ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

July 20, 2010

Commission’s authority to determine applicant’s qualification for appointment not compromised by court’s order directing the production of evidence

Commission’s authority to determine applicant’s qualification for appointment not compromised by court’s order directing the production of evidence
Matter of McElligott v Nassau County Civ. Serv. Commn., 57 AD3d 671

The Nassau County Civil Service Commission disqualified Maurice McElligott for appointment as a police officer after finding that he did not meet the psychological requirements of the position.

McElligott challenged the Commission’s determination and in the course of the trial Supreme Court directed the Commission to produce "the actual written protocol used, if any, in determining passage or non passage [sic] of applicant's MMPI-2 test" and "evidence demonstrating in what manner [McElligott's] and other candidates' MMPI-2 test results fall outside [the acceptable] range [of scores],” thereby requiring McElligott submit to “a Stage II screening evaluation.”

The basis for the Supreme Court’s action was that if found that the Commission’s psychological expert’s statements directly contradicted the Commission's representation "that only candidates whose scores fall outside the established acceptable range are referred to Stage II of the screening process.”

The Commission appealed, claiming that the court’s order interfered with its power to determine the qualifications for appointment to police officer positions.

The Appellate Division affirmed, commenting that the Supreme Court’s directive neither constituted an attempt to interfere with the Commission’s discretion to determine the qualifications of police officers nor “impermissibly expand the scope of the instant proceeding.”

Rather than demand irrelevant evidence of the MMPI-2 results of other candidates, the Appellate Division ruled that Supreme Court simply directed the Commission to produce evidence, such as a written protocol, that set forth the guidelines for determining whether any given candidate's MMPI-2 score fell outside of a pre-determined "normal" range that would trigger the decision to refer such candidate to Stage II psychological evaluation.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09797.htm

Unilaterally deducting employee leave accruals and creating a noncontractual procedure for recouping holiday pay violated employer's duty to negotiate

Unilaterally deducting employee leave accruals and creating a noncontractual procedure for recouping holiday pay violated employer's duty to negotiate
Sullivan County Patrolman's Benevolent Association, Inc. and County of Sullivan and Sullivan County Sheriff, U-26725 [Source: PERB’s Recent Decisions posting on the Internet]

The Board affirmed the decision of the ALJ finding that the County violated the Taylor Law by unilaterally implementing a system for the recovery of leave accruals and holiday pay which a unit employee allegedly owed to the County and by deducting vacation, sick leave and personal leave from the employee's leave accrual. The Board found that the ALJ properly retained jurisdiction over the charge, which alleged violations of §§209a.1(a), (c), (d) and (e) of the Act.

The ALJ dismissed the (a) and (c) allegations for failure of proof and did not defer the (d) and (e) allegations, even though a decision with respect to those allegations necessitated interpretation of the expired collectively negotiated agreement.

The Board discussed and clarified both its jurisdictional and merits deferral policies regarding (d) and (e) allegations.

PERB affirmed the ALJ, finding that neither jurisdictional nor merits deferral was appropriate in this case because the ALJ had already decided the (a) and (c) allegations, the parties were holding the arbitration of the related grievance in abeyance pending the outcome of the improper practice proceeding and the County was not seeking deferral.

Reaching the merits of the case, the Board held that the County violated §§209a.1(d) and (e) of the Act when it unilaterally deducted leave accruals and set up a noncontractual procedure for recouping holiday pay from an employee who had been on GML §207 leave intermittently over the course of several months.

July 19, 2010

Public law takes precedence over private law

Public law takes precedence over private law*

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/ -- From Law.com, "9th Circuit: No Choice of Law on Independent Contractor Status" by Cheryl Miller of The Recorder

In a significant victory for employment plaintiffs, the 9th U.S. Circuit Court of Appeals on Tuesday held that employers cannot use choice-of-law contracts to avoid California labor regulations.

While workplace contracts may be subject to out-of-state law, actual workplace terms and conditions affecting workers in the Golden State are governed by California statutes ...

"While the contracts will likely be used as evidence to prove or disprove the statutory claims, the claims do not arise out of the contract, involve the interpretation of any contract terms, or otherwise require there to be a contract," [the judge] wrote. The plaintiffs' "claims arose under the Labor Code, a California regulatory scheme, and consequently, California law should apply to define the boundaries of liability under that scheme."

Narayan involves the red-hot issue of employee classification. Plaintiffs lawyers say that multistate companies have increasingly tried to designate workers as independent contractors to avoid California's perceived worker-friendly regulations on overtime and meal-and-rest periods. ...

EMM


* Harvey Randall Comments: Essentially “public law” refers to laws, rules and regulations enacted by a public entity and applicable to all relevant persons and organizations subject to that entity’s jurisdiction while “private law” refers to contracts and agreements between individuals and organizations that are binding only on the parties to the contract or agreement.

However, the Congress of the United States, will, from time to time, enact a “private law” that affects or apples to only an individual, family, or a small group. These private laws are generally adopted to redress some injury resulting from a government programs or in connection an executive agency ruling such as deportation order.

Such private laws are cited, for example, as Pvt.L. 107-006, the abbreviation Pvt.L. indicating that it is a “private law.”

In addition, State legislatures, including New York State’s Legislature, may adopt bills in the nature of “private law” that apply only to a single individual, group of individuals, or certain political subdivisions of the State. For an example of a “private bill” introduced during the 2010 Legislative Session see A1598 Zebrowski – which would authorize Beth Barsamian to receive an ordinary death benefit of her daughter, Lauren Barsamian.

Union’s demand for all documents, including without limitation, any memoranda between any of the employer’s agents overbroad

Union’s demand for all documents, including without limitation, any memoranda between any of the employer’s agents overbroad
District Council 37, AFSCME, Local 1070 and State Of New York - Unified Court System, U-27031 [Source: PERB’s Recent Decisions posting on the Internet]

PERB affirmed the ALJ's decision that the Unified Court System [UCS] violated §§209a.1(a) and (d) of the Act when it refused DC 37's request for documents and information for its representation of a bargaining unit member subject to a notice of charges issued pursuant to the disciplinary procedures contained in the UCSDC 37 collectively negotiated agreement.

The Board found that the charge was timely because each denial of a request for information gives rise to a separate violation of the Act. Reiterating the obligation under the Act of an employer to provide an employee organization with reasonable, relevant information necessary for the negotiation and administration of collectively negotiated agreements and the processing of grievances, the Board found that this general right to receive requested information extends to an employee organization's representation of an employee who is the subject of discipline under the negotiated terms of an agreement.

The Board held that "there is no meaningful distinction under the Act between a negotiated disciplinary grievance procedure and one calling for the filing of an answer in response to a notice of charges. Whether disciplinary action can be grieved, answered and/or appealed under a negotiated procedure, an employee organization has a duty to administer that provision under the Act. It follows that in order to fulfill that duty, an employee organization is entitled to receive, upon request, relevant and necessary information in order to effectively represent a member charged."

The Board modified the ALJ's order, however, by finding that DC 37's request for "all documents, including without limitation, any memoranda between any UCS agents" regarding the aggrieved employee was overly broad, unduly burdensome and unnecessary.

Notice of a final administrative determination

Notice of a final administrative determination
City of New York v Appl, 289 A.D.2d 144

The New York City Board of Collective Bargaining [OCB] issued its "final determina­tion." It later sent a "courtesy copy of the decision to the City's Office of Labor Relations [OLR].

The City attempted to appeal the determination. OCB asked a State Supreme Court jus­tice to dismiss the appeal, contending that its appeal was untimely based on the date it initially delivered its ruling to the City. The City, on the other hand, argued that it had filed a timely appeal based on the date OLR had received its "courtesy copy."

The Appellate Division affirmed a lower court's determination that the City's appeal was, in fact, timely. Why? Because, said the court, OCB had created an ambiguity as to the date on which its determination became final and binding. The court's rationale: if a party creates an ambiguity, the ambiguity should be resolved against the party creating it -- here OCB.

According to the decision, OCB had sent OLR a courtesy copy of the decision after the initial copy of the decision had been delivered to the City in response to OLR's asking it if the initial decision "contained the final version of a dissent submitted by two members of the Board."

Holding that granting OCB's motion to dismiss the City's appeal under the facts in this case would deny the City "its day in court," the Appellate Division affirmed the Supreme Court's ruling that the statutory period for filing the appeal did not begin to run until the second decision had been delivered to OLR.

The general rule in such cases is that the statute of limitations to appeal an administrative determination begins to run when notice of the final administrative action or decision is received by the party or, if the party is represented by an attorney, the party's attorney.

Delivery of a final administrative decision to an employee's union does not count with respect to the commencement of the running of the statute of limitations. In Weeks v State of New York, 198 AD2d 615, the court held that the statute of limitations begins to run when the decision is served on the employee, not from the date on which the union received its copy.
The basic rule:

1. If an employee is represented by an attorney, the administrative body maysend a copy of the determination to the employee but it must serve the attorneyto begin the running of the statute of limitations.

2. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

In contrast, a request for reconsideration does not serve to extend the period during which a party can file a timely appeal challenging the administrative action or decision.

This point is illustrated in the Cardo case [Cardo v Sielaff, 588 NYS2d 282]. In Cardo one of the issues concerned the question of the timely filing of an appeal. The court said that although Cardo asked his employer to "reconsider" its administrative decision, such a request "did not extend the period \within which the [Article 78] proceeding must be commenced."

In contrast to the legal effect of an individual merely submitting a "request for reconsid­eration," suppose the administrative body actually agrees to reconsider the matter and issue a new determination. In such a situation the statute of limitations will begin running from the date of the new "final determination." This is the case even if the new "final determination" confirms the original administrative decision.

Presumably the court did not view OLR's action as a "request for reconsideration." The court, however, may have considered the contents of the "courtesy copy" sent to OLR in response to its inquiry to be OCB's final determination.

In any event, at least one court has ruled that the final administrative action must be reduced to writing in order to start the statute of limitations running. In McCoy v San Francisco, CA9, 92-16319, a federal circuit court of appeals ruled that a public em­ployee's civil rights suit against his employer accrued when the appointing authority issued a written statement suspending him from work rather than from the date of a hearing held earlier at which time McCoy was orally advised that he was suspended from his position.

In contrast, in another case, Mavica v New York City Transit Authority, 289 A.D.2d 86, the court rejected an argument based on an alleged ambiguity created by a collective bargaining agreement and the employer's regu­lations.

Here the court rejected John Mavica's claim that a provision in his union's collective bargaining agreement with Transit Authority explicitly implementing a disciplinary grievance arbitration procedure in lieu of any other disciplinary procedure that may have previously applied to an employee covered by this Agreement including but not limited to the procedure specified in Sections 75 and 76 of the Civil Service Law was rendered ambiguous by other provisions of the same collective bargaining agreement and by the Authority's regulations.

Mavica filed an Article 78 petition seeking to have the Authority's action terminating his employment declared null and void.Here, said the court, the proper way to challenge the Authority's dismissing Mavica from his position following a disciplinary arbitration upholding the Authority's determination was for Mavica to file a motion to vacate the arbitration award pursuant to Article 75 of the Civil Practice Law and Rules, suggesting that the court did not find any ambiguity created by the terms set out in the collective bargaining agreement or in the Authority's rules.

Exception to seeking competitive bids for good and services

Exception to seeking competitive bids for good and services
Omni Recycling of Westbury, Inc. v Town of Oyster Bay, 11 NY3d 868

Typically a political subdivision of the State will solicit competitive bids for goods and services. However, this is not always the case, as the Omni Recycling decision by the Court of Appeals demonstrates.

The Town of Oyster Bay adopted a resolution authorizing the use of the procedures set out in General Municipal Law Section 104-b to obtain certain recycling services. Section 104-b provides for the procurement of goods and services without going through a competitive bidding process. The Town's Department of Public then distributed a RFP [Request for Proposals] for these recycling services to nine companies.

When another company, Giove Company was awarded the contract, Omni Recycling sued the Town and Giove, arguing that the Town should have used the competitive bidding process under General Municipal Law Section 103.

§103(1) provides, in part, that "[e]xcept as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expenditure of more than twenty thousand dollars and all purchase contracts involving an expenditure of more than ten thousand dollars, shall be awarded . . . to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section."

The Court of Appeals noted that “It has long been recognized that public work contracts that require the exercise of specialized or technical skills, expertise or knowledge are not subject to the sealed, competitive bidding requirements under §103 and may instead be awarded using the Request for Proposals (RFP) process set forth in General Municipal Law §104-b.”

Of the nine companies to which the RFP was sent, ultimately the proposals submitted by Omni and Giove were evaluated by an independent consultant. A public hearing was conducted and the contract was awarded to Grove.

Reversing a lower court’s ruling, the Court of Appeals held that based on the description of the particular services to be rendered set out in the RFP, “this recycling contract fell within the special skills exception to the 'lowest responsible bidder' requirement of Section 103(1) and therefore was properly awarded using an RFP process consistent with the Section 104-b procedures adopted by the Town.”

The full text of the decisions is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09850.htm

July 16, 2010

Tests used by the courts in determining if a GML §50-e(5) petition seeking approval to file a late notice of claim should be granted

Tests used by the courts in determining if a GML §50-e(5) petition seeking approval to file a late notice of claim should be granted
Burkhardt v Lindsay, 2010 NY Slip Op 06087, decided on July 13, 2010, Appellate Division, Second Department

Linda Burkhardt was employed as a Senior Legislative Aide to the Presiding Officer of the Suffolk County Legislature. Alleging that she was forced into retirement and “constructively terminated from her position on January 9, 2008,” based upon her age and her political affiliation, on February 24, 2009, Burkhardt attempted to serve a late notice of claim on the County.

The County rejected her claim and Burkhardt initiated a proceeding pursuant to General Municipal Law §50-e(5) seeking court approval for leave to serve a late notice of claim.

Supreme Court denied her petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s decision.

The Appellate Division noted that when determining whether to grant such a petition in Burkhardt's case,* the Supreme Court was required to consider whether the following elements:

1. Was there a reasonable excuse for Burkhardt’s delay in serving her notice of claim?

2. Did the County have actual knowledge of the essential facts underlying Burkhardt's claims within 90 days of the accrual of those claims or a reasonable time thereafter? and

3. Did the delay in serving a timely notice of claim result in substantial prejudice to the County’s ability to defend itself against Burkhardt’s allegations on the merits?

The Appellate Division said that Burkhart failed to demonstrate that she had a “reasonable excuse” for her delay in filing her claim; that the County had actual knowledge of the critical facts underlying her complaint within 90 days of their accrual; or that the County would not be substantially prejudiced as a result of her delay in filing her claim.

Under these circumstances, said the court, “Supreme Court providently exercised its discretion in denying the petition and dismissing the proceeding.”

* Other factors that may be considered by the court in connection with an application for permission to file a late notice of claim include whether the claimant was an infant, was mentally or physically incapacitated, or died before the time limited for service of the notice of claim. In addition, if the claimant "justifiably relied on settlement representations made by an authorized individual or body; or if there was an "public corporation or its insurance carrier; or if there was an excusable error with respect to the identity of the public entity against which the claim should be asserted, the court may, in its discretion, grant the claimant's petition.

N.B. An application for leave to serve a late notice is not be denied because it was made after commencement of an action against the public entity.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06087.htm

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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. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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