Court approves county personnel officer’s payroll decertification of individuals not employed in accordance with the Civil Service Law

Court approves county personnel officer’s payroll decertification of individuals not employed in accordance with the Civil Service Law
North Greenbush v Director of Personnel, Supreme Court, [Not selected for publication in the Official Reports]

Section 100 of the Civil Service Law requires the responsible civil service commission to periodically certify the payroll of all of the public entities under its jurisdiction.

The responsible commission is required to examine the agency’s payroll at least once each year “to determine that all persons employed in such department, agency or authority are employed in accordance with law.” Section 101 of the Civil Service Law makes it a misdemeanor to pay an individual whom the responsible commission has refused to certify on the payroll.

On May 24, 1999, Rensselaer County Bureau of Personnel Director Christian K. Mahoney wrote to the Town of North Greenbush setting “52 conditions” that the Town had to meet in order for its payroll to be certified. The Town complied with 45 of these conditions. It, however, challenged Mahoney’s determination that seven police officers employed by the Town were not eligible to remain on the payroll.

According to Justice James B. Canfield’s decision, “these issues [involving the police officers] have been simmering for years in some cases.” He noted that North Greenbush and the affected police officers “merely ignored them” until the May 24, 1999 letter rather than “promptly challenge them administratively.”

Essentially, said the court, North Greenbush “failed to demonstrate that it was in compliance [with the Civil Service Law] or that either it or the officers pursued their administrative remedies prior to May 24, 1999.”

Ruling that North Greenbush failed to meet it burden of proving that Mahoney’s efforts “to enforce the civil service law by refusing to certify the payroll at this time is arbitrary, capricious or illegal,” Justice Canfield dismissed its petition.
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Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former position

Appointing authority has discretion to reject a former employee's request seeking reinstatement to his or her former position
Silberzweig v Doherty, 2010 NY Slip Op 06709, Decided on September 28, 2010, Appellate Division, First Department

Matthew Silberzweig, a sanitation worker with the New York City Department of Sanitation [DOS] was terminated after he had failed to contact DOS concerning his being absent from work without approval. The reason for the absence: Silberzweig had been arrested.

After he had been acquitted of the charges filed against him, Silberzweig asked DOS to reinstate him to his former position. When DOS denied his request, Silberzweig sued and won a Supreme Court order vacating and annulling the Commissioner’s decision rejecting his application for reinstatement.

The Appellate Division unanimously reversed the lower court’s ruling “on the law.”

The court said that considering Silberzweig’s “prior disciplinary record and his poor performance review,” the Commissioner’s denial of Silberzweig's request for reinstatement after the criminal charges against him were dismissed "was rational, lawful and a provident exercise of discretion.”

Further, said the Appellate Division, the record did not conclusively establish that DOS had a policy of automatically reinstating former employees who were acquitted of all criminal charges against them.

Significantly, the court noted that under Personnel Rules and Regulations of the City of New York Department of Citywide Administrative Services an agency head has the discretion to determine whether or not to reinstate a person who was dismissed from a permanent competitive position in the agency and “nothing in Civil Service Law §75 or the Administrative Code of the City of New York § 16-106 says otherwise.”

The Appellate Division also noted that Supreme Court “improperly relied on an Unemployment Insurance Appeal Board [UIAB] finding, since the finding was not part of the administrative record but was simply attached [Silberzweig’s] reply memorandum of law in this Article 78 proceeding."

Further, said the court, a finding by the UIAB “lacks preclusive effect in a subsequent action or proceeding,” citing Labor Law §623[2] and Matter of Strong v New York City Dept. of Educ., 62 AD3d 592 [2009], leave to appeal denied 14 NY3d 704.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06709.htm
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The doctrine of res judicata held to bar litigation of employee’s challenge to termination in federal court follow dismissal of State lawsuit

The doctrine of res judicata held to bar litigation of employee’s challenge to termination in federal court follow dismissal of State lawsuit
Sheffield v Sheriff of the Rockland County Sheriffs Department, 08-0840-cv (2nd Cir. 9-22-2010)

Malinda Sheffield was terminated from her employment following a disciplinary proceeding in which the arbitrator found that Sheffield had filed a false workers’ compensation claim and recommended her dismissal.

Sheffield than filed a lawsuit in State Supreme Court alleging that the disciplinary action taken against her was “retaliatory.” She also alleged that the action constituted libel and violated her rights under Title VII. The court dismissed her petition in its entirety.

Prior to the Supreme Court’s issuing its decision, Sheffield filed a similar lawsuit in federal district court.

Following the dismissal of Sheffield’s petition by the federal district court, Sheffield filed an appeal with the Circuit Court of Appeals, contending that neither the doctrine of res judicata nor collateral estoppel applied with respect to her federal action.

The Circuit Court, applying New York State law, said that in New York “res judicata … bars successive litigation [of all claims] based upon the same transactions or series of connected transactions… if (1) there is a judgment on the merits … by a court of competent jurisdiction and (ii) the party against whom the doctrine is invoked was a party to the previous action….”

Considering the events underlying Sheffield’s federal action, the Circuit Court affirmed the district court’s dismissal of her complaint on the ground of res judicata and thus found it unnecessary to consider whether the doctrine of collateral estoppel would also bar her litigating her federal claims.

The Circuit Court’s decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/c3b4afe8-5513-4998-88f3-9a6beb0bc6d3/13/doc/08-0840_so.pdf

IRS private letter ruling advises university’s that its tuition reduction plan available certain employees and their dependents is non-discriminatory

Tuition reduction plans

There may be State Constitution issues to be considered and resolved with respect to providing such a benefit to staff members of public universities and colleges in the SUNY system and their dependents. For example, would granting such a type of benefit constitute an unconstitutional gift of public monies within the meaning of Article VII, §8 of the State Constitution?

Article VII, §8.1, in pertinent part, provides: “The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking, but the foregoing provisions shall not apply to any fund or property now held or which may hereafter be held by the state for educational, mental health or mental retardation purposes.”

New York State courts have ruled on a number of cases involving claims that the challenged action constituted an unconstitutional gift of public monies or property including:

1. Gagliardo v Dinkins, 89 N.Y.2d 62. Here the Court of Appeals said that “... the constitutional prohibition on gifts of public funds is not necessarily subject to statutory definitions of terms or conditions of employment for purposes of governing labor-management relations between civil service employees and public or governmental employers under the Taylor Law.”

2. Garber v Board of Trustees of State Univ. of N.Y at Stony Brook, 38 AD3d 833. Garber contended that Stony Brook contract with a private developer for construction of a hotel on the SUNY Stony Brook campus was "illegal" and constituted an unconstitutional gift of State property. The Appellate Division held that "Supreme Court correctly determined, upon review of the documents submitted by the parties, that the proposed hotel construction proceeded in accordance with specific enabling legislation enacted by the Legislature" (see the Laws of 1986, Chapter 830 and the Laws of 1989, Chapter 200).

3. Rampello v. East Irondequoit Cent. School Dist. 236 A.D.2d 797. The Appellate Division found that prior to the employee’s retirement the school district had no obligation under its collective bargaining agreement with the Association of East Irondequoit Administrators to make cash payments for unused accumulated sick days upon an employee's retirement. Accordingly, as the Board did not authorize payment for sick days prior to their accumulation, "there was no legal obligation supporting the retirement incentive and the payment to the employee constituted an unconstitutional gift of public funds."

4. Matter of Mahon v Board of Educ., 171 NY 263. The Court of Appeals ruled that the granting of pension benefits to teachers who had retired before the establishment of a pension system was an unconstitutional gift of public funds.

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Ex parte communications by the hearing officer not permitted while he or she is preparing the final determination in an administrative proceeding

Ex parte communications by the hearing officer not permitted while he or she is preparing the final determination in an administrative proceeding
Meislahn v McCall, App. Div., Third Dept., 264 AD2d 957

The lesson of the Meislahn decision: a hearing officer may not have ex parte* dealings with litigants in an administrative hearing.

A Town of Clarkstown police officer, William Meislahn, filed an application for accidental disability retirement after he fell while at work and injured himself. A hearing was held by the Retirement System. Meislahn’s application was rejected on the ground that “[Meislahn] had not sustained an accident within the meaning of the Retirement and Social Security Law.” Meislahn appealed the ruling, claiming that his right to due process had been violated.

According to the Appellate Division, after the hearing ended the hearing officer sent her decision to the attorney for the Retirement System. She, however, did not send a copy to Meislahn’s attorney. The attorney for the Retirement System then drafted a proposed final determination based on the hearing officer’s decision and sent it to the hearing officer. The hearing officer signed it on behalf of Comptroller and returned it to the attorney for the Retirement System.

The Retirement System’s attorney then sent a copy of the Hearing Officer’s decision and the Comptroller’s determination as signed by the Hearing Officer to Meislahn’s attorney. Meislahn argued that such a procedure violated his right to administrative due process.

Referring to an earlier opinion, Le Pore v McCall, 262 AD2d 919, the Appellate Division said in Le Pore it had concluded that a similar procedure violated State Administrative Procedure Act Section 307(2) and “created such an appearance of impropriety and bias to warrant an annulment of the determination.”

In Le Pore the Appellate Division found that:

Upon the Hearing Officer's request, the Retirement System attorney drafted the findings of fact, conclusions of law and final determination in this matter and sent it back to the Hearing Officer, who then signed it for [Retirement System] on July 25, 1997 and returned the determination to the Retirement System's attorney. It was not until August 29, 1997 that the decision of the Hearing Officer and [Comptroller's] determination were first sent to [Le Pore's] attorney.

The court agreed with Le Pore that he was denied due process by the Hearing Officer's clear and flagrant violation of State Administrative Procedure Act Section 307(2), which prohibits ex parte communications.

As it did in La Pore, the Appellate Division remanded the matter to the Comptroller for a de novo determination based on the record.

* The term ex parte is used to describe situations in which only one of the parties in an action appears before a judge, an arbitrator or a hearing officer without the knowledge of the other party or parties to discuss the case. Such meetings or communications are prohibited to prevent influencing a judicial or quasi-judicial decision as a result of a one-sided or partisan point of view.
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