Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System

Claiming breaks in service for childcare may be excused for the purposes of member service in the NYS Employees’ Retirement System
Soronen v Comptroller, 244 A.D.2d 842

William Soronen, Jr., was a temporary aide to a New York State Senator during the 1974 and 1975 legislative sessions. He worked on a part-time basis. In July 1975 Soronen accepted a position with a private law firm. In 1978 he was appointed as a confidential law clerk to a State Supreme Court justice and joined the New York State Employees’ Retirement System [ERS].

Soronen subsequently applied for retroactive membership in ERS based on his service with the State legislature in 1974 and 1975 pursuant to Section 803 of the Retirement and Social Security Law.

ERS rejected his application on the grounds that he had a “break in service.” Soronen appealed, contending that he had not reapplied for employment with the State legislature, although his employer would have approved such part-time employment, because he wanted to care for his son. He attributed his three-plus year break in public service to childcare, claiming that Section 803(b)(2) allowed certain breaks in service “attributed to the birth of a child... or care for such child.”

The Appellate Division affirmed ERS’ determination, noting that Soronen’s break in public service was due to the end of the 1975 legislative session and his termination from his temporary employment, not childcare. The Court also commented that Soronen had not demonstrated that “a public employment position was definitely available to him during both the 1976 and 1977 legislative sessions and that he turned [them] down because of child care requirements.”

Disciplinary action could affect eligibility for Unemployment Insurance

Disciplinary action could affect eligibility for Unemployment Insurance
Cuevas v Sweeney, 246 A.D.2d 718

Sometimes an employee who has been dismissed from his or her position as a result of disciplinary action will file for unemployment insurance benefits. Typically the Unemployment Insurance Board will hold that the individual is disqualified from receiving such benefits because his or her employment was terminated for misconduct. Can the board rely on the disciplinary determination as the basis for denying the claim? Yes, it may, as the Cuevas decision by the Appellate Division illustrates.

Naptale Cuevas, a Mental Hygiene Therapy Aide employed by a State agency, was found guilty of abusing and threatening his supervisor with physical harm. An arbitrator issued the decision after a disciplinary grievance hearing conducted in accordance with the provisions of a Taylor Law agreement.

The arbitrator ruled that dismissal was appropriate based on Cuevas’ being found guilty of the charges and the fact that Cuevas “previously had carried out a physical assault upon a security guard.” The Court said that the Board properly gave collateral estoppel* effect to the arbitrator’s determination when it ruled that Cuevas had lost his job under disqualifying misconduct.

* The doctrine of collateral estoppel is used in situations where the conclusiveness of a judgment in a prior action involving the same parties is applied in a subsequent action involving a different claim, here a claim for unemployment insurance benefits.

Disqualifying an applicant for employment based on psychological evaluations

Disqualifying an applicant for employment based on psychological evaluations
Coffey v Kampe, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Coffey case concerns the disqualification of an individual who wanted to become a police officer because he did not pass the psychological evaluation portion of the Police Officer examination. Section 50 of the Civil Service Law allows a municipal civil service commission to disqualify an applicant if, after passing the required examination, he or she is found not to meet any of the announced requirements.

Coffey took the written test for Nassau County police officer. He scored highly on the written test and was ranked 70th among 70,000 candidates. He also passed a background investigation. But he was disqualified based on the results the third part of Nassau County’s screening process: a three-tiered psychological test battery.

Coffey’s objected, but his appeal was dismissed by the Commission. He sued, contending that his disqualification was arbitrary or capricious. The Commission replied that it had acted in accordance with all relevant rules, policies, and standards, which it had adopted in order to properly administer the provisions of Section 50 of the Civil Service Law.

According to the decision, the Commission found that Coffey failed the psychological screening process because he did not “score within an acceptable range on the objective psychological screening test, and failed in the personal psychological test and interviews.”

The Commission’s psychological screening process had been reviewed and approved by the Appellate Division [Keryc v Nassau County Civil Service Commission, et al, 143 AD2d 669].

New York State Supreme Court Justice O’Connell said, “Courts have also upheld determinations of disqualification, where, as here, the Commissioner of Civil Service found that an applicant was unqualified to serve in a law enforcement position for poor results on standardized Minnesota Multiphasic Personality Inventory (MMPI) exam, among other reasons,” citing the Appellate Division’s decision in Conlon v Commissioner of County of Suffolk, 640 NYS2d 145.

Under the Commission’s rules, the applicant has the burden of establishing his or her qualifications for appointment as a police officer. In dismissing Coffey’s petition, Justice O’Connell said that “where, as here, [the individual] was not actually an employee, but an applicant for appointment, he [or she] must demonstrate that the Commission was arbitrary and capricious, or acted in manner without a rational basis in not making the appointment. The Court ruled that Coffey had not proved this to be the case.

In addition, Justice O’Connell found that Coffey had failed to disclose certain information to the county including five military disciplinary proceedings, two of which resulted in disciplinary actions.

The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/

Discontinuing certain disability benefits

Discontinuing certain disability benefits
Town of Cortland v PERB, NYS Supreme Court, [Not selected for publications in the Official Reports]

The Town of Cortland unilaterally adopted policies and procedures that terminated certain benefits that were being paid to police officers disabled in the line of duty if they had received such benefits for more than one year. These benefits were not expressly provided for by Section 207-c of the General Municipal Law. In support of its action, the town cited Section 71 of the Civil Service Law [Worker’s Compensation Leave], which authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.

The town also adopted procedures requiring (1) “timely notice” of any job-related injuries, (2) a time limit for appealing proposed light duty assignments and (3) a requirement that police officers claiming Section 207-c benefits charge any lost time to accumulated leave credits pending a determination of their eligibility for such benefits.

A state Supreme Court justice upheld a PERB ruling that the town’s unilateral adoption of such policies and procedures constituted a violation of Section 209-a(1)(d) of the Taylor Law. The court affirmed PERB’s order directing that these policies and procedures be rescinded. If such changes are to be implemented, they must be collectively negotiated.

The court stated that the submission of such policies and procedures to the bargaining process would not have any adverse effect upon Cortland’s ability to exercise any of the rights, which it is accorded under General Municipal Law Section 207-c.

Because the issue was settled under the Taylor Law, the court did not address the town’s innovative argument that Section 71 of the Civil Service Law can serve as statutory authority for discontinuing certain benefits for officers who had been absent because of a work connected injury for one year or longer.

Civil Service Law Section 71 [Workers’ Compensation Leave] applies to employees who have been “separated from service” because of a work-related injury or disease as defined in the Workers’ Compensation Law. If the injury did not “permanently incapacitate” the individual, Section 71 mandates that the public employer give the disabled employee a leave of absence for at least one year. Section 71 also authorizes a public employer to “terminate” an individual who has been absent for a cumulative period of at least one year.

The key issue here is what legislature meant by the term “separated from service.” While “separated” is not defined in the statute, reading Section 71 in its entirety suggests that it refers to a situation where the individual is physically unable to report to work rather having been “removed” from his or her position.

Application to Sections 207-a and 207-c: An employee who is receiving benefits under GML 207-a or 207-c may be physically unable to report to work. And some individuals who receive benefits under 207-a or 207-c also receive worker’s compensation benefits. Does this mean at least some employees on 207 leaves are “separated from service” within the meaning of Section 71? And do the provisions of Section 71 therefore apply to theses public employees receiving benefits under 207-a or 207-c?

Courts have not yet ruled on whether Section 71 is applicable in Section 207-a or 207-c situations. However, if the issue is litigated in the future, it is quite possible that courts will conclude that Section 71 simply does not apply in Section 207-a and Section 207-c situations.

The reason is that neither Section 207-a nor Section 207-c authorize the separation of an employee injured in the line of duty. Sections 207-a and 207-c appear to view disabled individuals as remaining employees who are subject to recall upon the termination of the disability or, under appropriate circumstances, assigned to perform light duty. In fact, Sections 207-a and 207-c provide for the continuation of compensation until his or her retirement, attaining the mandatory age of retirement or such other time as the individual is no longer qualified for such benefits. Arguably, the event of separation or termination in the sense referred to in Section 71 does not appear to occur in 207-a or 207-c situations.

On the other hand, the courts might well view the provisions of Section 71 to be triggered in a situation in which Section 207-a or Section 207-c salary payments are discontinued by the employer and the individual fails to return to duty, claiming that his or her disability prevents his or her doing so.

Under these facts, the individual, in effect, concedes that his or her absence is due to a workers’ compensation injury He or she has been separated from service -- i.e., cannot report for duty -- and thus the employer can deem that he or she is entitled to Section 71 leave by operation of law. Such a situation is clearly distinguishable from the employee’s status under Section 207-a or Section 207-c where he or she is physically continued on the payroll and thus has not been “separated.”

Another distinguishing element: Section 71 applies only in situations where the individual is determined not to be permanently incapacitated as a result of an occupational injury or disease. In contrast, Section 207-a and 207-c benefits are provided regardless of whether the individual’s work related injury is determined to have resulted in a temporary disability or a permanent incapacity.

Other cases: Other cases dealing with discontinuing certain benefits to individuals being paid pursuant to Section 207-a or Section 207-c include Chalachan v City of Binghamton, 55 NY2d 989, [contractual right to payment for accrued vacation credits while individual was receiving Section 207-a benefits] and PBA, Village of Walden, 30 PERB 3053, [discontinuation of a past practice that provided “contractual benefits” for vacations and other leaves to persons receiving Section 207-c benefits].

In Chalachan the Court of Appeals said that disabled firefighters were entitled to compensation and medical payments as a matter of law but “any additional benefits must be expressly provided for in the agreement....”

In Walden PERB observed that the Taylor Law agreement was silent as to such payments and found that they had been extended to disabled officers “only pursuant to a practice developed over time.” PERB ruled that Walden had not violated Section 209-a.1(d) when it unilaterally discontinuing its past practice.

PERB noted the PBA’s complaint was a “noncontract grievance,” and under the terms of the contract the “final disposition of past practice grievances” was left to the Village Manager. Accordingly, PERB concluded, “... the language in the ... [negotiated] grievance procedure vests the village with the right to continue or discontinue past practices in its discretion.”

ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record

ALJ recommends that employer permit employee to retire rather than suffer dismissal in consideration of his 29-year unblemished service record
NYC Fire Department v Gill, OATH Index #1871/10

Although the New York City Fire Department sought the termination of Harold Gill’s employment as a firefighter after he tested positive for cocaine in a random drug test, OATH Administrative Law Judge Faye Lewis recommended that the termination be stayed to permit Gill to retire in light of his unblemished 29-year record of service with the Department.

ALJ Fay also recommended that the Gill pay a substantial fine.

The text of the decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1871.pdf

A public employee's freedom of speech with respect to statements made to the press

A public employee's freedom of speech with respect to statements made to the pressHarman v. City of New York, CA2, 140 F.3d 111.

Two New York City agencies, the Human Resources Administration [HRA] and the Administration for Children’s Services [ACS] adopted policies [Executive Orders 101 and 641] requiring employees to obtain agency permission before speaking to the media concerning any policies or activities of the agency.

The City claimed that the policies were necessary to (1) meet the agencies’ obligations under federal and state law to protect the confidentiality of reports and information relating to children, families, and other individuals served by the agencies; and promote the effective operation of the organizations.

Rosalie Harman and other employees challenged these policies on the grounds that they violated the First Amendment rights of the workers. A federal District Court judge agreed and struck down the policy. The Second Circuit Court of Appeals [New York] upheld the District Court’s ruling.

The case began after Harman, a CWA employee, was suspended because of her statements to ABC News concerning the death of a six-year-old, Elisa Izquierdo. It was alleged that the child was beaten to death by her mother. The child’s death became the subject of intense media scrutiny when it was revealed that CWA had received numerous reports about the child before her death.

The court found that Harman had been disciplined for stating to the press that “the workers who are considered the best workers are the ones who seem to be able to move cases out quickly,” and, “there are lots of fatalities the press doesn’t know anything about.”

In affirming the District Court’s ruling that the gag orders were unconstitutional, the Circuit Court said:

1. Individuals do not relinquish their First Amendment rights by accepting employment with the government.

2. The Supreme Court has recognized that the government “may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large. [U.S. v National Treasury Employees Union, 513 US 454].

3. In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [Matter of Pickering, 391 US at 568].

4. Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest” [Connick v Myers, 461 US 138].

5. Where its employee speaks on matters of public concern, the government bears the burden of justifying any adverse employment action [Rankin v McPherson, 483 US 378].

It was undisputed that many federal and state laws require ACS and HRA records, reports, and information relating to specific children or families, be kept confidential. In fact, disclosure of statutorily confidential information, or failure to take reasonable security precautions that leads to such disclosure, is a misdemeanor under state social service provisions.

Nevertheless, the Circuit Court concluded that the gag orders clearly aim at speech that is of considerable importance to the public. “Indeed,” the opinion notes, “discussion regarding current government policies and activities is perhaps the paradigmatic matter[s] of public concern.”

Harman’s speech, according to the decision, concerned the priorities and effectiveness of the CWA, and obviously is of interest to the public whom the agency serves. Therefore, the city bears the burden of demonstrating that the challenged policies are necessary to the efficient operation of the agencies.

Among the justifications advanced by the city was its assertion “that the agencies will not prohibit employees from commenting on the non-confidential operations of the agency once they have ensured that the proposed speech is consistent with the efficient and effective operation of the agency.” However, such conditions do not satisfy free speech requirements, said the Court, because “even according to this interpretation, the regulations clearly interfere with employees’ ability to communicate their views to the media.”

The kind of approval procedure mandated by the city is generally disfavored under First Amendment law because it “chills potential speech before it happens”; it allows the agencies to determine in advance what kind of speech will harm agency operations instead of punishing disruptive remarks after their effect has been felt. For this reason, the court decided, the regulations run afoul of the general presumption against prior restraint on speech.

The Circuit Court affirmed District Court’s decision, ruling that Executive Orders 101 and 641 were unconstitutional infringements on the First Amendment rights of city employees.

The full text of the opinion is posted at:
http://nypublicpersonnellawarchives.blogspot.com/

Using e-mail as evidence in disciplinary actions

Using e-mail as evidence in disciplinary actions
Strauss v Microsoft, USDC SDNY, Lexis 7433

Employers and employees are discovering that with the increased use of electronic mail [e-mail], records thought not to exist may be hidden in computer files. Accordingly, employers are now reviewing computer backup tapes to find evidence of employee misconduct for use in disciplinary actions while employees are using the same sources to discover incriminating evidence of employer wrongdoing such as unlawful discrimination or sexual harassment.

The Strauss case illustrates this trend. Strauss, an employee of Microsoft, alleging she was not promoted because of gender discrimination. Microsoft’s efforts to have her charges summarily dismissed failed when Strauss introduced “explicit e-mail messages from her supervisor” that she found on backup tapes during the discovery phase of litigation.

Courts are usually disposed to granting motions that “appear reasonably calculated to lead to the discovery of admissible evidence.” The fact that the material sought is in electronic rather than a traditional paper form has not been a barrier to approvals.

In another case, Davidian v O’Mara, [USDC TN, 2-97-0020] a newspaper asked a federal district court to allow it to obtain information stored on City of Cooksville [Tennessee] employee’s computer hard drives under the state’s Freedom of Information Law. The newspaper wanted to find out the “web sites” that may have accessed through the City’s computers by its employees by reviewing the “cookie files” stored on the drives.

Originally the city said the newspaper had to pay for the information -- over $300 -- but later decided to refuse to produce the information, claiming the computer files were not public records. However, “cookie files” are like “telephone logs” according to some attorneys involved in First Amendment litigation and therefore must be produced under “Freedom of Information.”

What about employee claims that “personal e-mail” is private and not subject to scrutiny by the employer. As this is still an issue unsettled by the courts, many employers are advising employees that:

1. Workers should not have any “expectation of privacy” with respect to any information, official or personal, prepared using the organization’s computer equipment; and

2. The employer may periodically monitor or review computer files prepared using company equipment.

In some case, unions have attempted to include “employee privacy” provisions in collective bargaining agreements.

Official misconduct

Official misconduct
People v Lynch, Rockland County Court, [Not selected for publication in the Official Reports]

Kevin Lynch, a member of a school board, was charged with “Official Misconduct” [Penal Law Section 195 et seq] as the result of his voting in favor of the district’s purchasing health insurance policy recommended by a consultant hired by the school district. Lynch allegedly had a “secret arrangement” with the consultant and his employer, the court said. After the district had accepted the health insurance plan recommended by the consultant, Lynch “received approximately $107,000 in commissions....”

Section 195.02 provides that a public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit he or she knowingly refrains from performing a duty that is imposed upon him or her by law or is clearly inherent in the nature of his or her office.

Lynch contended that Section 195.02 was unconstitutionally vague because there the law did not set out a standard that could be used to determine conduct that was “clearly inherent in the nature of an office.”

Essentially Lynch argued that the Section 195.02 “fails to provide a clear and unmistakable warning as to the acts which will subject one to criminal punishment.” Judge Kelly, however, said “the essential characteristic of official misconduct is that public servants are under an inescapable obligation to serve the public with the highest fidelity.”

Did Lynch’s vote on the health insurance contract constitute “official misconduct?” Judge Kelly thought it did, noting that “... the object of the official misconduct statute is to punish a breach of duty committed with the requisite culpable state of mind ....” Here, said the Court, the evidence reasonably supports the charge that Lynch failed to perform a “duty clearly inherent in the nature of his office.” In addition, said the Court, Lynch had an ethical obligation to perform said his duties free from conflicts and to disclose such conflicts.

According to the Court, Lynch took an oath of office and was provided with an ethics policy enacted pursuant to General Municipal Law Section 806(a). This policy required that, “[i]f [Lynch] participates in the discussion or gives official opinion on any legislation before the Board he will publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he has in such legislation.” The policy also prohibited Lynch from “solicit[ing] or accept[ing] any commission, expense, paid trips, or anything of value from individuals or companies who are vendors or potential vendors to the district....”

Judge Kelly concluded that a school board trustee has a duty to procure insurance for the school district "free from conflict” and dismissed Lynch’s motion seeking to have the criminal action against him quashed.

The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/

Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint

Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint
Armata and United Federation of Teachers, 30 PERB 4713

Rebeca Armata elected not to attend the scheduled PERB hearing. Her complaint was dismissed on the grounds that she had failed to prosecute it. Armata then filed charges with PERB alleging that the United Federation of Teachers had violated its duty of fair representation.*

Armata had boycotted a PERB hearing. She had asked PERB’s Administrative Law Judge [ALJ], Angela M. Blassman, to issue nine subpoenas to compel the attendance of witnesses she wished to question such as the school district’s director of personnel, UFT officers and others. Blassman issued a subpoena for one of the witnesses but denied Armata’s other requests.

Armata told the ALJ that she objected to Blassman’s decision and said that “if PERB changes its position (and issues the remaining subpoenas) ... we’ll be happy to attend the hearing.” When Armata failed to appear, the UFT [and the School District] moved to dismiss the charges based on Armata’s failure to appear.

Blassman, characterizing Armata’s action as a “failure to prosecute,” granted the motion, commenting that Armata “flatly refused to appear for the hearing unless I changed my ruling regarding her subpoena requests.”

Blassman’s rationale for the dismissal was that “a party’s intentional refusal to appear at a hearing unless PERB rules in that party’s favor evidences an intentional disregard of PERB’s process and leaves me no choice but to dismiss the charge.” According to Blassman, “to hold otherwise would improperly allow a party, instead of PERB, to control the conduct of PERB’s proceedings and would permit a party to hold PERB and all other parties hostage to that party’s requests.”

The case raises the question: What should a party do if the ALJ declines to rule in its favor concerning procedural issues such as issuing a subpoena? The answer is simple. The proper course of action is for the party to proceed with the hearing and prosecute, or defend, the charge. If necessary, the party could appeal the ruling to PERB, including the denial of any of its procedural motions by the ALJ.

* The New York City Board of Education was also involved in this case as a “statutory party pursuant to Section 209-a.2 of the Civil Service Law” and had filed an answer denying all of Armata’s material allegations.

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.