Running for elected office could adversely affect individual’s continuation in his or her public employment
Cusumano v Board of Commissioners, App. Div., 251 A.D.2d 404,
The Cusumano case shows that the decision of a public employee to run for public office may have an unexpected, and unintended, impact on his or her public employment.
In December the Franklin Square and Munson Fire Department held an election for members of its Board of Commissioners. Both Louis R. Cusumano and Theodore Braun submitted valid nominating petitions to run for a vacancy on the board and their names were placed on the ballot.
On the day of the election, Braun, a New York City police officer, asked the board to remove his name from the ballot. He said that he had learned that Section 1129 of the New York City Charter prohibited city police officers that accepted a nomination for elective office from continuing their employment with the city. The board refused to remove Braun’s name from the ballot. To further complicate matters, Braun was elected to the vacancy.
Cusumano sued, seeking an order directing that the election result be set aside, claiming that the board had “improperly failed” to honor Braun’s attempt to decline his nomination. Although a State Supreme Court justice granted Cusumano’s petition, the Appellate Division reversed that ruling.
The Appellate Division pointed out that while Section 176(7) of the Town Law allows a fire district resident to file a nominating petition, there is no provision in the Town Law authorizing the removal of a candidate’s name from the ballot once he or she has filed a lawful petition.
In addition, the court commented that as “Braun was properly nominated ... the fact that he subsequently learned that he could not continue his employment as a New York City police officer if he accepted the nomination did not disqualify him from running for office.”
Accordingly, the Court concluded that the relief Cusumano requested was not warranted because the board’s refusal to remove Braun’s name from the ballot “cannot be considered a failure to perform a duty enjoined upon it by law....”
The decision is silent as to the impact of Braun’s nomination for, and election to, the board on his employment as a New York City police officer.
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 20, 2010
Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination
Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination
Forte v Mills, Appellate Division, 250 A.D.2d 882
According to his supervisors at the Manhasset Union Free School District, physical educator teachers Garry Forte had a habit of poking female students in the back and occasionally “snapped their bra straps” during physical education class. After he failed to heed repeated warnings against engaging in physical contact with his students, he was served with disciplinary charges pursuant to Section 3020-a.
A Section 3020-a disciplinary hearing panel found Forte guilty of conduct unbecoming a teacher and insubordination. The panel recommended that Forte be dismissed from his position. The Commissioner of Education sustained the hearing panel’s determination and the penalty imposed.
Forte appealed the Commissioner’s determination. The Appellate Division rejected his appeal, finding that the determination (1) was neither arbitrary nor capricious; (2) was not affected by an error of law; and (3) had a rationale basis.
The decision points out that Forte admitted that he had been orally cautioned against touching students and that he continued to do so “as part of his motivational and instructional technique.” Based on the testimony of witnesses and Forte’s admission, the court said that it found no basis to overturn the Commissioner’s determination.
As to the penalty imposed, dismissal, the Appellate Division said that “dismissal is appropriate where a teacher, having been repeatedly warned against physical contact with students, fails to avoid such contact which, regardless of its purpose, may be interpreted by those students as sexually suggestive or harassing.”
In addition, the court pointed out that with Forte’s “wholly disregarding the progressive discipline imposed in the past,” the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.
Forte v Mills, Appellate Division, 250 A.D.2d 882
According to his supervisors at the Manhasset Union Free School District, physical educator teachers Garry Forte had a habit of poking female students in the back and occasionally “snapped their bra straps” during physical education class. After he failed to heed repeated warnings against engaging in physical contact with his students, he was served with disciplinary charges pursuant to Section 3020-a.
A Section 3020-a disciplinary hearing panel found Forte guilty of conduct unbecoming a teacher and insubordination. The panel recommended that Forte be dismissed from his position. The Commissioner of Education sustained the hearing panel’s determination and the penalty imposed.
Forte appealed the Commissioner’s determination. The Appellate Division rejected his appeal, finding that the determination (1) was neither arbitrary nor capricious; (2) was not affected by an error of law; and (3) had a rationale basis.
The decision points out that Forte admitted that he had been orally cautioned against touching students and that he continued to do so “as part of his motivational and instructional technique.” Based on the testimony of witnesses and Forte’s admission, the court said that it found no basis to overturn the Commissioner’s determination.
As to the penalty imposed, dismissal, the Appellate Division said that “dismissal is appropriate where a teacher, having been repeatedly warned against physical contact with students, fails to avoid such contact which, regardless of its purpose, may be interpreted by those students as sexually suggestive or harassing.”
In addition, the court pointed out that with Forte’s “wholly disregarding the progressive discipline imposed in the past,” the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.
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
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.
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.
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.
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.
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
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
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
Evidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action
Evidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action
Batyreva v New York City Dept. of Education, 57 AD3d 322, Motion to appeal denied, Slip Opinion No: 2009 NYSlipOp 67524
Olga Batyreva alleged that she was assigned to grade a Regents examination and while doing so, observed other teachers improperly grading the exam with No. 2 pencils instead of red pencils or red pens. She reported this violation to “to the appropriate officials.” As a result of her action, Batyreva claimed the New York City Department of Education gave her an unsatisfactory rating and instituted disciplinary action against her.
Batyreva filed an Article 78 action, challenging the unsatisfactory rating. Her action was dismissed on a finding that the ratings were not arbitrary and capricious (Batyreva v New York City Dept. of Educ., 50 AD3d 283).
Batyreva then filed a second lawsuit against DOE contending that it had retaliated against her for her exercise of free speech by giving her unsatisfactory evaluations ratings and instituting disciplinary proceedings falsely alleging incompetence in violation of 42 USC 1983, the Civil Right Act.
Supreme Court decided that Batyreva’s complaint “sufficiently alleges that the grading procedures are a matter of public concern,” and because it did not allege that she was “in a supervisory position or that it [was] part of her official responsibilities to report any suspected or real diversions from proper grading procedures," Batyreva was "speaking as a citizen and not in her official capacity as a public employee."
The Appellate Division held that the lower court’s ruling was incorrect. Rather, said the court, the holding in Batyreva’s prior Article 78 proceeding estops her from asserting that the unsatisfactory ratings and disciplinary proceeding were retaliatory violations of her right to free speech.
The court said that “proof that the [retaliatory] action was independently justified on grounds other than the improper one defeats [her 42 USC 1983] claim.”
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09841.htm
Batyreva v New York City Dept. of Education, 57 AD3d 322, Motion to appeal denied, Slip Opinion No: 2009 NYSlipOp 67524
Olga Batyreva alleged that she was assigned to grade a Regents examination and while doing so, observed other teachers improperly grading the exam with No. 2 pencils instead of red pencils or red pens. She reported this violation to “to the appropriate officials.” As a result of her action, Batyreva claimed the New York City Department of Education gave her an unsatisfactory rating and instituted disciplinary action against her.
Batyreva filed an Article 78 action, challenging the unsatisfactory rating. Her action was dismissed on a finding that the ratings were not arbitrary and capricious (Batyreva v New York City Dept. of Educ., 50 AD3d 283).
Batyreva then filed a second lawsuit against DOE contending that it had retaliated against her for her exercise of free speech by giving her unsatisfactory evaluations ratings and instituting disciplinary proceedings falsely alleging incompetence in violation of 42 USC 1983, the Civil Right Act.
Supreme Court decided that Batyreva’s complaint “sufficiently alleges that the grading procedures are a matter of public concern,” and because it did not allege that she was “in a supervisory position or that it [was] part of her official responsibilities to report any suspected or real diversions from proper grading procedures," Batyreva was "speaking as a citizen and not in her official capacity as a public employee."
The Appellate Division held that the lower court’s ruling was incorrect. Rather, said the court, the holding in Batyreva’s prior Article 78 proceeding estops her from asserting that the unsatisfactory ratings and disciplinary proceeding were retaliatory violations of her right to free speech.
The court said that “proof that the [retaliatory] action was independently justified on grounds other than the improper one defeats [her 42 USC 1983] claim.”
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09841.htm
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
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.
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)]
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)]
July 15, 2010
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
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
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."
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.
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.
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.
July 14, 2010
Claiming entitlement to payment for unused vacation and sick leave credit upon resignation
Claiming entitlement to payment for unused vacation and sick leave credit upon resignation
Sherwood v Town of Lancaster, 2010 NY Slip Op 06057, Decided on July 9, 2010, Appellate Division, Fourth Department
Richard J. Sherwood “abruptly resigned” from his position of Town Attorney, Town of Lancaster, “in order to avoid his imminent termination.”*
Sherwood subsequently filed a petition pursuant to CPLR Article 78 seeking credit for unused vacation and sick leave accrued as of the date of his retirement from his position as Town Attorney. Supreme Court ruled that Sherwood was ineligible to receive a credit for unused vacation and sick leave that he had accrued and he appealed.
The Appellate Division noted that the controlling provision set out in a collective bargaining agreement** addressing the liquidation of accrued but unused vacation days in Sherwood’s situation provided that "[i]f an employee is separated from Town service for any reason except termination for cause or resignation on less than ten working days' notice, he/she shall be paid in full for any unused vacation to which he/she is entitled."
It was undisputed that Sherwood gave less than 10 working days' notice of his resignation. The Appellate Division said that Sherwood would have been entitled to a credit for unused vacation days that he accrued had he not resigned and simply awaited the Town Board's decision not to reappoint him. “As he instead chose to resign effective immediately, he is not entitled to that credit.”
However, said the court, Sherwood also contended that he was entitled to “a credit for accrued but unused sick leave pursuant to Article 5 of the [collective bargaining agreement].” Section 5.4.1 provides of the CBA provides that "[p]rior to the retirement, the employee may apply to the Town Board for a lump sum payment of sixty (60%) percent of the cash value of his or her accumulated sick leave as of the date of retirement."
The Appellate Division said that Supreme Court erred in determining that "[s]ection 5.4 of the [CBA] renders eligible only those employees who have actually applied for retirement through the NYS Employee's Retirement System to receive a lump sum payment for accrued sick time." Under the facts regarding Sherwood’s leaving town service, the Appellate Division concluded that the CBA provisions concerning retirement unambiguously apply him” and thus he was a credit for unused sick leave that he accrued.
The court modified the lower court’s decision by reinstating Sherwood's claim for unused sick leave credit under the CBA as well as Retirement and Social Security Law §41(j)*** for the period running from the date of his appointment as Town Attorney effective January 1, 1996, through the date of his retirement, and remitted the matter to Supreme Court to determine “the number of accumulated sick days or hours, if any,” for which Sherwood is entitled to credit.
* Sherwood’s resignation on January 7, 2008 was precipitated by his learning that the Town Board, meeting later that same day, would not reappoint him to the position of Town Attorney.
** The Town Board had earlier adopted a resolution making the provisions of the collective bargaining agreement between the Town and Civil Service Employees Association for the Town's employees in the "White Collar Unit" applicable to unrepresented employees such as Sherwood.
*** Retirement and Social Security Law §41(j) provides for an “Allowance for unused sick leave for members in the employ of the state.” §2.8 of the Retirement and Social Security Law defines the term “employer” as “The state, a participating employer, and any other unit of government or organization obligated or agreeing, under this article, to make contributions to the retirement system on behalf of its employees.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06057.htm
Sherwood v Town of Lancaster, 2010 NY Slip Op 06057, Decided on July 9, 2010, Appellate Division, Fourth Department
Richard J. Sherwood “abruptly resigned” from his position of Town Attorney, Town of Lancaster, “in order to avoid his imminent termination.”*
Sherwood subsequently filed a petition pursuant to CPLR Article 78 seeking credit for unused vacation and sick leave accrued as of the date of his retirement from his position as Town Attorney. Supreme Court ruled that Sherwood was ineligible to receive a credit for unused vacation and sick leave that he had accrued and he appealed.
The Appellate Division noted that the controlling provision set out in a collective bargaining agreement** addressing the liquidation of accrued but unused vacation days in Sherwood’s situation provided that "[i]f an employee is separated from Town service for any reason except termination for cause or resignation on less than ten working days' notice, he/she shall be paid in full for any unused vacation to which he/she is entitled."
It was undisputed that Sherwood gave less than 10 working days' notice of his resignation. The Appellate Division said that Sherwood would have been entitled to a credit for unused vacation days that he accrued had he not resigned and simply awaited the Town Board's decision not to reappoint him. “As he instead chose to resign effective immediately, he is not entitled to that credit.”
However, said the court, Sherwood also contended that he was entitled to “a credit for accrued but unused sick leave pursuant to Article 5 of the [collective bargaining agreement].” Section 5.4.1 provides of the CBA provides that "[p]rior to the retirement, the employee may apply to the Town Board for a lump sum payment of sixty (60%) percent of the cash value of his or her accumulated sick leave as of the date of retirement."
The Appellate Division said that Supreme Court erred in determining that "[s]ection 5.4 of the [CBA] renders eligible only those employees who have actually applied for retirement through the NYS Employee's Retirement System to receive a lump sum payment for accrued sick time." Under the facts regarding Sherwood’s leaving town service, the Appellate Division concluded that the CBA provisions concerning retirement unambiguously apply him” and thus he was a credit for unused sick leave that he accrued.
The court modified the lower court’s decision by reinstating Sherwood's claim for unused sick leave credit under the CBA as well as Retirement and Social Security Law §41(j)*** for the period running from the date of his appointment as Town Attorney effective January 1, 1996, through the date of his retirement, and remitted the matter to Supreme Court to determine “the number of accumulated sick days or hours, if any,” for which Sherwood is entitled to credit.
* Sherwood’s resignation on January 7, 2008 was precipitated by his learning that the Town Board, meeting later that same day, would not reappoint him to the position of Town Attorney.
** The Town Board had earlier adopted a resolution making the provisions of the collective bargaining agreement between the Town and Civil Service Employees Association for the Town's employees in the "White Collar Unit" applicable to unrepresented employees such as Sherwood.
*** Retirement and Social Security Law §41(j) provides for an “Allowance for unused sick leave for members in the employ of the state.” §2.8 of the Retirement and Social Security Law defines the term “employer” as “The state, a participating employer, and any other unit of government or organization obligated or agreeing, under this article, to make contributions to the retirement system on behalf of its employees.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06057.htm
A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality
A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality
Vandine v Greece Cent. School Dist., 2010 NY Slip Op 06059, Decided on July 9, 2010, Appellate Division, Fourth Department
Douglas W. Vandine commenced filed a petition pursuant to CPLR Article 78 seeking a court order directing the Greece CSD to hold a name-clearing hearing with respect to allegations associated with his termination from his probationary position with the district.
Supreme Court dismissed Vandine’s petition but the Appellate Division ruled that this was incorrect.
The Appellate Division noted that in the event "a government employee is dismissed for stigmatizing reasons that seriously imperil [his or her] opportunity to acquire future employment, the individual is entitled to an opportunity to refute the charge” if he or she demonstrates that there "has been a public disclosure by the employer of stigmatizing reasons for the discharge."
Typically, said the court, “the submission of a complaint to the New York State Department of Education (SED) based upon the allegations underlying [Vandine's] termination does not constitute such a public disclosure.”
Here, however, the court decided that although a confidential communication with an authorized governmental administrator or agency does not constitute public disclosure, here SED may determine that, based on allegations in the complaint, there exists a substantial question concerning Vandine's moral character that ultimately could result in the revocation of his teaching certificate. Accordingly the Appellate Division concluded that as 8 NYCRR 83.1 et seq,. the applicable regulations, do not specifically provide for confidentiality, there is a potential for public disclosure sufficient to establish Vandine's entitlement to a name-clearing hearing.
Reversing the lower court’s decision, the Appellate Division explained that a name clearing hearing was justified because under the controlling regulations Vandine would be given a hearing on the complaint submitted to SED by the school district only if a determination is made that the allegations raise a substantial question concerning his moral character.
Accordingly, the Appellate Division ruled that as Vandine is not guaranteed a hearing on the complaint, he may be foreclosed from any opportunity to refute the allegations absent a name-clearing hearing held by the school district.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06059.htm
Vandine v Greece Cent. School Dist., 2010 NY Slip Op 06059, Decided on July 9, 2010, Appellate Division, Fourth Department
Douglas W. Vandine commenced filed a petition pursuant to CPLR Article 78 seeking a court order directing the Greece CSD to hold a name-clearing hearing with respect to allegations associated with his termination from his probationary position with the district.
Supreme Court dismissed Vandine’s petition but the Appellate Division ruled that this was incorrect.
The Appellate Division noted that in the event "a government employee is dismissed for stigmatizing reasons that seriously imperil [his or her] opportunity to acquire future employment, the individual is entitled to an opportunity to refute the charge” if he or she demonstrates that there "has been a public disclosure by the employer of stigmatizing reasons for the discharge."
Typically, said the court, “the submission of a complaint to the New York State Department of Education (SED) based upon the allegations underlying [Vandine's] termination does not constitute such a public disclosure.”
Here, however, the court decided that although a confidential communication with an authorized governmental administrator or agency does not constitute public disclosure, here SED may determine that, based on allegations in the complaint, there exists a substantial question concerning Vandine's moral character that ultimately could result in the revocation of his teaching certificate. Accordingly the Appellate Division concluded that as 8 NYCRR 83.1 et seq,. the applicable regulations, do not specifically provide for confidentiality, there is a potential for public disclosure sufficient to establish Vandine's entitlement to a name-clearing hearing.
Reversing the lower court’s decision, the Appellate Division explained that a name clearing hearing was justified because under the controlling regulations Vandine would be given a hearing on the complaint submitted to SED by the school district only if a determination is made that the allegations raise a substantial question concerning his moral character.
Accordingly, the Appellate Division ruled that as Vandine is not guaranteed a hearing on the complaint, he may be foreclosed from any opportunity to refute the allegations absent a name-clearing hearing held by the school district.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06059.htm
The three-year statute of limitations for disqualifying an employee pursuant to Civil Service Law §50(4) does not apply in cases involving fraud
The three-year statute of limitations for disqualifying an employee pursuant to Civil Service Law §50(4) does not apply in cases involving fraud
Urciuoli v Department of Citywide Admin. Servs., 2010 NY Slip Op 05876, Decided on July 1, 2010, Appellate Division, First Department
The New York City Department of Citywide Administrative Services advised Gerard Urciuoli that it was retroactively rescinding its approval his application for employment as a New York City police officer and decertifying that he was qualified for such an appointment, thereby effectively terminating his employment. Urciuoli was also advised that he could appeal the Department of Citywide Administration’s determination to the New York City Civil Service Commission.
Instead of appealing to the Commission, Urciuoli opted to file his appeal with Supreme Court. Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s ruling, explaining that Urciuoli had failed to exhaust his administrative remedies, thus foreclosing judicial review of the matter.
As to Urciuoli claim that “under Civil Service Law §50(4), respondents were required to rescind his application within three years of the triggering event,” the court said that it “declined to review that claim in the interest of justice….” However, said the Appellate Division, as “an alternative holding,” it found that the also lacks merit.
§50(4), said the court, permits the disqualification of an employee beyond three years in the event of an applicant's fraudulent misstatement or omission of material facts. Here documentary evidence amply established that Urciuoli “deliberately concealed his arrest in Jamaica in connection with charges that he possessed, was dealing in, and tried to export a significant quantity of marijuana.”
The Appellate Division said that this “deliberate concealment and omissions of relevant information” were designed to fraudulently ensure that he obtained, and then retained, his employment as a police officer, and justified his termination.
§50(4), in pertinent part, provides that “Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud [emphasis supplied].
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05876.htm
Urciuoli v Department of Citywide Admin. Servs., 2010 NY Slip Op 05876, Decided on July 1, 2010, Appellate Division, First Department
The New York City Department of Citywide Administrative Services advised Gerard Urciuoli that it was retroactively rescinding its approval his application for employment as a New York City police officer and decertifying that he was qualified for such an appointment, thereby effectively terminating his employment. Urciuoli was also advised that he could appeal the Department of Citywide Administration’s determination to the New York City Civil Service Commission.
Instead of appealing to the Commission, Urciuoli opted to file his appeal with Supreme Court. Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s ruling, explaining that Urciuoli had failed to exhaust his administrative remedies, thus foreclosing judicial review of the matter.
As to Urciuoli claim that “under Civil Service Law §50(4), respondents were required to rescind his application within three years of the triggering event,” the court said that it “declined to review that claim in the interest of justice….” However, said the Appellate Division, as “an alternative holding,” it found that the also lacks merit.
§50(4), said the court, permits the disqualification of an employee beyond three years in the event of an applicant's fraudulent misstatement or omission of material facts. Here documentary evidence amply established that Urciuoli “deliberately concealed his arrest in Jamaica in connection with charges that he possessed, was dealing in, and tried to export a significant quantity of marijuana.”
The Appellate Division said that this “deliberate concealment and omissions of relevant information” were designed to fraudulently ensure that he obtained, and then retained, his employment as a police officer, and justified his termination.
§50(4), in pertinent part, provides that “Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud [emphasis supplied].
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05876.htm
July 13, 2010
Determining whether a provision in a collective bargaining agreement is subject to arbitration
Determining whether a provision in a collective bargaining agreement is subject to arbitration
Matter of Village of Johnson City v Johnson City Firefighters Assn., Local 921 IAFF, 2010 NY Slip Op 06034, decided on July 8, 2010, Appellate Division, Third Department
The collective bargaining agreement between the Johnson City Firefighters Association, Local 921 IAFF and the Village of Johnson City included a grievance procedure that provided that disputes "involving the interpretation or application of any provisions of [the CBA]" are subject to binding arbitration.”
Other provisions in the collective bargaining agreement provided that the Village [1] will not "lay-off any member of the bargaining unit" and [2] is not "required to 'back fill' hire additional members to meet staffing level of expired agreement."
When the Village Board voted to eliminate the then vacant position of Assistant Chief, Local 921 filed a grievance and ultimately served a demand for arbitration upon the Village and the Public Employment Relations Board.
The Village filed a petition in Supreme Court seeking to permanently stay the arbitration. Supreme Court holding that the grievance filed by the Local was subject to arbitration, denied the Village's application to stay arbitration, and granted the Union's cross claim to compel arbitration. The Village appealed the Supreme Court’s ruling.
The Appellate Division said that a two-part test is used to determine whether a grievance may be arbitrated: [1] Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance? and [2] Does the CBA indicate that the parties have agreed to arbitrate the dispute at issue?
Applying the first test, the Appellate Division said that contrary to the Village's claim that arbitration of the issue is barred, “Although public employers have the ‘undisputed management prerogative’ to eliminate civil service positions … ‘it is clear that a public employer is permitted to voluntarily agree to submit controversies over staff size or minimum staffing levels to arbitration.’"
Citing its decision in a recent dispute involving the same CBA, Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 72 AD3d 1235, in which it held that no conflict with Civil Service Law §80 or other statutory, decisional, or public policy prohibition barred arbitration of the Local's grievance against the Village's abolition of six firefighters' positions, the Appellate Division said that it found “no reason to conclude otherwise here.”
Turning to the second prong of the test, “did the parties have agreed to arbitrate the dispute at issue," the court said the decision turns on “whether the parties have so agreed is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."
Pointing out that the elimination of the vacant title of Assistant Chief caused no firefighter to lose employment and that the Local “concedes that the clause in the CBA providing that the Village will ‘not lay-off any member of the bargaining unit’ is not implicated,” the Appellate Division said that it could not agree that there was any "reasonable relationship" between the parties' dispute and any provision of the CBA.
The court also rejected the Local’s theory that eliminating the Assistant Chief position could potentially violate the CBS's out-of-title work provision if the Village assigned a firefighter to carry out the Assistant Chief's duties, holding that such an argument “is entirely speculative on this record.”
In the words of the court: “The CBA requires arbitration of any grievance involving the interpretation or application of any of its provisions. The CBA does not refer, explicitly or implicitly, to the elimination of vacant positions; thus, resolution of the parties' dispute does not involve interpreting or applying any of its provisions, and no breach of the CBA has been effectively alleged. In such circumstances, even a broad clause like the one at issue here cannot be construed to require arbitration.”
Reversing Supreme Court’s granting the Local cross-petition demanding arbitration, the Appellate Divisions said that Village’s application to stay arbitration was improperly denied and granted its petition to stay arbitration.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06034.htm
Matter of Village of Johnson City v Johnson City Firefighters Assn., Local 921 IAFF, 2010 NY Slip Op 06034, decided on July 8, 2010, Appellate Division, Third Department
The collective bargaining agreement between the Johnson City Firefighters Association, Local 921 IAFF and the Village of Johnson City included a grievance procedure that provided that disputes "involving the interpretation or application of any provisions of [the CBA]" are subject to binding arbitration.”
Other provisions in the collective bargaining agreement provided that the Village [1] will not "lay-off any member of the bargaining unit" and [2] is not "required to 'back fill' hire additional members to meet staffing level of expired agreement."
When the Village Board voted to eliminate the then vacant position of Assistant Chief, Local 921 filed a grievance and ultimately served a demand for arbitration upon the Village and the Public Employment Relations Board.
The Village filed a petition in Supreme Court seeking to permanently stay the arbitration. Supreme Court holding that the grievance filed by the Local was subject to arbitration, denied the Village's application to stay arbitration, and granted the Union's cross claim to compel arbitration. The Village appealed the Supreme Court’s ruling.
The Appellate Division said that a two-part test is used to determine whether a grievance may be arbitrated: [1] Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance? and [2] Does the CBA indicate that the parties have agreed to arbitrate the dispute at issue?
Applying the first test, the Appellate Division said that contrary to the Village's claim that arbitration of the issue is barred, “Although public employers have the ‘undisputed management prerogative’ to eliminate civil service positions … ‘it is clear that a public employer is permitted to voluntarily agree to submit controversies over staff size or minimum staffing levels to arbitration.’"
Citing its decision in a recent dispute involving the same CBA, Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 72 AD3d 1235, in which it held that no conflict with Civil Service Law §80 or other statutory, decisional, or public policy prohibition barred arbitration of the Local's grievance against the Village's abolition of six firefighters' positions, the Appellate Division said that it found “no reason to conclude otherwise here.”
Turning to the second prong of the test, “did the parties have agreed to arbitrate the dispute at issue," the court said the decision turns on “whether the parties have so agreed is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."
Pointing out that the elimination of the vacant title of Assistant Chief caused no firefighter to lose employment and that the Local “concedes that the clause in the CBA providing that the Village will ‘not lay-off any member of the bargaining unit’ is not implicated,” the Appellate Division said that it could not agree that there was any "reasonable relationship" between the parties' dispute and any provision of the CBA.
The court also rejected the Local’s theory that eliminating the Assistant Chief position could potentially violate the CBS's out-of-title work provision if the Village assigned a firefighter to carry out the Assistant Chief's duties, holding that such an argument “is entirely speculative on this record.”
In the words of the court: “The CBA requires arbitration of any grievance involving the interpretation or application of any of its provisions. The CBA does not refer, explicitly or implicitly, to the elimination of vacant positions; thus, resolution of the parties' dispute does not involve interpreting or applying any of its provisions, and no breach of the CBA has been effectively alleged. In such circumstances, even a broad clause like the one at issue here cannot be construed to require arbitration.”
Reversing Supreme Court’s granting the Local cross-petition demanding arbitration, the Appellate Divisions said that Village’s application to stay arbitration was improperly denied and granted its petition to stay arbitration.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06034.htm
Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively
Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively
Matter of Rosenblum v New York City Conflicts of Interest Bd., 75 AD3d 426
When the New York City Office of Administrative Tribunals and Hearings attempted to conduct an administrative hearing involving Stephen Rosenblum’s alleged infraction of the City’s “conflict of interest” law, Rosenbaum obtained a court order from Supreme Court in the nature of a writ of prohibition.
The Appellate Division affirmed the lower court’s determination, holding that Supreme Court properly ruled that Rosenbaum could seek a judgment prohibiting the enforcement of the conflict of interest law of the City of New York against him through an OATH proceeding as he was a “tenured pedagogue employed by the Board of Education of the City of New York.”
The Appellate Division explained that “the exclusive avenue to discipline a tenured pedagogue is Education Law §3020-a and thus it would be violative of the Education Law to allow an OATH hearing which does not require the same procedural protections as those provided to a tenured educator by §3020-a.
In addition, the decision notes that there was no requirement for exhaustion of administrative remedies as a condition precedent in an Article 78 proceeding “in the nature of a writ of prohibition,” where, as here, the "legality of the [underlying OATH] proceeding itself" was implicated.”
The writ of prohibition is one of a number of the ancient “English common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."
Other English common law writs include the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority].
The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient common law writs.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05875.htm
=======================
See The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. For more information about this 1272 page e-book. Click on http://thedisciplinebook.blogspot.com/
=======================
Matter of Rosenblum v New York City Conflicts of Interest Bd., 75 AD3d 426
When the New York City Office of Administrative Tribunals and Hearings attempted to conduct an administrative hearing involving Stephen Rosenblum’s alleged infraction of the City’s “conflict of interest” law, Rosenbaum obtained a court order from Supreme Court in the nature of a writ of prohibition.
The Appellate Division affirmed the lower court’s determination, holding that Supreme Court properly ruled that Rosenbaum could seek a judgment prohibiting the enforcement of the conflict of interest law of the City of New York against him through an OATH proceeding as he was a “tenured pedagogue employed by the Board of Education of the City of New York.”
The Appellate Division explained that “the exclusive avenue to discipline a tenured pedagogue is Education Law §3020-a and thus it would be violative of the Education Law to allow an OATH hearing which does not require the same procedural protections as those provided to a tenured educator by §3020-a.
In addition, the decision notes that there was no requirement for exhaustion of administrative remedies as a condition precedent in an Article 78 proceeding “in the nature of a writ of prohibition,” where, as here, the "legality of the [underlying OATH] proceeding itself" was implicated.”
The writ of prohibition is one of a number of the ancient “English common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."
Other English common law writs include the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority].
The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient common law writs.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05875.htm
=======================
See The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. For more information about this 1272 page e-book. Click on http://thedisciplinebook.blogspot.com/
=======================
Continuation of employment in a position upon its jurisdictional reclassification to the competitive class
Continuation of employment in a position upon its jurisdictional reclassification to the competitive class
Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v Mennillo, 38 A.D.3d 1113
Suzanne Burns was permanently appointed to the noncompetitive position of computer aide by the City of Schenectady in 2000. About four years later the Schenectady County Civil Service Commission jurisdictionally reclassified the position into the competitive class. The Commission then told Burns that she would be required to qualify by competitive examination in order to continue in the jurisdictionally reclassified position.
Burns sued, contending that she attained permanent competitive status when her position was jurisdictionally reclassified from the noncompetitive class to the competitive class. Supreme Court ruled that Burns was entitled to continue in her position as a computer aide without examination, despite the jurisdictional reclassification of the position to competitive. The Appellate Division agreed.
The Appellate Division rejected the Schenectady Civil Service Commission’s contention that Burns had to qualify by competitive examination to attain permanent competitive status in the reclassified position. Citing Matter of Bell v County of Warren, 111 AD2d 428, the court said that “Civil service employees, in the noncompetitive class, whose positions are subsequently reclassified into the competitive class may continue in their positions without examination.”*
According to the ruling, the record demonstrated that despite reclassification, Burns' job and responsibilities remained unchanged during her four years in the position.**
Accordingly, the Appellate Division ruled that Burns was entitled to maintain her employment without successfully completing a civil service examination, even though the position has been jurisdictionally reclassified from noncompetitive class to competitive class.
* See, also, Fornara v Schroeder, 261 NY 363. In Fornara the court said that an individual lawfully appointed to a position that is jurisdictionally reclassified to the competitive class is continued in the competitive class position without further examination.
** Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law]. Positions in the unclassified service, consisting essentially of elected officials, the members and staffs of legislative bodies, department heads and educators are described in Section 35 of the Civil Service Law
Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v Mennillo, 38 A.D.3d 1113
Suzanne Burns was permanently appointed to the noncompetitive position of computer aide by the City of Schenectady in 2000. About four years later the Schenectady County Civil Service Commission jurisdictionally reclassified the position into the competitive class. The Commission then told Burns that she would be required to qualify by competitive examination in order to continue in the jurisdictionally reclassified position.
Burns sued, contending that she attained permanent competitive status when her position was jurisdictionally reclassified from the noncompetitive class to the competitive class. Supreme Court ruled that Burns was entitled to continue in her position as a computer aide without examination, despite the jurisdictional reclassification of the position to competitive. The Appellate Division agreed.
The Appellate Division rejected the Schenectady Civil Service Commission’s contention that Burns had to qualify by competitive examination to attain permanent competitive status in the reclassified position. Citing Matter of Bell v County of Warren, 111 AD2d 428, the court said that “Civil service employees, in the noncompetitive class, whose positions are subsequently reclassified into the competitive class may continue in their positions without examination.”*
According to the ruling, the record demonstrated that despite reclassification, Burns' job and responsibilities remained unchanged during her four years in the position.**
Accordingly, the Appellate Division ruled that Burns was entitled to maintain her employment without successfully completing a civil service examination, even though the position has been jurisdictionally reclassified from noncompetitive class to competitive class.
* See, also, Fornara v Schroeder, 261 NY 363. In Fornara the court said that an individual lawfully appointed to a position that is jurisdictionally reclassified to the competitive class is continued in the competitive class position without further examination.
** Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law]. Positions in the unclassified service, consisting essentially of elected officials, the members and staffs of legislative bodies, department heads and educators are described in Section 35 of the Civil Service Law
Arbitrator ordered employer to pay a portion of the employee’s costs in defending himself against disciplinary charges characterized as frivolous
Arbitrator ordered employer to pay a portion of the employee’s costs in defending himself against disciplinary charges characterized as frivolous
Board of Education of Florida Union Free School District v DePace, et al.,
301 A.D.2d 521; appeal denied, 99 NY2d 511
The Board of Education of Florida Union Free School District served disciplinary charges on Ronald DePace pursuant to §3020-a of the Education Law.
The §3020-a disciplinary hearing officer, after a hearing, dismissed 13 of the 14 charges filed against DePace as frivolous and ordered the school district to pay 80% of the costs incurred by DePace and the New York State Department of Education in connection with the hearing.
Florida an appeal pursuant to CPLR Article 75 seeking a court order modifying the hearing officers determination. Supreme Court dismissed the petition insofar as it purportedly was asserted against the New York State Department of Education and denied the petition insofar as asserted against Ronald DePace, confirmed the Hearing Officer's determination.
The Appellate Division affirmed the lower court’s determination “with one bill of costs.”
The court said that “ss the Supreme Court correctly determined, the amended petition insofar as it purportedly was asserted against the New York State Department of Education was a nullity because [the school district] failed to comply with the requirements of CPLR 401.
Holding that the Hearing Officer's determination that the school district should pay 80% of the costs incurred by Ronald DePace had a rational basis and was supported by the evidence in the record, the Appellate Division dismissed Florida UFSD’s appeal.
Randall Comments: Another case involving a court awarding attorney fees to the employee in the context of disciplinary action is Perez v Department of Labor, 244 AD2d 844.
Athough Hilton Perez was found guilty of misconduct and terminated from his position following a disciplinary hearing conducted pursuant to §75 of the Civil Service Law, Supreme Court annulled the determination, finding that was no evidence that the hearing officer who presided over Perez’s disciplinary hearing had been so designated in writing by the appointing authority as mandated in §75.2 of the Civil Service Law.
The court directed the department to reinstate Perez to his former position with back salary and benefits. Perez was also awarded legal fees and expenses totaling $19,907.84, $9275 of which reflected his legal expenses attributable to the Section 75 disciplinary action.*
The Department of Labor appealed. However, the Appellate Division rejected the Department’s claim that its failure to designate the disciplinary hearing officer in writing was “a mere technicality” as Perez’s termination was otherwise “substantially justified.”
The Appellate Division also affirmed the lower court’s award of attorney fees and expenses. In addition, the Appellate Division ruled that Perez was entitled to the fees and expenses incurred in connection with the department’s appeal to the Appellate Division challenging the underlying Supreme Court’s decision. It returned the case to Supreme Court for further action concerning this aspect of the case.
* Section 8601 (a) of the Civil Practice Law and Rules provides, in relevant part, that [A] court shall award to a prevailing party ... fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust.
Board of Education of Florida Union Free School District v DePace, et al.,
301 A.D.2d 521; appeal denied, 99 NY2d 511
The Board of Education of Florida Union Free School District served disciplinary charges on Ronald DePace pursuant to §3020-a of the Education Law.
The §3020-a disciplinary hearing officer, after a hearing, dismissed 13 of the 14 charges filed against DePace as frivolous and ordered the school district to pay 80% of the costs incurred by DePace and the New York State Department of Education in connection with the hearing.
Florida an appeal pursuant to CPLR Article 75 seeking a court order modifying the hearing officers determination. Supreme Court dismissed the petition insofar as it purportedly was asserted against the New York State Department of Education and denied the petition insofar as asserted against Ronald DePace, confirmed the Hearing Officer's determination.
The Appellate Division affirmed the lower court’s determination “with one bill of costs.”
The court said that “ss the Supreme Court correctly determined, the amended petition insofar as it purportedly was asserted against the New York State Department of Education was a nullity because [the school district] failed to comply with the requirements of CPLR 401.
Holding that the Hearing Officer's determination that the school district should pay 80% of the costs incurred by Ronald DePace had a rational basis and was supported by the evidence in the record, the Appellate Division dismissed Florida UFSD’s appeal.
Randall Comments: Another case involving a court awarding attorney fees to the employee in the context of disciplinary action is Perez v Department of Labor, 244 AD2d 844.
Athough Hilton Perez was found guilty of misconduct and terminated from his position following a disciplinary hearing conducted pursuant to §75 of the Civil Service Law, Supreme Court annulled the determination, finding that was no evidence that the hearing officer who presided over Perez’s disciplinary hearing had been so designated in writing by the appointing authority as mandated in §75.2 of the Civil Service Law.
The court directed the department to reinstate Perez to his former position with back salary and benefits. Perez was also awarded legal fees and expenses totaling $19,907.84, $9275 of which reflected his legal expenses attributable to the Section 75 disciplinary action.*
The Department of Labor appealed. However, the Appellate Division rejected the Department’s claim that its failure to designate the disciplinary hearing officer in writing was “a mere technicality” as Perez’s termination was otherwise “substantially justified.”
The Appellate Division also affirmed the lower court’s award of attorney fees and expenses. In addition, the Appellate Division ruled that Perez was entitled to the fees and expenses incurred in connection with the department’s appeal to the Appellate Division challenging the underlying Supreme Court’s decision. It returned the case to Supreme Court for further action concerning this aspect of the case.
* Section 8601 (a) of the Civil Practice Law and Rules provides, in relevant part, that [A] court shall award to a prevailing party ... fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust.
July 12, 2010
A broad arbitration clause still must satisfy the “reasonable relationship test” for a court to grant a petition to compel arbitration
A broad arbitration clause still must satisfy the “reasonable relationship test” for a court to grant a petition to compel arbitration
Matter of Johnson City Professional Fire Fighters Local 921 v Village of Johnson City, Proceedings I and II, 2010 NY Slip Op 06029 [Appeals were consolidated by order of the Court]
In response to the Village’s initiating disciplinary action against certain members of Local 921, the Local filed a grievance demanding arbitration of an alleged breach of the collective bargaining agreement based on the Village’s unilateral selection of a hearing officer to preside over the disciplinary hearings.
On June 19, 2009 State Supreme Court Judge Ferris D. Lebous entered an order that, among other things, granted the Unions application to compel arbitration with respect its contract grievance concerning the selection of hearing officers [Proceeding No. 1].* On August 18, 2009, Judge Lebous entered an order denying the Village’s application for a permanent stay of arbitration [Proceeding No. 2], ruling that the issue was “referable to arbitration. The Village appealed both rulings.
The Appellate Division said “Whether a grievance may be arbitrated is decided by determining whether any statutory, constitutional or public policy prohibition bars arbitration of the dispute at issue and, if not, whether the parties agreed to arbitrate it.”
Citing Civil Service Law §75.2, the court said that the Village is statutorily vested with the power to designate a hearing officer in disciplinary proceedings.** However, this statutory power may be modified or superseded through collective bargaining or negotiation and a public employer may agree to submit disciplinary procedures to arbitration.
The Village argued that modification of such a statutory power must be voluntarily undertaken as the result of "a conscious choice" and that there was no such agreement.
The Appellate Division said that the CBA provides for arbitration of any dispute "involving the interpretation or application of any provisions of [the CBA]," a provision that the court had earlier described as broad. It then noted that "the court is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."
In this instance the Appellate Division concluded that no such reasonable relationship existed between the CBA and the parties' dispute regarding the selection of a hearing officer. The Appellate Division explained that “The CBA does not mention the selection of disciplinary hearing officers; its sole reference to disciplinary proceedings is a requirement that any reprimand be conducted privately, in a manner to avoid embarrassment.”
In response to the Local’s assertion that that the CBA reflects the parties agreement to "follow [the Public Employment Relations Board's] rules of procedure for dispute resolution," which, in the Local’s view, "precluded the Village from unilaterally selecting a hearing officer."
However, said the court, the Local’s analysis would require the arbitrator to engage in contractual interpretation not only of the CBA, but also PERB's rules while the CBA despite the fact that the CBA limits the arbitrator's authority to disputes "involving the interpretation and application of any provisions of this agreement.”
In addition, the Appellate Division commented that the CBA's reference to the Public Employment Relations Board's rules of procedure is not pertinent as its applicability is expressly limited to disputes "involving the interpretation or application of any provisions of this agreement."
Reversing both Supreme Court’s rulings, the court said that “Even a broad arbitration clause is not unlimited in its scope; to satisfy the reasonable relationship test, a contractual interpretation must be 'at least colorable …. ' As no colorable interpretation of the CBA brings the selection of a disciplinary hearing officer within its general scope, we cannot conclude that the parties agreed to arbitrate their dispute on this subject.”
The practical effect of the ruling: The Appellate Division vacated the decision granting Local’s petition regarding the selection of a hearing officer [Proceeding No. 1} and granted the Village’s application to stay arbitration [Proceeding No. 2].
* The order enjoining further disciplinary proceedings and compelled arbitration of the grievance.
** Civil Service Law §76.4 provides that such statutory power may be modified or superseded through collective bargaining or negotiation whereby “such sections may be supplemented, modified or replaced by agreements negotiated between the State and an employee organization pursuant to Article 14 of the Civil Service Law.” Civil Service Law §75.2 has been relied upon for similar authority with respect to political subdivisions of the State while Education Law §3020-a provides the authority for disciplinary charges filed against an educator in the unclassified service to be considered by an arbitrator or arbitration panel and subject to the provisions of Article 75 of the Civil Practice Law and Rules.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06029.htm
Matter of Johnson City Professional Fire Fighters Local 921 v Village of Johnson City, Proceedings I and II, 2010 NY Slip Op 06029 [Appeals were consolidated by order of the Court]
In response to the Village’s initiating disciplinary action against certain members of Local 921, the Local filed a grievance demanding arbitration of an alleged breach of the collective bargaining agreement based on the Village’s unilateral selection of a hearing officer to preside over the disciplinary hearings.
On June 19, 2009 State Supreme Court Judge Ferris D. Lebous entered an order that, among other things, granted the Unions application to compel arbitration with respect its contract grievance concerning the selection of hearing officers [Proceeding No. 1].* On August 18, 2009, Judge Lebous entered an order denying the Village’s application for a permanent stay of arbitration [Proceeding No. 2], ruling that the issue was “referable to arbitration. The Village appealed both rulings.
The Appellate Division said “Whether a grievance may be arbitrated is decided by determining whether any statutory, constitutional or public policy prohibition bars arbitration of the dispute at issue and, if not, whether the parties agreed to arbitrate it.”
Citing Civil Service Law §75.2, the court said that the Village is statutorily vested with the power to designate a hearing officer in disciplinary proceedings.** However, this statutory power may be modified or superseded through collective bargaining or negotiation and a public employer may agree to submit disciplinary procedures to arbitration.
The Village argued that modification of such a statutory power must be voluntarily undertaken as the result of "a conscious choice" and that there was no such agreement.
The Appellate Division said that the CBA provides for arbitration of any dispute "involving the interpretation or application of any provisions of [the CBA]," a provision that the court had earlier described as broad. It then noted that "the court is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."
In this instance the Appellate Division concluded that no such reasonable relationship existed between the CBA and the parties' dispute regarding the selection of a hearing officer. The Appellate Division explained that “The CBA does not mention the selection of disciplinary hearing officers; its sole reference to disciplinary proceedings is a requirement that any reprimand be conducted privately, in a manner to avoid embarrassment.”
In response to the Local’s assertion that that the CBA reflects the parties agreement to "follow [the Public Employment Relations Board's] rules of procedure for dispute resolution," which, in the Local’s view, "precluded the Village from unilaterally selecting a hearing officer."
However, said the court, the Local’s analysis would require the arbitrator to engage in contractual interpretation not only of the CBA, but also PERB's rules while the CBA despite the fact that the CBA limits the arbitrator's authority to disputes "involving the interpretation and application of any provisions of this agreement.”
In addition, the Appellate Division commented that the CBA's reference to the Public Employment Relations Board's rules of procedure is not pertinent as its applicability is expressly limited to disputes "involving the interpretation or application of any provisions of this agreement."
Reversing both Supreme Court’s rulings, the court said that “Even a broad arbitration clause is not unlimited in its scope; to satisfy the reasonable relationship test, a contractual interpretation must be 'at least colorable …. ' As no colorable interpretation of the CBA brings the selection of a disciplinary hearing officer within its general scope, we cannot conclude that the parties agreed to arbitrate their dispute on this subject.”
The practical effect of the ruling: The Appellate Division vacated the decision granting Local’s petition regarding the selection of a hearing officer [Proceeding No. 1} and granted the Village’s application to stay arbitration [Proceeding No. 2].
* The order enjoining further disciplinary proceedings and compelled arbitration of the grievance.
** Civil Service Law §76.4 provides that such statutory power may be modified or superseded through collective bargaining or negotiation whereby “such sections may be supplemented, modified or replaced by agreements negotiated between the State and an employee organization pursuant to Article 14 of the Civil Service Law.” Civil Service Law §75.2 has been relied upon for similar authority with respect to political subdivisions of the State while Education Law §3020-a provides the authority for disciplinary charges filed against an educator in the unclassified service to be considered by an arbitrator or arbitration panel and subject to the provisions of Article 75 of the Civil Practice Law and Rules.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06029.htm
Six-month need for intermittent leave rendered employee unfit for duty
Six-month need for intermittent leave rendered employee unfit for duty
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
Charlene Wisbey was employed by the City of Lincoln, Nebraska as an emergency dispatcher. The position required Wisbey to receive calls for emergency services and dispatch emergency service units on a regular basis. Because of the potential life-saving aspect of her position, the City Expected Wisbey to function accurately while working under considerable pressure and to think and act quickly and calmly in emergency situations.
During January-February, Wisbey used a significant amount of sick leave for an upper respiratory infection, for which she received a letter of warning. To avoid further discipline, the City recommended that Wisbey apply for intermittent FMLA leave, which she did. The medical certification supporting her request for intermittent FMLA leave cited recurring cycles of depression and anxiety that interfered with her sleep, energy level, motivation, and concentration. It also stated that Wisbey was unable to perform the essential functions of her job. The certification concluded that Wisbey would need to take time off intermittently over the next 6 months or longer.
Concerned about her ability to perform her job as an emergency dispatcher, the City directed Wisbey to undergo a fitness-for-duty exam (FFD), which she did. The FFD concluded that Wisbey suffered from chronic relapsing depression which intermittently interfered wit her ability to function at full capacity at work, and that she was not fit for duty, especially regarding her ability to concentrate and her ongoing propensity to miss work. The City terminated Wisbey as unfit for duty. Wisbey filed suit alleging violations of the ADA and FMLA.
With respect to the ADA, the Court rejected Wisbey's argument that the City did not have a legitimate, non-discriminatory business necessity to require her to submit to the FFD. Citing a decision of the Second Circuit in Gajda v. Manhattan &Bronx Surface Transit Operating Autho., 396 F.3d 187 (2d Cir. 2005), the Eighth Circuit agreed that representations made in an employee's FMLA medical certification that the employee is unable to perform the functions of his or her position may serve as a legitimate, non-discriminatory basis for employer to require an FFD.
With respect to the FMLA, the Court rejected Wisbey's claim that the City interfered with her FMLA rights, noting that she was never denied FMLA leave. Significantly, quoting prior Eighth Circuit opinions, the Court noted that the FMLA "does not provide leave for leave's sake, but instead provides leave with an expectation an employee will return to work after the leave ends," Throneberry v. McGhee Desha County Hosp., 403 F.3d 972, 978 (8th Cir. 2005), and that "the FMLA doe snot provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment's notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement." Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002).
Because Wisbey requested "intermittent leave" for "six months or longer," the Court concluded that she did not have a right to FMLA leave. Without the right to FMLA leave, the City "could not have interfered with Wisbey's rights under the FMLA." The Court also rejected Wisbey's FMLA retaliation claim, finding that the decision to terminate her was not casually related to her request for FMLA leave a month before, but was due to the results of the FFD.
Mr. Bosland Comments: Long-term intermittent absences with little predictability or notice is the bane of employers who need employees present to get the work done. Of course, from the perspective of the employee who needs intermittent leave due to their own serious health condition or to care for a family member with a serious health condition, this is why the FMLA exits- to protect the employee from having to make a choice between their job and caring for their own or a family members medical needs.
For my money, the Eighth Circuit went too far by stating that an employee who needs intermittent FMLA leave for "6 months or more" somehow forfeits the right to take FMLA leave. The statement is flat out wrong. If an eligible employee meets all of the criteria, the FMLA affords the employee the right to take up to 12 weeks of intermittent FMLA leave for their own serious health condition, or the serious health condition of a covered family member, over the course of a 12-month leave year. Except perhaps in the Eighth Circuit, an employer that denied an eligible employee intermittent FMLA leave after six months - even though they have a certification stating that they needed intermittent leave for more than six months - relying on Wisbey would, in my estimation, interfere with that employee's FMLA rights. That could cost the employer big time in an FMLA interference suit.
What employers should take away from Wisbey is that an employee who needs intermittent FMLA leave long-term or forever may not be qualified for their position. Obviously, this will depend on the job duties of the position, including whether regular and predictable attendance is required. If they are not fit for the position because of their FMLA-covered condition, employers do not have to continue to employ the individual. The fact that, if employed, the individual would have the right to take intermittent FMLA leave is not controlling. Think of it this way: the FMLA entitles an employee to leave. If the same FMLA covered-condition that entitles an employee to take leave also interferes with the employees’ ability to adequately perform their job when they are at work, the FMLA does not protect the employee from discipline for poor performance for the job they did when at work.
Employers would be well advised to proceed with caution in applying Wisbey. Other courts may less quick to find that an employee needing intermittent FMLA leave is unfit for duty and, therefore, may be terminated -particularly where the employee has not exhausted his or her annual entitlement to FMLA leave.
The decision is available at:
http://www.ca8.uscourts.gov/opns/opFrame.html
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
Charlene Wisbey was employed by the City of Lincoln, Nebraska as an emergency dispatcher. The position required Wisbey to receive calls for emergency services and dispatch emergency service units on a regular basis. Because of the potential life-saving aspect of her position, the City Expected Wisbey to function accurately while working under considerable pressure and to think and act quickly and calmly in emergency situations.
During January-February, Wisbey used a significant amount of sick leave for an upper respiratory infection, for which she received a letter of warning. To avoid further discipline, the City recommended that Wisbey apply for intermittent FMLA leave, which she did. The medical certification supporting her request for intermittent FMLA leave cited recurring cycles of depression and anxiety that interfered with her sleep, energy level, motivation, and concentration. It also stated that Wisbey was unable to perform the essential functions of her job. The certification concluded that Wisbey would need to take time off intermittently over the next 6 months or longer.
Concerned about her ability to perform her job as an emergency dispatcher, the City directed Wisbey to undergo a fitness-for-duty exam (FFD), which she did. The FFD concluded that Wisbey suffered from chronic relapsing depression which intermittently interfered wit her ability to function at full capacity at work, and that she was not fit for duty, especially regarding her ability to concentrate and her ongoing propensity to miss work. The City terminated Wisbey as unfit for duty. Wisbey filed suit alleging violations of the ADA and FMLA.
With respect to the ADA, the Court rejected Wisbey's argument that the City did not have a legitimate, non-discriminatory business necessity to require her to submit to the FFD. Citing a decision of the Second Circuit in Gajda v. Manhattan &Bronx Surface Transit Operating Autho., 396 F.3d 187 (2d Cir. 2005), the Eighth Circuit agreed that representations made in an employee's FMLA medical certification that the employee is unable to perform the functions of his or her position may serve as a legitimate, non-discriminatory basis for employer to require an FFD.
With respect to the FMLA, the Court rejected Wisbey's claim that the City interfered with her FMLA rights, noting that she was never denied FMLA leave. Significantly, quoting prior Eighth Circuit opinions, the Court noted that the FMLA "does not provide leave for leave's sake, but instead provides leave with an expectation an employee will return to work after the leave ends," Throneberry v. McGhee Desha County Hosp., 403 F.3d 972, 978 (8th Cir. 2005), and that "the FMLA doe snot provide an employee suffering from depression with a right to unscheduled and unpredictable, but cumulatively substantial, absences or a right to take unscheduled leave at a moment's notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement." Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir. 2002).
Because Wisbey requested "intermittent leave" for "six months or longer," the Court concluded that she did not have a right to FMLA leave. Without the right to FMLA leave, the City "could not have interfered with Wisbey's rights under the FMLA." The Court also rejected Wisbey's FMLA retaliation claim, finding that the decision to terminate her was not casually related to her request for FMLA leave a month before, but was due to the results of the FFD.
Mr. Bosland Comments: Long-term intermittent absences with little predictability or notice is the bane of employers who need employees present to get the work done. Of course, from the perspective of the employee who needs intermittent leave due to their own serious health condition or to care for a family member with a serious health condition, this is why the FMLA exits- to protect the employee from having to make a choice between their job and caring for their own or a family members medical needs.
For my money, the Eighth Circuit went too far by stating that an employee who needs intermittent FMLA leave for "6 months or more" somehow forfeits the right to take FMLA leave. The statement is flat out wrong. If an eligible employee meets all of the criteria, the FMLA affords the employee the right to take up to 12 weeks of intermittent FMLA leave for their own serious health condition, or the serious health condition of a covered family member, over the course of a 12-month leave year. Except perhaps in the Eighth Circuit, an employer that denied an eligible employee intermittent FMLA leave after six months - even though they have a certification stating that they needed intermittent leave for more than six months - relying on Wisbey would, in my estimation, interfere with that employee's FMLA rights. That could cost the employer big time in an FMLA interference suit.
What employers should take away from Wisbey is that an employee who needs intermittent FMLA leave long-term or forever may not be qualified for their position. Obviously, this will depend on the job duties of the position, including whether regular and predictable attendance is required. If they are not fit for the position because of their FMLA-covered condition, employers do not have to continue to employ the individual. The fact that, if employed, the individual would have the right to take intermittent FMLA leave is not controlling. Think of it this way: the FMLA entitles an employee to leave. If the same FMLA covered-condition that entitles an employee to take leave also interferes with the employees’ ability to adequately perform their job when they are at work, the FMLA does not protect the employee from discipline for poor performance for the job they did when at work.
Employers would be well advised to proceed with caution in applying Wisbey. Other courts may less quick to find that an employee needing intermittent FMLA leave is unfit for duty and, therefore, may be terminated -particularly where the employee has not exhausted his or her annual entitlement to FMLA leave.
The decision is available at:
http://www.ca8.uscourts.gov/opns/opFrame.html
Sustaining an injury driving to work in agency vehicle not a performance of duties injury for the purposes of eligibility for GML §207-c benefits
Sustaining an injury driving to work in agency vehicle not a performance of duties injury for the purposes of eligibility for GML §207-c benefits
Matter of Cady v County of Oneida, Supreme Court, Oneida County, 14 Misc3d 1234(A), Affirmed 38 AD3d 1320
David Cady, a Deputy/Investigator for the Oneida County's Sheriff's Department, was assigned an unmarked Sheriff's vehicle. He was authorized to keep the vehicle at his residence and use it to transport himself to and from his work site. Cady was involved in an automobile accident while he was driving to work.* The accident occurred about 10 minutes before Cady was scheduled to be at work.
Cady was injured in the accident and applied for and received worker's compensation benefits. He also applied for disability benefits pursuant to §207-c of the General Municipal Law. His application for §207-c benefits was denied by the County.
The reason advanced by the County: GML §207-c provides benefits for injuries to a deputy sheriff who has been injured in the performance of his duties and that at the time of the accident Cady had not commenced his work duty shift and therefore was not in the performance of his duties.
Cady appealed. The hearing officer concluded that Cady was not entitled to GML §207-c benefits because he was not injured in the performance of his duties. The hearing officer’s determination was adopted by the County. Cady sued, seeking a court order overturning the County’s determination.
Cady argued that he was in the performance of his duties because he is "on call" twenty-four hours a day and could be dispatched to emergencies or to investigate criminal acts. In addition, he claimed, he was directed to be observant for accidents and criminal activity while en route to work using the assigned car. Cady also contended the he was assigned a "take-home" vehicle for the Department's benefit.
The County claimed its conclusion that “Cady was not in the performance of his duties at the time the accident occurred” was neither irrational nor an abuse of discretion. It said that Cady conceded that during his drive to work on the day of the accident he was not dispatched to conduct any investigation nor did he observe any criminal activity.
Supreme Court Judge Grow ruled that the County’s determination that Cady does not qualify for GML §207-c benefits is not irrational, not based on an error of law, not arbitrary, capricious, nor an abuse of discretion, and confirmed the Hearing Officer's determination.
* According to the decision, Cady was not at fault.
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2006/2006_52585.htm
Matter of Cady v County of Oneida, Supreme Court, Oneida County, 14 Misc3d 1234(A), Affirmed 38 AD3d 1320
David Cady, a Deputy/Investigator for the Oneida County's Sheriff's Department, was assigned an unmarked Sheriff's vehicle. He was authorized to keep the vehicle at his residence and use it to transport himself to and from his work site. Cady was involved in an automobile accident while he was driving to work.* The accident occurred about 10 minutes before Cady was scheduled to be at work.
Cady was injured in the accident and applied for and received worker's compensation benefits. He also applied for disability benefits pursuant to §207-c of the General Municipal Law. His application for §207-c benefits was denied by the County.
The reason advanced by the County: GML §207-c provides benefits for injuries to a deputy sheriff who has been injured in the performance of his duties and that at the time of the accident Cady had not commenced his work duty shift and therefore was not in the performance of his duties.
Cady appealed. The hearing officer concluded that Cady was not entitled to GML §207-c benefits because he was not injured in the performance of his duties. The hearing officer’s determination was adopted by the County. Cady sued, seeking a court order overturning the County’s determination.
Cady argued that he was in the performance of his duties because he is "on call" twenty-four hours a day and could be dispatched to emergencies or to investigate criminal acts. In addition, he claimed, he was directed to be observant for accidents and criminal activity while en route to work using the assigned car. Cady also contended the he was assigned a "take-home" vehicle for the Department's benefit.
The County claimed its conclusion that “Cady was not in the performance of his duties at the time the accident occurred” was neither irrational nor an abuse of discretion. It said that Cady conceded that during his drive to work on the day of the accident he was not dispatched to conduct any investigation nor did he observe any criminal activity.
Supreme Court Judge Grow ruled that the County’s determination that Cady does not qualify for GML §207-c benefits is not irrational, not based on an error of law, not arbitrary, capricious, nor an abuse of discretion, and confirmed the Hearing Officer's determination.
* According to the decision, Cady was not at fault.
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2006/2006_52585.htm
Expanding exemptions from FOIL to protect "technology assets used to maintain public information"
Expanding exemptions from FOIL to protect "technology assets used to maintain public information"
Chapter 154 of the Law of 2010
The Governor has signed into law a bill amending the State’s Freedom of Information Law [Public Officers Law §87]. The bill, which amends Paragraph (i) of subdivision 2 of Section 87* is intended to providing agencies with authority to withhold disclosing of certain records when responding to FOIL requests.
Subdivision 2.1. now reads: (i) if disclosed, would jeopardize [an agency's] the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures”
The amendment was proposed by the State’s Office of Cyber Security and Critical Infrastructure and takes effect immediately.
* Deleted language in [brackets]; new language in italics.
Chapter 154 of the Law of 2010
The Governor has signed into law a bill amending the State’s Freedom of Information Law [Public Officers Law §87]. The bill, which amends Paragraph (i) of subdivision 2 of Section 87* is intended to providing agencies with authority to withhold disclosing of certain records when responding to FOIL requests.
Subdivision 2.1. now reads: (i) if disclosed, would jeopardize [an agency's] the capacity of an agency or an entity that has shared information with an agency to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures”
The amendment was proposed by the State’s Office of Cyber Security and Critical Infrastructure and takes effect immediately.
* Deleted language in [brackets]; new language in italics.
July 09, 2010
Appeal to the Commissioner of Education dismissed for failure to name a necessary party
Appeal to the Commissioner of Education dismissed for failure to name a necessary party
Appeal of J.S. from action of the Board of Education of the Jordan-Elbridge Central School District and Superintendent Marilyn Dominick regarding a transfer.
Decision No. 16,077
J.S. served as the district’s elementary school principal of the Jordan-Elbridge Central School District and was granted tenure in the tenure area of “administrator.”
On June 8, 2009, the board authorized an investigation of complaints concerning the district’s elementary school and on the following day J.S. was transferred to the position of Special Project Administrator.
Contending that the transfer was made for disciplinary reasons in violation of the due process rights afforded her under Education Law §3020-a, J.S. asked the Commissioner to direct that the district to reinstate her as Elementary School Principal and that all references to the transfer be expunged from district records.
The Commissioner dismissed the appeal “for failure to join a necessary party.” Commenting that “A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.
The Commissioner explained that the remedy sought by J.S. is “reinstatement to her previous position as Elementary School Principal and that position is currently held by Elizabeth Primo, the interim Elementary School Principal, Primo’s rights would be adversely affected by a determination in [J.S.’s] favor.” Thus Primo is a necessary party and the appeal must be dismissed because of the failure of J.S. to name, and serve her, in the appeal.
In addition, the Commissioner stated that the appeal “must also be dismissed as untimely.” An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, "unless any delay is excused by the Commissioner for good cause shown." The record indicated that J.S was reassigned to the Special Project Administrator position on June 9, 2009 but her petition was not served until October 13, 2009.
Finally, the Commissioner said that J.S.’s appeal, absent the above noted procedural defects, would have been dismissed on the merits.
In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.
The Commissioner said that a board of education has "broad discretion in assigning members of its professional staff, so long as the employee’s tenure rights are not infringed upon." In this instance, said the Commissioner, notwithstanding J.S.’s claim that she was reassigned for disciplinary reasons and she was not accorded the due process protections of Education Law §3020-a, he did not find that J.S. had adequately demonstrate that her transfer was for disciplinary reasons and J.S. did not offered any evidence that disciplinary action was being contemplated prior to the reassignment.
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16077.htm
Appeal of J.S. from action of the Board of Education of the Jordan-Elbridge Central School District and Superintendent Marilyn Dominick regarding a transfer.
Decision No. 16,077
J.S. served as the district’s elementary school principal of the Jordan-Elbridge Central School District and was granted tenure in the tenure area of “administrator.”
On June 8, 2009, the board authorized an investigation of complaints concerning the district’s elementary school and on the following day J.S. was transferred to the position of Special Project Administrator.
Contending that the transfer was made for disciplinary reasons in violation of the due process rights afforded her under Education Law §3020-a, J.S. asked the Commissioner to direct that the district to reinstate her as Elementary School Principal and that all references to the transfer be expunged from district records.
The Commissioner dismissed the appeal “for failure to join a necessary party.” Commenting that “A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.
The Commissioner explained that the remedy sought by J.S. is “reinstatement to her previous position as Elementary School Principal and that position is currently held by Elizabeth Primo, the interim Elementary School Principal, Primo’s rights would be adversely affected by a determination in [J.S.’s] favor.” Thus Primo is a necessary party and the appeal must be dismissed because of the failure of J.S. to name, and serve her, in the appeal.
In addition, the Commissioner stated that the appeal “must also be dismissed as untimely.” An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, "unless any delay is excused by the Commissioner for good cause shown." The record indicated that J.S was reassigned to the Special Project Administrator position on June 9, 2009 but her petition was not served until October 13, 2009.
Finally, the Commissioner said that J.S.’s appeal, absent the above noted procedural defects, would have been dismissed on the merits.
In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.
The Commissioner said that a board of education has "broad discretion in assigning members of its professional staff, so long as the employee’s tenure rights are not infringed upon." In this instance, said the Commissioner, notwithstanding J.S.’s claim that she was reassigned for disciplinary reasons and she was not accorded the due process protections of Education Law §3020-a, he did not find that J.S. had adequately demonstrate that her transfer was for disciplinary reasons and J.S. did not offered any evidence that disciplinary action was being contemplated prior to the reassignment.
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume49/d16077.htm
Supplements to an official’s salary
Supplements to an official’s salary
Informal Opinions of the Attorney General, 98-16
A county Industrial Development Agency is authorized to issue bonds and grant tax exemptions as a means of providing financial assistance to business projects approved by the Agency. The employment contract between the Niagara County Industrial Development Agency [NCIDA] and its executive director provided that the director was to be paid an annual salary of $69,000 and, in addition, “would receive 1.5% of the agency fees” collected by NCIDA for “bond projects.”
There may have been some question concerning paying the director additional compensation based on a percentage of the fees received by NCIDA as the contract also provided that “in the event the additional payment was held unenforceable or in conflict with State Legislation, a minimum additional payment of $3,000 per year would be paid ... in place of the percentage payment.”
When asked if either of these provisions violated State Law, the Attorney General advised the Niagara County Attorney’s office that in his view, both provisions constituted violations of Section 858-a(1) of the General Municipal Law. The Attorney General first noted that the granting of the percentage of the agency fee collected by the Agency was “contingent upon the granting of financial assistance,” and thus violated the statute. He then observed that the alternative formula for supplementing the director’s salary -- the additional payment of $3,000 per year -- was unlawful for the same reason. The Attorney General viewed the supplement as being contingent on NCIDA’s collecting fees for its financial assistance, commenting that “[p]resumably, if [such payment] was unrelated to financial assistance to clients of [NCIDA], it would be a fixed amount that is part of the base salary of the executive director.”
The County Attorney’s office also wanted to know what NCIDA should consider doing if the Attorney General decided that its arrangement with its executive director violated the General Municipal Law. The Attorney General said that “contract provisions that are contrary to statutory requirements intended to protect the public and prevent fraud are void and unenforceable [and] [t]herefore the unlawful payments may be recoverable.”
Informal Opinions of the Attorney General, 98-16
A county Industrial Development Agency is authorized to issue bonds and grant tax exemptions as a means of providing financial assistance to business projects approved by the Agency. The employment contract between the Niagara County Industrial Development Agency [NCIDA] and its executive director provided that the director was to be paid an annual salary of $69,000 and, in addition, “would receive 1.5% of the agency fees” collected by NCIDA for “bond projects.”
There may have been some question concerning paying the director additional compensation based on a percentage of the fees received by NCIDA as the contract also provided that “in the event the additional payment was held unenforceable or in conflict with State Legislation, a minimum additional payment of $3,000 per year would be paid ... in place of the percentage payment.”
When asked if either of these provisions violated State Law, the Attorney General advised the Niagara County Attorney’s office that in his view, both provisions constituted violations of Section 858-a(1) of the General Municipal Law. The Attorney General first noted that the granting of the percentage of the agency fee collected by the Agency was “contingent upon the granting of financial assistance,” and thus violated the statute. He then observed that the alternative formula for supplementing the director’s salary -- the additional payment of $3,000 per year -- was unlawful for the same reason. The Attorney General viewed the supplement as being contingent on NCIDA’s collecting fees for its financial assistance, commenting that “[p]resumably, if [such payment] was unrelated to financial assistance to clients of [NCIDA], it would be a fixed amount that is part of the base salary of the executive director.”
The County Attorney’s office also wanted to know what NCIDA should consider doing if the Attorney General decided that its arrangement with its executive director violated the General Municipal Law. The Attorney General said that “contract provisions that are contrary to statutory requirements intended to protect the public and prevent fraud are void and unenforceable [and] [t]herefore the unlawful payments may be recoverable.”
Workers’ compensation leave pursuant to Civil Service Law Section 71
Workers’ compensation leave pursuant to Civil Service Law Section 71
Bryant v City of New York, App. Div., 3rd Dept, 252 A.D.2d 777, Motion for leave to appeal denied, 92 N.Y.2d 813
Section 71 of the Civil Service Law, commonly referred to as “workers’ compensation leave,” requires a public employer to give an employee who is injured on the job and as a result is unable to perform his or her duties a leave of absence for at least one year unless he or she is permanently disabled. The standard applied: the employee’s disability must result from an occupational injury or disease as defined in the Workers’ Compensation Law [WCL].
Many Taylor Law agreements provided for workers’ compensation leave, incorporating by reference the provisions of Section 71 of the Civil Service Law. However, not every injury or disease suffered at work that prevents an individual from performing the duties of the position is an “occupational injury or disease” within the meaning of WCL. As the Court of Appeals held in Mack v Rockland County, 71 NY2d 1008, for the purposes of determining eligibility for workers’ compensation benefits, “an occupational disease derives from the very nature of the employment, not a specific condition peculiar to the employee’s place of work.”
The Bryant case illustrates the fact that not every disease or injury arising in the work place is an occupational injury or disease for the purposes of receiving workers’ compensation benefits and thus such a claim does not automatically trigger eligibility for workers’ compensation leave.
Meridie Bryant, a word processor employed by the City of New York, applied for workers’ compensation benefits claiming that neck, shoulder and back ailments she suffered were caused by the physical layout of her work site and the chair in which she sat while at work. The Workers’ Compensation Board rejected her application on the grounds that she had not suffered an occupational injury or disease within the meaning of the Workers’ Compensation Law.
Byrant’s appeal from the Board’s ruling was rejected by the Appellate Division.
The court, citing the Court of Appeals’ decision in Mack, said that in order to be eligible for workers’ compensation benefits, the applicant “was required to demonstrate a recognizable link between the disease from which [he or] she allegedly suffers and some distinctive feature of [his or] her employment.”
The Appellate Division decided that Byrant’s condition related to her particular work area and not the “very nature of her employment.” Accordingly, the court upheld the Board’s determination rejecting Byrant’s workers’ compensation claim and dismissed her appeal.
The practical effect of this for the purposes of Section 71, however, is not as drastic as it might appear. Section 71 leave is provided as a leave without pay, although the employee may be continued on the payroll using his or her leave credits in order to continue to be paid.
If the individual viewed as being on workers’ compensation leave by the employer is later found not to have suffered an occupational injury or disease as was the situation in Bryant’s case, all that need be done is to amend the employee’s personnel record to show that he or she is on Section 72, rather than Section 71 leave.
Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in WCL. Again employees are entitled to such a leave of absence without pay as a matter of law. As is the case in a Section 71 situation, “an employee on such leave of absence shall be entitled to draw all accumulated, unused sick leave, vacation, overtime and other time allowances standing to his [or her] credit” while on such leave.
There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s consecutive absence for one year.
In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year. On the other hand, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.
It should be remembered that under both Section 71 and Section 72, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.
Bryant v City of New York, App. Div., 3rd Dept, 252 A.D.2d 777, Motion for leave to appeal denied, 92 N.Y.2d 813
Section 71 of the Civil Service Law, commonly referred to as “workers’ compensation leave,” requires a public employer to give an employee who is injured on the job and as a result is unable to perform his or her duties a leave of absence for at least one year unless he or she is permanently disabled. The standard applied: the employee’s disability must result from an occupational injury or disease as defined in the Workers’ Compensation Law [WCL].
Many Taylor Law agreements provided for workers’ compensation leave, incorporating by reference the provisions of Section 71 of the Civil Service Law. However, not every injury or disease suffered at work that prevents an individual from performing the duties of the position is an “occupational injury or disease” within the meaning of WCL. As the Court of Appeals held in Mack v Rockland County, 71 NY2d 1008, for the purposes of determining eligibility for workers’ compensation benefits, “an occupational disease derives from the very nature of the employment, not a specific condition peculiar to the employee’s place of work.”
The Bryant case illustrates the fact that not every disease or injury arising in the work place is an occupational injury or disease for the purposes of receiving workers’ compensation benefits and thus such a claim does not automatically trigger eligibility for workers’ compensation leave.
Meridie Bryant, a word processor employed by the City of New York, applied for workers’ compensation benefits claiming that neck, shoulder and back ailments she suffered were caused by the physical layout of her work site and the chair in which she sat while at work. The Workers’ Compensation Board rejected her application on the grounds that she had not suffered an occupational injury or disease within the meaning of the Workers’ Compensation Law.
Byrant’s appeal from the Board’s ruling was rejected by the Appellate Division.
The court, citing the Court of Appeals’ decision in Mack, said that in order to be eligible for workers’ compensation benefits, the applicant “was required to demonstrate a recognizable link between the disease from which [he or] she allegedly suffers and some distinctive feature of [his or] her employment.”
The Appellate Division decided that Byrant’s condition related to her particular work area and not the “very nature of her employment.” Accordingly, the court upheld the Board’s determination rejecting Byrant’s workers’ compensation claim and dismissed her appeal.
The practical effect of this for the purposes of Section 71, however, is not as drastic as it might appear. Section 71 leave is provided as a leave without pay, although the employee may be continued on the payroll using his or her leave credits in order to continue to be paid.
If the individual viewed as being on workers’ compensation leave by the employer is later found not to have suffered an occupational injury or disease as was the situation in Bryant’s case, all that need be done is to amend the employee’s personnel record to show that he or she is on Section 72, rather than Section 71 leave.
Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in WCL. Again employees are entitled to such a leave of absence without pay as a matter of law. As is the case in a Section 71 situation, “an employee on such leave of absence shall be entitled to draw all accumulated, unused sick leave, vacation, overtime and other time allowances standing to his [or her] credit” while on such leave.
There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s consecutive absence for one year.
In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year. On the other hand, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.
It should be remembered that under both Section 71 and Section 72, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.
July 08, 2010
In an administrative disciplinary hearing, conflicting testimony merely "raised issues of credibility" for the hearing officer to resolve
In an administrative disciplinary hearing, conflicting testimony merely "raised issues of credibility" for the hearing officer to resolve
Matter of Weymer v New York State Div. of State Police, 2010 NY Slip Op 05779, Appellate Division, Second Department
Harry J. Corbitt, the Superintendent of the New York State Division of State Police, adopting the findings of a hearing board made that Craig J. Weymer “improperly impounded a motor vehicle and failed to act in a courteous, dignified, and businesslike manner in violation of New York State Police Rules and Regulations.”
The Superintendent also adopted the hearing boards finding that Weymer “acted in a manner tending to bring discredit upon the New York State Division of State Police in violation of the New York State Police Rules and Regulations.”
The penalty imposed: Weymer was formally censured and suspended for one day without pay.
The Appellate Division rejected Weymer’s appeal, holding that the determination was supported by substantial evidence.” Further, said the court, although there were a few instances of conflicting testimony, this merely "raised issues of credibility for the Hearing [Board] to resolve," citing Leong v Safir, 259 AD2d 751.
As to Weymer’s challenge to the penalty imposed, the Appellate Division concluded that the penalty imposed was not "so disproportionate to the offenses as to be shocking to one's sense of fairness." Accordingly, it did not constitute an abuse of discretion as a matter of law.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05779.htm
Matter of Weymer v New York State Div. of State Police, 2010 NY Slip Op 05779, Appellate Division, Second Department
Harry J. Corbitt, the Superintendent of the New York State Division of State Police, adopting the findings of a hearing board made that Craig J. Weymer “improperly impounded a motor vehicle and failed to act in a courteous, dignified, and businesslike manner in violation of New York State Police Rules and Regulations.”
The Superintendent also adopted the hearing boards finding that Weymer “acted in a manner tending to bring discredit upon the New York State Division of State Police in violation of the New York State Police Rules and Regulations.”
The penalty imposed: Weymer was formally censured and suspended for one day without pay.
The Appellate Division rejected Weymer’s appeal, holding that the determination was supported by substantial evidence.” Further, said the court, although there were a few instances of conflicting testimony, this merely "raised issues of credibility for the Hearing [Board] to resolve," citing Leong v Safir, 259 AD2d 751.
As to Weymer’s challenge to the penalty imposed, the Appellate Division concluded that the penalty imposed was not "so disproportionate to the offenses as to be shocking to one's sense of fairness." Accordingly, it did not constitute an abuse of discretion as a matter of law.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05779.htm
Subscribe to:
Posts (Atom)
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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.
Copyright 2009-2024 - Public Employment Law Press.
Email: nyppl@nycap.rr.com.