School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums

School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums
Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., Supreme Court, Broome County, 2010 NY Slip Op 20360, Decided on September 3, 2010, Supreme Court, Broome County, Judge Philip R. Rumsey

The Chenango Forks Central School District discontinued reimbursing its Medicare-eligible retirees and their dependents participating in its health insurance plan the premiums they were required to pay for participating in Medicare.

The District’s Health Insurance Plan was underwritten by “Blue Cross/Blue Shield” [Plan] that did not require that eligible individuals enroll in Medicare. However, the Plan would not cover services that would be provided to a Medicare recipient by Medicare even if an eligible individual or his or her covered dependent failed to enroll in Part B.*

Theodora Q. Bryant and a number of other school district retirees or the survivors of such retirees brought an Article 78 action in an effort to annul the School District’s failure to reimburse them for the Medicare premiums that were required to pay for their Medicare coverage. Bryant contended that the District’s action violated the statutory moratorium against reducing the health insurance benefits of school district retirees, or the contributions made to obtain such benefits, in the absence of a similar decrease in benefits or contributions for active employees.**

All petitioners are 65 years of age, or older, and are eligible to receive Medicare benefits, including Part B, which provides coverage for physician and outpatient services. A monthly premium for Part B coverage is deducted from the Social Security benefits payable to an enrolled individual. In 1987 and 1988, in accordance with a collective bargaining agreement, respondent provided health insurance to teachers and eligible retirees through NYSHIP, New York’s health insurance plan for State officers and employees and the officers and employees of political subdivisions of the State electing to become “participating employers.”

NYSHIP required Medicare-eligible individuals to enroll in Medicare as NYSHIP but reimburse the Medicare premiums that they were required to pay in accordance with the provisions of Civil Service Law §167-a.

In 1988, the collective bargaining agreement between the District and the Chenango Forks Teachers Association replaced NYSHIP with a Blue Cross/Blue Shield Plan (Plan), which does not require that eligible individuals enroll in Medicare. However the Plan did not provide benefits services that would be provided to a Medicare recipient in the event a Medicare-eligible participant failed to enroll in Medicare. Although the new collective bargaining agreement was silent with respect to the District reimbursing Medicare premiums to the Medicare-eligible participants, the District reimbursed such retirees for their Medicare premiums continuously since at least 1980.

The District discontinued making such reimbursements effective July 1, 2003.

Bryant, however, contended that the Moratorium precluded any diminution in health insurance benefits provided to retirees or their dependents, or contributions made toward the payment of retiree health benefits, "unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees, [emphasis Judge Rumsey's]. Judge Rumsey agreed and, annulling the District’s discontinuing it practice of reimbursing Medicare-eligible retirees their Medicare premiums and directed it to pay Bryant and her co-litigants “the amounts of such premiums that would have been so reimbursed, in the absence of the challenged determination.”

* The State’s NYSHIP health insurance plan incorporates a similar limitation in that its health insurance plan does not pay for those services that would be otherwise paid by Medicare on behalf of a Medicare-eligible individual thereby requiring such an individual and his or her dependents to enroll in Medicare and pay the premiums required for such Medicare coverages in order to have such coverages.

** Initially enacted in 2003 (see Chapter 48 of the Laws of 2003), the prohibition was periodically extended and made permanent in 2009 [Chapter 504, Laws of 2009, §14(b)].

The Byrant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20360.htm

For additional information concerning the issues concerning reimbursing Medicare-eligible retirees for their Medicare premiums, please go to:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
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Appealing an administrative determination by the State Department of Education

Appealing an administrative determination by the State Department of Education
Appeal of Dean F. Goewey, Decisions of the Commissioner of Education, Decision #16,135

The State Education Department’s Office of School Personnel Review and Accountability denied Dean F. Goewey’s request for a change in venue with respect to a hearing to be held pursuant to Part 83* of the Commissioner’s Regulations [8 NYCRR 83]. Goewey filed an appeal with the Commissioner of Education in an effort to overturn the Department’s decision not to change the venue of the hearing.

The Commissioner dismissed Goewey’s appeal, explaining that a §310 appeal is not the appropriate forum to review either the determination of the hearing officer or the determinations of OSPRA staff. The Commissioner also noted that he had appointed the hearing officer “to conduct a Part 83 moral character hearing” on his behalf."

The Commissioner said that the proper forum to challenge such administrative actions is via “a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.”

As to the administrative proceeding itself, the Commissioner said that Goewey could appeal the administrative determination as provided by §83.5 of the Commissioner’s Regulations [8 NYCRR 83.5] within 30 days after receipt of notification of the findings and recommendations of the hearing panel.**

* Part 83 of the Commissioner's Regulations addresses “Determination of Good Moral Character” and, as a first step, requires that any information “indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the [Education] department.”

** 8 NYCRR 83.5 (a) addresses, in pertinent part, the right to appeal. It provides that “The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.”

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16135.htm
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Exhausting the contract grievance procedure is not always a condition precident to challenging a disciplinary action

Exhausting the contract grievance procedure is not always a condition precident to challenging a disciplinary action
Mancuso v Crew, NYS Supreme Court, [Not selected for publication in the Official Reports]

If a collective bargaining agreement contains a “contract grievance procedure,” must an employee who has been disciplined exhaust the contract grievance procedure before he or she may challenge the disciplinary action pursuant to Section 75 of the Civil Service Law?

As the Mancuso case demonstrates, the answer can be no, but only if the collective bargaining agreement does not provide a contract disciplinary procedure in place of Section 75.

“(A) union is free to bargain away its members’ statutory rights when that bargain is expressly stated in the agreement,” a state Supreme Court Justice ruled in the Mancuso case. But the mere existence of a grievance procedure is insufficient to prove that the union had negotiated an alternative to Section 75. When the employer took disciplinary action against employees, it could not avoid challenges under Section 75, even though none of the employees involved had used the grievance procedure past the second step.

Nicholas Mancuso sued the New York City Board of Education on behalf of 20 School Safety Officers whom the board had suspended without pay, or terminated, for such misconduct as a drug-related arrest, sexual misconduct or excessive absenteeism. The employees all held positions in the non-competitive class. There was no question that the employees were protected by Section 75 since all had served at least five continuous years in nonpolicy-making positions. [See Civil Service Law Section 75.1(c)]

Mancuso claimed the school board violated the due process rights of the employees in the disciplinary process. He contended that the employees had been suspended more than 30 days -- the maximum period permitted by Section 75 pending a disciplinary hearing and determination of the charges. [Section 75.3] Mancuso argued that the employees were entitled to back pay for any period of suspension in excess of this 30-day statutory period to the extent that the employees themselves did not cause any delay in the disciplinary proceeding.

The Board of Education, on the other hand, argued that Mancuso’s petition had to be dismissed because “10 of the 20 named petitioners utilized the grievance procedure provided by their collective bargaining agreement [CBA] to Step I or Step II, but did not complete Step III or Step IV, and thus have failed to exhaust their administrative remedies, as have [the 10] who did not pursue the grievance procedures at all.”

State Supreme Court Justice Belen found that there was no requirement that the employees use or complete the grievance procedures contained in their agreement before they were entitled to the benefits of Section 75. The contract did not purport to alter or supersede Civil Service Law Section 75, Belen said. In other words, the contract did not set out a contract disciplinary procedure in lieu of Section 75.

Justice Belen observed that the contract provided “nothing contained herein shall be construed to deny any employee his rights under Section 15 of the New York Civil Rights Law or under applicable civil service laws and regulations.”

In addition, the decision noted, “there is no provision in the agreement that states that an employee must utilize and exhaust the grievance procedure prior to utilizing his remedies provided by the Civil Service Law.”

The Court said that the employees including those “who were found guilty of the charges and whose employment was terminated,” are still entitled to payment for the period of any suspension in excess of 30 days and remanded the matter to the Board of Education for “the purpose of providing petitioners with the Civil Service Law Section 75(3) hearings where appropriate and for the computation of payment for any suspension that exceeded the statutory period.

Section 76 of the Civil Service Law, authorizes Taylor Law negotiations concerning a “contract disciplinary procedure” in lieu of the statutory disciplinary procedure otherwise applicable. A parallel provision is contained in Section 3020-a of the Education Law, the Section 75 equivalent for teachers and school administrators. In contrast, a “contract grievance procedure” typically is used to deal with an alleged failure to implement or the violation of the terms of a collective bargaining agreement.
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Eligibility for unemployment insurance between school years depends on the absence of an “assurance of reemployment”

Eligibility for unemployment insurance between school years depends on the absence of an “assurance of reemployment”
Aljandari v Buffalo Bd. of Education, App. Div., 245 A.D.2d 647
[Decided with Smith v Buffalo Board of Education]

Often temporary teachers seek unemployment insurance benefits during a school district’s summer recess. Key to their eligibility is the absence of any assurance of “next semester” employment by the District.

In the Aljandari case the Appellate Division sustained a determination by the Unemployment Insurance Appeals Board that Aljandari and other “totally unemployed” teachers were entitled to unemployment insurance benefits during the school’s 1995 summer recess.

Although Aljandari and the others were covered by a Taylor Law agreement between the School District and the union, the Appellate Division found that the agreement did not specifically define “the duration of their employment.”

Their employment, said the Court, was established by a letter of employment sent to these temporary teachers at the beginning of the academic year advising them that their appointment was for as long as their services were needed “but in no case beyond the [current] school” and that their assignment was strictly temporary.

This clear language did not provide the teachers with any assurance of reemployment following the summer recess period. The Court sustained the Board’s ruling that the teachers were eligible for unemployment insurance benefits for the period of their summer unemployment.

The Appellate Division said that the fact that some of the teachers “were eligible for fringe benefits during the summer and elected to have their salary prorated to extend during this time” did not “compel the conclusion” that they were not totally unemployed during the summer.

In effect, the Court ruled that it was the term of the teacher’s “professional obligation” rather than his or her payroll mode [21 pay periods or 26 pay periods] that was the critical element.

Creating new negotiating units

Creating new negotiating units
Erie County v PERB, Appellate Division, 247 A.D.2d 671

The Erie County v PERB case suggests that PERB has become more flexible regarding splitting sheriff’s department employees into separate collective bargaining units.

In Erie County Teamsters Local 264 represented a single large negotiating unit that included both Deputy Sheriff-criminal [“criminal deputies”] and Deputy Sheriff-officer [“officer deputies”] positions. The criminal deputies were primarily engaged in law enforcement activities while the “officer deputies” were assigned as guards at the County’s holding center and courts.

The Erie County Sheriff’s Police Benevolent Association [PBA] petitioned PERB seeking to establish a separate negotiating unit for the criminal deputies.

Ultimately PERB approved the establishment of this new “fragmented” unit for criminal deputies and certified the PBA as the exclusive negotiating representative for the new unit. In so doing, PERB reversed a finding by its Director of Public Employment Practices and Representation that “a separate and distinct law enforcement community of interest ... had not been established.”

The County and Local 264 appealed in an effort to have PERB’s determination [26 PERB 3069] annulled.

The Appellate Division said that although PERB had initially held that “deputy sheriffs are not appropriately fragmented from existing units which include other sheriff department employee,” citing County Association of Patrol Officers, 25 PERB 3062, it noted that PERB had reconsidered its earlier rulings on this issue.

The Court noted that in Dutchess County Sheriffs PBA, 26 PERB 3069, PERB “suggested that ‘the law enforcement responsibilities and duties of deputy sheriffs and other sheriff’s department employees may be sufficient to warrant the establishment of a separate unit of deputy sheriffs.’“

The Appellate Division sustained the establishment of a separate negotiating unit for the criminal deputies, holding that PERB ruling in Erie was “nothing more than a logical extension of its prior decision in Dutchess.”

The Court noted with approval PERB’s view that an analysis of the duties of positions warranted the establishment of separate negotiating unions. Here, it said, “even a cursory review” reveals the “distinguishing features of the class, training, typical work activities and the knowledge, skills and minimum qualifications required.”

The Court adopted PERB’s analysis, commenting that the documentary and testimonial evidence adduced at the hearing with respect to the differences in the Deputy Sheriff-criminal and Deputy Sheriff-officer title series fully supported PERB’s determination that only those employed in the Deputy Sheriff-criminal series “have criminal law enforcement as the exclusive or primary attribute of his or her employment.”

Nothing in the Appellate Division’s opinion, however, suggests that PERB applied the “community of interest” standard in determining negotiating units as set out in Section 207 of the Civil Service Law [the Taylor Law].

Section 207, in the pertinent part, provides that for the purposes of resolving disputes concerning representation status, PERB shall define the appropriate employer-employee negotiating units taking into account a standard that provides that: the definition of the unit shall correspond to a community of interest among the employees to be included in the unit. Nothing in Section 207 refers to determining negotiating units on the basis of “the respective job descriptions” of positions.

School district advised to comply with the Commissioner’s regulations as to staffing or obtain approval for an alternate staffing arrangement

School district advised to comply with the Commissioner’s regulations as to staffing or obtain approval for an alternate staffing arrangement
Sharon Kennedy-Frost And United Federation Of Teachers, Local 2, American Federation Of Teachers, AFL-CIO, Decisions of the Commissioner of Education 16,130

A number of a library media specialist [LMS] employed by the New York City Department of Education and their collective bargaining representative contended that the Department failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations.

The Department’s defense: it was in “substantial compliance with the regulation” and thus its actions were legal, proper, and reasonable.

However, said the Commissioner, the Department admitted to being only “substantial” compliance with the regulation and the record reflects that they have failed to staff certain secondary schools with the required number of personnel or provide an alternative staffing arrangement approved by the Commissioner. The Commissioner then “advised” the Department to either [1] staff its schools appropriately or [2] obtain the Commissioner’s approval for an alternate arrangement as provided in §91.2 of the Commissioner’s regulations.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16130.htm
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Alcoholism as a defense in a disciplinary action

Alcoholism as a defense in a disciplinary action
Murolo v Safir, Appellate Division, 246 A.D.2d 653, Leave to appeal denied, 91 N.Y.2d 813

In McEniry v Landi, 84 NY2d 554, the Court of Appeals said that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [Section 292.21, Executive Law]. A New York City firefighter, David Murolo, challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had overcome. He claimed that his firing violated the Human Rights Law, citing the McEniry decision.

Disciplinary action began after Murolo called in a false alarm. While his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. After admitting at a disciplinary hearing that he had called in the false alarm and had taken the money, Murolo testified that:

1. He had been drinking heavily prior to the incident and “was not thinking straight.”

2. He had entered a counseling program for his alcohol problem as directed by the Department and had begun to attend Alcoholics Anonymous meetings.

The hearing officer determined that his status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.

Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination.

The Appellate Division distinguished the situation in McEniry from Murolo’s.

In McEniry the issue was whether alcoholism prevented the officer from satisfactorily performing his duties. The Court of Appeals held that if an individual establishes a prima facie case that his discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.

Determining the compensation of the officers of a town

Determining the compensation of the officers of a town
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957

Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.

After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.

Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”

On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”

Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.

Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:

1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and

2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”

Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.

Determining the compensation of the officers of a town

Determining the compensation of the officers of a town
Taney v Town of Waterloo, NYS App. Div., 245 A.D.2d 1079, Motion for leave to appeal denied, 91 N.Y.2d 957

Although a Town Board may determine the compensation to be paid a Town Justice, its decision to pay its justices at different rates may raise a federal “equal protection” issue. The Taney decision is an example of such a situation.

After Alfred C. Taney was reelected Waterloo Town Justice in 1996, the Town Board voted to reduce his salary from $8,975 to $1,200. It kept the salary being paid to its other Town Justice, who was then in the middle of his term of office, at $8,975. In 1997, the Town Board again considered the compensation being paid to its Town Justices. Taney’s salary was kept at $1,200; the salary of the other Town Justice’s was increased 3 percent. Taney filed a suit pursuant to Article 78 [Article 78, Civil Practice Law and Rules], contending that the Board’s actions violated his Constitutional rights under 42 USC 1983.

Seneca County Supreme Court Justice Harvey decided that Board’s 1997 salary determinations were arbitrary, capricious and an abuse of its discretion. The Court directed the Board to set Taney’s 1997 salary at “a fair and equitable amount.”

On appeal the Appellate Division commented that, pursuant to Section 27 of the Town Law, a Town Board has the power to set the salaries of its Town Justices and it is not obligated to pay all justices the same rate of compensation. Accordingly, the Court concluded that “there is nothing illegal per se in the Town Board’s 1997 decision to pay [Taney] a salary different from the other Town Justice [and] the amount of that salary is a decision left to the sound discretion of elected Town officials, who ordinarily should not be second-guessed.”

Nevertheless, the Appellate Division rejected the Board’s argument that Taney’s $1,200 salary was consistent with the salaries of Town Justices in other towns and that Taney was not given a raise in 1997 because of his reduced caseload.

Technical issues figured prominently in the decision. While “the determination of a Town Justice’s salary ... is properly the subject of a CPLR article 78 proceeding,” the Appellate Division held that:

1. The merits of the Board’s 1996 decision were not properly before the lower court because the Statute of Limitations for filing an Article 78 petition challenging the Board’s 1996 action had expired; and

2. The lower court should have considered Taney’s allegations concerning the Constitutionality of the Board’s 1996 action as the controlling “three-year Statute of Limitations with respect to the 42 USC 1983 cause of action ... has not expired.”

Accordingly, said the Court, “whether [Taney’s] constitutional rights were violated by the [Board’s] 1996 salary determination may be litigated in the context of that cause of action,” citing Benjamin v Town of Fenton, 892 F Supp 64.

Public entities are immune from negligence claims arising out of the performance of its governmental functions absent proof of a special relationship

Public entities are immune from negligence claims arising out of the performance of its governmental functions absent proof of a special relationship
Zeitlin v NYC Board of Education, NYS Supreme Court [Not selected for publication in the Official Reports]

Pupils assaulting teachers has become an occupational hazard in a number of school districts. What is a school district’s liability if a student assaults a teacher?

In the Zeitlin case New York State Supreme Court Justice Solomon considered a schoolteacher’s demand for compensatory and punitive damages based on his school district’s alleged failure to protect him from student assaults.

Citing Miller v State of New York, 62 NY2d 506, Justice Solomon described the basic law in such situations as follows:

Public entities are immune from negligence claims arising out of the performance of their governmental functions unless the injured person establishes a special relationship with that entity underlying a specific duty to protect that individual and reliance on the performance of that duty by the individual.

What is involved in establishing such a “specific duty?” According to the ruling, such a duty comes into being only where all four of the following elements are satisfied:

1. Assumption: An assumption by a municipality or municipal agency, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;

2. Knowledge: Knowledge on the part of the municipality’s agents that inaction could lead to harm;

3. Direct Contact: Direct contact between the municipality’s agents and the injured party; and

4. Justifiable reliance: The injured party’s justifiable reliance on the municipality’s undertaking.

In the Zeitlin case the Court concluded that although providing security against physical attack from third parties was a governmental function, “Zeitlin fails to meet the first element [assumption] of a claimed special duty of protection and for that reason alone, his claim must fail” and dismissed his complaint. In other words, Zeitlin was unable to demonstrate a critical element -- that the District has assumed any responsibility for his safety at the work site.

This “four element” test is not usually applied in cases involving the safety of students, however. As the Appellate Division said in Foster v New Berlin Central School District, 246 AD2d 880, “school districts are under a duty to adequately supervise students in their care and will be liable for foreseeable injuries proximately related to the absence of adequate supervision.”