Union awarded $165,000.50: fifty cents in damages plus $165,000 for attorney fees

Union awarded $165,000.50: fifty cents in damages plus $165,000 for attorney fees
Local 32B-32J, SEIU v Port Authority, USDC SDNY 96 CIV 1438

Although Locals 32B and 32J won only fifty cents in damages after refusing a settlement offer of $50,000, they were awarded attorney fees and court costs totaling more than $165,000.

Why? Because the unions were the “prevailing parties” in their challenge to picketing restrictions imposed on them by the New York-New Jersey Port Authority. The unions contended that these restrictions constituted unlawful restrictions on their right to free speech.

Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability

Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability
Taylor v Brentwood UFSD, CA2, 143 F.3d 679

A Brentwood school principal, Anne Rooney, alleged that district teacher, Charles B. Taylor, used corporal punishment in violation of district policy. After investigating the allegation, the district filed disciplinary charges against Taylor. The disciplinary panel found him guilty of the charges and he was suspended without pay for one year.

Taylor then filed a Section 1983 [Civil Rights] claim, naming Rooney and other district officials as defendants. He contended that his one-year suspension from teaching constituted race discrimination in violation of the Fourteenth Amendment (equal protection). A federal district court jury agreed with Taylor’s arguments and said that Rooney was liable for over $185,000 in damages. Rooney appealed and the Second Circuit Court of Appeals in New York reversed the lower court’s decision.

The court cited with approval Rooney’s arguments that:

1. Her action [reporting the alleged use of corporal punishment] was not the proximate cause of any injury sustained by Taylor;

2. She had either absolute immunity or qualified immunity from liability because she acted pursuant to her official duty to report complaints regarding the use of corporal punishment by teachers to her superiors; and

3. Taylor, having been found guilty by the disciplinary panel, could not relitigate the issue of whether he was treated differently from similarly situated Caucasian teachers in his Section 1983 action.

The Circuit Court commented that “Taylor had a history of physical confrontations with students ...” occurring throughout the administrations of three different principals. It also took notice of the District’s “Corporal Punishment Policy” and evidence showing that Taylor had been “repeatedly reminded” of the policy over a fifteen-year period and had received several reprimands regarding the manner in which he disciplined students.

The Circuit Court ruled that Rooney could not be held liable because she was not proximately cause Taylor’s suspension. That, said the Court, action resulted following an investigation and a due process hearing in which Taylor was found guilty. It said that its decision in Jefferies v Harleston, 52 F3d 9, controlled the outcome of this case.

In Jefferies, the Circuit Court ruled that “although the actions of certain defendants were unconstitutional, liability under Section 1983 did not attach because such actions could not be considered the cause of any injury sustained by the plaintiff.”

The Court said that it believed that the independent investigations of the incidents by school officials, together with the school board’s filing charges culminating in the decision of the disciplinary hearing panel to suspend Taylor, constituted a superseding cause of Taylor’s injury, breaking the causal link between any racial animus Rooney may have had and Taylor’s suspension.

Concluding that no reasonable jury could find Rooney’s actions to be the cause of Taylor’s injury, the Court said that no new trial was necessary. Accordingly, all that was needed was for the Circuit Court to remand the case to the district court with instructions to enter judgment for Rooney.

Preferred lists and retirees

Preferred lists and retirees
Decisions of the Commissioner of Education #13896

Does a public employee retain his or her “preferred list right” resulting from his or her being laid-off into retirement? This was the significant issue in Dakin Morehouse’s appeal to the Commissioner of Education.

Morehouse was a full-time teacher of industrial arts until the Hunter-Tannersville Central School District reduced his position to a half-time position.

A year later the Otsego-Northern Catskill BOCES took over the district’s industrial arts/technology program and the district abolished Morehouse’s position. Morehouse became a BOCES employee as provided by Section 3014-a of the Education Law. Further, with the BOCES takeover Morehouse again became a full-time teacher. Morehouse served with BOCES until he elected to take “early retirement.”

Subsequently Hunter-Tannersville announced that a full-time technology teacher position was available. Morehouse contended that he should be appointed to the vacancy because he was on a preferred list that was created when his former full time position was abolished in favor of a half-time position. Morehouse pointed out that a teacher’s eligibility for appointment from a preferred list lasts seven years under state law, and that only five years had passed since his name was placed on the list.

The key issue was Morehouse’s retirement and whether that event ended his eligibility for appointment from the preferred list. The Commissioner of Education ruled it did, holding that Morehouse’s retirement from teaching “effectively removed him from such list.” In other words, retirement extinguished all preferred list rights insofar as any preferential status for appointment to a vacancy is concerned.

In contrast, an excessed individual who accepts other employment, public or otherwise, does not forfeit his or her preferred list rights. But, according to the Commissioner, retirement changes the individual’s status -- he or she no longer is an employee for many statutory purposes, including appointment from a preferred list.*

In support of this view, the Commissioner noted that an employee’s application for, and receipt of, termination benefits constitutes a waiver of the right to challenge the abolishment of his or her position, citing Gerson v Comsewogue UFSD, 214 AD2d 732.

What if an employer wants to rehire an employee who has retired? Such reemployment is typically viewed as a “new employment” rather than as a “reinstatement from a preferred list” or a reinstatement to his or her former position. For example, in most instances a public retiree seeking a permanent appointment to a position in the competitive class of the civil service must take, pass and be reachable for appointment from the appropriate eligible list.

Further, the reemployment of a retired public employee automatically results in the suspension of his or her retirement allowance (Section 150, Civil Service Law [CSL]) for the period of such reemployment.

Only if the retiree obtains a “waiver” in accordance with the provisions of Section 211 of the Retirement and Social Security Law [RSSL] may an individual who is under 65 years of age simultaneously receive his or her retirement allowance and his or her salary to the extent that such compensation exceeds the amount specified in Section 212, RSSL.

There are exceptions to this general rule. One exception: Individuals elected to public office following retirement [Section 150, CSL]. Another exception: a limited number of retirees – so-called “pre-Axelrod retirees – may be employed as independent contractors by a public employer without having their retirement allowance discontinued while performing such public service regardless of age [Section 210, RSSL].

The Commissioner also advanced another theory in support of his determination. He said that 8 NYCRR 80.35(a)(6) “restricts the employment of retired persons generally to situations where no other qualified person is readily available,” a standard reflecting one of the criteria set out in Section 211, Retirement and Social Security Law providing for a “waiver” permitting the reemployed individual to continue receiving his or her retirement allowance.

Under the circumstances, the Commissioner concluded, “this policy would be difficult to advance if retired persons were allowed to remain for extended periods on preferred eligible lists.”

* N.B. Section 81.9 of the Civil Service Law provides as follows: "9. An employee who is eligible to be placed on a preferred list pursuant to this section and who elects, as a member of a public employee retirement system, to retire upon a suspension or demotion, shall be placed on a preferred list and shall be eligible for reinstatement from such list."

State Comptroller's audit finds $600 million in MTA overtime approved without question

State Comptroller's audit finds $600 million in MTA overtime approved without question
Source: Office of the State Comptroller

More than 140 employees at the Metropolitan Transportation Authority (MTA) doubled their annual salaries through overtime pay last year, according to an audit report released by State Comptroller Thomas P. DiNapoli on August 5, 2010. DiNapoli said there was a “culture of acceptance” surrounding overtime abuse at the MTA.

DiNapoli’s audit found that one Long Island Rail Road (LIRR) train car repairman received $142,857 in overtime pay, equal to 220 percent of his $64,865 annual salary. One hundred forty four other MTA employees earned more in overtime pay than from their annual salaries in 2009, according to the audit.

The Comptroller said that “Uncontrolled overtime has been the rule rather than the exception at the MT.” Noting that the MTA is cutting services, raising fares and tolls and laying-off employees, DiNapoli said MTA “should be doing more to control expenses.”

In the words of the Comptroller: “Overtime shouldn’t equate to twice someone’s annual salary.

When scores of employees are earning more in overtime than they make in salary, it’s time for the MTA to change the culture of acceptance to a culture of accountability.”

DiNapoli’s audit examined the MTA’s books between January 2008 and December 2009 and found four of the authority’s seven constituent agencies—the LIRR, Metro-North, Bridges and Tunnels and NYC Transit—accounted for almost 90 percent ($540 million) of all MTA overtime.

The audit identified $56 million in potential overtime savings.

Auditors also discovered serious flaws in the MTA central office’s overtime budget practices whereby the central office accepted overtime budgets from constituent agencies without questioning them or making any effort to reduce overtime spending at constituent agencies.

The audit also reports that:

1. More than 3,200 MTA employees at the MTA receive overtime pay equal to half of their annual salaries;

2. Significant amounts of overtime incurred by replacing sick workers, even though no effort was made to find out whether replacements were needed; and

3. Unjustified or undocumented work in 77 percent of sampled overtime transactions.


The full text of the Comptroller’s audit report is posted on the Internet at:
http://www.osc.state.ny.us/audits/allaudits/093010/09s88.pdf

Employee’s resigning after refusing to comply with employer’s policy not always a “disqualifying event" for unemployment insurance purposes

Employee’s resigning after refusing to comply with employer’s policy not always a “disqualifying event" for unemployment insurance purposes
Emery v Memorial Sloan Kettering Cancer Ctr., 2010 NY Slip Op 06333, decided on August 5, 2010, Appellate Division, Third Department

Jean M. Emery worked as a per diem clinical registered nurse in the presurgical unit objected to Sloan Kettering’s new policy that required nurses to acknowledge that they had witnessed patients sign an informed consent form, regardless of whether they actually witnessed the signature or simply confirmed the signature with the patient after the fact.

Emery, who was also an attorney, believed that compliance could subject her to professional discipline and when she was instructed to adhere to the policy and that no change was imminent, she asked to be removed from the nursing schedule and, in the words of the court, “effectively resigned.”

Although her application for unemployment insurance benefits was initially denied on the theory that “she was disqualified for having left her employment without good cause,” a Workers’ Compensation Board Administrative Law Judge reversed the determination ruling that Emery was entitled to benefits because Sloan Kettering failing to address her valid concerns gave her good cause to leave her employment. The Unemployment Insurance Appeal Board upheld the ALJ’s determination and Sloan Kettering appealed.

The Appellate Division affirmed the Board’s decision. The court said that determining if good cause exists for a claimant to leave employment is a factual issue to be resolved by the Board, and “its determination will not be disturbed if supported by substantial evidence, notwithstanding the fact that evidence exists that would support a different result.”

Here, said the court, there was substantial evidence to support the determination that the employer failed to respond to Emery's concerns within a reasonable time. The Appellate Division also noted that Sloan Kettering’s general counsel admitted that a professional disciplinary complaint could be filed against an employee who adhered to the policy.

Ultimately, said the Appellate Division, Sloan Kettering’s policy underlying Emery’s objection was changed and “the informed consent form modified … to acknowledge the difference between witnessing and verifying a signature," primarily in response to Emery’s complaints.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06333.htm

Declaring a school board member’s office vacant by reason of his or her unexcused absences

Declaring a school board member’s office vacant by reason of his or her unexcused absences
Margaret McQuaid Kaplan v Board of Education of the East Meadow Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,113

Margaret McQuaid Kaplan was elected as a member of the East Meadow Union Free School Board in May 2007. On September 24, 2008, the Board held a special meeting at which it initiated an independent investigation into allegations of impropriety involving Kaplan.

The following time line sets out the next steps taken by the parties:

1. On October 21, 2008, the Board met to discuss the investigation.

2. On October 22, 2008, Kaplan was hospitalized.

3. On October 28, 2008, the Board held a special meeting and schedules Kaplan's hearing concerning the allegations for November 17, 2008.

4. Kaplan was released from the hospital on November 1, 2008.

5. Kaplan retained counsel at 6:00 p.m. on November 17, 2008.

6. Kaplan's attorney arrived late to the November 17, hearing and requested an adjournment after the Board’s evidence was presented. The Board denied the requested adjournment.

7. The Board voted, declaring Kaplan’s position vacant by operation of law for repeatedly failing to attend board meetings without valid excuses.

The Board also voted to remove her from office for based on Kaplan’s alleged:

1. Failure to complete required training and/or to provide the required certification for such training;

2. Failure to complete, sign and return to the district’s independent auditor the “Related Party Disclosure Questionnaire;”

3. Public disclosure of confidential and Executive Session information; and

4. Abuse of the authority of her office.

Kaplan appealed the Board’s action to the Commissioner of Education contending that she was not furnished with a copy of the charges filed against her and that she was not allowed to answer the charges in writing. She also denied having committed any acts constituting misconduct and that the charges "were not adequately proven against her."

In addition, Kaplan also argued that that her attorney’s request for an adjournment was improperly denied.

As redress, she asked the Commissioner to direct that a new hearing be conducted and that she be reinstated to her position.

In rebuttal, the Board claimed that the District had provided Kaplan with [1] a notice of the charges and [2] a hearing was held at which all five charges of misconduct against her “were properly sustained.”

As to the issue concerning Kaplan’s unexcused absences from Board meetings, the Commissioner said that Education Law §2109* provides that board members who have failed to attend “three successive meetings of the board of which he** is duly notified, without rendering a good and valid excuse therefore to the other trustees vacates his office by refusal to serve.”***

As to Kaplan's alleged absences from Board meetings, the Board said that it had relied on "an audit memo from the internal auditor" indicating that Kaplan had missed 12 meetings without explanation or excuse during the 2007-2008 school year, including four consecutive meetings during May and June 2008. The Board also said that it had relied on a listing of 2007-2008 Board meetings and Kaplan’s absences signed by the Board secretary with a statement that she received no advance notification that Kaplan would not be attending those meetings.

Noting that although Kaplan had missed 13 of the 2007-2008 meetings, the Commissioner found that Kaplan’s absences from meetings on May 22 and June 5, 24 and 29, 2008 did not constitute absences from consecutive meetings as there was an intervening June 10, 2008 meeting for which Kaplan had not been marked absent.

However, said the Commissioner, Kaplan had, in fact, missed three consecutive meetings on a different occassion, i.e., meetings held on September 4, 6 and 18, 2007.

The Commissioner said that Kaplan had not offered any evidence either at the Board’s hearing or in her appeal to the Commissioner rebutting the Board’s evidence that she failed to attend the three meetings in September 2007 without notification or that she was unable to attend these meetings, "other than her own broad assertions that her absences were either religious observances or [of a] medical necessity.”

Accordingly, the Commissioner, focusing solely on the issue of Kaplan's absences from Board meetings, dismissed her appeal, commenting that the Board was neither arbitrary nor capricious in finding that Kaplan vacated her office by failing to attend three consecutive meetings without adequate documentation or excuse by operation of law as provided by Education Law §2109.

* §2109 of the Education Law provides as follows: A trustee of a common school or union free school district who publicly declares that he will not accept or serve in the office of trustee, or refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefor to the other trustees vacates his office by refusal to serve

** §22 of the General Construction Law provides that "Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.]

*** Concerning the issue of an individual not attending meetings scheduled by a public entity, Public Officers Law §30.3 provides that in the event “any member of a board, commission, committee or authority, holding office by appointment of the governor, fails to attend three consecutive regular meetings of such board, commission, committee or authority, unless such absence is for good cause and is excused by the chairman or other presiding officer thereof, or, in the case of such chairman or other presiding officer, by the governor, the office may be deemed vacant for purposes of the nomination and appointment of a successor.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16113.htm

Stay of arbitration

Stay of arbitration
Town of Hempstead v CSEA Local 1000, Supreme Court, Nassau County, [Not selected for publication in the Official Reports]

Under what circumstances will a court issue an order barring a grievance from being submitted to arbitration? As the Town of Hempstead case demonstrates, the court must be persuaded that (1) the demand for arbitration was untimely, or (2) that the subject matter of the grievance was not arbitrable, or (3) both.

In the Hempstead case, the court ordered the town to arbitrate a grievance in which an employee claimed he was denied seniority rights.

CSEA concluded that an employee who had less seniority than Fernando Avolio was promoted to the position of Dockmaster. The union filed a grievance on behalf of Avolio alleging that the Town violated the seniority provisions of the Taylor Law agreement then in effect.

The Town’s Grievance Board issued a determination holding that the Town’s action was not grievable because “the subject matter of the grievance does not fall within the definition of a grievance” under the terms of the collective bargaining agreement. The Town wrote CSEA indicating that it would not submit the issue to arbitration.

Half a year later, CSEA served the Town with a notice of intent to arbitrate. In response, Hempstead filed a motion in New York State Supreme Court pursuant to Article 75 of the Civil Practice Law and Rules [CPLR] to stay arbitration.

The Town said the demand for arbitration was untimely because “the union ... was required to commence a proceeding to compel arbitration within 30 days of the Grievance Board decision....”. Also, it said Avolio’s claim was not subject to arbitration under the terms of the collective bargaining agreement.

The court rejected the town’s argument on the issue of timeliness. Because the town declared that the seniority issue was not covered by the contract, it took the position that the grievance did not exist, the court said. Therefore, the town cannot rely the CSEA’s failure to file a timely demand for arbitration to defeat its demand for arbitration.

As to the merits of the issue regarding the contract, said that the definition of a grievance is quite broad. Under the express language of the contract, the parties agreed that arbitrable grievances include those related to a claimed violation, misinterpretation or inequitable application of the existing collective bargaining agreement, rules, procedures, regulations, administrative orders or work rules of the employer or department.

Specifically, said the court, Section 26 of the Collective Bargaining Agreement provides that ability, adaptability and seniority shall prevail insofar as practicable and consistent with the needs and practices of the department. This includes (a) promotions in labor and non-competitive jobs, (b) job assignments, (c) transfers with a department regarding proximity of the job and (d) vacancies in departments.

The court said neither the Town’s petition to stay arbitration nor the Grievance Board’s memorandum set out any reason why the “seniority” grievance submitted by Avolio does not fall within the ambit of the definition of a grievance.

Finding that the Collective Bargaining Agreement “is clear and unequivocal and the definition of grievance is broad and encompassing and covers the dispute in question,” the court ordered Hempstead to “proceed forthwith to arbitration with respect to this grievance.”

Remanding an arbitration award for the sole purpose of calculating or recalculating "damages" does not permit a new determination on the merits

Remanding an arbitration award for the sole purpose of calculating or recalculating "damages" does not permit a new determination on the merits
Shroid Construction v Dattoma, App Div, 250 AD2d 590

Sometimes an arbitration award is challenged pursuant to Article 75 and while sustained on the merits, the matter is remanded to calculate or recalculate the amount of “damages” to be paid. May the arbitrator make new or additional findings in calculating the “damages” to be paid?

In the Shroid case, the Appellate Division ruled that the answer is no: “under the circumstances, it was improper for the [hearing officer] to attempt to amend his findings after they had been reviewed and affirmed on appeal.”

Shroid alleged the union had sanctioned a work slowdown by its members in violation of the terms of a collective bargaining agreement. The Judicial Hearing Officer [JHO] who heard the complaint ultimately sustained the allegations and ruled that the union’s action violated the contract, which resulted in Shroid’s suffering “actual damages.”

The JHO’s determination was sustained by the Appellate Division and the matter was returned to him for a determination of amount of the damages Shroid suffered. However, while considering the question of damages, the JHO made “substantive changes” in his findings and Shroid again appealed.

Shroid argued that the JHO did not have any power to make a substantive change in his findings, particularly in the light of the Appellate Division’s determination sustaining his findings.

The Appellate Division agreed. According to the ruling, the JHO’s authority was limited to making a “calculation of damages” resulting from the work slowdown.

The Appellate Division commented that its ruling in a prior appeal is not only binding on the parties, but was binding “on this court as well.”

In other words, once an arbitration award is sustained by the court, that determination is binding on the parties, and on the courts, in any future litigation involving a challenge to that determination.

Probationary termination procedure found consistent with due process

Probationary termination procedure found consistent with due process
Persico v NYC Board of Education, Appellate Division, 250 A.D.2d 854

Isabella G. Persico, a New York City probationary teacher, was terminated from her position effective September 3, 1990. In accordance with the by-laws of the New York City Board of Education, the decision to terminate Persico followed a review by a committee appointed by the Chancellor of the Board of Education. The committee held a hearing and recommended that Persico be terminated.

After being notified of the decision, Persico sued and a State Supreme Court judge ordered the Board of Education to conduct a de novo review hearing.

The Appellate Division said that Supreme Court was incorrect because Persico had not demonstrated that she was deprived of any substantial right warranting a new review hearing.

According to the ruling, Persico had been given “numerous opportunities to questions witnesses,” was not prevented from giving relevant testimony and told she could call witnesses on her behalf. In addition, her advisor was allowed to submit a written concluding statement.

This, said the court, indicated that she had been provided with “ample opportunity” to challenge the termination of her probationary appointment.

Providing legal representation and indemnification of State officers and employees

Providing legal representation and indemnification of State officers and employees
Samuels v Vacco, Appellate Division, 251 AD2s 10

Section 17 of the Public Officers Law provides that a state officer or employee is entitled to representation by the Attorney General if the individual is sued as a result of his or her performing official duties. Under certain conditions, the individual may be entitled to be represented by a private attorney rather than by the Attorney General.*

Section 17 provides for representation and indemnification only in a civil action or proceeding in state or federal court arising out of any alleged act or omission which occurred while the individual was acting within the scope of his or her public employment.

David G. Samuels was named as a defendant in a civil rights action brought pursuant to 42 USC 1983. He decided that he preferred to be represented by his own, private, counsel rather than by the Attorney General but wanted the Attorney General to pay his legal fees. When the Attorney General declined to reimburse him for his legal fees if Samuels employed private counsel, Samuels sued.

The Appellate Division rejected Samuels’ petition. The court said Samuels did not allege that he was acting outside the scope of his employment and thus “there was never any possibility that [he] would be held liable for unreimbursable damages, either compensatory or punitive.”

Would it be possible for the individual to claim he or she was acting “outside the scope of his or her employment,” in an effort to obtain private counsel?

Surely, but such a representation would constitute an admission such that the provisions set out in Section 17 are not triggered and the Attorney General would be under no obligation to pay the individual’s attorney’s fees nor would the State be liable to reimburse the individual for any damages won by the plaintiff.

Are there any circumstances under which an officer or employee may claim that he or she is entitled to representation by private counsel in lawsuits connected with the performance of official duties?

Yes: when the Attorney General, or a court, determines that such representation would be appropriate or because there is an actual or potential conflict of interest. Under such circumstances the individual is entitled to be represented by private counsel and the State is required to pay the individual’s “reasonable attorneys’ fees and litigation expenses” and any damages for which the individual may be held liable.

* Section 18 of the Public Officers Law authorizes political subdivisions of the State to provide for the “defense and indemnification” of officers and employees sued in connection with the performance of their official duties.