Confidentiality of police records

Confidentiality of police records
Baez v City of New York, NYS Supreme Court, [Not selected for publication in the Official Reports]

A number of law enforcement agencies have procedures similar to those of the New York City Police Department Patrol Guide Section 118-9, which compels an officer to participate in an interview process coupled with the promise that the statement provided by the officer will not be used against him or her in any criminal proceeding. Characterized as GO-15 or IAD interviews, these NYPD statements are typically comprehensive and provide a substitute for a deposition.

In the Baez case New York State Supreme Court Justice McKeon set out the guidelines usually followed with respect to the release of such statements to the press and, or, to the public.

Justice McKeon said that the release of such records is governed by three statutes: Public Officers Law Section 87 (Freedom of Information Law or FOIL); Civil Rights Law Section 50-a (Right of Privacy for personnel records of police officers and others); and CPLR Section 3101 (Scope of Disclosure).

As to FOIL, Justice McKeon held that Section 87 allows access by any member of the public to governmental agency records, unless they are specifically exempted from disclosure by statute or constitute inter-agency or intra-agency materials, which are not inter alia final agency policy or determinations. He concluded that these types of records fall within that exemption from disclosure to the public under FOIL as predecisional interagency materials.

Civil Rights Law Section 50-a, said Justice McKeon, declares personnel records of police officers to be confidential material, not subject to disclosure without the express written consent of the officer or as mandated by lawful court order. It was noted, however, that the use of such records by a governmental entity, such as releasing summary of internal investigation of instances of police misconduct, is not precluded by Section 50-a because that use is unrelated to the purpose of the statute.

Justice McKeon next considered CPLR Section 3101, the discovery statute. This section, it was noted, provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.” The Court concluded that based on the protections provided by these statutes, “GO-15 statements and IAD records are considered confidential per statute unless they are released through consent or by lawful court order.” Justice McKeon also observed that “confidential” in Civil Rights Law Section 50-a is analogous to “privileged” within the meaning of CPLR Section 3101.

Justice McKeon also ruled that such statements are exempted from disclosure to the general public under the Freedom of Information Law, Public Officers’ Law Section 87.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/

PERB may elect to defer its consideration of unfair labor practice charge

PERB may elect to defer its consideration of unfair labor practice charge
PBA and Village of Ossining, 30 PERB 4711

PERB sometimes elects to defer considering unfair labor practice charges filed by an individual or an organization. It typically does so when there is some other procedure available that could address and resolve the issues that motivated the filing of the charge in the first instance. The Ossining PBA case provides an example of such a situation.

Ossining Chief of Police Joseph Burton “unilaterally changed the work schedule” of PBA unit members in an apparent effort to avoid paying holiday pay. Had the “natural rotation” of the work chart had not been altered, certain officers would have earned holiday pay.

The PBA protested the change and filed an unfair labor practice charge with PERB. PERB discovered that the PBA had also filed contract grievance concerning the matter, however.

The parties agreed to defer pressing the issue before PERB pending the resolution of the grievance.

PERB Administrative Law Judge Sandra M. Nathan observed that “it is appropriate to defer deciding whether the [Taylor Law] precludes the exercise of jurisdiction by PERB, pending the outcome of the grievance which has been filed.” She “conditionally dismissed” the PBA complaint.

What would be the result if the PBA had not already filed a grievance?

Assuming (1) that a contract grievance procedure was available, (2) that the issue appeared appropriate for submission as a contract grievance, and (3) that these facts were disclosed to the administrative law judge, the ALJ probably would have conditionally dismissed the complaint and directed the parties to first submit the matter for resolution through the grievance procedure.

Final regulations for filing Form I-9, Employment Eligibility Verification to become effective August 23, 2010

Final regulations for filing Form I-9, Employment Eligibility Verification to become effective August 23, 2010
Source: 75 Federal Register 42575

Section 274A of the Immigration and Nationality Act, as amended (INA), see 8 U.S.C. 1324a, requires all U.S. employers, agricultural associations, agricultural employers, farm labor contractors, or persons or other entities that recruit or refer persons for employment for a fee, to verify the employment authorization and identity of all employees hired to work in the United States after November 6, 1986.

To comply with the law, an employer is responsible for the completion of a Form I-9, the Employment Eligibility Verification (Form I-9), for each new employee, including United States citizens.

The Department of Homeland Security has issued final regulations to provide that employers who are required to complete and retain the Form I-9, Employment Eligibility Verification may sign the form electronically and retain the form in an electronic format.

The final rule is effective August 23, 2010 and essentially requires that employers complete the required Form I-9 within three business days. The employer may use paper, electronic systems, or a combination of paper and electronic systems for this purpose.

The Form I-9, available to the public in numerous paper and electronic forms, since 1986, is now available online at the U.S. Citizenship and Immigration Services (USCIS) Web site as a Portable Document Format (.pdf) fillable and printable form. The form is posted on the Internet at http://uscis.gov/files/form/i-9.pdf.

In addition, the Handbook for Employers published by the Department of Homeland Security setting out instructions for completing the Form I-9 (a.k.a. the Employment Eligibility Verification Form) is posted on the Internet at:
http://www.bipc.com/images/newsletters/M-274_I-9_Handbook.pdf

The text of the Department of Homeland Security's Final Regulation is posted on the Internet at: http://www.federalregister.gov/articles/2010/07/22/2010-17806/electronic-signature-and-storage-of-form-i9-employment-eligibility-verification
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U.S. Department of Labor expands definition of “son” or “daughter” for FMLA purposes

U.S. Department of Labor expands definition of “son” or “daughter” for FMLA purposes
Source: Roetzel & Andress , Douglas M. Kennedy, Esq.
[http://www.ralaw.com/about.cfm?sp=overview ]

An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.

The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave.

Security records were properly admitted into evidence by disciplinary hearing officer

Security records were properly admitted into evidence by disciplinary hearing officer
Peil v Beirne, 72 AD3d 1095*

In this appeal the Appellate Division held:

1. Security records were properly admitted into evidence by disciplinary hearing officer.

2. The existence of another, alternative rational conclusion does not warrant annulment of the appointing authority’s conclusion that Peil was guilty of the charges preferred against him, citing Incorporated Vill. of Lake Success v New York State Public Employment Relations Board, 41 AD3d 599.

* Text of decision e-mailed to registered readers.

The status of the individual performing services for a public employer may be critical in determining liability

The status of the individual performing services for a public employer may be critical in determining liability
Czark v Hauppauge UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Czark case illustrates that the status of the individual performing services for a public employer may be critical in determining whether or not the public employer will be held liable for an injury to an individual.

A Hauppauge Union Free School District student complained that in the course of a school sports physical examination the examining physician “touched and fondled her breast.” The student and her mother sued the district and the physician allegedly involved. Hauppauge asked State Supreme Court Justice Floyd to dismiss it from the law suit, contending that (a) the physician alleged to have touched the student was “an independent contractor and not an employee of the school district” and that (b) the district “had no knowledge of any prior sexual propensities” of the physician.

Justice Floyd said that a school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties. Here, however, Justice Floyd ruled that the record clearly establishes an independent contractor status between the school district and the physician.

The defendant physician was the associate of the physician that was under contract with the district to provide medical services to the school district and was paid a scheduled fee for services performed. Also noted was the fact that the contracting physician was not named as a party to the action.

Accordingly, Justice Floyd dismissed the claims against the District for negligent supervision, negligent hiring and vicarious liability because, he said, “[t]here are no terms and conditions contained within this contract that would permit this Court to conclude that an employer/employee relationship had been established.”

The Court, however, refused to dismiss the suit filed against the physician by the student for the alleged battery and by her parent for the alleged “loss of services.”

In a law enforcement environment, safety interests trump sincere religious beliefs

In a law enforcement environment, safety interests trump sincere religious beliefs
Equal Employment Opportunity Commission v The GEO Group, Inc., USCA 3rd Circuit, No. 09-3093

GEO, a private company, contracted to run the George W. Hill Correctional Facility, the prison for Delaware County, Pennsylvania.

In April 2005, the Hill Facility instituted a dress policy that provided that “[n]o hats or caps will be permitted to be worn in the facility unless issued with the uniform.” The new policy also stated that “[s]carves and hooded jackets or sweatshirts will not be permitted past the Front Security Desk.”

These directives were interpreted to prohibit the wearing of a khimar, an “Islamic religious head scarf, designed to cover the hair, forehead, sides of the neck, shoulders, and chest,” which was until then worn by some female Muslim employees inside of the Hill Facility.

EEOC filed a lawsuit on behalf of a class of Muslim women employees against GEO, contending that GEO violated Title VII's prohibitions on religious discrimination when it failed to accommodate the Muslim female employees by providing them an exception to the prison's dress policy that prevented them from wearing khimars at work.

The Circuit Court affirmed the federal district court’s decision granting GEO's motion for summary judgment dismissing EEOC’s complaint.

The district court had cited Webb v. City of Philadelphia, 562 F.3d 256,* in support of its ruling.

In Webb the US Circuit Court of Appeals, 3rd Circuit, held that regardless of the sincere religious beliefs of certain police officer of the need to wear a khimar, their belief had to yield to the Philadelphia's police department's policy prohibiting the wearing of a khimar while on duty because "safety is undoubtedly an interest of the greatest importance."

* The Webb decision is posted on the Internet at http://www.ca3.uscourts.gov/opinarch/073081p.pdf

The GEO decision is posted on the Internet at: http://www.ca3.uscourts.gov/opinarch/093093p.pdf
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Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee

Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee
Garippa v New York City Bd. of Ed., NYS Supreme Court, [Not selected for publication in the Official Reports]

A Section 3020-a arbitrator found Michael Garippa, a New York City school teacher, guilty of conduct unbecoming the profession and authorized his termination.

Garippa, a tenured English teacher at Franklin D. Roosevelt High School in Brooklyn, was arrested by federal authorities and charged with conspiracy to distribute steroids.

Garippa subsequently pleaded guilty to one count of Conspiracy to Distribute a Controlled Substance and was sentenced to serve three years of probation and six months of home confinement; to perform 200 hours of community service by coaching children’s sports teams; and to continue drug counseling.

Section 3020-a Hearing Officer Jacquelin F. Drucker concluded that “... the question before this hearing officer relates not to guilt or innocence but to the proper level of discipline for the conduct at issue.”*

Drucker decided that Board was authorized to remove Garippa as a teacher because of two factors:

1. Newspaper reports identifying Garippa, his occupation and his employer, allegedly caused the board to suffer “unfortunate, unpleasant publicity”; and

2. The fact that “Respondent’s initial contact with the purchaser was made at a school function.”

Garippa appealed to the state Supreme Court and Justice H. Freedman granted Garippa’s petition and vacated the hearing officer’s decision. He then remanded the case to the Board for reconsideration.

Justice Freedman observed that the hearing officer did not suggest that Garippa could be trusted to work with children. The offense occurred off-duty and off-premises. The Court concluded that the hearing officer’s decision “was based on an assumption that Garippa’s guilty plea automatically constituted guilt of conduct unbecoming the profession,” rather than on an express finding to that effect.

This was improper, Justice Freedman said. Section 3020-a guarantees that the employee shall have full and fair disclosure of the nature of the case and evidence against him.

According to Justice Freedman, Garippa was neither told beforehand that the articles or the “bad publicity” would be the basis for either a finding of guilt or a determination of penalty nor was he ever shown copies of the articles, which were the subject of his cross-examination.

Since the newspaper articles were not submitted into evidence, Justice Freedman said that they were not part of the reviewable record before the court. In addition, Justice Freedman pointed out that “it is improper for an administrative agency [or an arbitrator] to base a decision of an adjudicatory nature upon evidence outside of the record.”

The court said the school board raised a legitimate issue regarding publicity because it has a right to protect the reputation of the institution. But since Garippa was denied an opportunity to address and rebut this allegation, the arbitrator’s determination was made without prior notice and lacked evidentiary basis.

The lesson here appears to be that an appointing authority cannot assume that a conviction of a crime will be sufficient to find an individual guilty of embarrassing it and justify its imposition of a penalty. Rather, the appointing authority must prove each and every element of it allegations, including those factors underlying the reason for bringing the disciplinary action in the first instance.

* N.B. In Kelly v. Levin, 440 NY2d 424, the Court of Appeals ruled that is a reversable error for an administrative disciplinary body to acquit an employee in a disciplinary action if the individual had earlier been found guilty of a criminal act involving the same allegations.

The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/
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Dismissal because of threatening behavior towards coworker held disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Dismissal because of threatening behavior towards coworker held disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Messado v City of New York, 2010 NY Slip Op 06343, Decided on August 5, 2010, Appellate Division, Third Department

Bernard R. Messado was employed as a clerical worker by a New York City agency. Believing that his coworkers were speaking about him behind his back in a derogatory fashion and also calling him names, Messado confronted one of his coworkers in a threatening manner and used profanity while the coworker was having lunch at a nearby restaurant with two other employees of the agency.

The incident was reported to a supervisor and as Messado had previously been warned not to engage in this type of behavior, he was terminated from his position. The Unemployment Insurance Appeal Board ultimately denied Messado’s claim for unemployment insurance benefits on the ground that he was discharged from his employment because of his misconduct.

The Appellate Division dismissed Messado’s appeal seeking to overturn the Board’s decision. The court said that “Threatening behavior toward a coworker has been held to constitute disqualifying misconduct,” citing Matter of Perkins [Commissioner of Labor], 16 AD3d 756 and other court decisions.

The court also noted that “To the extent that [Messado’s] testimony was in conflict with the testimony of the other witnesses, this presented a credibility issue for the Board to resolve.”

Finding that “substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct,” the Appellate Division said that it found “no reason to disturb the Board's decision.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06343.htm

Settling disciplinary actions

Settling disciplinary actions
Wolfe v Jurczyski, 241 AD2d 88

In some disciplinary cases an employee is offered a settlement that typically provides for summary termination of the individual without a hearing if he or she violates any of the terms of the settlement. The Wolfe case explores the consequences of an employee’s failure to comply with the terms of a disciplinary settlement agreement.

James N. Wolfe, a Schenectady Police Lieutenant, was told that formal disciplinary charges would be filed against him in connection with an off-duty incident during which it was alleged that he had threatened a civilian with a gun.

The city subsequently agreed that it would not file formal disciplinary charges against Wolfe if he “enrolled and completed an established alcohol abuse treatment program, underwent a psychological evaluation, refrained from visiting certain establishments where liquor is served and divested himself of all off-duty weapons.”

The September 19, 1995 agreement also provided that Wolfe’s failure to comply with or satisfactorily complete any element of the agreement to Schenectady’s satisfaction “will be cause for [Wolfe’s] immediate dismissal without a hearing.”

On October 29, 1995 Wolfe told the Chief of Police that he had not yet begun a treatment program and was still drinking. He entered a program the following day. However the Chief subsequently learned that Wolfe, while intoxicated, had been involved in an incident on October 27, 1995.

After conducting an investigation of the October 27, 1995 incident, the Department told Wolfe that he could either resign or be terminated for violating the settlement agreement. After conferring with union representatives, Wolfe decided to submit a letter resigning from his position.

However, Wolfe apparently changed his mind about resigning and sued, seeking a court order reinstating him to his former position. He argued that he had resigned as a result of “duress, coercion and undue influence.” Wolfe’s theory was that under the circumstances his resignation was not voluntary and should be declared void. A New York State Supreme Court justice dismissed Wolfe’s Article 78 petition and the Appellate Division affirmed the lower court’s action.

The Appellate Division pointed out that Wolfe’s resignation was not involuntary simply because he was told that if he did not resign he would be dismissed unless the employer did not have any right to terminate his employment. But here, said the Court, Wolfe had voluntarily entered into an agreement that expressly allowed the department to terminate him without a hearing if he failed to comply with its terms to the satisfaction of the Chief of Police.

The Appellate Division ruled that under the circumstances, offering to allow Wolfe to resign instead of being summarily dismissed “cannot be deemed improperly coercive.”

It should be remembered, however, that courts will usually give controlling weight to specific language contained in the settlement agreement.

This was demonstrated in the Appellate Division’s ruling in Taylor v Cass, 505 NYS2d 929. The key element in the Taylor case was a disciplinary settlement agreement that provided that the employee, Taylor, would be subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by Taylor’s consumption of alcohol.

Taylor, however, was subsequently given a “Notice of Infraction” charging him with failing to give a fair day’s work and sleeping during scheduled working hours. A few days later he was terminated without a hearing, purportedly as authorized by the disciplinary settlement agreement.

He sued, and the Appellate Division affirmed the lower court’s ruling reinstating Taylor to his position with the County “with full retroactive salary and contract benefits from March 30, 1984.” The problem, said the Court, was that Taylor had not been terminated for the sole reason specified in the settlement agreement: intoxication on the job.

On this point, the decision specifically took note of the fact that Taylor’s superior testified that Taylor “was terminated solely for the reasons set forth in the Notice of Infraction” sent to him -- sleeping on the job and failure to give a fair day’s work.

The Appellate Division concluded that under the circumstances Taylor was entitled to a disciplinary hearing on those charges because the settlement limited the basis for dismissing him without notice and hearing. Accordingly, Taylor could only be dismissed for being intoxicated on the job.

What if an employer tells an employee that he or she will be served with disciplinary charges if he or she does not immediately resign for his or her position? The courts have ruled that where the appointing authority may lawfully file disciplinary charges against an employee, demanding that the individual resign or face disciplinary action does not constitute coercion.

In Rychlick v Coughlin, 63 NY2d 643, a case involving a corrections officer, the Court of Appeals ruled out that threatening to do what the appointing authority has a right to do – in this instance file disciplinary charges against Rychlick if he refused to resign from his position -- did not constitute coercion so as to make Rychlick’s resignation involuntary.

According, if the employee resigns in response to such a demand, the courts deem his or her action to be a voluntary resignation rather than the product of unlawful duress.

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