Reassignment of personnel

Reassignment of personnel
Superior Officers v Triborough Bridge & Tunnel Authority, Appellate Division, 244 AD2d 154

The Superior Officers Benevolent Association challenged the Triborough Bridge and Tunnel Authority's practice of assigning a sergeant to a lieutenant's post if the lieutenant was absent.

The Appellate Division dismissed the Superior Officer's petition, commenting that it would defer to the Authority's interpretation of its procedures for designating replacements for an absent lieutenant "since such interpretation is neither irrational nor unreasonable and effects a managerial determination within its purview." In other words, in the view of the Court the Authority was merely exercising its "management prerogatives" when it assigned a sergeant to a lieutenant's post if the lieutenant was absent.
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Dismissal for disqualifying misconduct bars unemployment insurance benefits

Dismissal for disqualifying misconduct bars unemployment insurance benefits
Lubin v Sweeney, Appellate Division, 244 AD2d 755, Motion for leave to appeal denied, 91 NY2d 810

The State's Unemployment Insurance Appeal Board will not grant unemployment insurance benefits to a person who has lost a job if the reason for the discharge was misconduct or for some other disqualifying reason. In Lubin the Appellate Division sustained the board's denial of unemployment benefits.

Lubin, a New York City Transit Authority platform conductor, was terminated because he struck a passenger with a flashlight. The passenger had inserted her arm between the subway's car doors in an effort to reopen them after they had shut, leaving her minor son unattended outside on the subway's platform. As a result, Lubin was terminated for violating the Authority's rule prohibiting employees from striking passengers under any circumstances.

The Appellate Division sustained the Unemployment Insurance Appeal Board's ruling that Lubin "had lost his position under disqualifying conditions." It said that "a physical assault in the course of one's employment has been found to constitute disqualifying misconduct, as has the knowing violation of an employer's rules or policy" citing Graham v Sweeney, 233 AD2d 660.
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Family medical leave

Family medical leave
Dintino v Doubletree Hotels Corp., USDC EPa, 4 WH Cases2d 413

The Dintino case illustrates that under the Family Medical Leave Act [FMLA], the employer has the duty of determining whether or not an employee wishes to "charge" his or her absence from work to the 12-week FMLA period allowed employees each year.

Also, it is the responsibility of the employer to advise the individual, in writing, that it will count a particular absence against the individual's available FMLA leave.

According to U.S. District Court Judge John Fullam, the Doubletree Hotels Corporation failed in both duties in connection with Audrey Dintino's maternity. As a result, Judge Fullam found that the Company violated the FMLA because:

(1) it neglected to advise Dintino of her rights under the Americans With Disabilities Act and

(2) it terminated her when she did not return to work when her maternity leave ended.

Dintino had told Doubletree of her pregnancy and of her plans to take a three-month maternity leave commencing in July 1994. She actually left work on June 21, 1994 at the request of her physician when medical complications arose.

Doubletree claimed that her 12-week FMLA leave commenced on June 21, while Dintino contended that her "medical complications" triggered a "separate unpaid medical leave" under Doubletree's personnel policy and therefore her FMLA leave did not commenced until the expiration of that leave.

When Doubletree told Dintino that she had "abandoned her job" when she failed to work in October as scheduled, Dintino sued claiming the Company had violated her FMLA rights.

The Court agreed. It said that Doubletree had to give Dintino a written notice that the leave she was taking commencing in June was being charged as FMLA leave in order for it to be counted against her available annual FMLA leave. Doubletree's failure to do so was fatal to its claim that Dintino's June-October absence was part of her FMLA leave.

The Court pointed out that the employee is not required to identify the absence as being FMLA leave. According to the ruling, under federal Department of Labor regulations, "where there is ambiguity in the employee's request for leave the burden is on the employer to determine whether the leave is FMLA-qualifying" or not.

Finding that Dintino's FMLA leave commenced October 1994, the Court ruled that Doubletree's terminating her the following November "constituted an interference of [Dintino's] exercise of her FMLA rights." Why? Because, said the Court, Doubletree's failure to determine the type of leave Dintino intended to take from June 21, 1994 through October 7, 1994, coupled with its own leave policy, which the policy handbook distinguished from FMLA absences, supported its conclusion that the Company did not treat Dintino's June-October absence as FMLA leave.
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U.S. Circuit Court of Appeals rules that transsexuals are not a protected class for purposes of Title VII

U.S. Circuit Court of Appeals rules that transsexuals are not a protected class for purposes of Title VII
Krystal S. Etsitty v Utah Transit Authority, CA10, v. No. 05-4193

Krystal Etsitty, a transsexual and former employee of Utah Transit Authority (UTA), sued UTA and Betty Shirley, her former supervisor, pursuant to 42 USC. §2000e-2(a)(1) (Title VII) and 42 USC. §1983 (The Federal Civil Rights Act).

Etsitty alleged the Transit Authority terminated her because she was a transsexual and because she failed to conform to their expectations of stereotypical male behavior. She alleged that terminating her on this basis constituted gender discrimination in violation of both Title VII and the Equal Protection Clause of the Fourteenth Amendment.

The Transit Authority filed a motion for summary judgment and the District Court granted its motion.

The court ruled that transsexuals are not a protected class for purposes of Title VII and the prohibition against sex stereotyping recognized by some courts should not be applied to transsexuals.

The District Court also concluded that even if a transsexual could state a Title VII claim under a sex stereotyping theory, there was no evidence in this case that Etsitty was terminated for failing to conform to a particular gender stereotype. Etsitty appeals the district court’s order granting summary judgment to the defendants.

The Circuit Court of Appeals affirmed the District Court’s granting the Authority’s motion for summary judgment.

The full text of the Circuit Court’s decision is on the Internet at:
http://www.ca10.uscourts.gov/opinions/05/05-4193.pdf
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Police officer dismissed after failing to properly surrender a weapon

Police officer dismissed after failing to properly surrender a weapon
Doolittle v McMahon, Appellate Division, 245 AD2d 736

A State Trooper's failure to properly dispose of a weapon ultimately led to a fellow Trooper’s dismissal for "official misconduct." The misconduct, in the words of the Appellate Division, involved Doolittle's "purchasing [a] pistol from [a fellow Trooper] knowing that it was not lawfully possessed by him."

Dorothy Snyder had turned over a .32 caliber semiautomatic pistol that had belonged to her deceased husband to Trooper Warren Meizner. Meizner sold the weapon to Trooper James E. Doolittle for $50.

According to the court, the weapon was required to be surrendered to the Division of State Police. Rather than surrendering the pistol as required, Meizner sold the pistol to Doolittle who was then under an obligation to surrender it to the Division. Doolittle, rather than surrendering the firearm, attempted to convert it as his own property by filling out a State Police Acquisition or Disposition of Firearm Report [“D Form”] which was false.

In the course of filing the D Form, it was learned that the pistol had never been registered to Snyder. After an investigation, Doolittle was served disciplinary charges and found guilty of violating State Police regulations by "knowing violating Penal Law Sections 155.30 (larceny); 175.30 (offering a false instrument for filing); and 195.00 (official misconduct). The penalty imposed: dismissal.

The Appellate Division rejected Doolittle's appeal, holding that the disciplinary determination was supported by substantial evidence and the penalty imposed "was not so disproportionate as to be shocking to one's sense of fairness," citing Pell v Board of Education, 34 NY2d 222.

The Court said that the disciplinary panel had substantial evidence that Doolittle had "acquired the weapon in an unauthorized manner for his own benefit while acting in his official capacity ... and was under a duty to surrender the gun as a nuisance weapon to [the Division]. Not having done so, Doolittle was guilty of official misconduct.
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New York State Comptroller alleges retired police officer involved in a "pension padding scheme"

New York State Comptroller alleges retired police officer involved in a "pension padding scheme"
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli announced in a press release issued on September 17, 2010 that his Department's investigators found that a retired City of Rome Police Officer, Thomas C. Hubal, was involved in a “pension padding scheme."

The Comptroller said that Hubal was indicted “for illegally collecting more than $88,000 from the New York State and Local Retirement System over a nine-year period.” According to a report* published in September 2010 by the Comptroller's Investigations Unit, investigators from the Investigations Unit and Oneida County District Attorney Scott McNamara’s office found that Hubal was working for the Rome City School District without having obtained a waiver from the State Civil Service Commission, as required by State Law,** and without notifying the Comptroller’s Office that he would be returning to public employment.

In general, §150 of the New York State Civil Service Law prohibits a retired member of a public retirement system of this state*** collecting a retirement allowance from a New York public pension system from being employed by New York State or a political subdivision of New York State and simultaneously collecting a salary in excess of statutory salary limits imposed for such retirees returning to public service by law.

There are, however, certain exceptions to this general prohibition whereby:

1. A retiree who is age 65 or more may return to public sector employment without a reduction or suspension of his or her pension regardless of the amount of his or her public sector compensation;

2. The retiree may suspend his or her retirement allowance and rejoin the Retirement System;

3. The retiree, regardless of age, may be reemployed by the State or a political subdivision of the State without any reduction or suspension of his or her pension if he or she does not earn a salary in excess of the earnings limits set out in the RSSL.

4. A retiree "may be able to temporarily (and for a finite period of time)" earn a public sector salary in excess of the limits imposed by the RSSL if the retiree and the retiree’s prosective appointing appointing authority (on his or her behalf) apply for and are granted a waiver under very specific circumstances" prescribed in §211.

Although the New York State Retirement and Social Security Law permits a retiree receiving a retirement allowance from a public retirement system of New York State to temporarily return to work for a public entity without a reduction in his or her existing retirement benefits, provided the retiree satisfies specific legal requirements to do so, Hubal, said the Commissioner, "circumvented those legal requirements."

The Comptroller said that Hubal was arraigned in Oneida County Court on Friday, September 17, 2010 and charged with second-degree grand larceny and defrauding the government, both felonies.

The Comptroller also said Department investigators found evidence suggesting that others in the school district attempted to help Hubal illegally “double-dip,” commencing with Hubal’s hiring by school district officials in 1995 and their disregarding the requirements set out in New York State's laws concerning the reemployment of individuals receiving a retirement allowance from a public retirement system of this State.

In addition, DiNapoli said that the investigators found evidence suggesting that school district officials allowed Hubal to collect funds for travel and other expenses without the required documentation to support such expenses in excess of $20,000.

A retiree's failure to obtain the required §211 waiver in a timely fashion could result in civil financial liability as well. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.

However, there are no limitiations with respect to the reemployment of a retiree of a New York public retirement system by an employer in the private section, by the federal government or by another state or a political subdivision of another state.

* The full text of the Comptroller’s report is posted on the Internet at http://www.osc.state.ny.us/reports/investigations/Rome_Report.pdf

** See §150 of the Civil Service Law and §211 of the Retirement and Social Security Law.

*** The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
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Incompetence and misconduct in the context of a disciplinary action

Incompetence and misconduct in the context of a disciplinary action
Brey v Jefferson-Youngsville CSD, App. Div., 245 AD2d 613

Incompetence and misconduct have different meanings in disciplinary actions.

Incompetence basically refers to a lack of the ability to do the work properly; misconduct frequently involves the employee's failure to comply with instructions or ignoring appropriate procedures.

Elvira Brey, business manager for the Jefferson-Youngsville school district in Sullivan County, was charged with incompetence because she failed meet deadlines for filing various forms and applications with the State Department of Education and neglected to make timely interest payments on a series of the School District's bonds.

The charges involving misconduct arose for her alleged "failure to comply with [the Superintendent's] repeated written directives' to complete the forms required to be filed with the Education Department. The disciplinary action was brought pursuant to Section 75 of the Civil Service Law.

Found guilty of all charges and specifications, Brey was terminated from her position. She challenged the Board's action, contending that:

(1) the findings of the hearing officer were not supported by substantial evidence and

(2) the penalty imposed was "grossly disproportionate ... because she had not intentionally failed to timely file the reports and make the interest payments."

The Appellate Division was not impressed by these representations. It concluded that the Board's determination was based on the testimony of School District witnesses, Brey's admissions, and documentary evidence "amply supported by proof in the record,” which satisfied the substantial evidence test.

The Court dismissed Brey's appeal, indicating that the penalty imposed met the Pell test in that it is "not so disproportionate to the offenses as to be shocking to one's sense of fairness."

Another factor in this case was Brey's claim that she was the victim of retaliation within the meaning of Section 75-b of the Civil Service Law, the so-called "Whistle Blower" statute. After commenting that Brey "did not sufficiently establish her defense of retaliatory discharge," the Court said that "a defense under Section 75-b cannot be sustained when a public employer has a separate and independent basis for the action taken" against the individual.

The lesson here is that even in cases where the individual is able to demonstrate he or she has suffered retaliation in violation of Section 75-b, such a defense will not be sufficient to prevent an employer from disciplining an employee merely because the employee's actions are protected by Section 75-b if the employer has a separate and different basis for the disciplinary action.

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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Terminations based on political affiliation

Terminations based on political affiliation
Bavaro v Pataki, CA2, 130 F.3d 46 9181

In this case there was no question that Ralph Bavaro and Elizabeth Hogan were fired from their respective jobs as Associate and Assistant Counsels to "make room" for two political appointees. They sued, seeking damages and injunctive relief pursuant to 42 USC. 1983.

Were the attorneys subject to dismissal on the basis of their political affiliation or were they protected against such political patronage dismissals under the First Amendment to the United States Constitution? The U.S. Circuit Court of Appeals upheld a federal district court ruling that the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.

According to the decision, in 1976 the Supreme Court first held that patronage dismissals may infringe upon government employees' First Amendment rights to political belief and association, citing Elrod v. Burns, 427 U.S. 347. However, Elrod also holds that "[l]imiting patronage dismissals to policymaking positions is sufficient to achieve a governmental end."

In Branti v. Finkel, 445 U.S. 507, a 1980 decision, a majority of the U.S. Supreme Court reaffirmed its view that patronage dismissals may contravene the First Amendment but said incumbents would not be protected against patronage dismissals where the hiring authority able to demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

The Circuit Court explained that a rational connection exists between political affiliation and performance of the inherent duties of a position, when the employee:

(1) is exempt from civil service protection;

(2) has some technical competence or expertise;

(3) controls others; and

(4) is empowered to act and speak on behalf of a policymaker, especially an elected official.

The Circuit Court decided that under the circumstances, the politically motivated termination of Bavaro and Hogan did not violate their First Amendment rights.

It ruled that the positions held by Bavaro and Hogan were not protected against patronage dismissal because the four elements listed by the 2nd Circuit were satisfied.

Suppose the individual does not actually perform the duties that are actually set out in the official job description for the position. The Circuit Court said that in analyzing whether a government employee is protected under this standard, the "inherent duties of the position, not the actual duties performed by the employee in a particular case" control.

The full text of the opinion is on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/terminations-based-on-political.html
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Reasonable accommodation of employee's disability may not always trumpet collective bargaining seniority agreement

Reasonable accommodation of employee's disability may not always trumpet collective bargaining seniority agreement
Kralik v Durbin, CA3, 130 F.3d 76

The Third Circuit U.S. Court of Appeals in Philadelphia has decided that an accommodation of a disabled individual under the Americans with Disabilities Act [ADA] does not take precedence over the terms of a collective bargaining agreement.

The case focused on a conflict between employee seniority rights under a collective bargaining agreement and an employee's right to a reasonable accommodation under ADA that would adversely impact the seniority rights of other workers.

Karen Kralik, a highway toll collector, contended that she could not work "forced overtime" because her back condition prevented her from sitting for more than eight continuous hours. When her employer refused to exempt her from forced overtime, she contended that its action constituted a violation of the ADA. Kralik alleged that the reason her employer had refused to provide her with the accommodation was that it would require another employee with more seniority to work overtime and thereby infringe on the rights of these employees under the collective bargaining agreement then in place.

The U.S. Circuit Court of Appeals rejected Kralik's argument. It commented that there was a well-established precedent in place when Congress passed ADA -- reasonable accommodation under the federal Rehabilitation Act "had never been held to require trumping the seniority rights of other employees."

Why did the Court conclude that the accommodation requested by Kralik -- no forced overtime -- was not a “reasonable accommodation" under the circumstances? The Court said "even minor infringements on other employees' seniority rights impose unreasonable burdens on employers who, by reason of these infringements, must face the consequences of violating the collective bargaining agreement."
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Retirees are not employees within the meaning of the Taylor Law

Retirees are not employees within the meaning of the Taylor Law
New Action and United Federation of Teachers, 30 PERB 3048

New Action, a retiree group, asked the United Federation of Teachers [UFT] for a list of the names and addresses of its retired members. When UFT refused, New Action complained to PERB, contending UFT violated Section 209-a.2(a) of the Taylor Law. Section 209-a.2(a) prohibits an employee organization from interfering with the rights given public employees under the Act.

PERB affirmed the Director of Public Employment Practices and Representation's dismissal of New Action's claims. It agreed with the Director that UFT was permitted to refuse to provide New Action with the names of its retired members because:

1. New Action was not an employee organization within the meaning of the Taylor Law;

2. New Action's demand was not related to the terms and conditions of employment; and

3. The information sought by New Action concerned matters internal to UFT.

While PERB noted that an employee organization has a "general duty" to provide information to the employees it represents concerning their terms and conditions of employment when asked, retirees are not public employees, have no terms and conditions of employment and are not in the UFT bargaining unit.

PERB also rejected New Action's theory that it was entitled to the names and address of UFT retirees because UFT supposedly "allows retirees to vote on ratification of collective bargaining agreements and in elections for union officers." Even if true, PERB ruled, this would not matter as such participation concerns internal union affairs falling outside the scope of the Taylor Law.

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Ignoring directives given by superiors

Ignoring directives given by superiors
Lowery v Office of Court Admin., App. Div., 244 AD2d 192

Patricia Lowery, an employee of the Office of Court Administration, was alleged to have "disregarded express directives" given to her by her supervisor.

Found guilty, Lowery was terminated from her position.

Was termination an excessive penalty to impose on Lowery for being insubordinate? The Appellate Division did not think it was and affirmed the decision of the Chief Administrative Judge to dismiss Lowery.
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Evaluating applications for disability retirement

Evaluating applications for disability retirement
Vasquez v Board of Trustees NYCFD, NYS Supreme Court [Not selected for publication in the Official Reports]
Furch v Bucci, Appellate Division, 245 AD2d 749, Motion to appeal dismissed as not a final order, 91 NY2d 953

The rejection of an application for accidental disability retirement typically hinge on the resolution of two important questions: (1) Did the individual suffer a line-of-duty injury? and, if so, (2) did the injury result in a permanent disability? The Vasquez and Furch consider the elements involved in making such determinations.

The Vasquez Case:

Vasquez, a New York City firefighter, claimed that he had sustained line-of-duty injuries including the rupture of his right Achilles tendon in 1983, a meniscus injury to his left knee in 1988, partial rupture of his left Achilles tendon in 1991, and a herniated disc in the cervical spine in 1993. The Fire Department filed an application for disability retirement on behalf of Vasquez on December 19, 1994 and on February 20, 1996 and on August 26, 1996, Vasquez filed his own applications for accident disability retirement. On September 10, 1996, the Board of Trustees of the New York City Fire Department Article 1-B Pension Fund [Trustees] decided to retire petitioner on ordinary disability retirement, not accidental disability retirement.

According to the ruling, the 1-B Medical Board concluded that the Achilles injuries and the lumbar degeneration were non-disabling; the herniated disc in the cervical spine was non-duty related; and the knee problem was not permanently disabling.

Vasquez sued, seeking a judgment annulling the Trustees' decisions. He argued there was no credible or substantive dispute as to his condition among the medical experts. The Trustees, on the other hand, argued that Vasquez failed to meet his burden of proof that his line-of-duty accidents caused his disability. Significantly, the Trustees contended that Vasquez had filed untimely line-of-duty injury reports concerning the events underlying his claims, "although over the years he had filed many."

Two fellow firefighters provided affidavits supporting Vasquez’s account of the events at issue. But the Trustees urged that the Court not give much weight to the fact that because the statements were dated more than a year and a half after the incident Vasquez claimed caused his disability.

Finally, the Trustees contended that the fact that Vasquez never returned to full duty "is not sufficient to overcome the copious medical evidence on the record."

Although the Medical Board's determination as to whether an applicant is disabled is binding upon the Trustees, the Court said that the issue of whether the disability is service-related is solely for the Board of Trustees to decide, citing Canfora v. Board of Trustees, 60 NY2d 347, 351. Commenting that there was an "exhaustive review of the objective and subjective evidence" by the 1-B Medical Board, the Court concluded that the record supported the Trustees' determination.

New York State Supreme Court Justice Belen noted the Trustee's vote was 6-6. Justice Belen commented that "if the Trustees' decision is based on a tie vote, the court cannot disturb an administrative determination unless it can find causation as a matter of law (City of New York v Schoeck, 294 NY 559, 570)." To prevail, Vasquez had to show that "the circumstances admit but one inference," i.e., that his line-of-duty injuries were the proximate cause of his disability. As he did not meet this test, "nor has he proved that they exacerbated a latent condition," the Court sustained the Trustees' determination and dismissed Vasquez's petition.

The Furch Case:

City of Binghamton firefighter James L. Furch applied for General Municipal Law Section 207-a benefits, claiming that he suffered from arteriosclerosis brought on by job-related factors. He claimed these job-related factors ultimately resulted in a heart attack while he was raising a flag while on duty at a fire station.

The hearing officer appointed by the City, Director of Personnel and Safety David W. Watkins, ruled that Furch's "myocardial infarction and underlying arteriosclerosis were not caused by the performance of his duties as a firefighter" and his application for Section 207-a benefits was rejected by the City.

Among the points made by the Appellate Division in the appeal that followed was the following:

The fact that a Workers' Compensation Law Judge ruled that Furch's myocardial infarction was causally related to his employment, the binding effect of the decision rendered in the workers' compensation proceeding did not preclude [Binghamton] from denying [Furch's] application for benefits pursuant to General Municipal Law Section 207-a.

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If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html
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Retirement benefits and divorce

Retirement benefits and divorce
Massaro v Massaro, NYS Supreme Court, [Not selected for publication in the Official Reports, see 2002 WL 243385]

In Massaro v Massaro, New York State Supreme Court Justice Blydenburgh answered an important question concerning the rights of a divorced spouse to benefits from a public retirement system such as the New York State Employees' Retirement System [ERS]. The question:

Should the final pension amount to be divided between divorced spouses include benefits due an employee at the time of his or her retirement that can be attributed to promotions received by the employee after the commencement of an action for divorce?

Both parties agreed that the divorced wife "is entitled to one half that pension that was earned as martial property." When the divorce action was commenced, the husband was a sergeant with the Suffolk County Police Department and a member of the Police and Firefighters Retirement System [PFRS].

Although there was no question that "an increase in the final pension amounts due solely to length of years in service, is marital property" and his former wife was entitled to share in that increase, Massaro argued that any increase because of promotions which came after the commencement of the divorce action are similar to a change of job, and no increase in his pension due to his increased salary because of promotions should be considered marital property. Massaro's theory was that "any promotion ... beyond Sergeant, coming not only after the commencement of this action, but subsequent to the divorce itself, could not be attributed to any action of [his former spouse] and for which she did not reasonably have any expectation."

His former wife, on the other hand, contended that she was entitled to her percentage of the retirement allowance actually paid to her former spouse, regardless of the reasons why his pension may have been increased.

According to Justice Blydenburgh, Massaro's promotion resulted from tests taken or lists established after the commencement of the divorce proceedings. Justice Blydenburgh reasoned that since neither party had any expectation of future pension increases due to promotions, any promotion earned by Massaro after the commencement of the divorce would have resulted from his actions alone.

Accordingly, the Court ruled that Massaro's former spouse was not entitled to share in any increase to his pension at the time of his retirement resulting from increases as a result of any post divorce promotions. What should she receive? The amount she would have been entitled to receive had Massaro not been promoted and retired from service as a Sergeant.

In dollars and cents, this means that Massaro's former spouse will be only entitled to that portion of Massaro's retirement allowance based on his "final average salary" as a Sergeant, but calculated using his total period of PFRS member service.

Massaro's portion of his retirement allowance, on the other hand, will be determined on the basis of his post-promotion "final average salary," which, presumably, would be higher than his "Sergeant final average salary," and his total member service credit in the system.
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Salary determinations by political subdivisions of the State

Salary determinations by political subdivisions of the State
Kent v Town of Niskayuna, Appellate Division, 244 AD2d 829

Peter E. Kent, Commissioner of Public Works for the Town of Niskayuna in Schenectady County, anticipated receiving an increase in his compensation as a Grade 27 employee in accordance with the salary table set out in the Town's employee handbook. But the Town decided to (1) change some of his duties and responsibilities and (2) eliminate all salary grades 26 and higher from the salary table effective January 1, 1996. As a result, Kent's 1996 salary was set at the salary rate for a "Grade 25, Step 5" employee instead of the salary for "Grade 27, Step 4" as he expected.

When his grievance seeking compensation at Grade 27, Step 4 was rejected by the Town, Kent sued. He contended that the Town did not have the authority to reduce the salary grade of his position and its action was arbitrary and capricious. A Supreme Court justice agreed and ordered the Town to reinstate Kent to the Grade 27 level with back pay "due to the [Town's] failure to comply with Civil Service Law Section 75 before it adjusted [Kent's] salary." However, the Appellate Division overturned that ruling.

The Appellate Division said that the authority to fix the salary of a town employee had been delegated to the town board employing the employee [Section 27, Town Law]. Citing Stetter v Amherst, 46 AD2d 1006, the Appellate Division observed that "courts will not interfere with the actions of such legislative bodies or inquire into their underlying motives 'absent fraud, corruption or oppression.'"

The Court decided that the Town presented evidence "indicating a need to tend to budgetary concerns." This, "coupled with the changes [in Kent's responsibilities and Kent's] failure to sustain a showing that the [Town's] action was done in contravention of, or in an attempt to circumvent, the protections afforded by Civil Service Law Section 75," provided substantial evidence supporting the Town's action.

The lesson here is that a municipal public employer may reallocate a position to a different salary grade consistent with the duties and responsibilities of the position provided its action is supported by substantial evidence and is neither arbitrary nor capricious. The employee has the burden of persuading the courts to the contrary.

It should be remembered that Kent was a municipal employee. The classification and allocation of positions in the service of the State to a salary grade, and the reclassification and reallocation of such positions, is controlled by Article 8 of the Civil Service Law.

Article 8, however, does not apply to classification and allocation of positions established by a political subdivision of the State.
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Eligibility of employee for unemployment insurance benefits following resignation

Eligibility of employee for unemployment insurance benefits following resignation
De Benedetto v Brookhaven, Appellate Division, 244 AD2d 740

Is an employee who agrees to resign rather than face disciplinary charges entitled to unemployment insurance benefits? As indicated by the De Benedetto decision by the Appellate Division, it depends on the circumstances.

Town of Brookhaven sanitation inspector Frank De Benedetto was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. The matter was "settled" when the De Benedetto agreed to resign and the Town agreed to withdraw the charges and to advise any prospective employers that he had "resigned for personal reasons." Although De Benedetto's application for unemployment insurance benefits initially was denied because "he had voluntarily left his employment without good cause," the Unemployment Insurance Appeals Board reversed, remanding the issue to the local office. The Board said that the question to be resolved was whether or not De Benedetto should be disqualified "because of misconduct."

The Appellate Division affirmed the Board's determination, holding that "there is precedent that a claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." The Court cited La Rocca v New York City Department of Transportation, 59 NY2d 683, in support of its ruling.
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