 Mount Vernon City School District’s Board of Education approved resolutions extending its written employment contract with both its superintendent, William C. Prattella and its deputy superintendent, Edward J. Reilly, through June 30, 2000. On July 1, 1997, a newly elected Board adopted a resolution rescinding the former board’s resolutions of June 12.

Both Prattella and Reilly challenged the newly elected board’s action and asked the Commissioner of Education to intervene.

The district asserted that the previous board’s actions were improper and it had the right to rescind the contract extensions because it read Section 2507 of the Education Law as barring a “small city school district” from entering into a written contract with a superintendent or a deputy superintendent.

The Commissioner disagreed with the district’s interpretation of Section 2507. He cited language in Section 2507(1), which applies to superintendents and associate superintendents of small city school districts and Section 2509(3), which covers assistant school superintendents. These provisions authorize the board of a small city school district to contract with such employees for a period of one to five years, he said.

The newly elected board also argued that the action by the previous board was contrary to public policy since “New York courts have held that municipal and governmental boards are not able to bind their successors to long-term contractual provisions.

The Commissioner agreed that “there is venerable authority for the proposition that municipal and government boards should not be able to bind their successors to long-term contractual provisions.” However, he noted, courts have recognized an exception to this general proposition “where a specific statutory provision authorizes a long-term contractual arrangement,” citing Murphy v Erie County, 28 NY2d 80.

Holding that Sections 2507(1) and 2507(3) constituted such statutory provisions, the Commissioner ruled that each time a school board enters into a multi-year “it necessarily binds successor boards.” The Commissioner sustained both appeals.

The Commissioner concluded his opinions in both appeals by commenting that although he was “constrained to recognize the legality of the eleventh hour extension” of the contracts voted by the former Board, he did not endorse the wisdom of its action, “which does not inspire voter confidence in school officials.” This is an example of dicta, a statement of opinion made by a judicial or quasi-judicial official that is not required to resolve the controversy or make a determination.

Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions

Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions
Drucker v Hofstra Univ., App. Div., Second Dept, 279 A.D.2d 472

The Drucker case demonstrates the fact that if the terms of a collective bargaining agreement have been incorporated by reference into an employment contract between the individual and his or her employer, the courts will hold the parties to the controlling provisions set out in the collective bargaining agreement.

Hoftra University said that it was terminating Susan J. Drucker from her position as Chair of the Department of Speech Communication and Rhetorical Studies "for good cause" .

The reason given by Hofstra for Drucker's dismissal: she had failed to maintain "an effective communication climate" with her faculty in violation of Hofstra University's Faculty Policy.

Drucker appealed, contending that her termination was unlawful because she had been employed "unconditionally."

The Appellate Division affirmed a lower court's dismissal of her petition, commenting that the University's action was not arbitrary, capricious, or irrational.

Instead of being hired "unconditionally," the court said that the collective bargaining agreement was "incorporated by reference into [Drucker's] contract of employment...."

The collective bargaining agreement provided that Drucker could be removed for "good cause" upon the filing of a petition signed by two-thirds of the membership of her department, followed by a meeting between the dean and the department membership.

Finding that the record demonstrated that the University had followed the procedures set out in the collective bargaining agreement and that Drucker "had ample opportunity to present her side of the case," the Appellate Division concluded that there was no basis for nullifying the University's action.