Removing an individual's name from the preferred list

Removing an individual's name from the preferred list
Donato v Plainview-Old Bethpage CSD, 264 AD2d 843

Removing a teacher from a preferred list always holds the potential for litigation. In the Donato case, the New York State Supreme Court ruled that Linda Donato could not sue the Plainview-Old Bethpage Central School District for removing her from a preferred list, only to be reversed by the Appellate Division.

The case illustrates that, as a general rule, it is the employer’s duty to canvass the preferred list when it wishes to fill a position for which the list must be used.

Donato was initially appointed as a social studies teacher by the district in 1966. She was given tenure as social studies chairperson effective September 1, 1984. In 1991 Donato was “excessed” [i.e., laid off] when the district abolished the chairperson position for budgetary reasons. Her name was placed on a preferred list for the title.

In accordance with former Section 2510(3)(a) of the Education Law, Donato’s name was to be certified from the preferred list for appointment to the same or a similar position for a period of seven years from the effective date of her layoff.

In September 1997, the district appointed Dorothy Wohl to the position of social studies department chairperson. Upon learning of Wohl’s appointment, Donato wrote to Superintendent Anthony Cavanna contending that she was entitled to reinstatement to the position to which Wohl had been appointed since she was on the preferred list.

In October 1997, the district wrote to Donato advising her that her request for reinstatement was denied. Donato sued Cavanna and the Board of Education by filing an Article 78 action in January 1998 seeking reinstatement and back salary. She also named Wohl as a necessary party in her petition.

The board and Cavanna asked the court to dismiss the proceeding on the ground that it was time-barred. They contended that Donato’s name had been removed from the preferred list in 1992 because of “her failure to apply for a vacant position” and her alleged failure to challenge, in a timely fashion, her removal from the preferred list. The Supreme Court agreed and dismissed Donato’s petition. But the Appellate Division reversed the lower court’s ruling and remanded the matter back to Supreme Court for further consideration.

The key factor: the Appellate Division found no evidence in the record that Donato’s name had been removed from the preferred list in 1992. Therefore, the court held, Donato had filed a timely challenge to the district’s refusal to appoint her to the position that became available in 1997. Donato’s claim “accrued in 1997 and not in 1992, [so] this proceeding is not time-barred.”

The court noted that the district had examined Donato’s preferred list status in 1994 during litigation involving a different vacancy. Examining the record of that case, the Appellate Division said the district had conceded that Donato “was preferentially eligible for reinstatement to her abolished position or a similar one.”

Here are some points to keep in mind regarding preferred lists:

1. Typically the most senior individual on the list may be “passed over” or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.

2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.

3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.

4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of “preferred lists” such as a “special military list.”)

5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example:

An individual is laid off from Position A and subsequently accepts a position “to a lower rank position” for which the preferred list was certified. The following year the employer reestablishes Position A. Assuming that the individual who was laid off from Position A is eligible for certification from the preferred list and that he or she is the most senior person on the list, he or she must be appointed to the newly created position or the position must remain vacant.

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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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Representation and indemnification of public officers and employees sued in connection with official duties

Representation and indemnification of public officers and employees sued in connection with official duties
Tarrant v Schenectady Police Dept., Supreme Court, [Not selected for publication in the Official Reports, see, also, Tarrant v. City of Schenectady, 279 AD2d 870]

A public officer’s or employee’s right to “employer provided” representation and indemnification in the event he or she is sued and held liable in connection with the performance of official duties is an important one.

The Tarrant case illustrates the fact that where the employer declines to provide for such representation or indemnification, the individual must act promptly, and correctly, if he or she wishes to challenge the employer’s decision.

On February 17, 1999, Pamela Tarrant, an Afro-American, initiated a lawsuit against the City of Schenectady, its police department and police officer John Lewis for alleged violations of her civil rights. This particular aspect of the litigation concerns Lewis’ claim that the City is required to pay for his defense.

In the course of Tarrant’s action, Lewis contended that the City “failed to follow a procedure set forth in a Collective Bargaining Agreement” providing for this benefit. The City, on the other hand, argued that the Agreement did not apply in Lewis’ case because:

1. Lewis had been terminated from his position effective November 13, 1998; and

2. “The words and conduct of Lewis which purportedly gave rise to Ms. Tarrant’s action at law were outside the scope of Officer Lewis’ duties and were, therefore, not subject to defense under the Collective Bargaining Agreement.”

State Supreme Court Justice Robert E. Lynch did not have the opportunity to consider these important issues, however. Why? According to the ruling, the court did not have jurisdiction to consider Lewis’ petition since it was filed in connection with “a separate legal action ... initiated by Ms. Tarrant.”

Although the Taylor Law agreement clearly allowed Lewis to challenge the refusal of the City to provide for his defense “by an Article 78” action, he was required to initiate such a challenge in a timely fashion.

To do this he was required to take a number of steps including “purchasing an index number ... filing a Notice of Petition or an Order to Show Cause, along with a Verified Petition ... and serving the City” with the complaint. He failed to do this, despite being advised by the City’s Corporation Counsel, Michael Brockbank, that he was required to do so if he wished to challenge the City’s determination.

Another problem for Lewis concerned the fact that he did not file an “Answer” to Tarrant’s complaint within the 30-day period allowed for this purpose. This, said Justice Lynch, meant that Lewis was in “default” and the “affirmative relief” he was seeking as part of Tarrant’s lawsuit “is clearly not countenanced under New York Law.”*

It seems clear that in the event a public employer rejects a demand for representation or indemnification when a individual is sued in connection with some act or omission he or she claims is work related, it would be in the best interests of the individual to obtain the services of a private attorney immediately for purpose of representation in the litigation to avoid default. While the individual may later elect to challenge the employer’s decision, his or her interests would, in the meantime, be represented in the action.

In many instances the representation and indemnification provisions of Section 18 of the Public Officers Law apply. A municipality may refuse to provide for Section 18 representation or indemnification if its attorney determines that the individual was not action within the scope of his or her public employment or duties or where the alleged injury or damage resulted from “intentional wrongdoing or recklessness” on the part of the individual. The individual is required to [1] provide the employer with the “legal papers” within 10 days of after being served and [2] provide “full cooperation” in connection with its defense of the action.

* In another action brought against a Schenectady police officer, DiSorbo v Pederson, DiSorbo filed a “default judgment against Pederson” because he failed to answer allegations of “illegal arrest and harassment” then pending in federal district court. The City earlier advised Pederson that it would not provide for his defense or indemnification because he was “uncooperative when questioned about the case.”
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Signing an agreement "not to sue" at the time of resignation enforceable unless found to be coerced

Signing an agreement "not to sue" at the time of resignation enforceable unless found to be coerced
Sutherland v Town of Huntington, CA2, #98-9259

In exchange for certain benefits, Patricia Sutherland submitted her resignation and signed a “release agreement.” The release agreement provided that Sutherland would not sue the Town “with respect to, or arising out of [her] employment or the termination of employment.”

Sutherland subsequently decided to sue the Town. A federal district court judge, however, granted the Town’s motion for summary judgment “[b]ecause she signed a release barring litigation of these claims.”

The U.S. Court of Appeals for the Second Circuit [NY] affirmed the lower court’s ruling. The court rejected Sutherland’s argument that her release should not bar her present action, holding that the release was enforceable as its language “unambiguously precludes the instant action in its entirety as all of [Sutherland’s present] claims relate to her treatment as an employee.” As a general rule, courts typically uphold such releases unless it can be shown that the individual was coerced into signing it.

On the issue of coercion, from time to time an appointing authority will offer an employee the opportunity to submit his or her resignation as the only alternative to being served with disciplinary charges.

New York courts have ruled that a resignation submitted in response to such a threat has not been coerced. Why? Because, say the courts, the appointing authority had a legal right, if not the duty, to file disciplinary action against the individual and threatening to exercising a legal right does not constitute coercion.

The leading case addressing this point is Rychlick v Coughlin, 63 NY2d 643. In Rychlick the Court of Appeals ruled that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges against Rychlick -- did not constitute coercion so as to make the resignation involuntary.
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Providing volunteer with benefits deemed sufficient to trigger the Title VII protections available to employees and applicants

Providing volunteer with benefits deemed sufficient to trigger the Title VII protections available to employees and applicants
Pietras v Farmingville Fire District, 180 F.3d 468

Victoria Pietras failed the performance test required by the Farmingville Fire District. She sued, claiming the district’s test violated Title VII of the Civil Rights Act.

A federal district court judge agreed, holding that Farmingville’s physical agility test [PAT], which all probationary volunteer firefighters were required to pass in order to become full-fledged volunteer firefighters, had a disparate impact on women.

The U.S. Circuit Court of Appeals affirmed the lower court’s ruling.

According to the decision, as a probationary volunteer, Pietras was entitled to numerous firefighter benefits under state law and the by-laws of the department. These included: (1) a retirement pension, (2) life insurance, (3) death benefits, (4) disability insurance, and (5) some medical benefits.

Although not a paid employee, providing these benefits was deemed sufficient to trigger the Title VII protections available to employees and applicants for employment.

The district court directed Pietras’ reinstatement as a probationary firefighter and said Farmingville could “develop and administer a non-discriminatory PAT as a precondition to Pietras [and presumably all other applicants for volunteer firefighter] becoming a full-fledged volunteer member.” .
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Alleged CBA violation must be submitted to arbitration unless both prongs of the two-prong test governing arbitrability of disputes are satisfied

Alleged CBA violation must be submitted to arbitration unless both prongs of the two-prong test governing arbitrability of disputes are satisfied
Matter of County of Orange v Civil Serv. Employees Assn. Local 1000 AFSCME, 2010 NY Slip Op 51647(U), Decided on September 22, 2010, Judge Jeffrey A. Cohen, [Not selected for publication in the Official Reports]

CSEA Local 1000 filed a contract grievance contending that Orange County had violated the relevant collective bargaining agreement [CBA] with it replaced the armed security officer with an unarmed security officer at a County Department of Social Services ("DSS") office. The Orange County Commissioner of Personnel denied the grievance and CSEA demanded that its grievance be submitted to arbitration.

Rather than proceed to arbitration, the County filed a petition with Supreme Court it which it alleged:

1. The new security officer is not an employee of the County and is not therefore covered by the CBA.

2. Determining whether a security officer should be armed or not “is not a matter incorporated in the terms of the CBA and is ‘exclusively a matter of management discretion’".

3. The issue CSEA sought to arbitrate “is prohibited by the terms of the contract between the [County] and the independent security firm” and thus is not a “contractual CBA issue … subject to [the] grievance and arbitration procedures".

CSEA, on the other hand, argued that should the court determines that a valid contract exists, then the "scope of the matters which might be arbitrated there under" must be decided by an arbitrator.

Judge Cohen said that "Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain whether the parties may arbitrate their dispute and, if so, whether they agreed to do so," citing In re New York State Correctional Officers and Police Benev. Ass'n, Inc. (New York State Dept. of Civil Service), 70 AD3d 240.”

Explaining that arbitration of the grievance is not prohibited by any statutory, constitutional or public policy rule of law, the County’s petition will not be granted based on the first prong of the analysis.

As to whether these parties agreed to arbitrate the matters contained in the Grievance, in determining whether or not a particular claim sought to be arbitrated lies within the scope of the parties' arbitration agreement, Judge Cohen said that case law holds that "the courts are not to engage in a penetrating analysis of the scope of the substantive provisions of a CBA"

Rejecting the County’s argument that its contract with the independent security firm prohibits arbitration, the court commented that while the CBA does not preclude the County from entering into other independent contracts, in doing so it cannot ignore its own contractual obligations under the CBA.*

Holding that the County “cannot absolve itself of its contractual obligations under the CBA” by entering into a subsequent agreement with another party containing incompatible terms, Judge Cohen dismissed the County’s petition and directed that the matter be submitted to arbitration.

* Judge Cohen said that “It is worth noting that the CBA was in existence long before the independent contract for security became effective. It is axiomatic that a party who enters into separate contracts with different parties must manage its contracts so that its obligations under its first contract are not impaired by its obligations under subsequent agreements.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51647.htm
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All about New York State’s Taylor Law

All about New York State’s Taylor Law
Summary of Taylor Law basics

Posted on the Internet is John M. Crotty’s Introduction to the Taylor Law.

Mr. Crotty, an attorney and arbitrator, explains the key elements of the Taylor Law and its application and administration, its history, collective bargaining under its provisions and a number of landmark PERB and court rulings interpreting its provision.

The text of this 29 page outline is posted on the Internet at:
http://www.nysdeputy.org/Archives,%20Wage%20Comparisons/Taylor%20Law%20Overview.pdf
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Concerning the duty of a public employer to defend and indemnify its employees being sued for alleged violations of an individual’s civil rights

Concerning the duty of a public employer to defend and indemnify its employees being sued for alleged violations of an individual’s civil rights
Schenectady PBA v City of Schenectady, [Not selected for publication in the Official Reports*]

Schenectady police officers were being sued in federal district court for alleged civil rights violations. Rebecca and Jessica DiSorbo were suing police officer Ronald Pederson; David Sampson was suing police officers Richard Barnett and Michael Siler.

Pederson, Barnett and Siler respectively asked the city to defend them in the federal actions and to indemnify them should they be held liable as provided by to Section 50-j(1) of the General Municipal Law [GML].

GML Section 50-j(1) provides that a municipality shall defend and indemnify a police officer if he or she is sued because of some act or omission “in the performance of his duties and within the scope of his employment.” GML Section 50-j(6) authorizes a municipality to provide for the reimbursement of “punitive damages” related to the officer’s “proper discharge of his duties and within the scope of his employment.”

The collective bargaining agreement between the PBA and the city sets out the procedural steps to be followed when a police officer submits his or her request for defense and indemnification pursuant to GML Sections 50-j(1) and 50-j(6).

The city’s corporation counsel interviewed Pederson and other witnesses and decided that “Pederson made material misrepresentations” concerning his conduct. As a result, the city rejected Pederson’s GML Section 50-j(1) application because of his “failure to cooperate in counsel’s investigation.”

The city declined to provide for the defense and indemnification of both Barnett and Siler after their personal attorney “refused to allow the officers to attend [indemnification interviews] absent an assurance ... that the attorney-client privilege would attach with the result that Counsel could not divulge the officers’ communications.” Counsel refused and the two officers failed to appear for their interview. This was deemed to be a “failure to cooperate.”

The PBA sued, seeking a court order directing the city to provide for the defense of the three officers in their respective lawsuits and to indemnify them if they are found liable for damages and attorney fees.

State Supreme Court Justice Vito C. Caruso decided that:

1. Under the terms of the Taylor Law agreement, willful misconduct within, as well as misconduct outside the scope of employment, would support the city’s rejection of a GML Section 50-j application.

2. Statements made by officers to the city’s attorney in the course of the “indemnification interview” are protected by the “attorney-client” privilege.

With respect to the applications submitted by Barnett and Siler, Justice Caruso directed the corporation counsel reconsider their applications taking into account “the distinction between defense and indemnification under GML Sections 50-j(1) and 50-j(6), and [to] set forth specific findings to support his conclusions as to both.”

The decision acknowledges that applying the “attorney-client privilege” could disqualify the corporation counsel from representing the city in a claim against both the officers and the city, but comments that any theoretical and practical difficulties are the result of the provisions of the collective bargaining agreement concerning the review of applications for defense and indemnification pursuant to GML Sections 50-j(1) and 50-j(6) negotiated by the parties.

As to Pederson, here the court found that although he appeared for the interview, the corporation counsel concluded that he had misrepresented the facts and thus “failed to cooperate.” However, the corporation counsel did not made any substantive determination as to whether Pederson was guilty of “willful misconduct ... within the scope of his employment.” Accordingly, rejecting Pederson’s application on the basis of “non-cooperation” was held to be arbitrary. The corporation counsel was directed to make a substantive determination concerning Pederson’s conduct based on his investigation and evaluation of the evidence.

* The decisions concerning the federal actions filed by Rebecca and Jessica DiSorbo, are posted on the Internet at:
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=gdig&searchTerm=ejEO.WGXa.aadi.YaYj&searchFlag=y&l1loc=FCLOW