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."
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
August 06, 2010
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
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
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
August 05, 2010
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
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.”
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.
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.
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.
August 04, 2010
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.
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.
A request seeking permission to delay filing an appeal with the Commissioner of Education must be timely filed
A request seeking permission to delay filing an appeal with the Commissioner of Education must be timely filed
M.H. v Santiago Taveras, Interim-Acting Deputy Chancellor for Teaching and Learning of the New York City Department of Education, Decisions of the Commissioner of Education, Decision No. 16,097
M.H., a tenured New York City teacher, appealed the denial of her objections to unsatisfactory performance ratings by the Interim-Acting Deputy Chancellor to the Commissioner of Education.
Rejecting M.H.’s appeal as untimely notwithstanding the representation that the delay in filing the appeal was due to personal illness, the Commissioner explained:
1. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless any delay is excused by the Commissioner for good cause shown and to be timely, a request to have the delay excused must be commenced within 30 days of receiving the administrative determination.
2. When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays.
3. Neither illness nor ignorance of the appeal process is a valid excuse for the late commencement of an appeal.
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16097.htm
M.H. v Santiago Taveras, Interim-Acting Deputy Chancellor for Teaching and Learning of the New York City Department of Education, Decisions of the Commissioner of Education, Decision No. 16,097
M.H., a tenured New York City teacher, appealed the denial of her objections to unsatisfactory performance ratings by the Interim-Acting Deputy Chancellor to the Commissioner of Education.
Rejecting M.H.’s appeal as untimely notwithstanding the representation that the delay in filing the appeal was due to personal illness, the Commissioner explained:
1. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless any delay is excused by the Commissioner for good cause shown and to be timely, a request to have the delay excused must be commenced within 30 days of receiving the administrative determination.
2. When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays.
3. Neither illness nor ignorance of the appeal process is a valid excuse for the late commencement of an appeal.
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16097.htm
Canceling COBRA coverage
Canceling COBRA coverage
Geissal v Moore Medical Corp., USSC, 524 U.S. 74
If an employer discovers that an individual participating in its health insurance plan under COBRA is also covered as a dependent under a different health insurance plan, may it cancel his or her coverage?
It all depends on the date on which the individual’s coverage as a dependent in the other plan took effect.
According the United States Supreme Court’s ruling in the Geissal case, the employer may not cancel its coverage if the individual was covered as a dependent under the other plan before he or she made the COBRA election.
The court noted that 29 USC 1162(2)(D)(i) allows the employer to cancel an individual’s COBRA participation in its health plan only if the individual became covered as a dependent in the other plan after making his or her COBRA election and then only if the new plan does not exclude “pre-existing conditions.”
The Geissal case involved an employee who was covered under both his employer’s health insurance plan and as a dependent under his spouse’s health insurance plan at the time he was terminated from employment and made a timely election to continue in the employer’s group health plan as provided by COBRA.
The fact that both plans provided similar coverages was held irrelevant. The high court decided that because Geissal was covered by his wife’s policy as a dependent before he elected COBRA, his former employer could not cut off his participation in its plan even though the benefits in both plans were essentially the same.
In other cases involving the discontinuation of COBRA coverage by employers on the basis of “alternate coverage as a dependent,” some U.S. Circuit Courts of Appeal had applied a “significant gap” test. These courts held that continued coverage under COBRA was available to an eligible employee only if there was a “significant gap” between the individual’s COBRA benefits and the benefits available to the individual under his or her spouse’s plan. Eligibility for continuation of COBRA coverage based on such a distinction was rejected by the Supreme Court.
Geissal v Moore Medical Corp., USSC, 524 U.S. 74
If an employer discovers that an individual participating in its health insurance plan under COBRA is also covered as a dependent under a different health insurance plan, may it cancel his or her coverage?
It all depends on the date on which the individual’s coverage as a dependent in the other plan took effect.
According the United States Supreme Court’s ruling in the Geissal case, the employer may not cancel its coverage if the individual was covered as a dependent under the other plan before he or she made the COBRA election.
The court noted that 29 USC 1162(2)(D)(i) allows the employer to cancel an individual’s COBRA participation in its health plan only if the individual became covered as a dependent in the other plan after making his or her COBRA election and then only if the new plan does not exclude “pre-existing conditions.”
The Geissal case involved an employee who was covered under both his employer’s health insurance plan and as a dependent under his spouse’s health insurance plan at the time he was terminated from employment and made a timely election to continue in the employer’s group health plan as provided by COBRA.
The fact that both plans provided similar coverages was held irrelevant. The high court decided that because Geissal was covered by his wife’s policy as a dependent before he elected COBRA, his former employer could not cut off his participation in its plan even though the benefits in both plans were essentially the same.
In other cases involving the discontinuation of COBRA coverage by employers on the basis of “alternate coverage as a dependent,” some U.S. Circuit Courts of Appeal had applied a “significant gap” test. These courts held that continued coverage under COBRA was available to an eligible employee only if there was a “significant gap” between the individual’s COBRA benefits and the benefits available to the individual under his or her spouse’s plan. Eligibility for continuation of COBRA coverage based on such a distinction was rejected by the Supreme Court.
Unemployment Insurance Board may apply the doctrine of collateral estoppel to reject an individual’s application for benefits
Unemployment Insurance Board may apply the doctrine of collateral estoppel to reject an individual’s application for benefits
Obafemi v Comm. of Labor, Appellate Division, 250 A.D.2d 905
Suppose an employee who has been dismissed from his or her position following a disciplinary hearing applies for unemployment insurance benefits. May the Unemployment Insurance Board deny unemployment insurance benefits on the doctrine of “collateral estoppel?”
The doctrine of collateral estoppel allows a court or administrative body to apply the judgment in a earlier action in a subsequent action based on the same events but brought as a different “cause of action,” thereby obviating the need for a new hearing.
Disciplinary charges were filed against Thkikuma D. Obafemi, a toll collector, alleging that he was discourteous to customers. The arbitrator had found Obafemi guilty of being rude to a customer despite prior warnings to refrain from such inappropriate behavior. The penalty imposed was dismissal.
Following his termination Obafemi applied for unemployment insurance benefits. When the Unemployment Insurance Appeals Board ruled that he was disqualified for such benefits because he was terminated for misconduct, he appealed. Obafemi claimed that he was not given a hearing as to his eligibility for unemployment insurance benefits. The Appellate Division dismissed his appeal, commenting that the board could give “collateral estoppel” effect to the findings of the arbitrator. After all, the court said, Obafemi had been given a “full and fair opportunity” to litigate the issue of his misconduct at the arbitration hearing.
In another unemployment insurance case, Joyce v Commissioner of Labor, 250 A.D.2d 901, the Appellate Division said that the Unemployment Insurance Board had substantial evidence that Stephen M. Joyce had voluntarily left his employment with the U.S. Postal Service without good cause.
Joyce was directed to leave work after an outburst during which he shouted racist remarks. The Postal Service’s psychiatrist found Joyce “not fit for duty” and advised him to seek “outside psychiatric treatment.” Joyce was also told that he could not return to work until he obtained treatment. Joyce told the Service that he was unwilling to seek outside psychiatric treatment.
The Court agreed with the Board, pointing out that “it is well settled that when a claimant fails to take a step that is reasonably required as a prerequisite to continued employment, the claimant will be deemed to have left his [or her] employment without good cause.”
Obafemi v Comm. of Labor, Appellate Division, 250 A.D.2d 905
Suppose an employee who has been dismissed from his or her position following a disciplinary hearing applies for unemployment insurance benefits. May the Unemployment Insurance Board deny unemployment insurance benefits on the doctrine of “collateral estoppel?”
The doctrine of collateral estoppel allows a court or administrative body to apply the judgment in a earlier action in a subsequent action based on the same events but brought as a different “cause of action,” thereby obviating the need for a new hearing.
Disciplinary charges were filed against Thkikuma D. Obafemi, a toll collector, alleging that he was discourteous to customers. The arbitrator had found Obafemi guilty of being rude to a customer despite prior warnings to refrain from such inappropriate behavior. The penalty imposed was dismissal.
Following his termination Obafemi applied for unemployment insurance benefits. When the Unemployment Insurance Appeals Board ruled that he was disqualified for such benefits because he was terminated for misconduct, he appealed. Obafemi claimed that he was not given a hearing as to his eligibility for unemployment insurance benefits. The Appellate Division dismissed his appeal, commenting that the board could give “collateral estoppel” effect to the findings of the arbitrator. After all, the court said, Obafemi had been given a “full and fair opportunity” to litigate the issue of his misconduct at the arbitration hearing.
In another unemployment insurance case, Joyce v Commissioner of Labor, 250 A.D.2d 901, the Appellate Division said that the Unemployment Insurance Board had substantial evidence that Stephen M. Joyce had voluntarily left his employment with the U.S. Postal Service without good cause.
Joyce was directed to leave work after an outburst during which he shouted racist remarks. The Postal Service’s psychiatrist found Joyce “not fit for duty” and advised him to seek “outside psychiatric treatment.” Joyce was also told that he could not return to work until he obtained treatment. Joyce told the Service that he was unwilling to seek outside psychiatric treatment.
The Court agreed with the Board, pointing out that “it is well settled that when a claimant fails to take a step that is reasonably required as a prerequisite to continued employment, the claimant will be deemed to have left his [or her] employment without good cause.”
Past practice of using seniority in bidding for shift assignment trumps Sabbath observer’s request for work schedule adjustment
Past practice of using seniority in bidding for shift assignment trumps Sabbath observer’s request for work schedule adjustment
Balint v Carson City [Nevada], CA9, 144 F.3d 1225
Lisette Balint had been selected for employment in the detention center of the Carson City, Nevada Sheriff Department and was to start “on a swing shift” effective Friday, March 31, 1995. However, Balint was a member of a church that barred all forms of secular work during the period its members observed as the Sabbath -- Friday night through Saturday night.
After being selected, Balint told the department that she could not work “during her Sabbath” and requested that her schedule be adjusted to accommodate her religious practice. When the head of the detention department informed Balint that there could be no accommodation, she withdrew her employment application.
In her original application for employment Balint said that she “was willing to work swing-shift, graveyard, weekends and holidays.” She did not mention any religious or other objections to working on certain shifts.
As a “past practice,” Carson City deputy sheriffs participate in a semi-annual bidding system in which the twelve or thirteen deputies assigned to the jail bid for shifts in the order of their seniority.
Contending that Title VII required that the department accommodate her religious needs, Balint sued. The U.S. Circuit Court of Appeals, 9th Circuit disagreed, reversing a lower court ruling in Balint’s favor.
The Court commenced its analysis with the observation that Title VII prohibits employers from discriminating on the basis of religion and that the employer has a duty to accommodate a current or prospective employee’s religious practices unless the accommodation would cause “undue hardship on the conduct of the employer’s business,” citing 42 U.S.C. Sect. 2000e(j).
The applicant or employee must establish a prima facie case of unlawful discrimination. If he or she does so, the burden shifts to the employer to prove that it either initiated good faith efforts to accommodate the employee or that any accommodation would create an undue hardship on the employer.
The department argued, and the court agreed, that it had “a legitimate seniority system, enacted without discriminatory intent” and any attempt to accommodate Balint would, as a matter of law, cause undue hardship.
The Circuit Court concluded that because the Sheriff’s Department had followed a nondiscriminatory seniority-based system for assigning shifts, it had no duty to accommodate Balint, “even if such accommodation would have no more than a de minimis [slight] impact. The court ruled that an employer is not required to alter an existing, bona fide seniority-based shift-bidding system to accommodate an employee’s religious needs.
Balint v Carson City [Nevada], CA9, 144 F.3d 1225
Lisette Balint had been selected for employment in the detention center of the Carson City, Nevada Sheriff Department and was to start “on a swing shift” effective Friday, March 31, 1995. However, Balint was a member of a church that barred all forms of secular work during the period its members observed as the Sabbath -- Friday night through Saturday night.
After being selected, Balint told the department that she could not work “during her Sabbath” and requested that her schedule be adjusted to accommodate her religious practice. When the head of the detention department informed Balint that there could be no accommodation, she withdrew her employment application.
In her original application for employment Balint said that she “was willing to work swing-shift, graveyard, weekends and holidays.” She did not mention any religious or other objections to working on certain shifts.
As a “past practice,” Carson City deputy sheriffs participate in a semi-annual bidding system in which the twelve or thirteen deputies assigned to the jail bid for shifts in the order of their seniority.
Contending that Title VII required that the department accommodate her religious needs, Balint sued. The U.S. Circuit Court of Appeals, 9th Circuit disagreed, reversing a lower court ruling in Balint’s favor.
The Court commenced its analysis with the observation that Title VII prohibits employers from discriminating on the basis of religion and that the employer has a duty to accommodate a current or prospective employee’s religious practices unless the accommodation would cause “undue hardship on the conduct of the employer’s business,” citing 42 U.S.C. Sect. 2000e(j).
The applicant or employee must establish a prima facie case of unlawful discrimination. If he or she does so, the burden shifts to the employer to prove that it either initiated good faith efforts to accommodate the employee or that any accommodation would create an undue hardship on the employer.
The department argued, and the court agreed, that it had “a legitimate seniority system, enacted without discriminatory intent” and any attempt to accommodate Balint would, as a matter of law, cause undue hardship.
The Circuit Court concluded that because the Sheriff’s Department had followed a nondiscriminatory seniority-based system for assigning shifts, it had no duty to accommodate Balint, “even if such accommodation would have no more than a de minimis [slight] impact. The court ruled that an employer is not required to alter an existing, bona fide seniority-based shift-bidding system to accommodate an employee’s religious needs.
August 03, 2010
Individual ineligible for unemployment insurance benefits if compensation exceeds the highest benefit rate applicable during relevant “effective days”
Individual ineligible for unemployment insurance benefits if compensation exceeds the highest benefit rate applicable during relevant “effective days”
Robinson v Commissioner of Labor, 2010 NY Slip Op 06272, decided on July 29, 2010, Appellate Division, Third Department
A claimant for unemployment insurance benefits is eligible to be paid for an accumulation of "effective days" of unemployment, provided that no effective days may be accumulated in any week in which he or she is paid compensation exceeding the highest benefit rate applicable.
Jonathon Robinson applied for unemployment insurance benefits but his claim was rejected by the Unemployment Insurance Appeals Board based on its finding that Robinson received an average weekly wage "far above the maximum weekly benefit rate of $405" and, as a result, “he did not accumulate effective days for those weeks.”
Robinson had been employed as a lecturer at Cornell University for the summer sessions in 2006 and 2007, teaching a class two days per week. He received a flat fee of $9,360 for the summer 2006 session, representing an average weekly wage of $1,560, and a flat fee of $9,780 for the summer 2007 session, representing an average weekly wage of $1,630.
Paid on a semimonthly basis, Robinson applied for unemployment benefits for those weeks in which he did not receive a paycheck, certifying that he had earned less than the maximum weekly benefit rate of $405.
Ultimately it was determined that Robinson was ineligible to receive benefits on the basis that he earned over the statutory limitation for those weeks for which he had claimed entitlement to benefits. He was charged with a recoverable total overpayment of $1,504.75 and, in addition, his right to receive future benefits by 64 effective days on the basis that he had made willful false statements to obtain benefits.
Robinson appealed these determinations by the Board.
The Appellate Division sustained the Board’s decision, commenting that “A claimant is eligible to be paid for an accumulation of ‘effective days" of unemployment, provided that no effective days may be accumulated in any week in which a claimant is paid compensation exceeding the highest benefit rate applicable’ … Here, the record reflects, and claimant admits, that he received an average weekly wage far above the maximum weekly benefit rate of $405 and, therefore, the determination by the Board that he did not accumulate effective days for those weeks is supported by substantial evidence and has a reasonable basis in law.”
As to the Board's finding that Robinson “made willful misrepresentations to obtain benefits,” the Appellate Division concluded that the Board’s decision was supported by substantial evidence.
The decisions reports that Robinson had conceded that he had received and read the unemployment insurance benefits handbook. Accordingly, said the court, the Board could reasonably find that, regardless of his communications with representatives of the Department of Labor, the language in the handbook addressing a claimant's ineligibility for benefits was clear and unambiguous.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06272.htm
Robinson v Commissioner of Labor, 2010 NY Slip Op 06272, decided on July 29, 2010, Appellate Division, Third Department
A claimant for unemployment insurance benefits is eligible to be paid for an accumulation of "effective days" of unemployment, provided that no effective days may be accumulated in any week in which he or she is paid compensation exceeding the highest benefit rate applicable.
Jonathon Robinson applied for unemployment insurance benefits but his claim was rejected by the Unemployment Insurance Appeals Board based on its finding that Robinson received an average weekly wage "far above the maximum weekly benefit rate of $405" and, as a result, “he did not accumulate effective days for those weeks.”
Robinson had been employed as a lecturer at Cornell University for the summer sessions in 2006 and 2007, teaching a class two days per week. He received a flat fee of $9,360 for the summer 2006 session, representing an average weekly wage of $1,560, and a flat fee of $9,780 for the summer 2007 session, representing an average weekly wage of $1,630.
Paid on a semimonthly basis, Robinson applied for unemployment benefits for those weeks in which he did not receive a paycheck, certifying that he had earned less than the maximum weekly benefit rate of $405.
Ultimately it was determined that Robinson was ineligible to receive benefits on the basis that he earned over the statutory limitation for those weeks for which he had claimed entitlement to benefits. He was charged with a recoverable total overpayment of $1,504.75 and, in addition, his right to receive future benefits by 64 effective days on the basis that he had made willful false statements to obtain benefits.
Robinson appealed these determinations by the Board.
The Appellate Division sustained the Board’s decision, commenting that “A claimant is eligible to be paid for an accumulation of ‘effective days" of unemployment, provided that no effective days may be accumulated in any week in which a claimant is paid compensation exceeding the highest benefit rate applicable’ … Here, the record reflects, and claimant admits, that he received an average weekly wage far above the maximum weekly benefit rate of $405 and, therefore, the determination by the Board that he did not accumulate effective days for those weeks is supported by substantial evidence and has a reasonable basis in law.”
As to the Board's finding that Robinson “made willful misrepresentations to obtain benefits,” the Appellate Division concluded that the Board’s decision was supported by substantial evidence.
The decisions reports that Robinson had conceded that he had received and read the unemployment insurance benefits handbook. Accordingly, said the court, the Board could reasonably find that, regardless of his communications with representatives of the Department of Labor, the language in the handbook addressing a claimant's ineligibility for benefits was clear and unambiguous.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06272.htm
The statute of limitations for filing an appeal commences to run on date the individual knew, or should have known, of the event or omission
The statute of limitations for filing an appeal commences to run on date the individual knew, or should have known, of the event or omission
William R. Hayes v The Board of Education of the Saugerties Central School District, Decisions of the Commissioner of Education, Decision No. 16,094
A board member read aloud an anonymous letter in which district employees were criticized at a public board meeting held by the Saugerties Central School District on December 8, 2009. William R. Hayes, who was present at the meeting, asked for a copy of the letter on December 18, 2009. He received the requested copy on January 22, 2010.
Contending that the anonymous letter was disrespectful to teachers and contrary to the Board’s code of ethics and Education Law §1709(18), Hayes filed an appeal with the Commissioner of Education seeking [1] a letter of apology from the School Board to the teaching staff for reading the letter, and [2] the Board's agreement not to read anonymous letters in a public forum in the future. In the alternative, Hayes asked to Commissioner to “chastise” the Board for its alleged unethical behavior.
The Board asked the Commissioner to dismiss the appeal for a number of reasons, including its representation that the appeal is untimely. The Commissioner agreed that Hayes' appeal was untimely and dismissed it.
Noting that an appeal to the Commissioner must be commenced "within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown,” the Commissioner explained that the anonymous letter was read at a Board meeting held on December 8, 2009 and Hayes did not file his appeal until January 26, 2010, more than 30 days later.
As the appeal related solely to the Board’s actions on December 8, 2009, the Commissioner ruled that Hayes’ “belated receipt of a copy of the letter does not excuse his delay” in view of the fact that he was present at the December 8 meeting of the Board and "personally heard and observed the alleged misconduct at that time."
The decision demonstrates the general rule that a statute of limitations for filing an appeal with the Commissioner is measured from the date on which the individual knew, or should have known, of the alleged offending event or omission.
Another frequent basis for the Commissioner rejecting an appeal – the failure of the appellant to name and serve a necessary party, i.e., an individual that may be adversely affected were the Commissioner to sustain the appeal, as illustrated in recent decisions by the Commissioner. See, for example, http://publicpersonnellaw.blogspot.com/2010/07/appeal-to-commissioner-of-education.html .
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16094.htm
William R. Hayes v The Board of Education of the Saugerties Central School District, Decisions of the Commissioner of Education, Decision No. 16,094
A board member read aloud an anonymous letter in which district employees were criticized at a public board meeting held by the Saugerties Central School District on December 8, 2009. William R. Hayes, who was present at the meeting, asked for a copy of the letter on December 18, 2009. He received the requested copy on January 22, 2010.
Contending that the anonymous letter was disrespectful to teachers and contrary to the Board’s code of ethics and Education Law §1709(18), Hayes filed an appeal with the Commissioner of Education seeking [1] a letter of apology from the School Board to the teaching staff for reading the letter, and [2] the Board's agreement not to read anonymous letters in a public forum in the future. In the alternative, Hayes asked to Commissioner to “chastise” the Board for its alleged unethical behavior.
The Board asked the Commissioner to dismiss the appeal for a number of reasons, including its representation that the appeal is untimely. The Commissioner agreed that Hayes' appeal was untimely and dismissed it.
Noting that an appeal to the Commissioner must be commenced "within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown,” the Commissioner explained that the anonymous letter was read at a Board meeting held on December 8, 2009 and Hayes did not file his appeal until January 26, 2010, more than 30 days later.
As the appeal related solely to the Board’s actions on December 8, 2009, the Commissioner ruled that Hayes’ “belated receipt of a copy of the letter does not excuse his delay” in view of the fact that he was present at the December 8 meeting of the Board and "personally heard and observed the alleged misconduct at that time."
The decision demonstrates the general rule that a statute of limitations for filing an appeal with the Commissioner is measured from the date on which the individual knew, or should have known, of the alleged offending event or omission.
Another frequent basis for the Commissioner rejecting an appeal – the failure of the appellant to name and serve a necessary party, i.e., an individual that may be adversely affected were the Commissioner to sustain the appeal, as illustrated in recent decisions by the Commissioner. See, for example, http://publicpersonnellaw.blogspot.com/2010/07/appeal-to-commissioner-of-education.html .
The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16094.htm
August 02, 2010
Comptroller's audit finds former Town Supervisor's spouse misappropriated $378,000 of the Town’s funds by writing checks to the Supervisor and herself
Comptroller's audit finds former Town Supervisor's spouse misappropriated $378,000 of the Town’s funds by writing checks to the Supervisor and herself
Source: Office of the State Comptroller
According to an audit released by State Comptroller Thomas P. DiNapoli, the spouse of the former supervisor of the Town of Fairfield admitted to misappropriating $378,000 in town funds by using her husband's signature stamp on 347 checks that she made payable to herself and her husband.
The supervisor, who has since resigned, had hired his wife as deputy supervisor.
Following fieldwork by DiNapoli's auditors, the former supervisor's wife was indicted on 350 counts related to the lost money.
Auditors tracked the town's bank activity from 2004 to 2009.
The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2010/fairfield.pdf
Source: Office of the State Comptroller
According to an audit released by State Comptroller Thomas P. DiNapoli, the spouse of the former supervisor of the Town of Fairfield admitted to misappropriating $378,000 in town funds by using her husband's signature stamp on 347 checks that she made payable to herself and her husband.
The supervisor, who has since resigned, had hired his wife as deputy supervisor.
Following fieldwork by DiNapoli's auditors, the former supervisor's wife was indicted on 350 counts related to the lost money.
Auditors tracked the town's bank activity from 2004 to 2009.
The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2010/fairfield.pdf
Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law
Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law
NYC Dept. of Corrections v Anonymous, OATH Index #1472/10
OATH Administrative Law Judge Alessandra Zorgniotti recommended that the New York City Department of Correction terminate a correction officer absent on Civil Service Law Section 72 leave from employment pursuant to Section 73 of the Civil Service Law after the officer has been absent from duty continuously for more than one year due to a non work-related disability.
Zorgniotti credited the opinion of the Department's doctor that the officer was not currently fit to return to work because “his medical condition was active and that the stresses of returning to work in the jail could trigger another episode with serious consequences.”
Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.
There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period* allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s ininterrupted absence for one year.
In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year.
In contrast, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.
It should be remembered that under both Section 71 and Section 73, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.
Further, the individual separated from the position pursuant to either Section 71 or Section 73, as the case may be, is eligible for reinstatement to his or her former position is he or she applies for such reinstatement within one year of termination of the disability. If a suitable position is not available, the individual’s name is to be placed on a preferred list and he or she may be reinstated to a suitable position in a lower grade while on such a preferred list if available.
* In the event is the employee’s absence resulted from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for at least two years unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1472.pdf
NYC Dept. of Corrections v Anonymous, OATH Index #1472/10
OATH Administrative Law Judge Alessandra Zorgniotti recommended that the New York City Department of Correction terminate a correction officer absent on Civil Service Law Section 72 leave from employment pursuant to Section 73 of the Civil Service Law after the officer has been absent from duty continuously for more than one year due to a non work-related disability.
Zorgniotti credited the opinion of the Department's doctor that the officer was not currently fit to return to work because “his medical condition was active and that the stresses of returning to work in the jail could trigger another episode with serious consequences.”
Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.
There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period* allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s ininterrupted absence for one year.
In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year.
In contrast, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.
It should be remembered that under both Section 71 and Section 73, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.
Further, the individual separated from the position pursuant to either Section 71 or Section 73, as the case may be, is eligible for reinstatement to his or her former position is he or she applies for such reinstatement within one year of termination of the disability. If a suitable position is not available, the individual’s name is to be placed on a preferred list and he or she may be reinstated to a suitable position in a lower grade while on such a preferred list if available.
* In the event is the employee’s absence resulted from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for at least two years unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1472.pdf
Federal Court in Michigan holds plaintiff must exhaust local administrative review despite belief that hearing officer was selected by city attorney
Federal Court in Michigan holds plaintiff must exhaust local administrative review despite belief that hearing officer was selected by city attorney
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Just because you think an administrative appeal would be useless doesn't mean that the courts will think it is useless. Dean Patty Salkin (Albany Law School) on her Law of the Land blog reports on a Federal District Court case that suggests one must be very, very careful before deciding that available administrative remedies would be useless and charging into the courts.
Dean Salkin’s report is posted on the Internet at: http://lawoftheland.wordpress.com/2010/07/29/federal-dist-court-in-michigan-holds-plaintiff-must-exhaust-local-administrative-review-despite-belief-that-hearing-officer-was-selected-by-city-attorney/
The general rule requires those objecting to administrative action to exhaust their administrative remedies before asking for judicial review.
There is an exception if further administrative steps would be futile and irreparable harm will result from the delay (as with a preliminary injunction).
Fear of bias, however well founded, does not mean that the agency will no-way do the right thing. It could have an attack of logic, or common sense, or honesty, or other insanity. Most agency decision makers, no matter how political, try to follow the rules. Even when the appellant is a whining publicity hound who contributed to the other party.
Edward M. “Ted” McClure
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Just because you think an administrative appeal would be useless doesn't mean that the courts will think it is useless. Dean Patty Salkin (Albany Law School) on her Law of the Land blog reports on a Federal District Court case that suggests one must be very, very careful before deciding that available administrative remedies would be useless and charging into the courts.
Dean Salkin’s report is posted on the Internet at: http://lawoftheland.wordpress.com/2010/07/29/federal-dist-court-in-michigan-holds-plaintiff-must-exhaust-local-administrative-review-despite-belief-that-hearing-officer-was-selected-by-city-attorney/
The general rule requires those objecting to administrative action to exhaust their administrative remedies before asking for judicial review.
There is an exception if further administrative steps would be futile and irreparable harm will result from the delay (as with a preliminary injunction).
Fear of bias, however well founded, does not mean that the agency will no-way do the right thing. It could have an attack of logic, or common sense, or honesty, or other insanity. Most agency decision makers, no matter how political, try to follow the rules. Even when the appellant is a whining publicity hound who contributed to the other party.
Edward M. “Ted” McClure
FMLA leave request does not insulate employee from unrelated disciplinary action
FMLA leave request does not insulate employee from unrelated disciplinary action
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Howard Gipson was employed as a plaint maintenance worker for Vought Aircraft Industries. He also served as the local union president.
In late 2004, Gibson underwent triple-bypass heart surgery. He was granted FMLA leave for the surgery. In October 2005, Gipson was removed as the local union president. Incident to that removal, his successor removed Gipson's personal effects from the union office and placed them in an adjacent lobby with instructions for Gipson to collect them. He did not.
Gipson's shift supervisor subsequently asked Gipson to remove his effects from the lobby. Gipson did nothing. His supervisor asked him a third time to remove his effects. Gipson replied that it was a union-related matter and that he would not comply without a written directive. His supervisor next gave him a verbal directive to remove his effects, and warned Gipson that failure to do so could result in discipline up to and including discharge. Gipson walked away. He went and saw the company nurse. She told him his blood pressure was slightly elevated. Gipson returned to his station, and told his supervisor he wanted to go home because he was in pain and needed his medicine. Gipson was asked one final time by the HR manager to retrieve his effects. Gipson declined stating that he had a very bad headache.
The company terminated Gipson on the spot for insubordination. Gipson sued alleging that his termination was in retaliation for exercising his FMLA rights. The Sixth Circuit disagreed.
The Court found that there was no a casual connection between is exercise of FMLA rights and his termination. The court opined: "As we have stated, an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."
Here, Gipson, the court found, could not demonstrate that his employer would not have dismissed him regardless of his alleged request for FMLA leave. The Court noted Gipson's admission that he flatly disobeyed the direct order of his supervisors, which "is indisputably grounds for termination."
The Court also cited the finding of the arbitrator that, in violation of a known work rule, Gipson failed to comply with his supervisor's three requests to move his effects, all of which were issued before Gipson had voiced his medical concerns to anyone. While he was not terminated until after Gipson asked for a medical pass to leave for the day, he had been warned prior to his request that failure to obey a direct order to move his effects would result in discipline, including discharge.
According to the Court, "the wheels of termination had already been put into motion before Gipson requested leave." A reasonable jury "could not conclude that it was Gipson's request for a medical pass, rather than Gipson's continuing insubordination, that provoked his firing."
Mr. Bosland Comments: Invoking FMLA leave does not protect an employee from unrelated discipline that is already in the pipeline. Note that the court considered the discipline to be in the pipeline even though formal discipline had not been proposed or issued. Rather, the court focused on whether the discipline would have occurred regardless of the employee's request for FMLA leave. In practice, the employer can demonstrate that it would have issued discipline notwithstanding the exercise of FMLA rights based on conduct that pre-dated the employee's invoking the need for FMLA leave.
Of course, by opportunistically invoking the FMLA, Gipson forced his employer to to go through the great time and expense of litigating the case before both an arbitrator and through the courts. Many employers would look to settle such a case. While that might not guarantee that Gipson would return to his job, a settlement to avoid the substantial expense of litigation might have allowed Gipson to resign with a neutral recommendation, and with a few dollars in his pocket.
The decision is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/10a0420n-06.pdf
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Howard Gipson was employed as a plaint maintenance worker for Vought Aircraft Industries. He also served as the local union president.
In late 2004, Gibson underwent triple-bypass heart surgery. He was granted FMLA leave for the surgery. In October 2005, Gipson was removed as the local union president. Incident to that removal, his successor removed Gipson's personal effects from the union office and placed them in an adjacent lobby with instructions for Gipson to collect them. He did not.
Gipson's shift supervisor subsequently asked Gipson to remove his effects from the lobby. Gipson did nothing. His supervisor asked him a third time to remove his effects. Gipson replied that it was a union-related matter and that he would not comply without a written directive. His supervisor next gave him a verbal directive to remove his effects, and warned Gipson that failure to do so could result in discipline up to and including discharge. Gipson walked away. He went and saw the company nurse. She told him his blood pressure was slightly elevated. Gipson returned to his station, and told his supervisor he wanted to go home because he was in pain and needed his medicine. Gipson was asked one final time by the HR manager to retrieve his effects. Gipson declined stating that he had a very bad headache.
The company terminated Gipson on the spot for insubordination. Gipson sued alleging that his termination was in retaliation for exercising his FMLA rights. The Sixth Circuit disagreed.
The Court found that there was no a casual connection between is exercise of FMLA rights and his termination. The court opined: "As we have stated, an employee may not insulate himself from a pending dismissal by opportunistically invoking the FMLA."
Here, Gipson, the court found, could not demonstrate that his employer would not have dismissed him regardless of his alleged request for FMLA leave. The Court noted Gipson's admission that he flatly disobeyed the direct order of his supervisors, which "is indisputably grounds for termination."
The Court also cited the finding of the arbitrator that, in violation of a known work rule, Gipson failed to comply with his supervisor's three requests to move his effects, all of which were issued before Gipson had voiced his medical concerns to anyone. While he was not terminated until after Gipson asked for a medical pass to leave for the day, he had been warned prior to his request that failure to obey a direct order to move his effects would result in discipline, including discharge.
According to the Court, "the wheels of termination had already been put into motion before Gipson requested leave." A reasonable jury "could not conclude that it was Gipson's request for a medical pass, rather than Gipson's continuing insubordination, that provoked his firing."
Mr. Bosland Comments: Invoking FMLA leave does not protect an employee from unrelated discipline that is already in the pipeline. Note that the court considered the discipline to be in the pipeline even though formal discipline had not been proposed or issued. Rather, the court focused on whether the discipline would have occurred regardless of the employee's request for FMLA leave. In practice, the employer can demonstrate that it would have issued discipline notwithstanding the exercise of FMLA rights based on conduct that pre-dated the employee's invoking the need for FMLA leave.
Of course, by opportunistically invoking the FMLA, Gipson forced his employer to to go through the great time and expense of litigating the case before both an arbitrator and through the courts. Many employers would look to settle such a case. While that might not guarantee that Gipson would return to his job, a settlement to avoid the substantial expense of litigation might have allowed Gipson to resign with a neutral recommendation, and with a few dollars in his pocket.
The decision is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/10a0420n-06.pdf
July 30, 2010
Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination
Court sustains Human Rights’ finding that the reasons advanced by employer for terminating employee was pretext for unlawful discrimination
New York State Office of Mental Health v New York State Division of Human Rights, 2010 NY Slip Op 06268, Decided on July 29, 2010, Appellate Division, Third Department
Bisi Asimolowo was employed by the Office of Mental Health as a pharmacy intern in 1992 and Asimolowo understood that he was expected to take and pass the licensing examination to become a pharmacist.
Although Asimolowo failed to become a licensed pharmacist, Mental Health periodically obtained authorization from the Department of Civil Service to continue employing him as a pharmacy intern.
The decision reports that in 2003 Asimolowo was unable to work for approximately 27 days due to undergoing treatment for cancer.
Asimolowo subsequently submitted a doctor's note stating that he was “medically disabled due to an ankle and knee injury.” On that same day Mental Health notified him that his employment would end, “ostensibly because the Department [of Civil Service] had declined to authorize his continued employment.”
Asimolowo filed a verified complaint with State Division of Human Rights alleging that among other things, disability discrimination. Ultimately a SDHR Administrative Law Judge issued a recommended order finding that although Mental Health had advanced an otherwise legitimate, nondiscrimatory reason for terminating Asimolowo's employment, it was, in fact, a pretext and Asimolowo had been discharged because of his disability.
The Commissioner of Human Rights adopted the ALJ's findings but reduced the proposed award of damages from $50,000 to $30,000.
Noting that “A determination of SDHR is entitled to considerable deference due to its expertise in assessing discrimination claims, and we must uphold that determination if it is supported by substantial evidence,” the Appellate Division said that “The parties do not dispute that Asimolowo suffered from a disability but was capable of working as a pharmacy intern or that [Mental Health] provided a legitimate, nondiscrimatory reason to support his termination.
Accordingly, said the court, it need only determine whether substantial evidence supports SDHR's finding that Asimolowo demonstrated that Mental Health's nondiscrimatory reason was, in fact, a pretext for unlawful discrimination.
Recognizing that Mental Health “undoubtedly had legitimate concerns about Asimolowo's employment status given his failure to become a licensed pharmacist,” the Appellate Division said that “serious efforts to remove him only began after he used a substantial quantity of sick leave to address medical issues.”
The court also commented that “discussions of an unknown nature” occurred between Mental Health officials and the Department of Civil Service and that Asimolowo was not advised of his termination until after his supervisor was notified of his knee and ankle injury, “despite [Mental Health’s] purported awareness of the pending termination for months beforehand.”
The court concluded that although the evidence in the record could support a different result, substantial evidence supported SDHR's determination that “relying upon Asimolowo's dubious civil service status to terminate him was a pretext and that [Mental Health] intended, by the ‘devious and subtle means’ often employed, to discriminate.”
The Division's award of damages for Asimolowo's emotional distress was also affirmed. Such injuries, said the court, may be proven by a complainant's own testimony, even in the absence of medical or other treatment.
The Division had found that Asimolowo was continuing to feel "enormous mental anguish and humiliation" at the time of the hearing, over four years later, and that he was "deeply hurt" that his children had lost respect for him as a result of losing his job.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06268.htm
New York State Office of Mental Health v New York State Division of Human Rights, 2010 NY Slip Op 06268, Decided on July 29, 2010, Appellate Division, Third Department
Bisi Asimolowo was employed by the Office of Mental Health as a pharmacy intern in 1992 and Asimolowo understood that he was expected to take and pass the licensing examination to become a pharmacist.
Although Asimolowo failed to become a licensed pharmacist, Mental Health periodically obtained authorization from the Department of Civil Service to continue employing him as a pharmacy intern.
The decision reports that in 2003 Asimolowo was unable to work for approximately 27 days due to undergoing treatment for cancer.
Asimolowo subsequently submitted a doctor's note stating that he was “medically disabled due to an ankle and knee injury.” On that same day Mental Health notified him that his employment would end, “ostensibly because the Department [of Civil Service] had declined to authorize his continued employment.”
Asimolowo filed a verified complaint with State Division of Human Rights alleging that among other things, disability discrimination. Ultimately a SDHR Administrative Law Judge issued a recommended order finding that although Mental Health had advanced an otherwise legitimate, nondiscrimatory reason for terminating Asimolowo's employment, it was, in fact, a pretext and Asimolowo had been discharged because of his disability.
The Commissioner of Human Rights adopted the ALJ's findings but reduced the proposed award of damages from $50,000 to $30,000.
Noting that “A determination of SDHR is entitled to considerable deference due to its expertise in assessing discrimination claims, and we must uphold that determination if it is supported by substantial evidence,” the Appellate Division said that “The parties do not dispute that Asimolowo suffered from a disability but was capable of working as a pharmacy intern or that [Mental Health] provided a legitimate, nondiscrimatory reason to support his termination.
Accordingly, said the court, it need only determine whether substantial evidence supports SDHR's finding that Asimolowo demonstrated that Mental Health's nondiscrimatory reason was, in fact, a pretext for unlawful discrimination.
Recognizing that Mental Health “undoubtedly had legitimate concerns about Asimolowo's employment status given his failure to become a licensed pharmacist,” the Appellate Division said that “serious efforts to remove him only began after he used a substantial quantity of sick leave to address medical issues.”
The court also commented that “discussions of an unknown nature” occurred between Mental Health officials and the Department of Civil Service and that Asimolowo was not advised of his termination until after his supervisor was notified of his knee and ankle injury, “despite [Mental Health’s] purported awareness of the pending termination for months beforehand.”
The court concluded that although the evidence in the record could support a different result, substantial evidence supported SDHR's determination that “relying upon Asimolowo's dubious civil service status to terminate him was a pretext and that [Mental Health] intended, by the ‘devious and subtle means’ often employed, to discriminate.”
The Division's award of damages for Asimolowo's emotional distress was also affirmed. Such injuries, said the court, may be proven by a complainant's own testimony, even in the absence of medical or other treatment.
The Division had found that Asimolowo was continuing to feel "enormous mental anguish and humiliation" at the time of the hearing, over four years later, and that he was "deeply hurt" that his children had lost respect for him as a result of losing his job.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06268.htm
Paying prevailing wages
Paying prevailing wages
Office of the Comptroller ex rel Local 924 v Office of Labor Relations, OATH Index No. 464/10
Office of the Comptroller ex rel Local 1087 v Office of Labor Relations, OATH Index No. 588/10
The "prevailing wage law" requires the City of New York to pay “laborers, workmen and mechanics” in its employ the prevailing rate of wages and benefits paid in the private sector for work in the same trade in the locality.
The City and public sector unions are required to negotiate in good faith to enter into a contract setting the wages and benefits for prevailing wage employees but when negotiations fail, the union may file a complaint with the Comptroller on behalf of its members.
The Comptroller is authorized to conduct an investigation to determine the prevailing wages and benefits for the group of employees and has designated New York City's Office of Administrative Tribunals and Hearings [OATH] to conduct hearings in these matters.
In the Local 924 case OATH Administrative Law Judge Tynia Richard recommended that Laborers and City Laborers be paid wage and benefits in accord with those set forth in the contract for Local 79 mason tenders.
The Office of Labor Relations had contended that cleaners and porters who belong to Local 32BJ are the proper private sector match for the City Laborer and Laborer position. Comparing the work performed by the City Laborers and Laborers to that performed by mason tenders and porters and cleaners, ALJ Richard found the City employees' work more comparable to the mason tenders.
The Local 924 decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-464.pdf
The Local 1087 case concerned a proceeding to set the prevailing wages and benefits for City locksmiths and locksmith supervisors.
The Comptroller and Local 241 sought a determination that both titles be paid wages and benefits in accord with those paid pursuant to a collective bargaining agreement for locksmiths and supervisors at Columbia University.
The Office of Labor Relations argued that the union was not the prevailing one because its members do not comprise 30 percent or more of the locksmiths in New York City.
OATH Administrative Law Judge Addison ruled for the Comptroller and the union. Although the number of Local 241 locksmiths did not independently meet the 30 percent threshold for the title, when combined with Local 348 locksmiths, collectively the union locksmiths exceeded the thirty percent threshold.
ALJ Addison also ruled that where two or more collective bargaining agreements are involved, the prevailing wage may be set by picking the predominant one, here the members of Local 241 who work at Columbia University.
The Local 1087 decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-588.pdf
Office of the Comptroller ex rel Local 924 v Office of Labor Relations, OATH Index No. 464/10
Office of the Comptroller ex rel Local 1087 v Office of Labor Relations, OATH Index No. 588/10
The "prevailing wage law" requires the City of New York to pay “laborers, workmen and mechanics” in its employ the prevailing rate of wages and benefits paid in the private sector for work in the same trade in the locality.
The City and public sector unions are required to negotiate in good faith to enter into a contract setting the wages and benefits for prevailing wage employees but when negotiations fail, the union may file a complaint with the Comptroller on behalf of its members.
The Comptroller is authorized to conduct an investigation to determine the prevailing wages and benefits for the group of employees and has designated New York City's Office of Administrative Tribunals and Hearings [OATH] to conduct hearings in these matters.
In the Local 924 case OATH Administrative Law Judge Tynia Richard recommended that Laborers and City Laborers be paid wage and benefits in accord with those set forth in the contract for Local 79 mason tenders.
The Office of Labor Relations had contended that cleaners and porters who belong to Local 32BJ are the proper private sector match for the City Laborer and Laborer position. Comparing the work performed by the City Laborers and Laborers to that performed by mason tenders and porters and cleaners, ALJ Richard found the City employees' work more comparable to the mason tenders.
The Local 924 decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-464.pdf
The Local 1087 case concerned a proceeding to set the prevailing wages and benefits for City locksmiths and locksmith supervisors.
The Comptroller and Local 241 sought a determination that both titles be paid wages and benefits in accord with those paid pursuant to a collective bargaining agreement for locksmiths and supervisors at Columbia University.
The Office of Labor Relations argued that the union was not the prevailing one because its members do not comprise 30 percent or more of the locksmiths in New York City.
OATH Administrative Law Judge Addison ruled for the Comptroller and the union. Although the number of Local 241 locksmiths did not independently meet the 30 percent threshold for the title, when combined with Local 348 locksmiths, collectively the union locksmiths exceeded the thirty percent threshold.
ALJ Addison also ruled that where two or more collective bargaining agreements are involved, the prevailing wage may be set by picking the predominant one, here the members of Local 241 who work at Columbia University.
The Local 1087 decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-588.pdf
July 29, 2010
Protecting whistleblowers the focus of a policy statement issued by Wayne County [NY]
Protecting whistleblowers the focus of a policy statement issued by Wayne County [NY]
Source: Wayne County web site
Wayne County recently issued a policy statement addressing Whistleblower Protections . The statement indicates that “Wayne County will extend to its employees all protections afforded to them under the applicable State and federal Whistleblower laws including the Federal False Claims Act, the New York State False Claims Act and the New York State Civil Service Law.
The statement notes that New York State Civil Service Law [Civil Service Law §75-B] prohibits the public employers from dismissing or taking other disciplinary or other adverse personnel action against a public employee who reports fraud, wrongdoing or violations of the law, "to Wayne County or to another government body." These protections apply to disciplinary proceedings, arbitration and collective bargaining agreements where the adverse action taken by the employer is based solely on retaliation for whistleblower conduct.
The statement also notes that in the event the employee who has been the subject of a retaliatory personnel action is not subject to final and binding arbitration, the employee may bring a civil action in court and the court may order reinstatement of the employee to the same or an equivalent position, the reinstatement of full fringe benefits and seniority rights and compensation for lost wages, benefits and other remuneration including court costs and attorney fees.
Also addressed are the State and Federal False Claims Acts.
Under the Federal False Claims Act* any person may bring a qui tam** civil action for a violation of the Federal False Claims Act on behalf of the federal government. Further, an employee may bring a qui tam lawsuit in U. S. District Court if the employee has been discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or employer because of lawful acts done by the employee in reporting a false claim to the employer or to a government body.
The policy provides that in the event “if employee, contractor or vendor witnesses, learns of, or is asked to participate in, an activity that could potentially violate or is suspected or known to violate this Compliance Plan or any Wayne County policy, or any law or regulation, he or she must report the request and the activity."
According to the statement, "Employees, contractors or vendors should endeavor to contact their supervisor, acting supervisor, or department head first. If those persons are not available, or the reporter has reason to believe that the supervisor or department head is a party to the activity, or if the suspected violation presents an immediate or serious danger to the public health or safety, then the employee, contractor or vendor shall contact the Compliance Officer.”
As to New York State’s False Claims Act, Article 13, State Finance Law, (NYSFCA),*** also referred to as a Qui Tam Statute or as a whistleblower law, the NYSFCA allows a private individual (including a public employee) to sue a person or company (including a fellow employee or employer in their individual capacity), "if such person or company knowingly submits a false or fraudulent claim to a state or local government." Such false or fraudulent financial claims include, but are not limited to, health care fraud in programs such as Medicaid.
* On the Internet at: http://www.law.cornell.edu/uscode/31/3729.html
** One of the "ancient common law writs," a writ of qui tam allows a private individual to prosecute an alleged violation of §3729. If successful, the individual can receive all or part of any penalty imposed. A private person may bring such a civil action pursuant to §3730 of the Act, which provides that "The action shall be brought in the name of the Government [by a private individual]."
*** See, also, §740 of the State Labor Law.
The full text of the Wayne County policy statement is available on the Internet at:
http://www.co.wayne.ny.us/Departments/ctyattorney/Wayne%20County%20Compliance%20Plan%20-%20Final%20_1_.pdf
Source: Wayne County web site
Wayne County recently issued a policy statement addressing Whistleblower Protections . The statement indicates that “Wayne County will extend to its employees all protections afforded to them under the applicable State and federal Whistleblower laws including the Federal False Claims Act, the New York State False Claims Act and the New York State Civil Service Law.
The statement notes that New York State Civil Service Law [Civil Service Law §75-B] prohibits the public employers from dismissing or taking other disciplinary or other adverse personnel action against a public employee who reports fraud, wrongdoing or violations of the law, "to Wayne County or to another government body." These protections apply to disciplinary proceedings, arbitration and collective bargaining agreements where the adverse action taken by the employer is based solely on retaliation for whistleblower conduct.
The statement also notes that in the event the employee who has been the subject of a retaliatory personnel action is not subject to final and binding arbitration, the employee may bring a civil action in court and the court may order reinstatement of the employee to the same or an equivalent position, the reinstatement of full fringe benefits and seniority rights and compensation for lost wages, benefits and other remuneration including court costs and attorney fees.
Also addressed are the State and Federal False Claims Acts.
Under the Federal False Claims Act* any person may bring a qui tam** civil action for a violation of the Federal False Claims Act on behalf of the federal government. Further, an employee may bring a qui tam lawsuit in U. S. District Court if the employee has been discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or employer because of lawful acts done by the employee in reporting a false claim to the employer or to a government body.
The policy provides that in the event “if employee, contractor or vendor witnesses, learns of, or is asked to participate in, an activity that could potentially violate or is suspected or known to violate this Compliance Plan or any Wayne County policy, or any law or regulation, he or she must report the request and the activity."
According to the statement, "Employees, contractors or vendors should endeavor to contact their supervisor, acting supervisor, or department head first. If those persons are not available, or the reporter has reason to believe that the supervisor or department head is a party to the activity, or if the suspected violation presents an immediate or serious danger to the public health or safety, then the employee, contractor or vendor shall contact the Compliance Officer.”
As to New York State’s False Claims Act, Article 13, State Finance Law, (NYSFCA),*** also referred to as a Qui Tam Statute or as a whistleblower law, the NYSFCA allows a private individual (including a public employee) to sue a person or company (including a fellow employee or employer in their individual capacity), "if such person or company knowingly submits a false or fraudulent claim to a state or local government." Such false or fraudulent financial claims include, but are not limited to, health care fraud in programs such as Medicaid.
* On the Internet at: http://www.law.cornell.edu/uscode/31/3729.html
** One of the "ancient common law writs," a writ of qui tam allows a private individual to prosecute an alleged violation of §3729. If successful, the individual can receive all or part of any penalty imposed. A private person may bring such a civil action pursuant to §3730 of the Act, which provides that "The action shall be brought in the name of the Government [by a private individual]."
*** See, also, §740 of the State Labor Law.
The full text of the Wayne County policy statement is available on the Internet at:
http://www.co.wayne.ny.us/Departments/ctyattorney/Wayne%20County%20Compliance%20Plan%20-%20Final%20_1_.pdf
Revised Model State Administrative Procedure Act
Revised Model State Administrative Procedure Act
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
From the National Conference of Commissioners on Uniform State Laws (NCCUSL) web site:
The Revised Model State Administrative Procedure Act is an update of the 1980 act of the same name.
The 1980 Act provided procedures for promulgating administrative regulations and for adjudicating disputes before administrative bodies.
The Revision updates the act to recognize electronic communications and other state procedural innovations since the Act was originally promulgated.
The draft presented at the recently completed Annual Meeting, along with other related materials, is available here.
Edward M. “Ted” McClure
Phoenix School of Law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
From the National Conference of Commissioners on Uniform State Laws (NCCUSL) web site:
The Revised Model State Administrative Procedure Act is an update of the 1980 act of the same name.
The 1980 Act provided procedures for promulgating administrative regulations and for adjudicating disputes before administrative bodies.
The Revision updates the act to recognize electronic communications and other state procedural innovations since the Act was originally promulgated.
The draft presented at the recently completed Annual Meeting, along with other related materials, is available here.
Edward M. “Ted” McClure
Phoenix School of Law
Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty
Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty
Doyle v City of Medford, USCA, 9th Circuit, No. 09-16037
Although the City of Medford, Oregon did not provide health insurance coverage to its retired police officers upon their retirement, the retirees could elect to remain covered in the City’s plan for 18 months after their retirement under the Consolidated Omnibus Budget Reconciliation Act of 1985, COBRA, 29 U.S.C. §§1161-1168.
After that 18-month period, the retired police officer could enroll in the Oregon Public Employees Retirement System Health Insurance Program. The City made employer contributions to the Retirement System’s Health Insurance Program.
Ronald Doyle and other retired police officers sued the City and its City Manager, Michael Dyal, contending that they should be provide with the same health insurance coverage available to active police officers pursuant to a collective bargaining agreement between the City and the employee organization representing the police officers upon their retirement.
The US Court of Appeals, Ninth Circuit, ruled that the City of Medford’s decision to deny “active employee” health insurance coverage to its retired police officers did not violate their due process rights as Oregon Revised Statutes §243.303 did not create a property interest in having such health insurance coverage continue into retirement. Accordingly, said the court, the retired police officers lacked a legally protected property interest to the health insurance benefits available to active City police officers under the controlling collective bargaining agreement.
Noting that §243.303 provides that “A local government must make health insurance coverage available to retirees only if the government offers such coverage to current officers and employees,” the Circuit Court held that such a provision did not bar a jurisdiction from considering “real-world circumstances” that could excuse its obligation to cover retirees, citing Town of Castle Rock v. Gonzales, 545 U.S. 748.
In contrast, in Armistead v Vernitron Corp., 944 F.2d 1287, the Circuit Court of Appeals, Sixth Circuit, affirmed a lower court ruling that held that when a collective bargaining agreement is intended to give retirees with lifetime health and life insurance benefits, such benefits were not subject to unilateral termination.
N.B. “Participating employers” in the State's Employee Health Insurance Plan must allow employees to continue in the plan upon retirement [§163.4, Civil Service Law] and are required to pay "not less than fifty percentum of the cost of ... the coverage of its employees and retired employees ... [and] not less than thirty-five percentum ... for the coverage of dependents of employees and retired employees..." [§167.2, Civil Service Law].
The Doyle decision is posted on the Internet at:
http://scholar.google.com/scholar_case?case=13582283851357318805&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Doyle v City of Medford, USCA, 9th Circuit, No. 09-16037
Although the City of Medford, Oregon did not provide health insurance coverage to its retired police officers upon their retirement, the retirees could elect to remain covered in the City’s plan for 18 months after their retirement under the Consolidated Omnibus Budget Reconciliation Act of 1985, COBRA, 29 U.S.C. §§1161-1168.
After that 18-month period, the retired police officer could enroll in the Oregon Public Employees Retirement System Health Insurance Program. The City made employer contributions to the Retirement System’s Health Insurance Program.
Ronald Doyle and other retired police officers sued the City and its City Manager, Michael Dyal, contending that they should be provide with the same health insurance coverage available to active police officers pursuant to a collective bargaining agreement between the City and the employee organization representing the police officers upon their retirement.
The US Court of Appeals, Ninth Circuit, ruled that the City of Medford’s decision to deny “active employee” health insurance coverage to its retired police officers did not violate their due process rights as Oregon Revised Statutes §243.303 did not create a property interest in having such health insurance coverage continue into retirement. Accordingly, said the court, the retired police officers lacked a legally protected property interest to the health insurance benefits available to active City police officers under the controlling collective bargaining agreement.
Noting that §243.303 provides that “A local government must make health insurance coverage available to retirees only if the government offers such coverage to current officers and employees,” the Circuit Court held that such a provision did not bar a jurisdiction from considering “real-world circumstances” that could excuse its obligation to cover retirees, citing Town of Castle Rock v. Gonzales, 545 U.S. 748.
In contrast, in Armistead v Vernitron Corp., 944 F.2d 1287, the Circuit Court of Appeals, Sixth Circuit, affirmed a lower court ruling that held that when a collective bargaining agreement is intended to give retirees with lifetime health and life insurance benefits, such benefits were not subject to unilateral termination.
N.B. “Participating employers” in the State's Employee Health Insurance Plan must allow employees to continue in the plan upon retirement [§163.4, Civil Service Law] and are required to pay "not less than fifty percentum of the cost of ... the coverage of its employees and retired employees ... [and] not less than thirty-five percentum ... for the coverage of dependents of employees and retired employees..." [§167.2, Civil Service Law].
The Doyle decision is posted on the Internet at:
http://scholar.google.com/scholar_case?case=13582283851357318805&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Books from the Public Employment Law Press
Books from the Public Employment Law Press
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
For information about PELP's The Discipline Book, now available in both an e-book and in a softcover format, go to: http://booklocker.com/books/3449.html
For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
For information about PELP's The Discipline Book, now available in both an e-book and in a softcover format, go to: http://booklocker.com/books/3449.html
For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
July 28, 2010
An individual must prove his or her case by a “preponderance of the evidence” in order to prevail at a “name-clearing hearing”
An individual must prove his or her case by a “preponderance of the evidence” in order to prevail at a “name-clearing hearing”
Casale v Metropolitan Transp. Auth., 2010 NY Slip Op 06218, decided on July 27, 2010, Appellate Division, First Department
Nicholas Casale, claiming that certain statements in the Metropolitan Transportation Authority's letter to him terminating his employment* characterizing his actions as “dishonest” were false, demanded a name-clearing hearing.**
The hearing officer ruled that Casale was required to prove that the Authority’s statements to which he objected were false by a preponderance of the evidence and that Casale failed to meet this test.
The hearing officer found that Casle had repeatedly mischaracterized his source of information in an investigation of corruption as a confidential informant, concluding that “this conduct was dishonest.”
The Appellate Division said that such a determination by a hearing officer is not foreclosed as a matter of law even if the hearing officer believed that Casale was acting to benefit the Authority rather than for his own personal gain. The court said that the hearing officer is to determine the issue of an employee's dishonesty “with reference to the employer's general business or the employee's own functions and that is precisely what occurred here.”
Nor, said the court, did the hearing officer exceed his jurisdiction in "finding that petitioner engaged in a pattern of dishonesty." The terms of the stipulation governing the name-clearing hearing did not limit the inquiry to the fabrication of the existence of a confidential informant.
* Although Casale’s tenure status is not indicated in the decision, typically New York courts have directed "name-clearing hearings" for probationary employees and for employee without tenure who allege that they have been "stigmatized" as a result of “State action” and the employer has made such "stigmatizing" information public.
** A name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06218.htm
Casale v Metropolitan Transp. Auth., 2010 NY Slip Op 06218, decided on July 27, 2010, Appellate Division, First Department
Nicholas Casale, claiming that certain statements in the Metropolitan Transportation Authority's letter to him terminating his employment* characterizing his actions as “dishonest” were false, demanded a name-clearing hearing.**
The hearing officer ruled that Casale was required to prove that the Authority’s statements to which he objected were false by a preponderance of the evidence and that Casale failed to meet this test.
The hearing officer found that Casle had repeatedly mischaracterized his source of information in an investigation of corruption as a confidential informant, concluding that “this conduct was dishonest.”
The Appellate Division said that such a determination by a hearing officer is not foreclosed as a matter of law even if the hearing officer believed that Casale was acting to benefit the Authority rather than for his own personal gain. The court said that the hearing officer is to determine the issue of an employee's dishonesty “with reference to the employer's general business or the employee's own functions and that is precisely what occurred here.”
Nor, said the court, did the hearing officer exceed his jurisdiction in "finding that petitioner engaged in a pattern of dishonesty." The terms of the stipulation governing the name-clearing hearing did not limit the inquiry to the fabrication of the existence of a confidential informant.
* Although Casale’s tenure status is not indicated in the decision, typically New York courts have directed "name-clearing hearings" for probationary employees and for employee without tenure who allege that they have been "stigmatized" as a result of “State action” and the employer has made such "stigmatizing" information public.
** A name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06218.htm
US Department of Labor COBRA website updated
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
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
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
Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay
Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay
Ernst v Saratoga County, Appellate Division, 251 A.D.2d 866
Saratoga County filed disciplinary charges against Donald P. Ernst, its director of data processing, alleging misconduct and incompetency based on complaints of sexual harassment filed by a number of women supervised by Ernst.
Ernst was found guilty of the charges and the County Board dismissed him from his position effective December 20, 1994. The Appellate Division, however, annulled the determination. The court said that one of the County’s officials [Sullivan] “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision. It returned the matter to the Board for a redetermination (Ernst v Saratoga County, 234 AD2d 764).
Each member of the Board then reviewed the hearing record and, without Sullivan’s participation, on February 25, 1997 voted to terminate Ernst retroactive to December 20, 1994. The Board also rejected Ernst’s claim for back salary for the period December 20, 1996 through February 25, 1997.
Ernst appealed, contending that:
1. The decision to terminate him was arbitrary and capricious; and
2. He was entitled to back salary.
The Appellate Division upheld the Board’s determination dismissing Ernst from his position, ruling that the record contained substantial evidence supporting the Board’s decision. In addition, the court concluded that the penalty imposed met the Pell standard [Pell v Board of Education, 34 NY2d 222] as it was “not shocking to one’s sense of fairness” in view of the offenses for which Ernst was found guilty.
The question of back salary and benefits, however, was another matters. Here the court decided that Ernst was entitled to back salary for the period from his initial termination in 1994 and his subsequent termination in 1997 “less any compensation derived from other employment during that period and any unemployment insurance benefits received for that period.”*
According to the ruling, “a proper termination cannot be extended retroactively to cover a prior period of termination annulled due to procedural failures.”
* NB: In 1985 Section 77 of the Civil Service Law was amended eliminating the deduction for “compensation derived from other employment” upon reinstatement by court order. The same is true with respect to reinstatements directed by a civil service commission pursuant to Section 76 of the Civil Service Law. In contrast, back pay issues are unlikely to arise in disciplinary actions brought pursuant to Section 3020-a of the Education Law as that statute provides that such disciplinary suspensions must be with pay unless (1) the individual has been convicted or entered a guilty plea in a criminal action involving drugs or the physical or sexual abuse of a minor or student or (2) a Taylor Law agreement permits disciplinary suspensions without pay upon the serving of Section 3020-a charges.
Ernst v Saratoga County, Appellate Division, 251 A.D.2d 866
Saratoga County filed disciplinary charges against Donald P. Ernst, its director of data processing, alleging misconduct and incompetency based on complaints of sexual harassment filed by a number of women supervised by Ernst.
Ernst was found guilty of the charges and the County Board dismissed him from his position effective December 20, 1994. The Appellate Division, however, annulled the determination. The court said that one of the County’s officials [Sullivan] “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision. It returned the matter to the Board for a redetermination (Ernst v Saratoga County, 234 AD2d 764).
Each member of the Board then reviewed the hearing record and, without Sullivan’s participation, on February 25, 1997 voted to terminate Ernst retroactive to December 20, 1994. The Board also rejected Ernst’s claim for back salary for the period December 20, 1996 through February 25, 1997.
Ernst appealed, contending that:
1. The decision to terminate him was arbitrary and capricious; and
2. He was entitled to back salary.
The Appellate Division upheld the Board’s determination dismissing Ernst from his position, ruling that the record contained substantial evidence supporting the Board’s decision. In addition, the court concluded that the penalty imposed met the Pell standard [Pell v Board of Education, 34 NY2d 222] as it was “not shocking to one’s sense of fairness” in view of the offenses for which Ernst was found guilty.
The question of back salary and benefits, however, was another matters. Here the court decided that Ernst was entitled to back salary for the period from his initial termination in 1994 and his subsequent termination in 1997 “less any compensation derived from other employment during that period and any unemployment insurance benefits received for that period.”*
According to the ruling, “a proper termination cannot be extended retroactively to cover a prior period of termination annulled due to procedural failures.”
* NB: In 1985 Section 77 of the Civil Service Law was amended eliminating the deduction for “compensation derived from other employment” upon reinstatement by court order. The same is true with respect to reinstatements directed by a civil service commission pursuant to Section 76 of the Civil Service Law. In contrast, back pay issues are unlikely to arise in disciplinary actions brought pursuant to Section 3020-a of the Education Law as that statute provides that such disciplinary suspensions must be with pay unless (1) the individual has been convicted or entered a guilty plea in a criminal action involving drugs or the physical or sexual abuse of a minor or student or (2) a Taylor Law agreement permits disciplinary suspensions without pay upon the serving of Section 3020-a charges.
Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher
Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher
Appeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No. 15,850,
Nicola A. DeMarco, a tenured teacher employed by the New York City Department of Education [DOE], was served with disciplinary charges initiated by his principal at Louis Armstrong Middle School.
DeMarco demanded a hearing on the charges to be conducted by a three-member panel* pursuant to Education Law §3020-a, and also demanded dismissal of the charges on the ground that “disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.”
DOE refused DeMarco’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4);** its agreement with the United Federation of Teachers did not provide for three-member disciplinary panels; and … the authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District involved.
The Commission dismissed DeMarco’s appeal for lack of personal jurisdiction after finding that DeMarco had not served the only agent authorized to accept service of his appeal on behalf of the DOE, the Office of the Corporation Counsel.
In addition, the Commissioner said that DeMarco’s appeal had to be dismissed because, as Commissioner, he no longer had subject matter jurisdiction. Education Law §3020-a was substantially amended in 1994 and the Commissioner no longer had jurisdiction to review either final or nonfinal determinations by disciplinary hearing officers.
The amendment, said the Commissioner, “specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges, citing Education Law §3020-a[c][iii] and [iv].” Accordingly, concluded the Commissioner, DeMarco’s request that he dismiss the charges would require a review of the merits, which review was no longer within his jurisdiction.
* §3020-a.2(c) provides that in the event the disciplinary charges concern pedagogical incompetence or issues involving pedagogical judgment, the educator may elect to have the hearing conducted by either a single hearing officer or a three-member panel. All other charges are to be heard by a single hearing officer.
** As the Court of Appeals indicated in Antinore v State, 40 NY2d 6, a collective bargaining agreement may provide for alternatives to the statutory provisions provided such modifications are consistent with administrative due process.
The full text of the Commissioners decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15850.htm
Appeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No. 15,850,
Nicola A. DeMarco, a tenured teacher employed by the New York City Department of Education [DOE], was served with disciplinary charges initiated by his principal at Louis Armstrong Middle School.
DeMarco demanded a hearing on the charges to be conducted by a three-member panel* pursuant to Education Law §3020-a, and also demanded dismissal of the charges on the ground that “disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.”
DOE refused DeMarco’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4);** its agreement with the United Federation of Teachers did not provide for three-member disciplinary panels; and … the authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District involved.
The Commission dismissed DeMarco’s appeal for lack of personal jurisdiction after finding that DeMarco had not served the only agent authorized to accept service of his appeal on behalf of the DOE, the Office of the Corporation Counsel.
In addition, the Commissioner said that DeMarco’s appeal had to be dismissed because, as Commissioner, he no longer had subject matter jurisdiction. Education Law §3020-a was substantially amended in 1994 and the Commissioner no longer had jurisdiction to review either final or nonfinal determinations by disciplinary hearing officers.
The amendment, said the Commissioner, “specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges, citing Education Law §3020-a[c][iii] and [iv].” Accordingly, concluded the Commissioner, DeMarco’s request that he dismiss the charges would require a review of the merits, which review was no longer within his jurisdiction.
* §3020-a.2(c) provides that in the event the disciplinary charges concern pedagogical incompetence or issues involving pedagogical judgment, the educator may elect to have the hearing conducted by either a single hearing officer or a three-member panel. All other charges are to be heard by a single hearing officer.
** As the Court of Appeals indicated in Antinore v State, 40 NY2d 6, a collective bargaining agreement may provide for alternatives to the statutory provisions provided such modifications are consistent with administrative due process.
The full text of the Commissioners decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15850.htm
July 23, 2010
Applying the Rule of Three when there are tied scores involved
Applying the Rule of Three when there are tied scores involved
Source: A Google Alert received by NYPPL
A "Google Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in §61.1 of the Civil Service Law based on the following facts:
“I scored a 100 on a New York State civil service promotional exam. There were 7 openings for supervisor. Five candidates scored a 100. One of the four declined the promotional opportunity. The promotions were given to two eligibles who scored 100, four eligibles who scored 95, and one eligible who scored a 90.
“I am familiar with the "rule of three" and have researched New York State Civil Law, NYS CSL 61.1 in particular. Every example that is given refers to a situation in which one promotional opportunity is available. For example, if one eligible scores 100, one eligible scores 95, and one eligible scores 90, and all the other candidates score lower than 90, the rule of three means that the eligible who scored the 90 can be given the promotion over the two eligibles who scored higher that he/she did.
“However, I did not come across an example of how the rule of three would work when more than one position is available.”
NYPPL’s response:*
Considering the application of the Rule of Three on a “step-by-step basis,” the Rule of Three “works” as follows:
1. As to the five candidates receiving a score of 100, as one has declined, the four remaining eligibles are certified. Two are appointed, resulting in five vacancies yet remaining to which appointments may be made.**
2. The next group of candidates eligible for selection for appointment would consist of the two remaining candidates scoring 100 plus the four eligibles that received a score of 95, a total of six eligibles. The four eligibles attaining a score of 95 are appointed, leaving one vacancy yet to fill.
3. The next group of candidates eligible for selection for appointment would consist of the two candidates with a score of 100 and the one [or more] eligibles attaining a score of 90. A candidate who received a score of 90 on the examination may be lawfully selected, thereby filling the last available vacancy, without offending the Rule of Three.
Another example:
Ten candidates received scores of 100 while four achieved scores of 95 and one candidate had a score of 90. Again, one of the candidates attaining a score of 100 declines, leaving nine candidates with scores of 100 interested in being appointed. With seven vacancies available for appointment, the appointing authority may fill all, some or none of the vacancies but only the nine interested candidates attaining scores of 100 are "reachable" for appointment. Candidates receiving a score of less than 100 are not included on the list certified for appointment and thus are not part of the candidate pool. Why? Because once six appointments are made from among the nine eligibles attaining a score of 100, three eligibles remain available for selection to fill the seventh and last vacancy, thus triggering the Rule of Three.
If, however, a second eligible attaining a score of 100 were to decline the appointment, all four eligibles with a score of 95 would become eligible for appointment and they, together with the remaining eight eligibles have a score of 100, would constitute a pool of twelve individuals reachable for appointment and the appointing authority could select any seven of the twelve for the appointment.***
In other words, the number of candidates eligible for appointment at any particular point in time is a "moving target."
[NYPPL periodically post answers to selected general questions concerning public personnel law issues. Readers may e-mail their question to publications@nycap.rr.com]
* This analysis assumes that the "entire eligible list" consisted of ten eligibles: five candidates attaining a score of 100, four candidates attaining a score of 95 and one candidate attaining a score of 90. However, had there been more than one candidate attaining a score of 90, all the eligibles attaining a score of 90 would have been in the "candidate pool."
** N.B. An appointing authority is not required to use a mandatory eligible list and may, as a matter of discretion, elect not to fill the vacancy. On the other hand, an appointing authority may use a “non-mandatory” eligible list to fill a vacancy either on a permanent basis or on a provisional basis. However, if the appointing authority makes a provisional appointment “from a nonmandatory list,” the appointee may attain tenure in the position under certain circumstances [see Civil Service Law §65.4.] The seminal case that considered such an appointment situation is Matter of Roulette, 40 AD2d 611.
*** In some departments and agencies the appointing authority may elect, or pursuant to the terms of a collective bargaining agreement, be required to fill vacancies on the basis of the "Rule of the List" whereby individuals on an eligible list are appointed in the order of their rank or position on the list.
Source: A Google Alert received by NYPPL
A "Google Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in §61.1 of the Civil Service Law based on the following facts:
“I scored a 100 on a New York State civil service promotional exam. There were 7 openings for supervisor. Five candidates scored a 100. One of the four declined the promotional opportunity. The promotions were given to two eligibles who scored 100, four eligibles who scored 95, and one eligible who scored a 90.
“I am familiar with the "rule of three" and have researched New York State Civil Law, NYS CSL 61.1 in particular. Every example that is given refers to a situation in which one promotional opportunity is available. For example, if one eligible scores 100, one eligible scores 95, and one eligible scores 90, and all the other candidates score lower than 90, the rule of three means that the eligible who scored the 90 can be given the promotion over the two eligibles who scored higher that he/she did.
“However, I did not come across an example of how the rule of three would work when more than one position is available.”
NYPPL’s response:*
Considering the application of the Rule of Three on a “step-by-step basis,” the Rule of Three “works” as follows:
1. As to the five candidates receiving a score of 100, as one has declined, the four remaining eligibles are certified. Two are appointed, resulting in five vacancies yet remaining to which appointments may be made.**
2. The next group of candidates eligible for selection for appointment would consist of the two remaining candidates scoring 100 plus the four eligibles that received a score of 95, a total of six eligibles. The four eligibles attaining a score of 95 are appointed, leaving one vacancy yet to fill.
3. The next group of candidates eligible for selection for appointment would consist of the two candidates with a score of 100 and the one [or more] eligibles attaining a score of 90. A candidate who received a score of 90 on the examination may be lawfully selected, thereby filling the last available vacancy, without offending the Rule of Three.
Another example:
Ten candidates received scores of 100 while four achieved scores of 95 and one candidate had a score of 90. Again, one of the candidates attaining a score of 100 declines, leaving nine candidates with scores of 100 interested in being appointed. With seven vacancies available for appointment, the appointing authority may fill all, some or none of the vacancies but only the nine interested candidates attaining scores of 100 are "reachable" for appointment. Candidates receiving a score of less than 100 are not included on the list certified for appointment and thus are not part of the candidate pool. Why? Because once six appointments are made from among the nine eligibles attaining a score of 100, three eligibles remain available for selection to fill the seventh and last vacancy, thus triggering the Rule of Three.
If, however, a second eligible attaining a score of 100 were to decline the appointment, all four eligibles with a score of 95 would become eligible for appointment and they, together with the remaining eight eligibles have a score of 100, would constitute a pool of twelve individuals reachable for appointment and the appointing authority could select any seven of the twelve for the appointment.***
In other words, the number of candidates eligible for appointment at any particular point in time is a "moving target."
[NYPPL periodically post answers to selected general questions concerning public personnel law issues. Readers may e-mail their question to publications@nycap.rr.com]
* This analysis assumes that the "entire eligible list" consisted of ten eligibles: five candidates attaining a score of 100, four candidates attaining a score of 95 and one candidate attaining a score of 90. However, had there been more than one candidate attaining a score of 90, all the eligibles attaining a score of 90 would have been in the "candidate pool."
** N.B. An appointing authority is not required to use a mandatory eligible list and may, as a matter of discretion, elect not to fill the vacancy. On the other hand, an appointing authority may use a “non-mandatory” eligible list to fill a vacancy either on a permanent basis or on a provisional basis. However, if the appointing authority makes a provisional appointment “from a nonmandatory list,” the appointee may attain tenure in the position under certain circumstances [see Civil Service Law §65.4.] The seminal case that considered such an appointment situation is Matter of Roulette, 40 AD2d 611.
*** In some departments and agencies the appointing authority may elect, or pursuant to the terms of a collective bargaining agreement, be required to fill vacancies on the basis of the "Rule of the List" whereby individuals on an eligible list are appointed in the order of their rank or position on the list.
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CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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