Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit
CSEA Local 1000, v PERB, Appellate Division, 248 A.D.2d 882

May a public employer unilaterally seek to reallocate certain titles to a higher salary grade, if such an action serves to remove employees from a bargaining unit?

Monroe County submitted a proposal to the County Legislature to upgrade county physical and occupational therapists. Approval of the proposal would remove 12 of the positions from the negotiating unit represented by CSEA.

CSEA Local 1000, contending that Monroe could not do this without first negotiating the proposed change with the union, filed an unfair labor practice charge with PERB. The complaint alleged that “the County engaged in bad-faith negotiations” and that its “tactics” were eroding the bargaining unit.

PERB reversed an administrative law judge’s ruling that the County violated Section 209-a(1)(a) and (d) when it unilaterally reallocated these titles to higher salary grades and the unilateral wage increase applied to bargaining unit titles was a per se violation of Section 209-a(1)(a).

PERB held that the reallocation of employees to a higher salary grade was not a mandatory subject of collective bargaining. In response, CSEA appealed to challenge PERB’s findings and conclusions.

The Appellate Division probed PERB’s rationale for its ruling and found it was based on an earlier decision by the Appellate Division holding that the “allocation of positions to salary grade is primarily related to a ‘mission’ of an employer and not to terms and conditions of employment” [Evans v Newman, 71 AD2 240].

The court found this persuasive and upheld PERB’s decision. Relying on the Evans decision, PERB properly found that local governments should not be compelled to negotiate allocations of positions to salary grades because such decisions are “an essential aspect of the level and quality of service to be provided by a public employer.”

The Appellate Division, noting that its power to overturn a PERB decision is limited as PERB has been given the authority to determine whether a particular matter is a term or condition of employment, said that PERB's determination will be judicially upheld so long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections.

The Appellate Division also rejected CSEA’s argument that the reallocation and removal of 12 employees from the negotiating unit that resulted from the change was the product of improper motives on the part of the County.

According to the court, "it is clear from the record that the decision to reallocate these titles to higher pay groups was motivated solely by the County's demonstrated need to provide competitive salaries for these positions thereby correcting past recruitment and retention problems.

Correction officer charged with disobeying an order to take a post assignment

Correction officer charged with disobeying an order to take a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10

Regina Callabrass, a New York City correction officer, was served with a number of disciplinary charges alleging, among other things, that she was guilty of disobeying an order to take a post assignment.

OATH Administrative Law Judge Tynia Richard recommended that the charge that the Callabrass disobeyed an order to take an assignment be dismissed. ALJ explained that when Callabrass objected to the assignment, the supervisor did not repeat the directive but, instead, commenced looking for another correction officer to accept the assignment.

With respect to Callabrass’ threat “to call in sick” when she received the unwanted assignment, the ALJ said that this constituted “conduct unbecoming an officer.” In addition Judge Richard found that Callabrass had made a false or misleading logbook entry.

After considering Callabrass’ long service record with no prior discipline, ALJ Richard recommended the imposition of a 5-day suspension without pay as the penalty for these two acts of misconduct.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1981.pdf

Oath of office must be timely filed

Oath of office must be timely filed
Formal Opinion of the Attorney General, 98-F6

The filing of a timely oath of office is critical to an individual’s lawfully holding public office. The inter-relationship of the eligibility of a candidate to assume elective office and the filing of the required oath was addressed by the Attorney General in his Formal Opinion 98-F6.

A candidate for election to the Supreme Court, if elected, would become qualified for the position on January 24. His term of office, however, would commence on January 1. If elected, could the candidate lawfully file the required oath of office upon becoming qualified for the post on January 24?

Pointing out that Section 30 of the Public Officers Law states that an elective officer must file his or her oath of office within thirty days of the beginning of his or her term of office, the Attorney General concluded that in this instance filing the required oath between January 24, and January 30, would meet the Constitutional mandate [Section 1, Article XIII] that a public officer file his or her oath before undertaking the duties of the office.

What happens if the required oath is not filed within the 30-day period allowed under Section 30? The office is declared vacant.*

Where are such oaths to be filed?

1. The oath of every State officer must be filed with the Secretary of State; the oath of a municipal officer, including an officer of a school district, with the clerk of the jurisdiction.

2. The oath of all other officers, including library trustees, and officers of a BOCES, is to be filed with the county clerk of the county in which he or she resides. In addition, judicial officers of the unified court system must file an additional oath of office with the Office of Court Administration.

As noted above, the officer’s failure to file a timely oath results in a vacancy in the office by operation of law as the ruling in Vetere v Ponce demonstrates. Patrick A. Vetere, ready to commence his third four-year term as a member of the Harrison Town Council and Village Trustee, failed to file his oath of office within the 30-day period expiring February 1, 1996 as required by Section 30 of the Public Officers Law.

The town clerk declared Vetere’s office vacant on February 19 because of Vetere’s failure to file his oath of office. Although Vetere filed an oath of office on February 23, a few weeks later the Town Council and Village Trustees held a special meeting at which Benjamin DeForce was appointed to the vacancy.

DeForce subsequently resigned from the position and Vetere was appointed to the vacancy. Vetere then attempted to have the “certificate of vacancy” prepared by the town clerk on February 19 annulled and sought a declaratory judgment by a State Supreme Court justice that he was now entitled to a full four-year term of office as a result his reelection the previous November.

Supreme Court Justice Nicholas Colabella ruled that there was no statutory authority for issuing such a judgment. This means that Vetere will have to run for election for the remainder of the term to which he had already been elected. The decision states that “notwithstanding equitable considerations and the [Town’s] consent to reinstatement, the court can only direct reinstatement in the event it finds the petitioner was improperly removed as a matter of law.”

As Vetere’s removal was held to be proper, the Court dismissed his petition.

* Section 30 excuses the failure to file the oath within the 30-day period if the individual “was on active duty in the armed forces of the United States and absent from the county of his [or her] residence at the time of his [or her] election or appointment....”

Burden of proof of the charges of alleged misconduct never shifts to the individual served with disciplinary charges

Burden of proof of the charges of alleged misconduct never shifts to the individual served with disciplinary charges
NYC Department of Sanitation v Torrence, OATH Index #2015/10

Leo Torrence, a New York Department of Sanitation, worker was required to possess a valid commercial driver's license. His commercial driver’s license was suspended for over one year while he was on a long-term line-of-duty injury leave.

The Department charged Torrence with violating its rule that all required licenses must be kept valid at all times based on its General Order 2008-14 which provides that a disciplinary complaint will be filed if, after ten calendar days from the date of notification that an individual’s license has been suspended, the employee “fails to restore it.”

Although Torrence testified that he was unaware that his license had been suspended while he was on leave and did not learn of the suspension until he applied to have it renewed, Sanitation contended that it is not required to prove that Torrence had received notice of the suspension his license to sustain the charges it had filed against him.

Rather, argued the Department, Torrence was required to prove that he did not receive any notice from Motor Vehicles that his license was suspended to rebut the charge. In other words, Sanitation contended that Torrence had the burden of "proving a negative."

Oath Administrative Law Judge Faye Lewis disagreed, ruling that placing the burden of proof on Torrence in this instance would impermissibly shift the burden of proof in the disciplinary action to the accused in contrast to its being the burden of the charging party. Lewis said that Sanitation was required to show that Torrence had received appropriate notice from Motor Vehicles that his license was suspended and then did nothing within the time permitted to renew it.

Simply stated, the burden is always on the employer to prove the allegations set out in the disciplinary charges filed against the employee.

ALJ Lewis also rejected the Department’s argument that the valid license requirement is a strict liability rule as contrary to the basic precept that a finding of misconduct requires some showing of fault by the employee.

Lewis recommended that the charges filed against Torrence be dismissed.

The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2515.pdf

Retiree rights under an expired collective bargaining agreement

Retiree rights under an expired collective bargaining agreement
Myers v City of Schenectady, 244 A.D.2d 845, Motion for leave to appeal denied, 91 N.Y.2d 812

In Myers the Appellate Division ruled that under certain circumstances retirees may be entitled to benefits flowing from collective bargaining agreements that have expired.

The case arose after the City of Schenectady decided to change its reimbursement of Medicare premiums policy. For many years the city had encouraged its retirees to enroll in Medicare as their primary health insurance carrier upon attaining age 65. Part B of Medicare required enrollees to pay a premium for coverage.

The city promised in collective bargaining agreements to reimburse the retirees the full cost of any Medicare premium. If a retiree declined to enroll in Medicare, the city would provide him or her with “the same fully paid health insurance coverage as it provided its eligible employees.”

In March 1994 the city announced that it would only pay 50 percent of the cost of Medicare Part B to those who had enrolled in Medicare. Then the city advised retirees that effective June 1994 it would cease all reimbursements for Medicare.

A number of retirees sued, contending that they had a vested contract benefit to “fully paid health insurance” and the City could not unilaterally discontinue its reimbursement of their Medicare premiums. They contended that under the terms of the several collective bargaining agreements in effect when they retired, they were entitled to “the same fully paid Health Insurance coverage” as was available to “all eligible employees.”

The Appellate Division sustained a lower court’s ruling that the city had a contractual obligation to provide the retirees with fully paid health insurance, rejecting Schenectady’s argument that “the agreements themselves had very clear durational limits.”

The court gave considerable weight to “past practice” in determining the rights of individuals claiming benefits or rights flowing from an expired agreement. The city had continued to pay benefits under expired agreements for 19 years, the court noted.

This made it difficult for the city to argue it only intended to give retirees the Medicare benefit for the duration of the contract. “[T]here is no surer way to find out what parties meant than to see what they have done,” the court said.

Schenectady’s “own 19-year practice of continuing to provide fully paid health insurance coverage to [its retirees], even after the expiration of the various collective bargaining agreements ... [constitutes] very substantial evidence that the provisions [of the expired agreements] in question were intended to provide benefits to retirees for the entire period of their retirement,” the court said.

Pre-determination hearings not required unless a deprivation of a property or liberty interest is threatened

Pre-determination hearings not required unless a deprivation of a property or liberty interest is threatened
Taylor v NYS Dept. of Correctional Services, 248 A.D.2d 799

A psychologist advised a correctional facility’s superintendent that State Corrections Officer Mark Taylor “was dangerous and may lose impulse control at any time.” Taylor “became belligerent and abusive” when the psychologist refused to give him a copy of a report that he had prepared for Family Court. Taylor refused repeated requests to leave the psychologist’s office and ultimately police officers were called and escorted him from the office.

The superintendent then prohibited Taylor from carrying a concealed weapon while off-duty.*

Taylor complained that he was denied due process because he was not provided with a “predetermination hearing” before the superintendent prohibited him from carrying a weapon while he was off duty

The rules of the state Correctional Services Department allow it to prohibit an employee from carrying a weapon while off duty if it determines “the employee’s mental or emotional condition is such that his or her possession of a weapon represents a threat to the safety of the employee, the facility or the community.”

According to the Appellate Division’s ruling in the Taylor case, the right to a pre-determination hearing depends on whether or not the individual can demonstrate that administrative decision constituted involved some deprivation of a “property interest” or a “liberty interest.” The Appellate Division said the superintendent had not deprived Taylor of any such “liberty interest.”

The Court next addressed the “property interest” aspect of the case. How does an individual establish a property interest? By showing, said the Court, that he or she has a “legitimate claim of entitlement to it.”

The Appellate Division pointed out that it had previously ruled that the exemption set out in Section 265.20 “is not a vested right.” Accordingly, it did not constitute a property interest for the purposes of invoking claims to any right of due process.

Finding that the superintendent had a rational basis for the action and thus was neither arbitrary nor capricious, the Appellate Division dismissed Taylor’s appeal.

* Section 265.20 of the State Penal Law gives State correction officers a statutory exemption from prosecution for criminal possession of a weapon.

Correction officer charged with disobeying an order to take a post assignment

Correction officer charged with disobeying an order to take a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10

Regina Callabrass, a New York City correction officer, was served with a number of disciplinary charges alleging, among other things, that she was guilty of disobeying an order to take a post assignment.

OATH Administrative Law Judge Tynia Richard recommended that the charge that the Callabrass disobeyed an order to take an assignment be dismissed. ALJ explained that when Callabrass objected to the assignment, the supervisor did not repeat the directive but, instead, commenced looking for another correction officer to accept the assignment.

With respect to Callabrass’ threat “to call in sick” when she received the unwanted assignment, the ALJ said that this constituted “conduct unbecoming an officer.” In addition Judge Richard found that Callabrass had made a false or misleading logbook entry.

After considering Callabrass’ long service record with no prior discipline, ALJ Richard recommended the imposition of a 5-day suspension without pay as the penalty for these two acts of misconduct.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1981.pdf

School board meetings are open to the public

School board meetings are open to the public
Goetschius v Greenburgh 11 UFSD, 244 A.D.2d 552

The school board of the Greenburgh 11 Union Free School District barred some of its educators from attending a board meeting at which it planned to consider the termination of certain teachers.

The educators sued, contending that the board’s action violated New York’s Open Meetings Law [Article 7, Public Officers Law]. The board, citing Sections 2801 and 3020-a of the Education Law, also argued that its action was lawful as those sections “supersede the Open Meetings Law.”

The Appellate Division rejected the board’s argument, pointing out that:

1. Sections 2801 and 3020-a “do not specifically allow the Board to exclude [the educators] from Board meetings” but, rather, allow boards of education to adopt rules and regulations for the maintenance of public order on school property;

2. Section 1708(3) specifically provides that “the meetings of all such boards [of education] shall be open to the public;”

3. Section 1708(3) overrides the general provisions of Sections 2801 and 3020-a; and

4. The State’s Open Meetings Law is not superseded by either Section 2801 or Section 3020-a.

The Appellate Division also observed that Section 110 of the Public Officers Law states that “any provision of a ... rule or regulation affecting a public body which is more restrictive with respect to public access shall be deemed superseded hereby to the extent that such provision is more restrictive than this article.”

The Appellate Division indicated that the Board “engaged in a persistent pattern of deliberate violations of the Open Meetings Law through insufficient notice, unreasonable starting times, improper convening of executive sessions, and improper exclusion of members of the public. It then upheld a Supreme Court justice’s ruling annulling certain of the board’s actions and awarding attorney fees to the educators.