US Department of Labor COBRA website updated
Source: Labor Department press release
The Department of Labor's Employee Benefits Security Administration has updated its dedicated COBRA web page to reflect the relevant changes resulting from the Unemployment Compensation Extension Act of 2010.
The website address is: http://www.dol.gov/COBRA
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 28, 2010
Temporary appointment to a position in the public service
Temporary appointment to a position in the public service
CSEA Local 1000 v NYS Dept. of Civil Service, App Div, 250 A.D.2d 968, Motion to appeal denied, 92 N.Y.2d 808
The State Fair Division of the New York State Department of Agriculture and Markets employed a number of individuals in noncompetitive class or labor class positions and designated them as “temporary employees.” CSEA Local 1000 commenced an Article 78 action to compel the State Department of Civil Service to grant each such individual “permanent employee status.”
A state Supreme Court justice dismissed CSEA’s petition after finding that these employees “were hired as temporary employees and did not thereafter obtain permanent status by operation of law or otherwise....” Accordingly, the Court ruled, these individuals were not legally entitled to permanent status. The Appellate Division affirmed the Supreme Court’s decision.
The rationale underlying the Appellate Division’s decision wasthat the positions in question were not funded by the State. The ability to establish and pay for these positions depended on revenues from the annual State Fair and other non-State revenue sources.
The record showed that the individuals were “appointed to temporary positions” and such appointments were “on a temporary basis.” The decision comments that “fundamentally an unlawful extended period of temporary service cannot ripen into a permanent appointment unless the appointee met all of the requirements for permanent appointment at the time of the temporary appointment,” citing Reis v New York State Housing Finance Agency [77 NY2d 915] and Montero v Lum [68 NY2d 253].
However, it should be noted that the Reis and Montero cases concerned claims of permanent status in competitive class positions advanced by provisional employees. Section 64 of the Civil Service Law provides for temporary appointment, including temporary appointments to positions in the competitive class; Section 65 of the Civil Service Law specifically provides for provisional appointment to competitive class positions.
Nothing in the Civil Service Law precludes making a permanent appointment to a temporary position although such an appointment has the potential of resulting in a “layoff/preferred list” situation. In addition, Section 64.5 of the Civil Service Law authorizes permanent appointment to an encumbered position under certain circumstances. Section 64.5 appointments are commonly referred to as “contingent permanent appointments.”
In any event, an appointment to a temporary position should be distinguished from a personnel transaction involving the appointment of individual to a position “temporarily vacant” due to the permanent incumbent being on a leave of absence without pay. Generally, a reference to a “temporary position” reflects financial considerations, such as the source of funding or the continued availability of funds. In contrast, “temporary appointment” reflects the employment status of the individual and the tenure rights, if any, that flow from such status. Accordingly, there is a significant difference between a “temporary position” and a “temporary appointment.”
To illustrate the need to distinguish between the status of a position and the status of an individual serving in a position, the Appellate Division did not have any trouble holding that permanently appointing a candidate on an eligible list to a non-existent position just before the list expired did not offend the Civil Service Law. The appointment was made “from the old list” in anticipation of a vacancy that would result upon the retirement of the then incumbent a few weeks later. The Appellate Division dismissed the action brought by individuals on the new eligible list for the position challenging the appointment to a position that did not exist.
CSEA Local 1000 v NYS Dept. of Civil Service, App Div, 250 A.D.2d 968, Motion to appeal denied, 92 N.Y.2d 808
The State Fair Division of the New York State Department of Agriculture and Markets employed a number of individuals in noncompetitive class or labor class positions and designated them as “temporary employees.” CSEA Local 1000 commenced an Article 78 action to compel the State Department of Civil Service to grant each such individual “permanent employee status.”
A state Supreme Court justice dismissed CSEA’s petition after finding that these employees “were hired as temporary employees and did not thereafter obtain permanent status by operation of law or otherwise....” Accordingly, the Court ruled, these individuals were not legally entitled to permanent status. The Appellate Division affirmed the Supreme Court’s decision.
The rationale underlying the Appellate Division’s decision wasthat the positions in question were not funded by the State. The ability to establish and pay for these positions depended on revenues from the annual State Fair and other non-State revenue sources.
The record showed that the individuals were “appointed to temporary positions” and such appointments were “on a temporary basis.” The decision comments that “fundamentally an unlawful extended period of temporary service cannot ripen into a permanent appointment unless the appointee met all of the requirements for permanent appointment at the time of the temporary appointment,” citing Reis v New York State Housing Finance Agency [77 NY2d 915] and Montero v Lum [68 NY2d 253].
However, it should be noted that the Reis and Montero cases concerned claims of permanent status in competitive class positions advanced by provisional employees. Section 64 of the Civil Service Law provides for temporary appointment, including temporary appointments to positions in the competitive class; Section 65 of the Civil Service Law specifically provides for provisional appointment to competitive class positions.
Nothing in the Civil Service Law precludes making a permanent appointment to a temporary position although such an appointment has the potential of resulting in a “layoff/preferred list” situation. In addition, Section 64.5 of the Civil Service Law authorizes permanent appointment to an encumbered position under certain circumstances. Section 64.5 appointments are commonly referred to as “contingent permanent appointments.”
In any event, an appointment to a temporary position should be distinguished from a personnel transaction involving the appointment of individual to a position “temporarily vacant” due to the permanent incumbent being on a leave of absence without pay. Generally, a reference to a “temporary position” reflects financial considerations, such as the source of funding or the continued availability of funds. In contrast, “temporary appointment” reflects the employment status of the individual and the tenure rights, if any, that flow from such status. Accordingly, there is a significant difference between a “temporary position” and a “temporary appointment.”
To illustrate the need to distinguish between the status of a position and the status of an individual serving in a position, the Appellate Division did not have any trouble holding that permanently appointing a candidate on an eligible list to a non-existent position just before the list expired did not offend the Civil Service Law. The appointment was made “from the old list” in anticipation of a vacancy that would result upon the retirement of the then incumbent a few weeks later. The Appellate Division dismissed the action brought by individuals on the new eligible list for the position challenging the appointment to a position that did not exist.
July 27, 2010
Employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview
Employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview
NYC Health and Hospital Corporation v Jones, OATH Index #1100/10
Karin Jones, a clerical employee at a City hospital, was charged with misconduct arising from an incident involving a mother strike or push her young child during a visit to the hospital.
Jones was charged with failure to cooperate in an official investigation because she would not answer questions unless her union representative was present.
OATH Administrative Law Judge Faye Lewis sustained one charge based upon Jones’ refusal to answer questions asked by the hospital's child protective coordinator. The coordinator was conducting a “time-sensitive investigation,” i.e., to determine if a reportable event had occurred while the mother and child were still at the hospital. At this point – the “first interview -- the coordinator wanted to find out what Jones had seen.
As the focus of the first interview was “investigatory” rather than “disciplinary” insofar as Jones was concerned, the Administrative Law Judge ruled that Jones could be disciplined for refusing to cooperate with the child protective coordinator in the course of the “first interview.”
In contrast, ALJ Lewis dismissed charges based upon Jones’ refusal to answer questions asked by her supervisors in the course of a second interview without her union representative present. In this instance the ALJ found that the supervisor’s questioning Jones was primarily focused upon her failure to cooperate and thus it was reasonable for Jones to believe that providing information during this second interview could lead to disciplinary action.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1100.pdf
NYC Health and Hospital Corporation v Jones, OATH Index #1100/10
Karin Jones, a clerical employee at a City hospital, was charged with misconduct arising from an incident involving a mother strike or push her young child during a visit to the hospital.
Jones was charged with failure to cooperate in an official investigation because she would not answer questions unless her union representative was present.
OATH Administrative Law Judge Faye Lewis sustained one charge based upon Jones’ refusal to answer questions asked by the hospital's child protective coordinator. The coordinator was conducting a “time-sensitive investigation,” i.e., to determine if a reportable event had occurred while the mother and child were still at the hospital. At this point – the “first interview -- the coordinator wanted to find out what Jones had seen.
As the focus of the first interview was “investigatory” rather than “disciplinary” insofar as Jones was concerned, the Administrative Law Judge ruled that Jones could be disciplined for refusing to cooperate with the child protective coordinator in the course of the “first interview.”
In contrast, ALJ Lewis dismissed charges based upon Jones’ refusal to answer questions asked by her supervisors in the course of a second interview without her union representative present. In this instance the ALJ found that the supervisor’s questioning Jones was primarily focused upon her failure to cooperate and thus it was reasonable for Jones to believe that providing information during this second interview could lead to disciplinary action.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1100.pdf
Advisory arbitration recommendation neither binding on the parties nor subject to "confirmation" pursuant to CPLR Article 75
Advisory arbitration recommendation neither binding on the parties nor subject to "confirmation" pursuant to CPLR Article 75
CSEA Local 1000 v Nassau County, Appellate Division, 251 A.D.2d 328
The CSEA and Nassau County submitted a grievance to advisory arbitration. The arbitrator issued an “advisory recommendation” in CSEA’s favor. When the county refused to implement the arbitrator’s recommendation, CSEA brought an action pursuant to Article 75 of the Civil Practice Law and Rules in an effort to “confirm” the recommendation, thereby requiring the county to implement it.
The Appellate Division affirmed a Supreme Court justice’s dismissal of CSEA’s Article 75 petition. The Court explained that under the circumstances, “the advisory arbitrator’s recommendation never became binding upon the County.”
The decision points out the significant difference between binding arbitration and advisory arbitration.
In binding arbitration, the prevailing party is able to enforce an award issued by the arbitrator through an Article 75 proceeding. No similar procedure is available to the prevailing party in an advisory arbitration.
CSEA Local 1000 v Nassau County, Appellate Division, 251 A.D.2d 328
The CSEA and Nassau County submitted a grievance to advisory arbitration. The arbitrator issued an “advisory recommendation” in CSEA’s favor. When the county refused to implement the arbitrator’s recommendation, CSEA brought an action pursuant to Article 75 of the Civil Practice Law and Rules in an effort to “confirm” the recommendation, thereby requiring the county to implement it.
The Appellate Division affirmed a Supreme Court justice’s dismissal of CSEA’s Article 75 petition. The Court explained that under the circumstances, “the advisory arbitrator’s recommendation never became binding upon the County.”
The decision points out the significant difference between binding arbitration and advisory arbitration.
In binding arbitration, the prevailing party is able to enforce an award issued by the arbitrator through an Article 75 proceeding. No similar procedure is available to the prevailing party in an advisory arbitration.
Buying back retirement credit
Buying back retirement credit
Whalen v Whalen, Rockland County Supreme Court, [Not published in the Official Reports]
Buying back or purchasing retirement system service credit when possible is usually viewed as a good decision on the part of system member as it will generally increase the member’s ultimate retirement allowance. But such action may generate unanticipated legal consequences, as demonstrated by the Whalen case.
Whalen v Whalen is a divorce action. One of the elements considered by the court in connection with the distribution of the “marital assets” was the value of any retirement benefits due the husband flowing from his membership in the New York State Teachers’ Retirement System [TRS].
According to the decision, the husband withdrew from TRS when he left New York State to teach in Connecticut. He then returned to teaching in New York and rejoined TRS.
Also a factor in the court’s analysis was a prenuptial agreement, a post nuptial agreement and a joint will, none of which referred to “pension benefits.”
The husband had “cashed in” his membership in TRS [Education Law Section 503(3)] when he left the state. He subsequently repurchased his prior member service credit when he rejoined the system by paying the required contributions [Section 509, Education Law]. Thus, said the wife, her former husband’s TRS retirement benefits were “marital property” and therefore subject to distribution; her former husband argued that his retirement benefits were “separate property” under a prenuptial agreement.
Whalen's former wife prevailed.
According to the decision by Justice Miller, “the pension credits earned by [husband] ... had [he] not cashed them in, would undoubtedly have been his separate property. Once cashed in, however, the pension credits were, at best, a potential but dormant asset, of no value until the [husband] fulfilled certain statutory requirement. The assets reacquired a value during the marriage, when [the husband] fulfilled his obligations with respect to employment and repaid his contributions with marital funds. ... To the extent that the [husband’s] pension acquired an enhanced value during the marriage, that enhance value is marital property.”
Also a factor in the action was the husband’s retirement benefit from the State of Connecticut’s Teachers’ Retirement System, which also involved a “cash-out” and his subsequent rejoining that system.
The court said that a determination of the value of marital assets resulting from such membership must await a trial, at which time “the parties must offer sufficient evidence of the value of the [Connecticut] pension on the date of the commencement of this action and the difference, if any, in the value of the pension which resulted from the payments made during the marriage to repurchase past [Connecticut] credits.”
Whalen v Whalen, Rockland County Supreme Court, [Not published in the Official Reports]
Buying back or purchasing retirement system service credit when possible is usually viewed as a good decision on the part of system member as it will generally increase the member’s ultimate retirement allowance. But such action may generate unanticipated legal consequences, as demonstrated by the Whalen case.
Whalen v Whalen is a divorce action. One of the elements considered by the court in connection with the distribution of the “marital assets” was the value of any retirement benefits due the husband flowing from his membership in the New York State Teachers’ Retirement System [TRS].
According to the decision, the husband withdrew from TRS when he left New York State to teach in Connecticut. He then returned to teaching in New York and rejoined TRS.
Also a factor in the court’s analysis was a prenuptial agreement, a post nuptial agreement and a joint will, none of which referred to “pension benefits.”
The husband had “cashed in” his membership in TRS [Education Law Section 503(3)] when he left the state. He subsequently repurchased his prior member service credit when he rejoined the system by paying the required contributions [Section 509, Education Law]. Thus, said the wife, her former husband’s TRS retirement benefits were “marital property” and therefore subject to distribution; her former husband argued that his retirement benefits were “separate property” under a prenuptial agreement.
Whalen's former wife prevailed.
According to the decision by Justice Miller, “the pension credits earned by [husband] ... had [he] not cashed them in, would undoubtedly have been his separate property. Once cashed in, however, the pension credits were, at best, a potential but dormant asset, of no value until the [husband] fulfilled certain statutory requirement. The assets reacquired a value during the marriage, when [the husband] fulfilled his obligations with respect to employment and repaid his contributions with marital funds. ... To the extent that the [husband’s] pension acquired an enhanced value during the marriage, that enhance value is marital property.”
Also a factor in the action was the husband’s retirement benefit from the State of Connecticut’s Teachers’ Retirement System, which also involved a “cash-out” and his subsequent rejoining that system.
The court said that a determination of the value of marital assets resulting from such membership must await a trial, at which time “the parties must offer sufficient evidence of the value of the [Connecticut] pension on the date of the commencement of this action and the difference, if any, in the value of the pension which resulted from the payments made during the marriage to repurchase past [Connecticut] credits.”
July 26, 2010
The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law
The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law
Hayes v City of NY Dept. of Citywide Admin. Servs., 2010 NY Slip Op 20289, Decided on July 20, 2010, Supreme Court, New York County, Judge Alexander W. Hunter
New York City Fire Captain Robert Hayes applied for and took the Promotion to Battalion Chief Examination No. 8511.
The Test Validation Board rating this examination initially advised the candidates that it proposed the correct answers to questions 15, 46, and 85 as A, A, and D, respectively, Hayes had selected these as correct answers to these questions. However, the final determination by the Test Validation Board allowed A, B, C, and D as correct answers for each of the three questions.
Hayes objected to the Board’s decision, contending that in allowing A, B, C, and D to be deemed correct answers for each of these questions rather allowing only alternate answers that were as good as or better than the proposed answers upon protest, the Board effectively deleted the three questions thereby exceeding its authority under Civil Service Law §50-a.*
Judge Hunter dismissed Hayes’ Article 78 petition seeking to vacate the Board’s final decision as untimely. Although Hayes had filed his petition within the “four month statute of limitations” typically applicable in challenging an administrative determination, in this instance §50-a required that such a petition had to be filed within thirty days “of service of the notice of availability of the determination of the test validation board upon the protesting candidate….”
In the words of the court, “Hayes was given notice of the validation board's determination on December 17, 2009 and did not file a petition under Article 78 until April 12, 2010, nearly four months later, and nearly three months after the 30-day requirement as set forth in Civil Service Law § 50-a. Therefore, this petition is outside of the statute of limitations and is hereby dismissed.”
As to Hayes’ argument that the time limits set out in §50-a did not apply in this instance, Judge Hunter explained that although “The purpose of an Article 78 proceeding, utilizing C.P.L.R. §7803[3] as this case does specifically, is to permit the aggrieved candidate an opportunity to argue why the determination of the administrative agency was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion .’ … This is precisely the issue at bar and within the scope of Civil Service Law §50-a.”
N.B. Exceptions to “the ususal” statutes of limitations are sometimes set out in law. For example, although an Article 75 petition seeking to confirm or vacate an arbitration award “must be filed ninety days after its delivery,” Education Law Section 3020-a(5) requires that an Article 75 petition challenging the arbitration award resulting from a Section 3020-a disciplinary hearing to be filed “Not later than ten days after receipt of the hearing officer's decision” in order to be timely.
* Civil Service Law §50-a authorizes “test validation boards” to determine the correct scoring of civil service examinations for positions in the competitive class within the jurisdiction of the New York City Department of Personnel and provides that “the test validation board shall make a determination whether the answers elected by the protesting candidates are as good as or better than the proposed key answers or whether the rating guide should be modified and shall give reasons therefor in an opinion in writing.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20289.htm
Hayes v City of NY Dept. of Citywide Admin. Servs., 2010 NY Slip Op 20289, Decided on July 20, 2010, Supreme Court, New York County, Judge Alexander W. Hunter
New York City Fire Captain Robert Hayes applied for and took the Promotion to Battalion Chief Examination No. 8511.
The Test Validation Board rating this examination initially advised the candidates that it proposed the correct answers to questions 15, 46, and 85 as A, A, and D, respectively, Hayes had selected these as correct answers to these questions. However, the final determination by the Test Validation Board allowed A, B, C, and D as correct answers for each of the three questions.
Hayes objected to the Board’s decision, contending that in allowing A, B, C, and D to be deemed correct answers for each of these questions rather allowing only alternate answers that were as good as or better than the proposed answers upon protest, the Board effectively deleted the three questions thereby exceeding its authority under Civil Service Law §50-a.*
Judge Hunter dismissed Hayes’ Article 78 petition seeking to vacate the Board’s final decision as untimely. Although Hayes had filed his petition within the “four month statute of limitations” typically applicable in challenging an administrative determination, in this instance §50-a required that such a petition had to be filed within thirty days “of service of the notice of availability of the determination of the test validation board upon the protesting candidate….”
In the words of the court, “Hayes was given notice of the validation board's determination on December 17, 2009 and did not file a petition under Article 78 until April 12, 2010, nearly four months later, and nearly three months after the 30-day requirement as set forth in Civil Service Law § 50-a. Therefore, this petition is outside of the statute of limitations and is hereby dismissed.”
As to Hayes’ argument that the time limits set out in §50-a did not apply in this instance, Judge Hunter explained that although “The purpose of an Article 78 proceeding, utilizing C.P.L.R. §7803[3] as this case does specifically, is to permit the aggrieved candidate an opportunity to argue why the determination of the administrative agency was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion .’ … This is precisely the issue at bar and within the scope of Civil Service Law §50-a.”
N.B. Exceptions to “the ususal” statutes of limitations are sometimes set out in law. For example, although an Article 75 petition seeking to confirm or vacate an arbitration award “must be filed ninety days after its delivery,” Education Law Section 3020-a(5) requires that an Article 75 petition challenging the arbitration award resulting from a Section 3020-a disciplinary hearing to be filed “Not later than ten days after receipt of the hearing officer's decision” in order to be timely.
* Civil Service Law §50-a authorizes “test validation boards” to determine the correct scoring of civil service examinations for positions in the competitive class within the jurisdiction of the New York City Department of Personnel and provides that “the test validation board shall make a determination whether the answers elected by the protesting candidates are as good as or better than the proposed key answers or whether the rating guide should be modified and shall give reasons therefor in an opinion in writing.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20289.htm
The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions
The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Spoth v. M/Y Sandi Beaches, 2010 WL 2710525 (W.D.N.Y.July 7, 2010) (not available on internet), is an interesting case that discusses the possibility of sanctions if a party discloses confidences learned in court annexed mediation.
Scholars and lawyers may find this case of interest.
Mitchell H. Rubinstein
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Spoth v. M/Y Sandi Beaches, 2010 WL 2710525 (W.D.N.Y.July 7, 2010) (not available on internet), is an interesting case that discusses the possibility of sanctions if a party discloses confidences learned in court annexed mediation.
Scholars and lawyers may find this case of interest.
Mitchell H. Rubinstein
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