Asserting rights not covered by the Taylor Law collective bargaining agreement

Asserting rights not covered by the Taylor Law collective bargaining agreement
CSEA v Nassau Co., App. Div., 2nd Dept., 264 AD2d 798, Motion for leave to appeal denied, 94 NY2d 759

Clearly, a public employee union may, under appropriate circumstances, file a lawsuit, or demand arbitration, for an alleged breach of a collective bargaining agreement. May an employee organization representing public employees sue on the basis of alleged violations of rights not included in a Taylor Law agreement?

In Aeneas McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals said a public sector labor union may assert rights not covered in its collective bargaining agreement if it can show that:

(a) one or more of its members has standing to sue;

(b) the interests sought to be protected are sufficiently germane to the union to satisfy the court that the union is an appropriate representative of those interests; and

(c) Individual members of the organization” are not required to assert the claim in for the tribunal to provide complete relief.

In this instance, CSEA sued, seeking reinstatement and back pay for members of its collective bargaining unit laid off as a result of Nassau County’s 1992 budget difficulties. Its theory: the layoff was breach of its collective bargaining agreement with the county.

The Appellate Division affirmed a lower court’s ruling that CSEA lacked standing to maintain the action. While couched in terms of a contract violation, the court said that there was no underlying contract provision involved.

As to CSEA’s standing under the Aeneas McDonald Police Benevolent Association doctrine, the court found that it failed to meet the third test set by the Court of Appeals since the participation of the individuals affected was required in this instance.

The case arose as the result of the county administration terminating or demoting some 2,000 employees in response to its 1992 “budget crisis.” One employee who was affected by this, Joseph E. Torre, successfully challenged the action taken against him as violative of the doctrine of legislative equivalency [Torre v County of Nassau, 86 NY2d 421].

Simply stated, the doctrine holds that “a position created by a legislative act must be abolished by a correlative legislative act.” In other words, a county administrator may not unilaterally abolish a position created by the legislature.

A number of county workers affected by the abolition of positions in 1992 have attempted to interpose legislative equivalency claims in an effort to attain reinstatement and back salary.

When CSEA alleged a breach of the controlling Taylor Law agreement in an effort to win reinstatement for individuals in the collective bargaining unit laid off in 1992, the court said that “it is clear that, in reality, the CSEA is attempting to assert a Torre legislative equivalency claim on behalf of all aggrieved employees.” Since it is “the nature and origin of the wrong, the substance and not the form, which controls,” the Appellate Division held that the lower court’s dismissal of CSEA’s petition was correct.

According to the ruling, “the claimed wrong and the rights sought to be enforced arise outside the four corners of the collective bargaining agreement.” Therefore, CSEA had to show that it satisfied the three-prong test set out in the Aeneas McDonald decision in order to maintain the action. The Appellate Division said that CSEA failed to meet the “third prong of the test.”

The Appellate Division ruled that the individual circumstances of each employee would have to be considered to determine whether or not the Torre rule was violated.

The court noted that it had earlier addressed the issue in Weitzenbergh v Nassau County Department of Recreation and Parks, 249 AD2d 538. It denied class action status in the Weitzenbergh case, noting that “there were numerous differences among members of the proposed class and no evidentiary support for the proposition that their positions were improperly abolished under the doctrine of legislative equivalency.”
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Suing for damages for on-the-job personal injury pursuant to General Municipal Law Section 205-e and the firefighter’s rule

Suing for damages for on-the-job personal injury pursuant to General Municipal Law Section 205-e and the firefighter’s rule
Flynn v City of New York, App. Div., First Department, 258 AD2d 129
[Decided with Marron v City of New York, App. Div., First Department]

Section 205-e of the General Municipal Law grants police officers, or their representatives, the right to bring legal action to recover damages for personal injuries or death resulting from another person’s negligence in failing to comply with statutory or regulatory requirements. In addition, Section 205-e provides that “liability may be based on a fellow officer’s conduct,” [see Gonzalez v Iocovellosi, 249 AD2d 143].

In the Flynn and Marron cases the question was whether officers injured in a riot could sue the department under Section 205-e if they could show that their injuries stemmed from a commanding officer’s failure to follow provisions set out in a police department’s training manual and its patrol guide.

The Appellate Division concluded that a “Police Department’s training manual and Patrol Guide provisions cannot serve as the basis of such a claim.” It said that suing pursuant to Section 205-e is limited to the negligent non-compliance with the requirements of any governmental statutes, ordinances, rules, orders and requirements, citing Desiderio v City of New York, 236 AD2d 224.

Kevin Flynn and Steven Marron, both New York City police officers, claimed that the injuries they suffered during a street disturbance were the direct result of Deputy Inspector Michael Julian’s order not to bring any “hats [or] bats” and other protective gear “traditionally used by police in riot situations” despite their availability in a nearby police van. Julian was the commanding officer of their precinct and the officer in charge.

Flynn contended that General Municipal Law Section 205-e applied because the “mandates and requirements” of the Police Department’s Patrol Guide and the Department’s “temporary and standard operating procedures” were not followed.

Disagreeing with Flynn’s argument, the Appellate Division said that “[t]he facts here present a compelling case for the application of the firefighter’s rule.” The rule recognizes that public safety work is inherently dangerous, and is a general bar to officers suing for line-of-duty injuries. The court said that both Flynn and Marron “knew that the crowd was rioting and were well aware of the dangers presented.”

This situation, according to the decision “is hardly a case where ... a patrolman was injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving [the] injury”. The court said that the “record indisputably discloses” that both Flynn and Marron were performing a police function that put them at a heightened risk of injury.

Although the Court of Appeals did not consider the issue of whether an internal departmental guide or training manual constitutes a governmental rule or requirement in the Desmond case [Desmond v City of New York, 88 NY2d 455], it held that Section 205-e was not “intended to give police officers a right to sue for breaches of any and all governmental pronouncements of whatever type and regardless of how general or specific those pronouncements might be.”

The Appellate Division said that in enacting Section 205-e the Legislature did not intend to “upset the settled view that the violation of internal agency memoranda or manuals imposing a higher standard of care on a defendant than that imposed by law could not be the basis of liability against governmental entities.” Thus, said the court, the Supreme Court judge should have granted the City’s motion for summary judgment and dismissed Flynn’s and Marron’s petitions.

The Appellate Division characterized the City’s patrol guide and its training manual as follows:

Neither the Patrol Guide nor the training manual constitutes a well-developed body of law and regulation. They do not even constitute formal rules of the Police Department. The Patrol Guide is an internal manual intended solely for members of the Police Department. It is a compilation of hundreds of pages of guidelines covering every aspect of police life and conduct, including subjects as diverse as personal appearance, financial restrictions, vacation policy, residency requirements and salute courtesies. The Guide serves as the vehicle by which the Police Department regulates itself. That, in some circumstances, certain provisions of the Patrol Guide may also affect the public does not undermine its essentially intra-agency character.

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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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Involuntary placement of employee on medical leave

Involuntary placement of employee on medical leave
Evans v NYS Dept. of Health et al, 2nd Cir., No. 98-7160(L)

Due process requirements generally prevent public employers in New York State from removing employees or placing them on leave without a hearing. Exceptions are permitted under Section 72 of the Civil Service Law, which permits public employers to place individuals on involuntary medical leave without first having a hearing in cases in which the appointing authority determines that the continued presence of the individual on the job constitutes a hazard to the employee, or his or her co-workers or to the public. [Section 72.5]*

Brenda Evans charged that the State Department of Health had violated her constitutional right to due process when she was involuntarily placed on medical leave pursuant to Section 72.

Evans suffered a seizure and initially actually placed herself on medical leave. As it frequently the case in such situations, however, Evans viewed her medical leave being converted into “involuntary sick leave” when the appointing authority refused to allow her to return to duty unless she underwent a medical evaluation and was found qualified to do so.

The Second Circuit U.S. Court of Appeals in New York found in favor of the department. The ruling suggests that if an employer follows the procedures mandated by Section 72, its actions will pass judicial scrutiny on due process grounds. The court noted that the law allows the employer to place the employee on involuntary medical leave following a medical examination as long as the individual has a “right to a subsequent hearing.”

The Rules of the State Civil Service Commission provide that employee on sick-leave may, as a condition for return, be required to undergo medical examination [4 NYCRR 28-1.3(e)]. Conceding that Evans had an “important interest in continued employment,” the Circuit Court concluded that such an interest is limited where the employee is placed on medical leave rather than terminated.*

“[I]n determining what process is due, account must be taken of the length and finality of the deprivation” said the court. “On the facts of this case,” the court held that “it was reasonable to believe that [Evans] had been afforded due process.” The decision notes that prior to the seizure, Evans’ examining physician had recommended that she be placed on medical leave. But the department, consistent with the mandates of Section 72, initially allowed her to remain at work pending a hearing.

Applying a balancing test, the decision states that “[o]n the other side of the scale,” the appointing authority took reasonable steps to assure itself that placing Evans on medical leave was appropriate. “In light of those factors, and the State’s strong interest in protecting itself against disruptive employee behavior, it was reasonable to believe that [Evans] had been afforded due process.”

The Circuit Court said that “[t]o determine the process due [issue], we must weigh (1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used, and the probable value of additional or different procedural safeguards; and (3) the government’s interest,” citing Mathews v Eldridge, 424 U.S. 319.

In addition, Evans filed claims under 42 USC. Sections 1981, 1983 and 1985 alleging interference with her constitutional free speech, property and contract rights and that she was subjected to a hostile work environment. Named as defendants were various state entities. The decision notes that “neither a State nor its officials acting in their official capacities are ‘persons’ under Section 1983,” citing Will v Michigan Department of State Police, 491 U.S. 58.

Evans also ran in a wall in her effort to sue certain named officials “in their respective personal capacities.” Her attempt to sue these officials in their “personal capacity,” said the court, is barred by the qualified immunity held by these officials.

The doctrine of qualified immunity protects government officials from personal liability if their conduct either: (1) “did not violate clearly established rights of which a reasonable person would have known, or” (2) “it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.”

* Civil Service Law Section 72 provides for leaves of absence resulting from non-work related injury or illness. Civil Service Law Section 71 [Workers’ Compensation Leave] provides for leaves of absence required as the result of a work-connected injury or illness.

* Section 73 of the Civil Service Law authorizes the “termination” of an individual who has been continuously absent on Section 72 leave for at least one year. However, this “termination” is not the same as a “dismissal” since the individual has an absolute right to return to the position, or a similar position, or be placed on a preferred list, if he or she applies for reinstatement within one year after his or her disability ends.
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Designating employee as managerial or confidential

Designating employee as managerial or confidential
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891

The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.

PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).

Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”

The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.

The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.

Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).

PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”

UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”

However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.

The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*

As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].

The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”

Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.

What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”

* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”
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Increasing workday hours held to adversely affect employee leave credits

Increasing workday hours held to adversely affect employee leave credits
Nagy v Board, Sup. Ct., Conn, #16003

Connecticut’s Supreme Court ruled that increasing the workday hours of state employees from seven hours to eight hours per day “devaluates” their accrued annual and sick leave credits. The remedy: increase the value of the employees’ annual and sick leave credits pro rata to the increase in their workday.

Two state assistant attorney generals, Robert A. Nagy and Hugh Barber, sued Connecticut contending that their standard seven-hour workday had been gradually lengthened to eight hours and this resulted in the devaluation of their previously earned leave accruals. The basic argument advanced by Connecticut: the relevant law provided for granting, and using, vacation and sick leave in “hour units” and therefore employees were to be charged on an “hour for hour” bases regardless of the employees’ rate of leave credit accumulation.

Nagy and Barber, on the other hand, contended that Connecticut’s interpretation resulted in their having to use eight hours of credit to cover a day of absence despite the fact that they had previously been limited to accruing credits based on a seven-hour workday: that is, they had accrued a day of credit equated to seven hours of leave time but were now required to use eight hours of leave time credit if they were absent for a day.

The court agreed and in effect held that Nagy and Barber were being “overcharged” leave credits for each “eight-hour day” of absence under the circumstances. It directed Connecticut to correct the situation.
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Governor Paterson names New York State’s Chief Diversity Officer

Governor Paterson names New York State’s Chief Diversity Officer
Source: Office of the Governor

N.B. On October 1, 2010 Governor David A. Paterson announced that Carra Wallace has declined the appointment to the position of Chief Diversity Officer of New York State.

The Governor has asked Charlotte Hitchcock, his Chief of Staff, to assume the duties of this statutory role until December 31. In conjunction with the Governor's Counsel's office, Ms. Hitchcock was the point person for negotiations with the Legislature on the successful passage of this bill.

Governor Paterson had initially appointed Carra Wallace as the State’s first Chief Diversity Officer effective October 15, 2010. This position in the Executive Chamber was established pursuant to §4-a of the Executive Law.*

The Chief Diversity Officer is one of three positions in the Executive Chamber created by law. The other two are the “Secretary to the Governor” and the “Counsel to the governor.”**

According to the Office of the Governor, the Chief Diversity Officer's responsibilities include:

• Advising the Governor and the agencies regarding any measures necessary to ensure full compliance with Article fifteen-a of the Executive Law, the statute governing contracting with minority and women's business enterprises;

• Engaging in other actions assigned to him or her by the Governor relating to diversity in hiring or promotion of the State workforce and in encouraging diversity practices;

• Advising and assisting the Governor in formulating policies relating to workforce diversity and minority and women's business enterprises;

• Working with the director of the Division of Minority and Women's Business Development to prepare an annual plan for ensuring full compliance with article fifteen-a;

• Serving as a member of the State procurement council;

• Serving as the Governor's liaison with organizations representing minority and women-owned business enterprises and other organizations related to diversity in the State workforce and in State contracting;

• Serving as the Governor's liaison to the small business advisory council for issues related to the creation of a diverse workforce and State procurement practices relating to minority and women-owned business enterprises; and

• Reviewing and consulting with the director of minority and women's business development regarding policies relating to minority and women-owned business enterprise contract specialists at State agencies.

* §4-a of the Executive Law takes effect October 13, 2010.

** See §4 of the Executive Law.
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OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave

OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave
New York City Department of Consumer Affairs v Santamaria, OATH Index #2455/10
NYPPL
The New York City Department of Consumer Affairs filed §75 disciplinary charges against Randi Santamaria alleging various acts of insubordination and “carelessness.” After several adjournments by both parties, Consumer Affairs asked the Administrative Law Judge to go forward with the disciplinary hearing scheduled for August 19 and 20, 2010.

Santamaria, however, had earlier requested leave under the Family Medical Leave Act based upon her mental health, her second request for such leave within the last two years. Consumer Affairs then had Santamaria evaluated by a psychiatrist. The psychiatrist found Santamaria “mentally unfit to work” and Consumer Affairs placed her on “a one-year involuntary leave under §72 of the Civil Service Law” effective May 13, 2010.

Prior to the scheduled disciplinary hearing Santamaria’s attorney asked for a stay of the §75 action based on Santamaria being place on §72 leave by the agency. Santamaria's attorney also stated that he was requesting a stay pending “the resolution" of the §72 proceedings and suggested that "should [Santamaria] not be able to return to work within the year, she could be terminated under §73 and the §75 case would be rendered moot.”*

Although OATH’s Administrative Law Judge John B. Spooner said that he was “skeptical of the legal soundness” of Consumer Affair’s decision “to proceed with a §75 proceeding immediately after finding an employee unfit and placing her out on involuntary leave, based upon the same acts charged in the misconduct case … nevertheless, [Santamaria's] request for a nine-month stay is problematic and cannot be granted.”**

Noting that an OATH Administrative Law Judge “possesses the power to adjourn an action ‘for good cause,’ lengthy adjournments due to another pending action have not been found to constitute sufficient cause and have generally been denied.”

Judge Spooner cited Department of Correction v. Noriega-Harvey, OATH Index No. 575/93, (“pendency of related litigation has apparently never been sufficient basis for grant of an indefinite adjournment of an OATH trial.”) and Department of Environmental Protection v. Bellach, OATH Index No. 1574/08 (denying respondent’s request for a stay of a disciplinary hearing during the pendency of criminal proceedings)” in support of his determination.

* This is not entirely accurate as an individual terminated from §72 leave pursuant to §73 of the Civil Service Law has the right to reinstatement to his or her former position in the event he or she applies for such reinstatement with the responsible civil service commission within one year after the termination of such disability. In the event the commission’s medical examiner certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she is to be reinstated if a suitable position is available or place on a preferred list, depending on the situation.

** On this point ALJ Spooner said that at “the very least, the medical officer’s finding of unfitness in May 2010 would appear to significantly undermine the agency’s ability to establish, at a §75 hearing, that [Santamaria's] actions constituted intentional misconduct. At worst, seeking to punish an employee for conduct caused by a disability could arguably defy the entire policy underlying the legislature’s enactment of Civil Service Law §72 as an alternative to §75,” citing Dep’t of Housing Preservation & Development v. Chambart, OATH Index No. 380/84..

The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-2455md.pdf