Failing to investigate without more is not an adverse employment action
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.
Fincher v. Depository Trust & Clearing Corp., ____F.3d____ (2d Cir. May 14, 2010), is an important case, here. In this Title VII case, the 2d held that employer’s failure to investigate a complaint of alleged employment discrimination is not an adverse employment action taken in retaliation for the filing of the complaint. As the court states:
“We are of the view nonetheless that, at least in a run-of-the-mine case such as this one, an employer's failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discriminationcomplaint.
“We thus adopt the position previously taken by several district courts in this Circuit. See, e.g., Thomlison v. Sharp Elecs. Corp., No. 99 Civ. 9539, 2000 WL 1909774, at *4,2000 U.S. Dist. LEXIS 18979, at *12-13 (S.D.N.Y. Dec. 18, 2000). "Affirmative efforts to punish a complaining employee are at the heart of any retaliation claim." Id., 2000 WL1909774, at *4, 2000 U.S. Dist. LEXIS 18979, at *12.
“An employee whose complaint is not investigated cannot be said to have thereby suffered a punishment for bringing that same complaint: Her situation in the wake of her having made the complaint is the same as it would have been had she not brought the complaint or had the complaint been investigated but denied for good reason or for none at all. Put another way, an employee's knowledge that her employer has declined to investigate her complaint will not ordinarily constitute a threat of further harm, recognizing, of course, that it would hardly provide a positive incentive to lodge such a further challenge.
”We do not mean to suggest that failure to investigate a complaint cannot ever be considered an adverse employment action….”
Mitchell H. Rubinstein
The text of the decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/ac0eefa7-991f-4892-bce6-6153b07bd531/1/doc/08-5013-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ac0eefa7-991f-4892-bce6-6153b07bd531/1/hilite/
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 16, 2010
Claiming unemployment insurance benefits during the school's summer recess
Claiming unemployment insurance benefits during the school's summer recess
Huff v Sweeney, 222 A.D.2d 919
Teacher’s aides who are provided with a reasonable assurance of reemployment following a summer recess are ineligible for unemployment insurance benefits during the recess period.
Dennis Huff, challenged a denial of such benefits by the Unemployment Insurance Appeals Board. Huff, a teacher’s aide employed by the Buffalo City School District, was told that his employment would temporarily come to an end at the end of the school year and that his employment would resume in September.
Huff applied for unemployment insurance but his application was rejected on the grounds that “he had been given reasonable assurance that he would be rehired on the same terms in the fall.” The Appellate Division affirmed the Unemployment Insurance Appeals Board’s decision disqualifying Huff for benefits.
Huff v Sweeney, 222 A.D.2d 919
Teacher’s aides who are provided with a reasonable assurance of reemployment following a summer recess are ineligible for unemployment insurance benefits during the recess period.
Dennis Huff, challenged a denial of such benefits by the Unemployment Insurance Appeals Board. Huff, a teacher’s aide employed by the Buffalo City School District, was told that his employment would temporarily come to an end at the end of the school year and that his employment would resume in September.
Huff applied for unemployment insurance but his application was rejected on the grounds that “he had been given reasonable assurance that he would be rehired on the same terms in the fall.” The Appellate Division affirmed the Unemployment Insurance Appeals Board’s decision disqualifying Huff for benefits.
County department’s refusal to implement County's grievance committee’s determination held contrary to the CBA's grievance
County department’s refusal to implement County's grievance committee’s determination held contrary to the CBA's grievance procedure
Vaillancourt v Putnam County, 250 A.D.2d 617
Grievance procedures typically provide for a series of steps ultimately leading to arbitration. Pre-arbitration determinations are made by the employer’s designated representative, which may be a hearing officer or a panel.
Typically the appointing authority accepts and implements the findings of its designated representative. But what happens if the employee’s grievance is sustained by the employer’s designated representative, but employer refuses to implement it? This somewhat unusual circumstance is examined in the Vaillancourt case.
Patricia Vaillancourt filed a grievance after her employer, Putnam County, refused to grant her a lateral transfer from the County Department of Mental Hygiene to the County Department of Social Services.
The County Grievance Committee ruled in her favor at Step III of a five-step grievance procedure. But the Commissioner of the Department of Social Services refused to implement the Committee’s decision. When the County Executive refused to take action implementing the decision, Vaillancourt’s union sued.
Initially, the union lost. A State Supreme Court justice dismissed the union’s petition, observing that the union never took advantage of the fifth step of the grievance procedure -- proceeding to arbitration. The Supreme Court found that this constituted a failure to exhaust the available “administrative remedy.”
On appeal the Appellate Division reversed the lower court’s ruling. It said that the collective bargaining agreement provided for a “Step 4” appeal to the County Executive in the event the Grievance Committee dismissed the grievance. In contrast, the Court noted, “the agreement did not afford the County the same right in the event that the Committee sustained [Vaillancourt’s] grievance.”
Since the Grievance Committee sustained Vaillancourt’s grievance, the court concluded that this had been the final resolution of the grievance. The Appellate Division therefore held that Vaillancourt was entitled to have the decision in her favor enforced and that there was no need to go to arbitration.
There was a different outcome in a grievance case with similar procedural facts [Weed v Orange County, 209 A.D.2d 627; 209 A.D.2d 628].
Weed had been injured on the job and applied for leave with full pay, claiming he was eligible for such leave under the terms of the collective bargaining agreement then in effect. The Orange County Commissioner of Personnel disapproved Weed’s request. Weed filed a contract grievance and won at Step I, when his supervisor ruled in his favor. The Commissioner refused to implement the Step I decision and Weed sued.
The Appellate Division dismissed Weed’s petition, citing the language of the contract. Under the terms of the agreement “the Commissioner of Personnel is given sole discretion in granting paid leave.” Therefore, the issue was not grievable in the first place.
Presumably the Court would have enforced the decision by Weed’s immediate supervisor had the contract not reserved the authority to make paid leave decisions exclusively in the Commissioner.
Vaillancourt v Putnam County, 250 A.D.2d 617
Grievance procedures typically provide for a series of steps ultimately leading to arbitration. Pre-arbitration determinations are made by the employer’s designated representative, which may be a hearing officer or a panel.
Typically the appointing authority accepts and implements the findings of its designated representative. But what happens if the employee’s grievance is sustained by the employer’s designated representative, but employer refuses to implement it? This somewhat unusual circumstance is examined in the Vaillancourt case.
Patricia Vaillancourt filed a grievance after her employer, Putnam County, refused to grant her a lateral transfer from the County Department of Mental Hygiene to the County Department of Social Services.
The County Grievance Committee ruled in her favor at Step III of a five-step grievance procedure. But the Commissioner of the Department of Social Services refused to implement the Committee’s decision. When the County Executive refused to take action implementing the decision, Vaillancourt’s union sued.
Initially, the union lost. A State Supreme Court justice dismissed the union’s petition, observing that the union never took advantage of the fifth step of the grievance procedure -- proceeding to arbitration. The Supreme Court found that this constituted a failure to exhaust the available “administrative remedy.”
On appeal the Appellate Division reversed the lower court’s ruling. It said that the collective bargaining agreement provided for a “Step 4” appeal to the County Executive in the event the Grievance Committee dismissed the grievance. In contrast, the Court noted, “the agreement did not afford the County the same right in the event that the Committee sustained [Vaillancourt’s] grievance.”
Since the Grievance Committee sustained Vaillancourt’s grievance, the court concluded that this had been the final resolution of the grievance. The Appellate Division therefore held that Vaillancourt was entitled to have the decision in her favor enforced and that there was no need to go to arbitration.
There was a different outcome in a grievance case with similar procedural facts [Weed v Orange County, 209 A.D.2d 627; 209 A.D.2d 628].
Weed had been injured on the job and applied for leave with full pay, claiming he was eligible for such leave under the terms of the collective bargaining agreement then in effect. The Orange County Commissioner of Personnel disapproved Weed’s request. Weed filed a contract grievance and won at Step I, when his supervisor ruled in his favor. The Commissioner refused to implement the Step I decision and Weed sued.
The Appellate Division dismissed Weed’s petition, citing the language of the contract. Under the terms of the agreement “the Commissioner of Personnel is given sole discretion in granting paid leave.” Therefore, the issue was not grievable in the first place.
Presumably the Court would have enforced the decision by Weed’s immediate supervisor had the contract not reserved the authority to make paid leave decisions exclusively in the Commissioner.
August 13, 2010
Appointing an individual to serve as an election commissioner
Appointing an individual to serve as an election commissioner
Wood v County of Cortland, 72 AD3d 1447
County Legislature has the authority to appoint an Election Commissioner where the mechanism for making such an appointment set out in Election Law § 3-204 did not result in an appointment.
Wood v County of Cortland, 72 AD3d 1447
County Legislature has the authority to appoint an Election Commissioner where the mechanism for making such an appointment set out in Election Law § 3-204 did not result in an appointment.
Freedom of information requests related to disciplinary actions
Freedom of information requests related to disciplinary actions
Western Suffolk BOCES v Bay Shore UFSD, 250 A.D.2d 772
After the Bay Shore Union Free School District refused to honor Western Suffolk BOCES’ Freedom of Information [Section 87, Public Officers Law] request for the employment history of a teacher, BOCES won an order in State Supreme Court directing the District to provide it with certain documents, including some, but not all, material demanded by BOCES. Apparently some of the material demanded concerned disciplinary matters while other papers dealt with a “stipulation of settlement.”
The district, the teacher and BOCES all appealed. Although the district subsequently withdrew its appeal, the teacher continued his objection to the release of the material in the “sealed record” while BOCES pressed for those documents in the “sealed record on appeal” that the Supreme Court declined to have the district provide.
The Appellate Division modified the lower court’s order. It said that BOCES could not have certain pages in the “sealed record” that the lower court had ordered released and with respect to some other pages, the names of parents and students had to be redacted [obliterated] from the documents before BOCES could have them.
Specifically, the Appellate Division said that the lower court should not have directed the release of pages in the “sealed record” which recite or refer to unproven disciplinary charges. In contrast, the Appellate Division said that while BOCES was entitled to a copy of the “stipulation of settlement,” the names of the students and their parents mentioned in the stipulation should not be disclosed to BOCES.
Western Suffolk BOCES v Bay Shore UFSD, 250 A.D.2d 772
After the Bay Shore Union Free School District refused to honor Western Suffolk BOCES’ Freedom of Information [Section 87, Public Officers Law] request for the employment history of a teacher, BOCES won an order in State Supreme Court directing the District to provide it with certain documents, including some, but not all, material demanded by BOCES. Apparently some of the material demanded concerned disciplinary matters while other papers dealt with a “stipulation of settlement.”
The district, the teacher and BOCES all appealed. Although the district subsequently withdrew its appeal, the teacher continued his objection to the release of the material in the “sealed record” while BOCES pressed for those documents in the “sealed record on appeal” that the Supreme Court declined to have the district provide.
The Appellate Division modified the lower court’s order. It said that BOCES could not have certain pages in the “sealed record” that the lower court had ordered released and with respect to some other pages, the names of parents and students had to be redacted [obliterated] from the documents before BOCES could have them.
Specifically, the Appellate Division said that the lower court should not have directed the release of pages in the “sealed record” which recite or refer to unproven disciplinary charges. In contrast, the Appellate Division said that while BOCES was entitled to a copy of the “stipulation of settlement,” the names of the students and their parents mentioned in the stipulation should not be disclosed to BOCES.
August 12, 2010
Stipends that are not found to be “regular salary” or “summer session salary” excluded in determining educator’s final average salary
Stipends that are not found to be “regular salary” or “summer session salary” excluded in determining educator’s final average salary
O'Brien v New York State Teachers' Retirement System, 2010 NY Slip Op 51398(U), Decided on August 4, 2010, Supreme Court, Albany County, Judge Henry F. Zwack [Not selected for publication in the Official Reports]
Typically a schoolteacher has a 10-month professional obligation and school districts generally permit the educator to elect to receive his or her annual compensation over ten months in 21 periods or over twelve months in 26 payroll periods. In the event the educator elects to receive his or her annual salary in 26 payroll periods, the school district usually commences the 26 biweekly payroll mode for a person having a ten-month professional obligation [typically September 1 to the June 30 next following] in September. The individual actually would be underpaid for the period September through the following June 30 and payments received during July and August would constitute payment for past services already performed.*
In this CPLR Article 78 proceeding New York State Teacher's Retirement System [TRS] retiree Florence O’Brien contended that TRS improperly calculated her final average salary. She claimed that that TRS should have included the payments she had received in the 2006-07, 2007-08 and 2008-09 school years -- $4,000.00, $5,000.00 and $6,000.00 respectively --pursuant to the terms of a collective bargaining agreement.
The collective bargaining agreement provided for these stipends under what was called a "24-12" plan and O’Brien claimed that the stipends were for her work developing and teaching summer school programs.
TRS disagreed, arguing that "24-12" plan allows a teacher to receive his or her salary in 24 payments over 12 months, as opposed to only over the course of the academic year. In contrast, the collective bargaining agreement, said TRS, required participating teachers to "complete a total of 8 hours of work during each July and August." Accordingly, the System decided that such stipend payments “are not properly considered regular salary.”
TRS also noted that O’Brien’s work during the three relevant summers was not reported pursuant to the summer school salary schedule.**
Observing that “It is well established that when a court is reviewing an administrative determination, it ‘may not substitute its judgment for that of the agency making the determination but must determine whether the agency's decision has a rational basis and is not arbitrary and capricious,’” Judge Zwack ruled that the System’s determination that the stipends paid to O'Brien under the 24-12 plan was non-regular compensation was neither arbitrary nor capricious.
Significantly, the court noted that:
1. The stipend was in addition to base salary;
2. The payments under the 24-12 plan were not based on performance of teaching service and were fixed based upon a teacher's length of service;
3. The main purpose of the 24-12 plan appears to be to offer teachers an option to receive salary over the entire calendar year; and
4. That there was a separate arrangement for summer school teaching and compensation.
5. Accordingly, Judge Zwack sustained the Retirement System’s determination.
* If, on the other had, the district commenced its payroll for such personnel in July, such employees would be receiving payments during July and August for work yet to be performed during the following academic year, i.e., the following September-June school year period. In Guilderland CSD v Trombetta [Not selected for publication in the Official Reports] the court said that "Where a school district employee is paid more than the per diem value of his or her annual salary, and thereafter fails to complete the temporal period of work he or she is obligated to perform, there must be a per diem adjustment of salary paid, so as to equate salary paid with work performed, and a return to the school district of any overpayment computed on such basis."
** TRS conceded that “summer school compensation constitutes regular salary,” but concluded that the stipend payments claimed by O’Brien for the purposes of determining her “final average salary” were payments separate and distinct from summer school compensation.
The text of the decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51398.htm
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O'Brien v New York State Teachers' Retirement System, 2010 NY Slip Op 51398(U), Decided on August 4, 2010, Supreme Court, Albany County, Judge Henry F. Zwack [Not selected for publication in the Official Reports]
Typically a schoolteacher has a 10-month professional obligation and school districts generally permit the educator to elect to receive his or her annual compensation over ten months in 21 periods or over twelve months in 26 payroll periods. In the event the educator elects to receive his or her annual salary in 26 payroll periods, the school district usually commences the 26 biweekly payroll mode for a person having a ten-month professional obligation [typically September 1 to the June 30 next following] in September. The individual actually would be underpaid for the period September through the following June 30 and payments received during July and August would constitute payment for past services already performed.*
In this CPLR Article 78 proceeding New York State Teacher's Retirement System [TRS] retiree Florence O’Brien contended that TRS improperly calculated her final average salary. She claimed that that TRS should have included the payments she had received in the 2006-07, 2007-08 and 2008-09 school years -- $4,000.00, $5,000.00 and $6,000.00 respectively --pursuant to the terms of a collective bargaining agreement.
The collective bargaining agreement provided for these stipends under what was called a "24-12" plan and O’Brien claimed that the stipends were for her work developing and teaching summer school programs.
TRS disagreed, arguing that "24-12" plan allows a teacher to receive his or her salary in 24 payments over 12 months, as opposed to only over the course of the academic year. In contrast, the collective bargaining agreement, said TRS, required participating teachers to "complete a total of 8 hours of work during each July and August." Accordingly, the System decided that such stipend payments “are not properly considered regular salary.”
TRS also noted that O’Brien’s work during the three relevant summers was not reported pursuant to the summer school salary schedule.**
Observing that “It is well established that when a court is reviewing an administrative determination, it ‘may not substitute its judgment for that of the agency making the determination but must determine whether the agency's decision has a rational basis and is not arbitrary and capricious,’” Judge Zwack ruled that the System’s determination that the stipends paid to O'Brien under the 24-12 plan was non-regular compensation was neither arbitrary nor capricious.
Significantly, the court noted that:
1. The stipend was in addition to base salary;
2. The payments under the 24-12 plan were not based on performance of teaching service and were fixed based upon a teacher's length of service;
3. The main purpose of the 24-12 plan appears to be to offer teachers an option to receive salary over the entire calendar year; and
4. That there was a separate arrangement for summer school teaching and compensation.
5. Accordingly, Judge Zwack sustained the Retirement System’s determination.
* If, on the other had, the district commenced its payroll for such personnel in July, such employees would be receiving payments during July and August for work yet to be performed during the following academic year, i.e., the following September-June school year period. In Guilderland CSD v Trombetta [Not selected for publication in the Official Reports] the court said that "Where a school district employee is paid more than the per diem value of his or her annual salary, and thereafter fails to complete the temporal period of work he or she is obligated to perform, there must be a per diem adjustment of salary paid, so as to equate salary paid with work performed, and a return to the school district of any overpayment computed on such basis."
** TRS conceded that “summer school compensation constitutes regular salary,” but concluded that the stipend payments claimed by O’Brien for the purposes of determining her “final average salary” were payments separate and distinct from summer school compensation.
The text of the decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51398.htm
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Amending local civil service commission rules
Amending local civil service commission rules
Formal Opinion of the Attorney General, 98-F3
The New York City Council “jurisdictionally reclassified” a number of city positions without first holding a public hearing concerning the change. New York City’s Director of Personnel advised the State Civil Service Commission that under the circumstances he believed that the State Commission had “no authority to disapprove the proposed changes and should simply note them in its records.”
The State Commission asked the Attorney General for his views concerning the State Commission’s authority under the circumstances. The Attorney General began his analysis by noting that in such matters the courts “have required strict compliance with Section 20.2,” citing Joyce v Ortiz, 108 AD2d 158.
Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process. Such rules, including the Rules promulgated by the State Commission itself, also provide for the enumeration of positions placed in the exempt, noncompetitive or labor classes by the local commission. All positions in the classified service are automatically in the competitive class unless placed in a different jurisdictional classification by the State Legislature or the State Civil Service Commission.
The key to resolving the issue turned on whether a municipal legislative body was to be equated to the State Legislature for the purposes of Section 20.2, because that Section provides an exception for the Legislature. Section 20.2 specifically indicates that no public hearing is required upon the adoption or modification of a rule required “by reason of a change in any statute in order to confirm the rule to the statute.”
The Attorney General concluded that exception set out in Section 20.2 for conforming to a change in the law “is best given effect by reading ‘statute’ as a reference to a State law, rather than a local enactment.” Accordingly, he advised the State Commission that a political subdivision of the state must comply with the notice, hearing and approval procedures set out in Section 20 if it wishes to amend its personnel rules, including adopting amendments establishing new titles in other than the competitive class and jurisdictionally reclassifying existing positions.
Formal Opinion of the Attorney General, 98-F3
The New York City Council “jurisdictionally reclassified” a number of city positions without first holding a public hearing concerning the change. New York City’s Director of Personnel advised the State Civil Service Commission that under the circumstances he believed that the State Commission had “no authority to disapprove the proposed changes and should simply note them in its records.”
The State Commission asked the Attorney General for his views concerning the State Commission’s authority under the circumstances. The Attorney General began his analysis by noting that in such matters the courts “have required strict compliance with Section 20.2,” citing Joyce v Ortiz, 108 AD2d 158.
Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process. Such rules, including the Rules promulgated by the State Commission itself, also provide for the enumeration of positions placed in the exempt, noncompetitive or labor classes by the local commission. All positions in the classified service are automatically in the competitive class unless placed in a different jurisdictional classification by the State Legislature or the State Civil Service Commission.
The key to resolving the issue turned on whether a municipal legislative body was to be equated to the State Legislature for the purposes of Section 20.2, because that Section provides an exception for the Legislature. Section 20.2 specifically indicates that no public hearing is required upon the adoption or modification of a rule required “by reason of a change in any statute in order to confirm the rule to the statute.”
The Attorney General concluded that exception set out in Section 20.2 for conforming to a change in the law “is best given effect by reading ‘statute’ as a reference to a State law, rather than a local enactment.” Accordingly, he advised the State Commission that a political subdivision of the state must comply with the notice, hearing and approval procedures set out in Section 20 if it wishes to amend its personnel rules, including adopting amendments establishing new titles in other than the competitive class and jurisdictionally reclassifying existing positions.
A disciplinary hearing determination cannot be annulled by the court if the record supports the determination
A disciplinary hearing determination cannot be annulled by the court if the record supports the determination
Marden v Town of Bedford, 249 A.D.2d 547
The Town of Bedford Supervisor asked the Town’s Chief of Police, David M. Marden, to provide him with a copy of a report concerning alleged police misconduct. When the chief failed to comply with the directive, a number disciplinary charges were served on him. Among these were charges that alleged that Marden failed to comply with a lawful order to provide the report on five occasions: February 12, 16, 23, 27 and 28. Found guilty of misconduct, Marden was dismissed from his position.
Marden appealed. The Appellate Division said that Marden could not be guilty of insubordination on February 12 and 16, because the report in question had not been completed until February 21. Accordingly, the finding of guilt concerning charges involving these dates were not supported by substantial evidence.
The Appellate Division sustained the findings of misconduct with respect to Marden’s refusal to comply with the Supervisor’s directives on February 23, 27 and 28.
The court said an administrative determination made after a hearing cannot be annulled unless it is shown that there is no substantial evidence in the record to support the determination. Here it was found that the hearing record supported the determination that Marden “willfully refused to comply with a proper directive to turn over the investigative report....”
As to the penalty imposed, dismissal, the Appellate Division held that the penalty satisfied the Pell standard [Pell v Board of Education, 34 NY2 222] as Marden’s dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness.
Marden v Town of Bedford, 249 A.D.2d 547
The Town of Bedford Supervisor asked the Town’s Chief of Police, David M. Marden, to provide him with a copy of a report concerning alleged police misconduct. When the chief failed to comply with the directive, a number disciplinary charges were served on him. Among these were charges that alleged that Marden failed to comply with a lawful order to provide the report on five occasions: February 12, 16, 23, 27 and 28. Found guilty of misconduct, Marden was dismissed from his position.
Marden appealed. The Appellate Division said that Marden could not be guilty of insubordination on February 12 and 16, because the report in question had not been completed until February 21. Accordingly, the finding of guilt concerning charges involving these dates were not supported by substantial evidence.
The Appellate Division sustained the findings of misconduct with respect to Marden’s refusal to comply with the Supervisor’s directives on February 23, 27 and 28.
The court said an administrative determination made after a hearing cannot be annulled unless it is shown that there is no substantial evidence in the record to support the determination. Here it was found that the hearing record supported the determination that Marden “willfully refused to comply with a proper directive to turn over the investigative report....”
As to the penalty imposed, dismissal, the Appellate Division held that the penalty satisfied the Pell standard [Pell v Board of Education, 34 NY2 222] as Marden’s dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness.
August 11, 2010
Public employees personal E-mails exempt from disclosure from FOIL
Public employees personal E-mails exempt from disclosure from FOIL
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.
The Wisconsin Supreme Court held in Schill v. Wisconsin Rapids School District, 2010 WI 86 (July 16, 2010), that purely personal e-mails of public employees sent from workplace computers and e-mail accounts are protected from disclosure to a third party under the state Public Records Law. While the justices differed in whether such emails are even public records, a majority of the court determined that a public records custodian “should not release contents of emails that are purely personal and evince no violation of law or policy.”
This is a significant decision. Few businesses could operate today without the use of email. It is also likely that employees will sometimes use an employer's email system for personal use. Whether an email is “purely personal” will be based on a case-by-case determination, as the court makes clear that the contents of apparently personal e-mails could require disclosure if the email has some connection to a government function.
The decision involves only disclosure of personal email to third parties under the Public Records Law. The case does not involve the right of government employers to monitor, review or have access to the personal emails of public employees using the government email system.
Law review commentary on this important subject would be most welcome.
The Court’s complete opinion can be found at:
http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=52285
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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.
The Wisconsin Supreme Court held in Schill v. Wisconsin Rapids School District, 2010 WI 86 (July 16, 2010), that purely personal e-mails of public employees sent from workplace computers and e-mail accounts are protected from disclosure to a third party under the state Public Records Law. While the justices differed in whether such emails are even public records, a majority of the court determined that a public records custodian “should not release contents of emails that are purely personal and evince no violation of law or policy.”
This is a significant decision. Few businesses could operate today without the use of email. It is also likely that employees will sometimes use an employer's email system for personal use. Whether an email is “purely personal” will be based on a case-by-case determination, as the court makes clear that the contents of apparently personal e-mails could require disclosure if the email has some connection to a government function.
The decision involves only disclosure of personal email to third parties under the Public Records Law. The case does not involve the right of government employers to monitor, review or have access to the personal emails of public employees using the government email system.
Law review commentary on this important subject would be most welcome.
The Court’s complete opinion can be found at:
http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=52285
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Confidentiality of police records
Confidentiality of police records
Baez v City of New York, NYS Supreme Court, [Not selected for publication in the Official Reports]
A number of law enforcement agencies have procedures similar to those of the New York City Police Department Patrol Guide Section 118-9, which compels an officer to participate in an interview process coupled with the promise that the statement provided by the officer will not be used against him or her in any criminal proceeding. Characterized as GO-15 or IAD interviews, these NYPD statements are typically comprehensive and provide a substitute for a deposition.
In the Baez case New York State Supreme Court Justice McKeon set out the guidelines usually followed with respect to the release of such statements to the press and, or, to the public.
Justice McKeon said that the release of such records is governed by three statutes: Public Officers Law Section 87 (Freedom of Information Law or FOIL); Civil Rights Law Section 50-a (Right of Privacy for personnel records of police officers and others); and CPLR Section 3101 (Scope of Disclosure).
As to FOIL, Justice McKeon held that Section 87 allows access by any member of the public to governmental agency records, unless they are specifically exempted from disclosure by statute or constitute inter-agency or intra-agency materials, which are not inter alia final agency policy or determinations. He concluded that these types of records fall within that exemption from disclosure to the public under FOIL as predecisional interagency materials.
Civil Rights Law Section 50-a, said Justice McKeon, declares personnel records of police officers to be confidential material, not subject to disclosure without the express written consent of the officer or as mandated by lawful court order. It was noted, however, that the use of such records by a governmental entity, such as releasing summary of internal investigation of instances of police misconduct, is not precluded by Section 50-a because that use is unrelated to the purpose of the statute.
Justice McKeon next considered CPLR Section 3101, the discovery statute. This section, it was noted, provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.” The Court concluded that based on the protections provided by these statutes, “GO-15 statements and IAD records are considered confidential per statute unless they are released through consent or by lawful court order.” Justice McKeon also observed that “confidential” in Civil Rights Law Section 50-a is analogous to “privileged” within the meaning of CPLR Section 3101.
Justice McKeon also ruled that such statements are exempted from disclosure to the general public under the Freedom of Information Law, Public Officers’ Law Section 87.
The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/
Baez v City of New York, NYS Supreme Court, [Not selected for publication in the Official Reports]
A number of law enforcement agencies have procedures similar to those of the New York City Police Department Patrol Guide Section 118-9, which compels an officer to participate in an interview process coupled with the promise that the statement provided by the officer will not be used against him or her in any criminal proceeding. Characterized as GO-15 or IAD interviews, these NYPD statements are typically comprehensive and provide a substitute for a deposition.
In the Baez case New York State Supreme Court Justice McKeon set out the guidelines usually followed with respect to the release of such statements to the press and, or, to the public.
Justice McKeon said that the release of such records is governed by three statutes: Public Officers Law Section 87 (Freedom of Information Law or FOIL); Civil Rights Law Section 50-a (Right of Privacy for personnel records of police officers and others); and CPLR Section 3101 (Scope of Disclosure).
As to FOIL, Justice McKeon held that Section 87 allows access by any member of the public to governmental agency records, unless they are specifically exempted from disclosure by statute or constitute inter-agency or intra-agency materials, which are not inter alia final agency policy or determinations. He concluded that these types of records fall within that exemption from disclosure to the public under FOIL as predecisional interagency materials.
Civil Rights Law Section 50-a, said Justice McKeon, declares personnel records of police officers to be confidential material, not subject to disclosure without the express written consent of the officer or as mandated by lawful court order. It was noted, however, that the use of such records by a governmental entity, such as releasing summary of internal investigation of instances of police misconduct, is not precluded by Section 50-a because that use is unrelated to the purpose of the statute.
Justice McKeon next considered CPLR Section 3101, the discovery statute. This section, it was noted, provides that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.” The Court concluded that based on the protections provided by these statutes, “GO-15 statements and IAD records are considered confidential per statute unless they are released through consent or by lawful court order.” Justice McKeon also observed that “confidential” in Civil Rights Law Section 50-a is analogous to “privileged” within the meaning of CPLR Section 3101.
Justice McKeon also ruled that such statements are exempted from disclosure to the general public under the Freedom of Information Law, Public Officers’ Law Section 87.
The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/
PERB may elect to defer its consideration of unfair labor practice charge
PERB may elect to defer its consideration of unfair labor practice charge
PBA and Village of Ossining, 30 PERB 4711
PERB sometimes elects to defer considering unfair labor practice charges filed by an individual or an organization. It typically does so when there is some other procedure available that could address and resolve the issues that motivated the filing of the charge in the first instance. The Ossining PBA case provides an example of such a situation.
Ossining Chief of Police Joseph Burton “unilaterally changed the work schedule” of PBA unit members in an apparent effort to avoid paying holiday pay. Had the “natural rotation” of the work chart had not been altered, certain officers would have earned holiday pay.
The PBA protested the change and filed an unfair labor practice charge with PERB. PERB discovered that the PBA had also filed contract grievance concerning the matter, however.
The parties agreed to defer pressing the issue before PERB pending the resolution of the grievance.
PERB Administrative Law Judge Sandra M. Nathan observed that “it is appropriate to defer deciding whether the [Taylor Law] precludes the exercise of jurisdiction by PERB, pending the outcome of the grievance which has been filed.” She “conditionally dismissed” the PBA complaint.
What would be the result if the PBA had not already filed a grievance?
Assuming (1) that a contract grievance procedure was available, (2) that the issue appeared appropriate for submission as a contract grievance, and (3) that these facts were disclosed to the administrative law judge, the ALJ probably would have conditionally dismissed the complaint and directed the parties to first submit the matter for resolution through the grievance procedure.
PBA and Village of Ossining, 30 PERB 4711
PERB sometimes elects to defer considering unfair labor practice charges filed by an individual or an organization. It typically does so when there is some other procedure available that could address and resolve the issues that motivated the filing of the charge in the first instance. The Ossining PBA case provides an example of such a situation.
Ossining Chief of Police Joseph Burton “unilaterally changed the work schedule” of PBA unit members in an apparent effort to avoid paying holiday pay. Had the “natural rotation” of the work chart had not been altered, certain officers would have earned holiday pay.
The PBA protested the change and filed an unfair labor practice charge with PERB. PERB discovered that the PBA had also filed contract grievance concerning the matter, however.
The parties agreed to defer pressing the issue before PERB pending the resolution of the grievance.
PERB Administrative Law Judge Sandra M. Nathan observed that “it is appropriate to defer deciding whether the [Taylor Law] precludes the exercise of jurisdiction by PERB, pending the outcome of the grievance which has been filed.” She “conditionally dismissed” the PBA complaint.
What would be the result if the PBA had not already filed a grievance?
Assuming (1) that a contract grievance procedure was available, (2) that the issue appeared appropriate for submission as a contract grievance, and (3) that these facts were disclosed to the administrative law judge, the ALJ probably would have conditionally dismissed the complaint and directed the parties to first submit the matter for resolution through the grievance procedure.
August 10, 2010
Final regulations for filing Form I-9, Employment Eligibility Verification to become effective August 23, 2010
Final regulations for filing Form I-9, Employment Eligibility Verification to become effective August 23, 2010
Source: 75 Federal Register 42575
Section 274A of the Immigration and Nationality Act, as amended (INA), see 8 U.S.C. 1324a, requires all U.S. employers, agricultural associations, agricultural employers, farm labor contractors, or persons or other entities that recruit or refer persons for employment for a fee, to verify the employment authorization and identity of all employees hired to work in the United States after November 6, 1986.
To comply with the law, an employer is responsible for the completion of a Form I-9, the Employment Eligibility Verification (Form I-9), for each new employee, including United States citizens.
The Department of Homeland Security has issued final regulations to provide that employers who are required to complete and retain the Form I-9, Employment Eligibility Verification may sign the form electronically and retain the form in an electronic format.
The final rule is effective August 23, 2010 and essentially requires that employers complete the required Form I-9 within three business days. The employer may use paper, electronic systems, or a combination of paper and electronic systems for this purpose.
The Form I-9, available to the public in numerous paper and electronic forms, since 1986, is now available online at the U.S. Citizenship and Immigration Services (USCIS) Web site as a Portable Document Format (.pdf) fillable and printable form. The form is posted on the Internet at http://uscis.gov/files/form/i-9.pdf.
In addition, the Handbook for Employers published by the Department of Homeland Security setting out instructions for completing the Form I-9 (a.k.a. the Employment Eligibility Verification Form) is posted on the Internet at:
http://www.bipc.com/images/newsletters/M-274_I-9_Handbook.pdf
The text of the Department of Homeland Security's Final Regulation is posted on the Internet at: http://www.federalregister.gov/articles/2010/07/22/2010-17806/electronic-signature-and-storage-of-form-i9-employment-eligibility-verification
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Source: 75 Federal Register 42575
Section 274A of the Immigration and Nationality Act, as amended (INA), see 8 U.S.C. 1324a, requires all U.S. employers, agricultural associations, agricultural employers, farm labor contractors, or persons or other entities that recruit or refer persons for employment for a fee, to verify the employment authorization and identity of all employees hired to work in the United States after November 6, 1986.
To comply with the law, an employer is responsible for the completion of a Form I-9, the Employment Eligibility Verification (Form I-9), for each new employee, including United States citizens.
The Department of Homeland Security has issued final regulations to provide that employers who are required to complete and retain the Form I-9, Employment Eligibility Verification may sign the form electronically and retain the form in an electronic format.
The final rule is effective August 23, 2010 and essentially requires that employers complete the required Form I-9 within three business days. The employer may use paper, electronic systems, or a combination of paper and electronic systems for this purpose.
The Form I-9, available to the public in numerous paper and electronic forms, since 1986, is now available online at the U.S. Citizenship and Immigration Services (USCIS) Web site as a Portable Document Format (.pdf) fillable and printable form. The form is posted on the Internet at http://uscis.gov/files/form/i-9.pdf.
In addition, the Handbook for Employers published by the Department of Homeland Security setting out instructions for completing the Form I-9 (a.k.a. the Employment Eligibility Verification Form) is posted on the Internet at:
http://www.bipc.com/images/newsletters/M-274_I-9_Handbook.pdf
The text of the Department of Homeland Security's Final Regulation is posted on the Internet at: http://www.federalregister.gov/articles/2010/07/22/2010-17806/electronic-signature-and-storage-of-form-i9-employment-eligibility-verification
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U.S. Department of Labor expands definition of “son” or “daughter” for FMLA purposes
U.S. Department of Labor expands definition of “son” or “daughter” for FMLA purposes
Source: Roetzel & Andress , Douglas M. Kennedy, Esq.
[http://www.ralaw.com/about.cfm?sp=overview ]
An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.
The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave.
Source: Roetzel & Andress , Douglas M. Kennedy, Esq.
[http://www.ralaw.com/about.cfm?sp=overview ]
An Administrator's Interpretation Letter on June 22, 2010 from the Department of Labor has clarified the definition of son or daughter as it applies to an employee taking FMLA leave to care for a newborn, newly placed or sick child. Using the portion of FMLA referring to the term "in loco parentis," the DOL's letter states that one does not have to have a biological or legal relationship with the child to be able to take FMLA leave. One must look at factors like the age of the child, the degree to which the child is dependent on the person providing care, the amount of support provided and the extent to which duties commonly associated with parenthood are exercised.
The letter specifically refers to an employee caring for his or her unmarried partner's child, as well as a grandparent, aunt or uncle, as examples of those who could stand "in loco parentis," and also says that an employee must only provide "a simple statement asserting that the requisite family relationship exists" in order to support a request for leave.
Security records were properly admitted into evidence by disciplinary hearing officer
Security records were properly admitted into evidence by disciplinary hearing officer
Peil v Beirne, 72 AD3d 1095*
In this appeal the Appellate Division held:
1. Security records were properly admitted into evidence by disciplinary hearing officer.
2. The existence of another, alternative rational conclusion does not warrant annulment of the appointing authority’s conclusion that Peil was guilty of the charges preferred against him, citing Incorporated Vill. of Lake Success v New York State Public Employment Relations Board, 41 AD3d 599.
* Text of decision e-mailed to registered readers.
Peil v Beirne, 72 AD3d 1095*
In this appeal the Appellate Division held:
1. Security records were properly admitted into evidence by disciplinary hearing officer.
2. The existence of another, alternative rational conclusion does not warrant annulment of the appointing authority’s conclusion that Peil was guilty of the charges preferred against him, citing Incorporated Vill. of Lake Success v New York State Public Employment Relations Board, 41 AD3d 599.
* Text of decision e-mailed to registered readers.
The status of the individual performing services for a public employer may be critical in determining liability
The status of the individual performing services for a public employer may be critical in determining liability
Czark v Hauppauge UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]
The Czark case illustrates that the status of the individual performing services for a public employer may be critical in determining whether or not the public employer will be held liable for an injury to an individual.
A Hauppauge Union Free School District student complained that in the course of a school sports physical examination the examining physician “touched and fondled her breast.” The student and her mother sued the district and the physician allegedly involved. Hauppauge asked State Supreme Court Justice Floyd to dismiss it from the law suit, contending that (a) the physician alleged to have touched the student was “an independent contractor and not an employee of the school district” and that (b) the district “had no knowledge of any prior sexual propensities” of the physician.
Justice Floyd said that a school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties. Here, however, Justice Floyd ruled that the record clearly establishes an independent contractor status between the school district and the physician.
The defendant physician was the associate of the physician that was under contract with the district to provide medical services to the school district and was paid a scheduled fee for services performed. Also noted was the fact that the contracting physician was not named as a party to the action.
Accordingly, Justice Floyd dismissed the claims against the District for negligent supervision, negligent hiring and vicarious liability because, he said, “[t]here are no terms and conditions contained within this contract that would permit this Court to conclude that an employer/employee relationship had been established.”
The Court, however, refused to dismiss the suit filed against the physician by the student for the alleged battery and by her parent for the alleged “loss of services.”
Czark v Hauppauge UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]
The Czark case illustrates that the status of the individual performing services for a public employer may be critical in determining whether or not the public employer will be held liable for an injury to an individual.
A Hauppauge Union Free School District student complained that in the course of a school sports physical examination the examining physician “touched and fondled her breast.” The student and her mother sued the district and the physician allegedly involved. Hauppauge asked State Supreme Court Justice Floyd to dismiss it from the law suit, contending that (a) the physician alleged to have touched the student was “an independent contractor and not an employee of the school district” and that (b) the district “had no knowledge of any prior sexual propensities” of the physician.
Justice Floyd said that a school district, like any other employer, may be held vicariously liable under the doctrine of respondeat superior for a tort committed by an employee in the course of the performance of the employee’s duties. Here, however, Justice Floyd ruled that the record clearly establishes an independent contractor status between the school district and the physician.
The defendant physician was the associate of the physician that was under contract with the district to provide medical services to the school district and was paid a scheduled fee for services performed. Also noted was the fact that the contracting physician was not named as a party to the action.
Accordingly, Justice Floyd dismissed the claims against the District for negligent supervision, negligent hiring and vicarious liability because, he said, “[t]here are no terms and conditions contained within this contract that would permit this Court to conclude that an employer/employee relationship had been established.”
The Court, however, refused to dismiss the suit filed against the physician by the student for the alleged battery and by her parent for the alleged “loss of services.”
August 09, 2010
In a law enforcement environment, safety interests trump sincere religious beliefs
In a law enforcement environment, safety interests trump sincere religious beliefs
Equal Employment Opportunity Commission v The GEO Group, Inc., USCA 3rd Circuit, No. 09-3093
GEO, a private company, contracted to run the George W. Hill Correctional Facility, the prison for Delaware County, Pennsylvania.
In April 2005, the Hill Facility instituted a dress policy that provided that “[n]o hats or caps will be permitted to be worn in the facility unless issued with the uniform.” The new policy also stated that “[s]carves and hooded jackets or sweatshirts will not be permitted past the Front Security Desk.”
These directives were interpreted to prohibit the wearing of a khimar, an “Islamic religious head scarf, designed to cover the hair, forehead, sides of the neck, shoulders, and chest,” which was until then worn by some female Muslim employees inside of the Hill Facility.
EEOC filed a lawsuit on behalf of a class of Muslim women employees against GEO, contending that GEO violated Title VII's prohibitions on religious discrimination when it failed to accommodate the Muslim female employees by providing them an exception to the prison's dress policy that prevented them from wearing khimars at work.
The Circuit Court affirmed the federal district court’s decision granting GEO's motion for summary judgment dismissing EEOC’s complaint.
The district court had cited Webb v. City of Philadelphia, 562 F.3d 256,* in support of its ruling.
In Webb the US Circuit Court of Appeals, 3rd Circuit, held that regardless of the sincere religious beliefs of certain police officer of the need to wear a khimar, their belief had to yield to the Philadelphia's police department's policy prohibiting the wearing of a khimar while on duty because "safety is undoubtedly an interest of the greatest importance."
* The Webb decision is posted on the Internet at http://www.ca3.uscourts.gov/opinarch/073081p.pdf
The GEO decision is posted on the Internet at: http://www.ca3.uscourts.gov/opinarch/093093p.pdf
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Equal Employment Opportunity Commission v The GEO Group, Inc., USCA 3rd Circuit, No. 09-3093
GEO, a private company, contracted to run the George W. Hill Correctional Facility, the prison for Delaware County, Pennsylvania.
In April 2005, the Hill Facility instituted a dress policy that provided that “[n]o hats or caps will be permitted to be worn in the facility unless issued with the uniform.” The new policy also stated that “[s]carves and hooded jackets or sweatshirts will not be permitted past the Front Security Desk.”
These directives were interpreted to prohibit the wearing of a khimar, an “Islamic religious head scarf, designed to cover the hair, forehead, sides of the neck, shoulders, and chest,” which was until then worn by some female Muslim employees inside of the Hill Facility.
EEOC filed a lawsuit on behalf of a class of Muslim women employees against GEO, contending that GEO violated Title VII's prohibitions on religious discrimination when it failed to accommodate the Muslim female employees by providing them an exception to the prison's dress policy that prevented them from wearing khimars at work.
The Circuit Court affirmed the federal district court’s decision granting GEO's motion for summary judgment dismissing EEOC’s complaint.
The district court had cited Webb v. City of Philadelphia, 562 F.3d 256,* in support of its ruling.
In Webb the US Circuit Court of Appeals, 3rd Circuit, held that regardless of the sincere religious beliefs of certain police officer of the need to wear a khimar, their belief had to yield to the Philadelphia's police department's policy prohibiting the wearing of a khimar while on duty because "safety is undoubtedly an interest of the greatest importance."
* The Webb decision is posted on the Internet at http://www.ca3.uscourts.gov/opinarch/073081p.pdf
The GEO decision is posted on the Internet at: http://www.ca3.uscourts.gov/opinarch/093093p.pdf
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Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee
Determining the disciplinary penalty to be imposed following conviction of a crime underlying the disciplinary action taken against the employee
Garippa v New York City Bd. of Ed., NYS Supreme Court, [Not selected for publication in the Official Reports]
A Section 3020-a arbitrator found Michael Garippa, a New York City school teacher, guilty of conduct unbecoming the profession and authorized his termination.
Garippa, a tenured English teacher at Franklin D. Roosevelt High School in Brooklyn, was arrested by federal authorities and charged with conspiracy to distribute steroids.
Garippa subsequently pleaded guilty to one count of Conspiracy to Distribute a Controlled Substance and was sentenced to serve three years of probation and six months of home confinement; to perform 200 hours of community service by coaching children’s sports teams; and to continue drug counseling.
Section 3020-a Hearing Officer Jacquelin F. Drucker concluded that “... the question before this hearing officer relates not to guilt or innocence but to the proper level of discipline for the conduct at issue.”*
Drucker decided that Board was authorized to remove Garippa as a teacher because of two factors:
1. Newspaper reports identifying Garippa, his occupation and his employer, allegedly caused the board to suffer “unfortunate, unpleasant publicity”; and
2. The fact that “Respondent’s initial contact with the purchaser was made at a school function.”
Garippa appealed to the state Supreme Court and Justice H. Freedman granted Garippa’s petition and vacated the hearing officer’s decision. He then remanded the case to the Board for reconsideration.
Justice Freedman observed that the hearing officer did not suggest that Garippa could be trusted to work with children. The offense occurred off-duty and off-premises. The Court concluded that the hearing officer’s decision “was based on an assumption that Garippa’s guilty plea automatically constituted guilt of conduct unbecoming the profession,” rather than on an express finding to that effect.
This was improper, Justice Freedman said. Section 3020-a guarantees that the employee shall have full and fair disclosure of the nature of the case and evidence against him.
According to Justice Freedman, Garippa was neither told beforehand that the articles or the “bad publicity” would be the basis for either a finding of guilt or a determination of penalty nor was he ever shown copies of the articles, which were the subject of his cross-examination.
Since the newspaper articles were not submitted into evidence, Justice Freedman said that they were not part of the reviewable record before the court. In addition, Justice Freedman pointed out that “it is improper for an administrative agency [or an arbitrator] to base a decision of an adjudicatory nature upon evidence outside of the record.”
The court said the school board raised a legitimate issue regarding publicity because it has a right to protect the reputation of the institution. But since Garippa was denied an opportunity to address and rebut this allegation, the arbitrator’s determination was made without prior notice and lacked evidentiary basis.
The lesson here appears to be that an appointing authority cannot assume that a conviction of a crime will be sufficient to find an individual guilty of embarrassing it and justify its imposition of a penalty. Rather, the appointing authority must prove each and every element of it allegations, including those factors underlying the reason for bringing the disciplinary action in the first instance.
* N.B. In Kelly v. Levin, 440 NY2d 424, the Court of Appeals ruled that is a reversable error for an administrative disciplinary body to acquit an employee in a disciplinary action if the individual had earlier been found guilty of a criminal act involving the same allegations.
The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/
[Registration required]
============================================
If you are interested in learning more about disciplinary actions please click here: http://thedisciplinebook.blogspot.com/
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Garippa v New York City Bd. of Ed., NYS Supreme Court, [Not selected for publication in the Official Reports]
A Section 3020-a arbitrator found Michael Garippa, a New York City school teacher, guilty of conduct unbecoming the profession and authorized his termination.
Garippa, a tenured English teacher at Franklin D. Roosevelt High School in Brooklyn, was arrested by federal authorities and charged with conspiracy to distribute steroids.
Garippa subsequently pleaded guilty to one count of Conspiracy to Distribute a Controlled Substance and was sentenced to serve three years of probation and six months of home confinement; to perform 200 hours of community service by coaching children’s sports teams; and to continue drug counseling.
Section 3020-a Hearing Officer Jacquelin F. Drucker concluded that “... the question before this hearing officer relates not to guilt or innocence but to the proper level of discipline for the conduct at issue.”*
Drucker decided that Board was authorized to remove Garippa as a teacher because of two factors:
1. Newspaper reports identifying Garippa, his occupation and his employer, allegedly caused the board to suffer “unfortunate, unpleasant publicity”; and
2. The fact that “Respondent’s initial contact with the purchaser was made at a school function.”
Garippa appealed to the state Supreme Court and Justice H. Freedman granted Garippa’s petition and vacated the hearing officer’s decision. He then remanded the case to the Board for reconsideration.
Justice Freedman observed that the hearing officer did not suggest that Garippa could be trusted to work with children. The offense occurred off-duty and off-premises. The Court concluded that the hearing officer’s decision “was based on an assumption that Garippa’s guilty plea automatically constituted guilt of conduct unbecoming the profession,” rather than on an express finding to that effect.
This was improper, Justice Freedman said. Section 3020-a guarantees that the employee shall have full and fair disclosure of the nature of the case and evidence against him.
According to Justice Freedman, Garippa was neither told beforehand that the articles or the “bad publicity” would be the basis for either a finding of guilt or a determination of penalty nor was he ever shown copies of the articles, which were the subject of his cross-examination.
Since the newspaper articles were not submitted into evidence, Justice Freedman said that they were not part of the reviewable record before the court. In addition, Justice Freedman pointed out that “it is improper for an administrative agency [or an arbitrator] to base a decision of an adjudicatory nature upon evidence outside of the record.”
The court said the school board raised a legitimate issue regarding publicity because it has a right to protect the reputation of the institution. But since Garippa was denied an opportunity to address and rebut this allegation, the arbitrator’s determination was made without prior notice and lacked evidentiary basis.
The lesson here appears to be that an appointing authority cannot assume that a conviction of a crime will be sufficient to find an individual guilty of embarrassing it and justify its imposition of a penalty. Rather, the appointing authority must prove each and every element of it allegations, including those factors underlying the reason for bringing the disciplinary action in the first instance.
* N.B. In Kelly v. Levin, 440 NY2d 424, the Court of Appeals ruled that is a reversable error for an administrative disciplinary body to acquit an employee in a disciplinary action if the individual had earlier been found guilty of a criminal act involving the same allegations.
The full opinion is available at:
http://nypublicpersonnellawarchives.blogspot.com/
[Registration required]
============================================
If you are interested in learning more about disciplinary actions please click here: http://thedisciplinebook.blogspot.com/
============================================
Dismissal because of threatening behavior towards coworker held disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Dismissal because of threatening behavior towards coworker held disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Messado v City of New York, 2010 NY Slip Op 06343, Decided on August 5, 2010, Appellate Division, Third Department
Bernard R. Messado was employed as a clerical worker by a New York City agency. Believing that his coworkers were speaking about him behind his back in a derogatory fashion and also calling him names, Messado confronted one of his coworkers in a threatening manner and used profanity while the coworker was having lunch at a nearby restaurant with two other employees of the agency.
The incident was reported to a supervisor and as Messado had previously been warned not to engage in this type of behavior, he was terminated from his position. The Unemployment Insurance Appeal Board ultimately denied Messado’s claim for unemployment insurance benefits on the ground that he was discharged from his employment because of his misconduct.
The Appellate Division dismissed Messado’s appeal seeking to overturn the Board’s decision. The court said that “Threatening behavior toward a coworker has been held to constitute disqualifying misconduct,” citing Matter of Perkins [Commissioner of Labor], 16 AD3d 756 and other court decisions.
The court also noted that “To the extent that [Messado’s] testimony was in conflict with the testimony of the other witnesses, this presented a credibility issue for the Board to resolve.”
Finding that “substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct,” the Appellate Division said that it found “no reason to disturb the Board's decision.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06343.htm
Messado v City of New York, 2010 NY Slip Op 06343, Decided on August 5, 2010, Appellate Division, Third Department
Bernard R. Messado was employed as a clerical worker by a New York City agency. Believing that his coworkers were speaking about him behind his back in a derogatory fashion and also calling him names, Messado confronted one of his coworkers in a threatening manner and used profanity while the coworker was having lunch at a nearby restaurant with two other employees of the agency.
The incident was reported to a supervisor and as Messado had previously been warned not to engage in this type of behavior, he was terminated from his position. The Unemployment Insurance Appeal Board ultimately denied Messado’s claim for unemployment insurance benefits on the ground that he was discharged from his employment because of his misconduct.
The Appellate Division dismissed Messado’s appeal seeking to overturn the Board’s decision. The court said that “Threatening behavior toward a coworker has been held to constitute disqualifying misconduct,” citing Matter of Perkins [Commissioner of Labor], 16 AD3d 756 and other court decisions.
The court also noted that “To the extent that [Messado’s] testimony was in conflict with the testimony of the other witnesses, this presented a credibility issue for the Board to resolve.”
Finding that “substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct,” the Appellate Division said that it found “no reason to disturb the Board's decision.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06343.htm
Settling disciplinary actions
Settling disciplinary actions
Wolfe v Jurczyski, 241 AD2d 88
In some disciplinary cases an employee is offered a settlement that typically provides for summary termination of the individual without a hearing if he or she violates any of the terms of the settlement. The Wolfe case explores the consequences of an employee’s failure to comply with the terms of a disciplinary settlement agreement.
James N. Wolfe, a Schenectady Police Lieutenant, was told that formal disciplinary charges would be filed against him in connection with an off-duty incident during which it was alleged that he had threatened a civilian with a gun.
The city subsequently agreed that it would not file formal disciplinary charges against Wolfe if he “enrolled and completed an established alcohol abuse treatment program, underwent a psychological evaluation, refrained from visiting certain establishments where liquor is served and divested himself of all off-duty weapons.”
The September 19, 1995 agreement also provided that Wolfe’s failure to comply with or satisfactorily complete any element of the agreement to Schenectady’s satisfaction “will be cause for [Wolfe’s] immediate dismissal without a hearing.”
On October 29, 1995 Wolfe told the Chief of Police that he had not yet begun a treatment program and was still drinking. He entered a program the following day. However the Chief subsequently learned that Wolfe, while intoxicated, had been involved in an incident on October 27, 1995.
After conducting an investigation of the October 27, 1995 incident, the Department told Wolfe that he could either resign or be terminated for violating the settlement agreement. After conferring with union representatives, Wolfe decided to submit a letter resigning from his position.
However, Wolfe apparently changed his mind about resigning and sued, seeking a court order reinstating him to his former position. He argued that he had resigned as a result of “duress, coercion and undue influence.” Wolfe’s theory was that under the circumstances his resignation was not voluntary and should be declared void. A New York State Supreme Court justice dismissed Wolfe’s Article 78 petition and the Appellate Division affirmed the lower court’s action.
The Appellate Division pointed out that Wolfe’s resignation was not involuntary simply because he was told that if he did not resign he would be dismissed unless the employer did not have any right to terminate his employment. But here, said the Court, Wolfe had voluntarily entered into an agreement that expressly allowed the department to terminate him without a hearing if he failed to comply with its terms to the satisfaction of the Chief of Police.
The Appellate Division ruled that under the circumstances, offering to allow Wolfe to resign instead of being summarily dismissed “cannot be deemed improperly coercive.”
It should be remembered, however, that courts will usually give controlling weight to specific language contained in the settlement agreement.
This was demonstrated in the Appellate Division’s ruling in Taylor v Cass, 505 NYS2d 929. The key element in the Taylor case was a disciplinary settlement agreement that provided that the employee, Taylor, would be subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by Taylor’s consumption of alcohol.
Taylor, however, was subsequently given a “Notice of Infraction” charging him with failing to give a fair day’s work and sleeping during scheduled working hours. A few days later he was terminated without a hearing, purportedly as authorized by the disciplinary settlement agreement.
He sued, and the Appellate Division affirmed the lower court’s ruling reinstating Taylor to his position with the County “with full retroactive salary and contract benefits from March 30, 1984.” The problem, said the Court, was that Taylor had not been terminated for the sole reason specified in the settlement agreement: intoxication on the job.
On this point, the decision specifically took note of the fact that Taylor’s superior testified that Taylor “was terminated solely for the reasons set forth in the Notice of Infraction” sent to him -- sleeping on the job and failure to give a fair day’s work.
The Appellate Division concluded that under the circumstances Taylor was entitled to a disciplinary hearing on those charges because the settlement limited the basis for dismissing him without notice and hearing. Accordingly, Taylor could only be dismissed for being intoxicated on the job.
What if an employer tells an employee that he or she will be served with disciplinary charges if he or she does not immediately resign for his or her position? The courts have ruled that where the appointing authority may lawfully file disciplinary charges against an employee, demanding that the individual resign or face disciplinary action does not constitute coercion.
In Rychlick v Coughlin, 63 NY2d 643, a case involving a corrections officer, the Court of Appeals ruled out that threatening to do what the appointing authority has a right to do – in this instance file disciplinary charges against Rychlick if he refused to resign from his position -- did not constitute coercion so as to make Rychlick’s resignation involuntary.
According, if the employee resigns in response to such a demand, the courts deem his or her action to be a voluntary resignation rather than the product of unlawful duress.
Wolfe v Jurczyski, 241 AD2d 88
In some disciplinary cases an employee is offered a settlement that typically provides for summary termination of the individual without a hearing if he or she violates any of the terms of the settlement. The Wolfe case explores the consequences of an employee’s failure to comply with the terms of a disciplinary settlement agreement.
James N. Wolfe, a Schenectady Police Lieutenant, was told that formal disciplinary charges would be filed against him in connection with an off-duty incident during which it was alleged that he had threatened a civilian with a gun.
The city subsequently agreed that it would not file formal disciplinary charges against Wolfe if he “enrolled and completed an established alcohol abuse treatment program, underwent a psychological evaluation, refrained from visiting certain establishments where liquor is served and divested himself of all off-duty weapons.”
The September 19, 1995 agreement also provided that Wolfe’s failure to comply with or satisfactorily complete any element of the agreement to Schenectady’s satisfaction “will be cause for [Wolfe’s] immediate dismissal without a hearing.”
On October 29, 1995 Wolfe told the Chief of Police that he had not yet begun a treatment program and was still drinking. He entered a program the following day. However the Chief subsequently learned that Wolfe, while intoxicated, had been involved in an incident on October 27, 1995.
After conducting an investigation of the October 27, 1995 incident, the Department told Wolfe that he could either resign or be terminated for violating the settlement agreement. After conferring with union representatives, Wolfe decided to submit a letter resigning from his position.
However, Wolfe apparently changed his mind about resigning and sued, seeking a court order reinstating him to his former position. He argued that he had resigned as a result of “duress, coercion and undue influence.” Wolfe’s theory was that under the circumstances his resignation was not voluntary and should be declared void. A New York State Supreme Court justice dismissed Wolfe’s Article 78 petition and the Appellate Division affirmed the lower court’s action.
The Appellate Division pointed out that Wolfe’s resignation was not involuntary simply because he was told that if he did not resign he would be dismissed unless the employer did not have any right to terminate his employment. But here, said the Court, Wolfe had voluntarily entered into an agreement that expressly allowed the department to terminate him without a hearing if he failed to comply with its terms to the satisfaction of the Chief of Police.
The Appellate Division ruled that under the circumstances, offering to allow Wolfe to resign instead of being summarily dismissed “cannot be deemed improperly coercive.”
It should be remembered, however, that courts will usually give controlling weight to specific language contained in the settlement agreement.
This was demonstrated in the Appellate Division’s ruling in Taylor v Cass, 505 NYS2d 929. The key element in the Taylor case was a disciplinary settlement agreement that provided that the employee, Taylor, would be subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by Taylor’s consumption of alcohol.
Taylor, however, was subsequently given a “Notice of Infraction” charging him with failing to give a fair day’s work and sleeping during scheduled working hours. A few days later he was terminated without a hearing, purportedly as authorized by the disciplinary settlement agreement.
He sued, and the Appellate Division affirmed the lower court’s ruling reinstating Taylor to his position with the County “with full retroactive salary and contract benefits from March 30, 1984.” The problem, said the Court, was that Taylor had not been terminated for the sole reason specified in the settlement agreement: intoxication on the job.
On this point, the decision specifically took note of the fact that Taylor’s superior testified that Taylor “was terminated solely for the reasons set forth in the Notice of Infraction” sent to him -- sleeping on the job and failure to give a fair day’s work.
The Appellate Division concluded that under the circumstances Taylor was entitled to a disciplinary hearing on those charges because the settlement limited the basis for dismissing him without notice and hearing. Accordingly, Taylor could only be dismissed for being intoxicated on the job.
What if an employer tells an employee that he or she will be served with disciplinary charges if he or she does not immediately resign for his or her position? The courts have ruled that where the appointing authority may lawfully file disciplinary charges against an employee, demanding that the individual resign or face disciplinary action does not constitute coercion.
In Rychlick v Coughlin, 63 NY2d 643, a case involving a corrections officer, the Court of Appeals ruled out that threatening to do what the appointing authority has a right to do – in this instance file disciplinary charges against Rychlick if he refused to resign from his position -- did not constitute coercion so as to make Rychlick’s resignation involuntary.
According, if the employee resigns in response to such a demand, the courts deem his or her action to be a voluntary resignation rather than the product of unlawful duress.
August 06, 2010
Union awarded $165,000.50: fifty cents in damages plus $165,000 for attorney fees
Union awarded $165,000.50: fifty cents in damages plus $165,000 for attorney fees
Local 32B-32J, SEIU v Port Authority, USDC SDNY 96 CIV 1438
Although Locals 32B and 32J won only fifty cents in damages after refusing a settlement offer of $50,000, they were awarded attorney fees and court costs totaling more than $165,000.
Why? Because the unions were the “prevailing parties” in their challenge to picketing restrictions imposed on them by the New York-New Jersey Port Authority. The unions contended that these restrictions constituted unlawful restrictions on their right to free speech.
Local 32B-32J, SEIU v Port Authority, USDC SDNY 96 CIV 1438
Although Locals 32B and 32J won only fifty cents in damages after refusing a settlement offer of $50,000, they were awarded attorney fees and court costs totaling more than $165,000.
Why? Because the unions were the “prevailing parties” in their challenge to picketing restrictions imposed on them by the New York-New Jersey Port Authority. The unions contended that these restrictions constituted unlawful restrictions on their right to free speech.
Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability
Superior reporting employee's misconduct had either absolute immunity or qualified immunity from liability
Taylor v Brentwood UFSD, CA2, 143 F.3d 679
A Brentwood school principal, Anne Rooney, alleged that district teacher, Charles B. Taylor, used corporal punishment in violation of district policy. After investigating the allegation, the district filed disciplinary charges against Taylor. The disciplinary panel found him guilty of the charges and he was suspended without pay for one year.
Taylor then filed a Section 1983 [Civil Rights] claim, naming Rooney and other district officials as defendants. He contended that his one-year suspension from teaching constituted race discrimination in violation of the Fourteenth Amendment (equal protection). A federal district court jury agreed with Taylor’s arguments and said that Rooney was liable for over $185,000 in damages. Rooney appealed and the Second Circuit Court of Appeals in New York reversed the lower court’s decision.
The court cited with approval Rooney’s arguments that:
1. Her action [reporting the alleged use of corporal punishment] was not the proximate cause of any injury sustained by Taylor;
2. She had either absolute immunity or qualified immunity from liability because she acted pursuant to her official duty to report complaints regarding the use of corporal punishment by teachers to her superiors; and
3. Taylor, having been found guilty by the disciplinary panel, could not relitigate the issue of whether he was treated differently from similarly situated Caucasian teachers in his Section 1983 action.
The Circuit Court commented that “Taylor had a history of physical confrontations with students ...” occurring throughout the administrations of three different principals. It also took notice of the District’s “Corporal Punishment Policy” and evidence showing that Taylor had been “repeatedly reminded” of the policy over a fifteen-year period and had received several reprimands regarding the manner in which he disciplined students.
The Circuit Court ruled that Rooney could not be held liable because she was not proximately cause Taylor’s suspension. That, said the Court, action resulted following an investigation and a due process hearing in which Taylor was found guilty. It said that its decision in Jefferies v Harleston, 52 F3d 9, controlled the outcome of this case.
In Jefferies, the Circuit Court ruled that “although the actions of certain defendants were unconstitutional, liability under Section 1983 did not attach because such actions could not be considered the cause of any injury sustained by the plaintiff.”
The Court said that it believed that the independent investigations of the incidents by school officials, together with the school board’s filing charges culminating in the decision of the disciplinary hearing panel to suspend Taylor, constituted a superseding cause of Taylor’s injury, breaking the causal link between any racial animus Rooney may have had and Taylor’s suspension.
Concluding that no reasonable jury could find Rooney’s actions to be the cause of Taylor’s injury, the Court said that no new trial was necessary. Accordingly, all that was needed was for the Circuit Court to remand the case to the district court with instructions to enter judgment for Rooney.
Taylor v Brentwood UFSD, CA2, 143 F.3d 679
A Brentwood school principal, Anne Rooney, alleged that district teacher, Charles B. Taylor, used corporal punishment in violation of district policy. After investigating the allegation, the district filed disciplinary charges against Taylor. The disciplinary panel found him guilty of the charges and he was suspended without pay for one year.
Taylor then filed a Section 1983 [Civil Rights] claim, naming Rooney and other district officials as defendants. He contended that his one-year suspension from teaching constituted race discrimination in violation of the Fourteenth Amendment (equal protection). A federal district court jury agreed with Taylor’s arguments and said that Rooney was liable for over $185,000 in damages. Rooney appealed and the Second Circuit Court of Appeals in New York reversed the lower court’s decision.
The court cited with approval Rooney’s arguments that:
1. Her action [reporting the alleged use of corporal punishment] was not the proximate cause of any injury sustained by Taylor;
2. She had either absolute immunity or qualified immunity from liability because she acted pursuant to her official duty to report complaints regarding the use of corporal punishment by teachers to her superiors; and
3. Taylor, having been found guilty by the disciplinary panel, could not relitigate the issue of whether he was treated differently from similarly situated Caucasian teachers in his Section 1983 action.
The Circuit Court commented that “Taylor had a history of physical confrontations with students ...” occurring throughout the administrations of three different principals. It also took notice of the District’s “Corporal Punishment Policy” and evidence showing that Taylor had been “repeatedly reminded” of the policy over a fifteen-year period and had received several reprimands regarding the manner in which he disciplined students.
The Circuit Court ruled that Rooney could not be held liable because she was not proximately cause Taylor’s suspension. That, said the Court, action resulted following an investigation and a due process hearing in which Taylor was found guilty. It said that its decision in Jefferies v Harleston, 52 F3d 9, controlled the outcome of this case.
In Jefferies, the Circuit Court ruled that “although the actions of certain defendants were unconstitutional, liability under Section 1983 did not attach because such actions could not be considered the cause of any injury sustained by the plaintiff.”
The Court said that it believed that the independent investigations of the incidents by school officials, together with the school board’s filing charges culminating in the decision of the disciplinary hearing panel to suspend Taylor, constituted a superseding cause of Taylor’s injury, breaking the causal link between any racial animus Rooney may have had and Taylor’s suspension.
Concluding that no reasonable jury could find Rooney’s actions to be the cause of Taylor’s injury, the Court said that no new trial was necessary. Accordingly, all that was needed was for the Circuit Court to remand the case to the district court with instructions to enter judgment for Rooney.
Preferred lists and retirees
Preferred lists and retirees
Decisions of the Commissioner of Education #13896
Does a public employee retain his or her “preferred list right” resulting from his or her being laid-off into retirement? This was the significant issue in Dakin Morehouse’s appeal to the Commissioner of Education.
Morehouse was a full-time teacher of industrial arts until the Hunter-Tannersville Central School District reduced his position to a half-time position.
A year later the Otsego-Northern Catskill BOCES took over the district’s industrial arts/technology program and the district abolished Morehouse’s position. Morehouse became a BOCES employee as provided by Section 3014-a of the Education Law. Further, with the BOCES takeover Morehouse again became a full-time teacher. Morehouse served with BOCES until he elected to take “early retirement.”
Subsequently Hunter-Tannersville announced that a full-time technology teacher position was available. Morehouse contended that he should be appointed to the vacancy because he was on a preferred list that was created when his former full time position was abolished in favor of a half-time position. Morehouse pointed out that a teacher’s eligibility for appointment from a preferred list lasts seven years under state law, and that only five years had passed since his name was placed on the list.
The key issue was Morehouse’s retirement and whether that event ended his eligibility for appointment from the preferred list. The Commissioner of Education ruled it did, holding that Morehouse’s retirement from teaching “effectively removed him from such list.” In other words, retirement extinguished all preferred list rights insofar as any preferential status for appointment to a vacancy is concerned.
In contrast, an excessed individual who accepts other employment, public or otherwise, does not forfeit his or her preferred list rights. But, according to the Commissioner, retirement changes the individual’s status -- he or she no longer is an employee for many statutory purposes, including appointment from a preferred list.*
In support of this view, the Commissioner noted that an employee’s application for, and receipt of, termination benefits constitutes a waiver of the right to challenge the abolishment of his or her position, citing Gerson v Comsewogue UFSD, 214 AD2d 732.
What if an employer wants to rehire an employee who has retired? Such reemployment is typically viewed as a “new employment” rather than as a “reinstatement from a preferred list” or a reinstatement to his or her former position. For example, in most instances a public retiree seeking a permanent appointment to a position in the competitive class of the civil service must take, pass and be reachable for appointment from the appropriate eligible list.
Further, the reemployment of a retired public employee automatically results in the suspension of his or her retirement allowance (Section 150, Civil Service Law [CSL]) for the period of such reemployment.
Only if the retiree obtains a “waiver” in accordance with the provisions of Section 211 of the Retirement and Social Security Law [RSSL] may an individual who is under 65 years of age simultaneously receive his or her retirement allowance and his or her salary to the extent that such compensation exceeds the amount specified in Section 212, RSSL.
There are exceptions to this general rule. One exception: Individuals elected to public office following retirement [Section 150, CSL]. Another exception: a limited number of retirees – so-called “pre-Axelrod retirees – may be employed as independent contractors by a public employer without having their retirement allowance discontinued while performing such public service regardless of age [Section 210, RSSL].
The Commissioner also advanced another theory in support of his determination. He said that 8 NYCRR 80.35(a)(6) “restricts the employment of retired persons generally to situations where no other qualified person is readily available,” a standard reflecting one of the criteria set out in Section 211, Retirement and Social Security Law providing for a “waiver” permitting the reemployed individual to continue receiving his or her retirement allowance.
Under the circumstances, the Commissioner concluded, “this policy would be difficult to advance if retired persons were allowed to remain for extended periods on preferred eligible lists.”
* N.B. Section 81.9 of the Civil Service Law provides as follows: "9. An employee who is eligible to be placed on a preferred list pursuant to this section and who elects, as a member of a public employee retirement system, to retire upon a suspension or demotion, shall be placed on a preferred list and shall be eligible for reinstatement from such list."
Decisions of the Commissioner of Education #13896
Does a public employee retain his or her “preferred list right” resulting from his or her being laid-off into retirement? This was the significant issue in Dakin Morehouse’s appeal to the Commissioner of Education.
Morehouse was a full-time teacher of industrial arts until the Hunter-Tannersville Central School District reduced his position to a half-time position.
A year later the Otsego-Northern Catskill BOCES took over the district’s industrial arts/technology program and the district abolished Morehouse’s position. Morehouse became a BOCES employee as provided by Section 3014-a of the Education Law. Further, with the BOCES takeover Morehouse again became a full-time teacher. Morehouse served with BOCES until he elected to take “early retirement.”
Subsequently Hunter-Tannersville announced that a full-time technology teacher position was available. Morehouse contended that he should be appointed to the vacancy because he was on a preferred list that was created when his former full time position was abolished in favor of a half-time position. Morehouse pointed out that a teacher’s eligibility for appointment from a preferred list lasts seven years under state law, and that only five years had passed since his name was placed on the list.
The key issue was Morehouse’s retirement and whether that event ended his eligibility for appointment from the preferred list. The Commissioner of Education ruled it did, holding that Morehouse’s retirement from teaching “effectively removed him from such list.” In other words, retirement extinguished all preferred list rights insofar as any preferential status for appointment to a vacancy is concerned.
In contrast, an excessed individual who accepts other employment, public or otherwise, does not forfeit his or her preferred list rights. But, according to the Commissioner, retirement changes the individual’s status -- he or she no longer is an employee for many statutory purposes, including appointment from a preferred list.*
In support of this view, the Commissioner noted that an employee’s application for, and receipt of, termination benefits constitutes a waiver of the right to challenge the abolishment of his or her position, citing Gerson v Comsewogue UFSD, 214 AD2d 732.
What if an employer wants to rehire an employee who has retired? Such reemployment is typically viewed as a “new employment” rather than as a “reinstatement from a preferred list” or a reinstatement to his or her former position. For example, in most instances a public retiree seeking a permanent appointment to a position in the competitive class of the civil service must take, pass and be reachable for appointment from the appropriate eligible list.
Further, the reemployment of a retired public employee automatically results in the suspension of his or her retirement allowance (Section 150, Civil Service Law [CSL]) for the period of such reemployment.
Only if the retiree obtains a “waiver” in accordance with the provisions of Section 211 of the Retirement and Social Security Law [RSSL] may an individual who is under 65 years of age simultaneously receive his or her retirement allowance and his or her salary to the extent that such compensation exceeds the amount specified in Section 212, RSSL.
There are exceptions to this general rule. One exception: Individuals elected to public office following retirement [Section 150, CSL]. Another exception: a limited number of retirees – so-called “pre-Axelrod retirees – may be employed as independent contractors by a public employer without having their retirement allowance discontinued while performing such public service regardless of age [Section 210, RSSL].
The Commissioner also advanced another theory in support of his determination. He said that 8 NYCRR 80.35(a)(6) “restricts the employment of retired persons generally to situations where no other qualified person is readily available,” a standard reflecting one of the criteria set out in Section 211, Retirement and Social Security Law providing for a “waiver” permitting the reemployed individual to continue receiving his or her retirement allowance.
Under the circumstances, the Commissioner concluded, “this policy would be difficult to advance if retired persons were allowed to remain for extended periods on preferred eligible lists.”
* N.B. Section 81.9 of the Civil Service Law provides as follows: "9. An employee who is eligible to be placed on a preferred list pursuant to this section and who elects, as a member of a public employee retirement system, to retire upon a suspension or demotion, shall be placed on a preferred list and shall be eligible for reinstatement from such list."
State Comptroller's audit finds $600 million in MTA overtime approved without question
State Comptroller's audit finds $600 million in MTA overtime approved without question
Source: Office of the State Comptroller
More than 140 employees at the Metropolitan Transportation Authority (MTA) doubled their annual salaries through overtime pay last year, according to an audit report released by State Comptroller Thomas P. DiNapoli on August 5, 2010. DiNapoli said there was a “culture of acceptance” surrounding overtime abuse at the MTA.
DiNapoli’s audit found that one Long Island Rail Road (LIRR) train car repairman received $142,857 in overtime pay, equal to 220 percent of his $64,865 annual salary. One hundred forty four other MTA employees earned more in overtime pay than from their annual salaries in 2009, according to the audit.
The Comptroller said that “Uncontrolled overtime has been the rule rather than the exception at the MT.” Noting that the MTA is cutting services, raising fares and tolls and laying-off employees, DiNapoli said MTA “should be doing more to control expenses.”
In the words of the Comptroller: “Overtime shouldn’t equate to twice someone’s annual salary.
When scores of employees are earning more in overtime than they make in salary, it’s time for the MTA to change the culture of acceptance to a culture of accountability.”
DiNapoli’s audit examined the MTA’s books between January 2008 and December 2009 and found four of the authority’s seven constituent agencies—the LIRR, Metro-North, Bridges and Tunnels and NYC Transit—accounted for almost 90 percent ($540 million) of all MTA overtime.
The audit identified $56 million in potential overtime savings.
Auditors also discovered serious flaws in the MTA central office’s overtime budget practices whereby the central office accepted overtime budgets from constituent agencies without questioning them or making any effort to reduce overtime spending at constituent agencies.
The audit also reports that:
1. More than 3,200 MTA employees at the MTA receive overtime pay equal to half of their annual salaries;
2. Significant amounts of overtime incurred by replacing sick workers, even though no effort was made to find out whether replacements were needed; and
3. Unjustified or undocumented work in 77 percent of sampled overtime transactions.
The full text of the Comptroller’s audit report is posted on the Internet at:
http://www.osc.state.ny.us/audits/allaudits/093010/09s88.pdf
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
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