Court rejects attorney’s claim that public funds were wasted because he was qualified and would have done the legal work for substantially less money

Court rejects attorney’s claim that public funds were wasted because he was qualified and would have done the legal work for substantially less money
Matter of Diederich v Lawrence, 2010 NY Slip Op 07850, Decided on November 4, 2010, Appellate Division, Third Department

Attorney Michael Diederich Jr., a resident of Rockland County, sued the Rockland County Solid Waste Management Authority contending that Authority had “wasted taxpayer money” by paying a law firm, Holland & Knight, LLP, a legal fee of $104,000 for preparing an amicus curiae brief submitted to the United States Supreme Court.*

Diederich argued that he, as well as other attorneys, had more relevant expertise and would have completed the legal work for substantially less money.

The Authority and Holland & Knight moved for summary judgment challenging both Diederich's standing to bring the action and his substantive allegations. Supreme Court dismissed Diederich's petition, finding that he had not established standing under the common law or State Finance Law §123-b.**

The Appellate Division sustained Supreme Court’s ruling, noting that “Common-law standing requires a showing of ‘an injury in fact, distinct from that of the general public,’ that falls within the zone of interests promoted or protected by the pertinent regulation or statute.” Diederich, said the court, failed to allege an injury distinct from other taxpayers and, thus, has not met his burden as to common-law standing.

As to Diederich’s argument that the Authority acted ultra vires*** when it spent funds for an amicus brief, the Appellate Division observed that “Common-law taxpayer standing implicates "important governmental actions" that would otherwise evade judicial review, and the doctrine ‘should not be applied . . . to permit challenges to the determinations of local governmental officials having no appreciable public significance beyond the immediately affected parties, by persons having only the remotest legitimate interest in the matter’ [and] this criteria is not satisfied by [Diederich’s] personal interest in providing allegedly less expensive legal services and the apparent slight tax increase reportedly caused by the Authority's decision to use Holland & Knight, a law firm with which it had an ongoing relationship for several years.”

Addressing the merits of Diederich’s ultra vires argument, the court said that “retaining a law firm to prepare an amicus brief for a case pending before the United States Supreme Court that includes an issue of significance to the Authority falls within the powers conferred to the Authority by the Legislature,” citing Public Authorities Law §2053-c [4]; §2053-e [12]..

* The brief amicus curiae [friend of the court] had been prepared by Holland & Knight in for submission to the Supreme Court in United Haulers Assn. v Oneida-Herkimer Solid Waste Mgt. Auth, 550 US 330.

** The Appellate Division noted that Diederich had not argued that he has standing under State Finance Law §123-b on appeal and deemed that he had abandoned that claim.

*** Ultra vires - Latin for "beyond its powers," referring to an organization or its officers that exceeds the powers granted it by law.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07850.htm
NYPPL

No “anti-arbitrating” presumption to resolving grievances alleging a violation of a collective bargaining agreement

No “anti-arbitrating” presumption to resolving grievances alleging a violation of a collective bargaining agreement
Watertown CSD v Watertown Education Association
Indian River CSD v Indian River Education Association
Court of Appeals, Nos. 50 & 51, joint decision issued 93 NY2d 132

In numerous decisions, New York State courts have frowned on the use of arbitration to settle disputes between public employers and unions unless the collective bargaining agreement specifically states that the subject matter involved is subject to the contract grievance procedure set out in the agreement. In the combined decision issued for the Watertown and Indian River cases, the Court of Appeals -- New York State’s highest court -- articulated a much more liberal view regarding the use of arbitration to resolve public sector collective bargaining issues. It ruled that there is no anti-arbitration presumption in the Taylor Law or as a matter of public policy, and signaled lower courts to be less strict when deciding if arbitration is required by contracts.

Both cases involved claims regarding the arbitrability of an increase in employees’ health insurance co-payments. Although the relevant collective bargaining agreements were silent regarding whether resolving co-payments complaints was subject to contract grievance procedures, the Court of Appeals found the issue was arbitrable.

Key was the fact that the Taylor Law contracts involved each contained a broad arbitration clause that provided that “any alleged violation of this Agreement, or any dispute with respect to its meaning or application” was arbitrable.

Given the broad arbitration clause in the Watertown and Indian River agreements, and the presence of some language dealing with health insurance benefits, the Court of Appeals ruled that “the reduction of benefits by increasing the employees’ co-payments was an arbitrable issue.”

The dispute arose after Watertown and Indian River, together with a number of other school districts, formed a Municipal Cooperation Agreement to provide health insurance benefits for employees of participating districts. When the Plan raised the employees’ co-payment cap in response to “financial conditions,” the Watertown and Indian River Teacher Associations each filed a grievance alleging that the change in employee contributions constituted an impermissible, unilateral reduction in employee benefits and a violation of their respective collective bargaining agreements.

The grievances were denied. When the Associations sought arbitration, both districts asked for, and obtained, stays on the grounds that the parties had not agreed to arbitrate the dispute at issue.

But the Court of Appeals ruled that it is not necessary for a given issue to be specifically enumerated in the contract grievance portion of a collective bargaining agreement for it to be arbitrable. It ordered the parties in both cases to “proceed to arbitration.”

The court noted that there were two basic arbitration concepts contained in the Taylor Law:

1. Compulsory arbitration: Also referred to as “interest arbitration,” such arbitration is authorized by Section 209 of the Civil Service Law. It is triggered by an impasse in the course of negotiating terms and conditions of employment for police personnel. The decision of the arbitration panel “is final and binding” on the parties. Section 209.4 is a legislatively mandated alternative to striking by police officers or firefighters. This provision will expire June 30, 1999 unless extended by the Legislature.

2. Permissive arbitration refers to the ability of the parties to a collective bargaining agreement to voluntarily agree to arbitrate any subject matter as long as it does not concern a matter of public policy. Court held matters of public policy that are off-limits to arbitration include: (1) tenure decisions, (2) decisions to terminate an employee for violation of the federal Hatch Act, (3) seniority disputes involving academic standards, and (4) accessibility to personnel files. [See the Court of Appeal’s decision in Matter of United Liverpool Faculty Association, 42 NY2d 509]

In the Watertown and Indian River cases, the Court of Appeals clarified its stance on arbitrability of disputes. It said that Liverpool did not expressly create a “presumption” against public sector arbitration. The high court said: “[T]o the extent ... that one may be implied or fairly so characterized, an anti-arbitrational presumption is no longer justified either in law, or in the public sector labor environment.”

To determine if a given subject is arbitrable under permissive arbitration, the court said it would stay with a two-step analysis set out in Liverpool because “it has been workable for over two decades.” The Liverpool tests are:

1. Is the arbitration concerning an area subject to the Taylor Law (i.e., not a matter involving public policy)?

and, if so,

2. Did the parties agree, by the terms of their particular arbitration clause, to refer their differences in this specific area to arbitration?

In regard to the second test, the Court of Appeals sent a message to judges throughout the state that they should not be too strict in evaluating whether the parties had agreed to arbitrate specific types of disputes. “A court confronted with a contest of this kind should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement,” the Court of Appeals said.

It set out the following guidelines for lower courts to follow:

1. If a court finds that there is no reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement, the issue, as a matter of law, is not arbitrable.

2. If a reasonable relationship is present, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the collective bargaining agreement, and whether the subject matter of the dispute fits within them.

The court implied that if an employer seeks a stay of a demand for arbitration, the judicial standard would be “strict scrutiny.” In other words, the employer would have to show compelling governmental interest in avoiding the arbitration. The decision also states that “it is also clear that the merits of the grievance are not the courts’ concern.”

The court noted that “the decisional law reflects the reality of greatly increased public sector arbitration, and its acceptance, compatible with the government’s public policy concerns.” As an illustration, the court listed the following types of disputes as having been ruled subject to resolution by an arbitrator.

1. Union’s use of public office space.

2. Rehiring on basis of seniority.

3. Employee evaluations.

4. Grievance filed by a nonteaching employee under teachers’ collective bargaining agreement.

5. Violation of disciplinary provisions claimed by a probationer.

6. Denial of a sabbatical leave.

7. Failure to submit a change in educational policy to advisory professional council.

8. Compensating a peace officer for an off-duty arrest.

9. Violation of a “no-reprisal clause in agreement.”
NYPPL

Police officer’s association with individuals involved in alleged criminal activity results in dismissal from the position

Police officer’s association with individuals involved in alleged criminal activity results in dismissal from the position
Richardson v Safir, 258 AD2d 328

The Appellate Division upheld the dismissal of New York City police officer Edward Richardson based on a determination that Richardson “knowingly associated with a person he reasonably believed was engaged in criminal activity.”

Richardson was also found guilty of making “false and misleading statements in an official Department investigation.”

The court said that the determination leading to Richardson’s termination was supported by substantial evidence, “including, in particular, [Richardson’s] own testimony in the official investigation.”
NYPPL

Assurance of reemployment of an educator negates his or her eligibility for unemployment insurance benefits between school years

Assurance of reemployment of an educator negates his or her eligibility for unemployment insurance benefits between school years
Huff v Commissioner of Labor, 247 AD2d 734, 257 AD2d 832

In case involving a claim for unemployment insurance benefits, Buffalo City School District teacher’s aide Dennis Huff, Sr. filed an application for unemployment insurance benefits in June 1997 at the end of the 1996-1997 academic year.

Applying the provisions of Section 590.11 of the Labor Law, the Unemployment Insurance Appeals Board ruled that Huff was ineligible for such benefits for the summer of 1997 because the Buffalo City School District had given him a reasonable assurance that he would be rehired on the same terms and conditions of employment for the 1997-1998 school year effective September 1997.

Huff appealed, contending that Section 590.11 did not apply in his situation “because he normally provided services for an educational institution that accepts students year-round.” The Appellate Division, noting that Huff had made the same argument “in prior unsuccessful claims,” observed that the applicable Taylor Law contract covers Huff’s employment only during the academic year -- September through the June next following. The employment of aides for summer school, said the court, “is dictated by entirely different criteria.”
NYPPL

Discontinuation of employer’s cafeteria service a mandatory subject for collective bargaining

Discontinuation of employer’s cafeteria service a mandatory subject for collective bargaining
CSEA Local 1000 & Nassau County, 32 PERB 3005

For at least nine years the Nassau County Medical Center (NCMC) provided food service in its cafeteria between the hours of 2:00 a.m. and 4:00 a.m. When the County unilaterally discontinued providing such service and refused to negotiate its action, CSEA filed an improper practice charge with PERB.

A PERB administrative law judge ruled that Nassau County violated the Taylor Law by acting unilaterally with respect to mandatory subjects of negotiations “without a meritorious defense.” PERB sustained the ruling, pointing out that the cafeteria was open for at least nine years to serve the 200 to 300 employees who worked the midnight shift at NCMC. This, said PERB, affected the employees’ term and conditions of employment since its use by employees “is both an economic fringe benefit, as it avoids any need for employees to eat and drink off premises at higher cost, and it is a matter directly affecting their health, personal comfort and convenience.” PERB told Nassau to reinstate the food service it provided before it closed NCMC’s cafeteria and “to make unit employees whole” to the extent that it can be shown that the closing resulted in their incurring additional expense for food and beverages.

A collateral issue involved the County’s directing the employees to discontinue the use of their personal appliances such as electronic ovens and “heat generating electrical appliances” at their workstations. PERB said that the County’s interest in protecting the patient’s safety overcame the employees’ interest in their having such convenience items available to them at their workstation and dismissed this branch of CSEA’s improper practice charge.
NYPPL

Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence

Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence
NYC Department of Sanitation v O’Neill, OATH Index #2632/10

The New York City Department of Sanitation’s General Order No. 2001-19 addressing “trade waste” prohibits its employees from removing material originating from a home renovation performed by a contractor.*

OATH Administrative Law Judge Alessandra Zorgniotti found that circumstantial evidence,** supported by other evidence, proved the charge brought against Brian O’Neill, a sanitation worker employed by the Department.

Significantly, the ALJ found that a telephone tip from a man who called a Department Superintendent on July 30, 2007, was corroborated by other evidence gathered by the agency such as the caller’s description of the two sanitation workers involved. The descriptions matched O’Neill and his partner, and the caller’s reporting that “he saw these men loading construction debris onto a sanitation truck at a location at the end of [O’Neill’s] route in Brooklyn.”

The Department’s Borough Chief went to the location and he saw a house under renovation with signs of recent construction activity.

Additional circumstantial evidence consisted of the contents of O’Neill’s truck when it was “dumped.” The last material loaded came out first and it included construction debris, including carpet the Borough Chief had seen at the house.

In addition, there was testimony by a supervisor that the tonnage reports for July 30, 2007, for the section indicated that “most trucks picked up between nine and ten tons and that [O’Neill’s] truck was the only truck over thirteen tons” if waste,

Although the ALJ found that there was insufficient evidence to prove O’Neill had accepted a gratuity from anyone in connection with the removal of the “trade waste,” she recommended that O’Neill be terminated in view of his “short tenure and the absence of mitigating circumstances.”

* Even if collected materials have not been generated by a contractor for a fee, the trade waste directive can be violated if a sanitation worker services a residential stop which contains construction debris in excess of six bags, bundles, boxes, and cans. If the material exceeds this six-container limit, the sanitation worker is permitted to complete the collection only by notifying and procuring the approval of his or her supervisor.

** A finding of misconduct may be established in a disciplinary proceeding solely by circumstantial evidence. Dep’t of Sanitation v. Guastafeste, OATH Index No. 658/00, at 10, aff’d, 282 A.D.2d 398

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2632.pdf
NYPPL

Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties

Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties
Ramos v City of New York, 2010 NY Slip Op 07821, Decided on November 4, 2010, Appellate Division, First Department

Tristar provided security services at the premises pursuant to a contract between it and the City whereby Tristar personnel were to check ID’s of people who worked at the premises, scanning people who did not work there, checking bags for weapons, and patrolling the exterior of the building.

The contract between the City and Tristar required Tristar to provide unarmed and armed uniformed guard services at the City's premises and included a provision that Tristar was to indemnify the City for "claims arising out of or in any way related to this Contract . . . resulting or alleged as resulting from the negligence of the Contractor . . . in its performance of this Contract."

Guillermo Ramos was employed by Tristar as a security guard and was injured while working at premises owned by the City of New York. Ramos claimed that he was directed by an employee of the City, who supervised him at the premises, to turn off the heater/fan that was located in a closet on the main floor of the premises and allegedly received a severe electric shock in so doing. Ramos sued the City and the City commenced a third-party action against Tristar for contractual indemnification.

The Appellate Division dismissed the City’s action seeking indemnification from Tristar, noting that although Tristar had a duty to indemnify the City for Tristar's negligence in the performance of its duties, it was not obligated to indemnify the City for the City’s negligence.

Here, said the court, Ramos’ “injuries arose when he attempted to turn off the switch for the heater/fan which was an activity clearly outside of the scope of his duties as a security guard.”

Accordingly, Tristar was not obligated to indemnify the City as a matter of law as there was no proof that Ramos’ injuries arose from Tristar's breach of a duty of care owed to the City or from the work Tristar performed under its contract with the City.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07821.htm
NYPPL

Employee’s dismissal after refusing to participate in a counseling program held reasonable under the circumstances

Employee’s dismissal after refusing to participate in a counseling program held reasonable under the circumstances
Siciliano v Safir, 259 AD2d 366

Matthew Siciliano, a New York City police officer, was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.

Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.

The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”

The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving [the] Department’s requirements for order, authority and discipline.” It ruled that the department’s determination to dismiss Siciliano is entitled to “great leeway.” Commenting that the penalty imposed did not shock its sense of fairness, the Court dismissed Siciliano’s appeal.
NYPPL

Designation of the hearing officer in an administrative disciplinary action

Designation of the hearing officer in an administrative disciplinary action
Stein v Rockland Co., 259 AD2d 552

William J. Stein was terminated from his position with the Rockland County Highway Department after he was found guilty of striking another employee. However, during the second day of hearing Stein had protested “the lack of a proper, written designation of the hearing officer” as required by Civil Service Law Section 75(2). Stein argued that omission meant that the hearing officer did not have jurisdiction to hear testimony in the matter.

According to case law, “in the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee” (Wiggins v Board of Educ. of City of New York, 60 NY2d 385).

The Highway Superintendent provided the hearing officer with a “new written designation,” and the hearing continued. However, the hearing officer “specifically stated in his recommendations that he credited the testimony of the two witnesses who testified on the first day of the hearing.

This, said the Appellate Division meant that the hearing officer’s report was “fatally defective.” The Appellate Division annulled the determination and remitted the matter to the county “for a new hearing and determination with respect to the charges.”

In addition, the Appellate Division said that the determination had to be annulled because the Highway Superintendent should have disqualified himself from making the final determination because of his personal involvement in the case.

The Superintendent was present when the incident leading to disciplinary action against Stein occurred and he made a statement as to what he heard and saw. Furthermore, he conducted the initial investigation, preferred the charges against the Stein, and appointed the hearing officer.

Such “personal involvement in the case,” said the Court, required the Superintendent to disqualify himself from reviewing the recommendation of the hearing officer and acting on any of the charges.
NYPPL

Summary dismissal during a disciplinary probation period

Summary dismissal during a disciplinary probation period
Williams v NYSOMH, 259 AD2d 623

Disciplinary charges were filed against Henry Williams, an employee of the New York State Office of Mental Health, alleging that he was guilty of excessive absenteeism.

The disciplinary action was settled when Williams agreed to serve a disciplinary probation period during which period he could be terminated “without recourse to Article 33 of the State-CSEA Agreement [a negotiated disciplinary grievance procedure] or any other provision of law.”

Williams was absent from work seven times during the six-month period following the execution of the settlement agreement. The department terminated him and he commenced an Article 78 proceeded seeking reinstatement to his former position. The Appellate Division dismissed Williams’ petition, commenting that “a probationary employee may be terminated without a hearing and without a statement of reasons provided that the termination is not in bad faith, or for unconstitutional or illegal reasons.” Further, the decision notes, Williams had the burden of proving that his dismissal was based on bad faith or unlawful conduct.

However, the specific terms of a disciplinary settlement could prove critical if the employee is terminated for his or her alleged failure to satisfy the terms of his or her disciplinary probation.

In Taylor v Cass, 505 N.Y.S.2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, a state corrections officer, Tina Ramos, agreed to pay a $1,000 fine and be placed on disciplinary probation for one year in settlement of disciplinary charges filed against her alleging improper behavior while escorting a prisoner. She was subsequently observed carrying her weapon in a hospital examination room in violation of departmental rules. The Appellate Division sustained her termination without a hearing, finding that Ramos had violated the terms of her disciplinary probation (Ramos v Coombs, App Div, 237 AD2d 713).
NYPPL

Employee disciplined for alleged acts of misconduct that took place 20 years earlier

Employee disciplined for alleged acts of misconduct that took place 20 years earlier
DeMichele v Greenburgh CSD #7, 167 F.3d 784

Section 3020-a(1) of the New York State Education Law provides that “no charges ... shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.”*

In the DeMichele case, a teacher in the Greenburgh Central School District #7 was found guilty of having inappropriate sexual contact with female students in incidents occurring more than 20 years earlier. The Second Circuit U.S. Court of Appeals sustained the school board’s decision to dismiss the teacher, even though the teacher had not been convicted of any “criminal act.”

Following the same logic as New York State courts that have addressed similar issues involving statutes of limitation under various disciplinary provisions, the federal court observed that the law does not require the individual to be found guilty of a felony in a criminal court for disciplinary charges to be filed after the three-year statute of limitations has expired.

Rather, the law merely characterizes the nature of the allegation. The law says that if a Section 3020-a hearing officer or disciplinary panel finds an individual guilty of an act that fits the definition of a felony under relevant criminal statutes, then a penalty may be imposed even if the disciplinary charges were brought after the three-year statute of limitations has expired (see Re Board of Education of City School District of the City of New York, Opinions of the Commissioner of Education No. 11353.**

The 20-year-old sexual misconduct charges arose after a newspaper reported that Greenburgh #7 teacher Robert DeMichele had been restored to the payroll in 1996 after serving one and one-half year disciplinary suspension. The article noted that the suspension without pay was imposed as a penalty after DeMichele was found guilty of having inappropriate conduct with female students during the 1991-92 and 1992-93 academic years.

After the article appeared, two women contacted district officials and alleged that DeMichele had sexually abused or molested them when they had been students in the district decades earlier -- during the 1972-73 and 1974-75 school years.

There was no dispute that the district was unaware of these allegations prior to its receiving the February 1996 reports. On March 11, 1996, the district initiated a second Section 3020-a disciplinary action against DeMichele. The hearing officer found DeMichele guilty of all but one of seven specifications set out in the charges. As a result, DeMichele was dismissed. The disciplinary determination was reported to the press.

The hearing officers ruled that (1) each instance of misconduct alleged in the second disciplinary proceeding constituted a crime when committed and (2) Section 3020-a does not require that the misconduct actually be the subject of a criminal prosecution. Rather than appeal the hearing officer’s determination, DeMichele sued in federal district court claiming that the second disciplinary action violated his rights under 42 USC. Section 1983. He contended that his rights were violated because:

1. The district forced him to defend charges concerning events that occurred more than 20 years ago, which left him unable to defend himself in violation of his right to due process under the Fourteenth Amendment; and

2. He was deprived of a liberty interest without due process under the Fourteenth Amendment when the district’s prosecutor disclosed the results of the hearing to the media.

In an unpublished decision, a federal district court judge granted the district’s motion for summary judgment and thus dismissed DeMichele’s petition without a hearing on the merits of the complaint. The Circuit Court of Appeals affirmed the lower court’s decision.

The Circuit Court said that to show a violation of due process as a result of delay in a hearing, New York State law requires the subject of an administrative disciplinary proceeding demonstrate that delay in initiating proceedings caused “actual prejudice” to his or her ability to defend against the charges. The court suggested that if the school district had known about the 1970s allegations before 1996 but delayed proceeding with discipline, DeMichele might have been able to show that his ability to defend himself had been compromised.

The court also addressed DeMichele’s claim that the dissemination to the media of the results of his second disciplinary hearing stigmatized him and wrongfully deprived him of his liberty interest under the Fourteenth Amendment. The court noted that this argument rested on the assumption that the results of the disciplinary proceeding were not a matter of public record, but instead were part of his “employment history” which could not be released under New York’s Freedom of Information Law, [Public Officers Law, Article 6, (“FOIL”)].

However, the decision noted that New York courts have found that the disposition of misconduct charges does not constitute part of an employee’s “employment history” as that phrase is used in FOIL, citing LaRocca v. Board of Educ. of Jericho Union Free School District, 632 N.Y.S.2d 576. The Circuit Court ruled that under the circumstances, the dissemination of the background and result of the first disciplinary hearing to the press did not deprived DeMichele of any liberty interest and dismissed the appeal.

* Section 75 of the Civil Service Law, a statutory disciplinary procedure covering employees in the classified service, also provides that there is no statute of limitations with respect to bringing disciplinary action against an individual where the charges of incompetency or misconduct “constitute a crime.”

** Section 3020-a(1) of the Education Law also requires that disciplinary charges be filed “during the period between the actual opening and closing of the school year” during which the employee is normally required to serve.
NYPPL

Potential conflict of interest between official duties and private business should be eliminated by appointing authority

Potential conflict of interest between official duties and private business should be eliminated by appointing authority
Informal opinion of the Attorney General 98-39

A part-time village police officer also conducted a towing business. When asked if the officer’s towing business could be included on the village police force’s list of towing companies, the Attorney General said it could be listed, “provided the village takes appropriate steps to eliminate any potential conflicts of interests.”

The Attorney General said that an appearance of impropriety would be created if the police officer’s towing service were called when that officer is at the scene of an accident. Further, a conflict of interest would arise if village police officers recommended their colleagues’ business to individuals in need of towing services rather than resort to the list.
NYPPL

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith
Rosioreanu v New York City Off. of Collective Bargaining, 2010 NY Slip Op 07797, Decided on November 4, 2010, Appellate Division, First Department

Upon conclusion of a grievance procedure that resulted in her termination, Cleopatra Rosioreanu filed an improper practices petition with the New York City Office of Collective Bargaining [OCB] contending that her union failed to provide adequate representation throughout the grievance process.

OCB denied the petition and Rosioreanu filed an Article 78 proceeding challenging OCB’s determination.

The Appellate Division said that Rosioreanu’s Article 78 petition advanced the theory that because the grievance process ended with her termination, her union representatives must have acted arbitrarily, capriciously or in bad faith.

The court characterize Rosioreanu’s claim as a “conclusory assertion,” commenting that there was nothing in the record that suggests malfeasance by the union representatives, much less fraud, deceitful action, dishonest conduct or discrimination on the part of union representatives, citing Mellon v Benker, 186 AD2d 1020.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07797.htm
NYPPL

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)
Matter of Rivera v DiNapoli, 2010 NY Slip Op 07852, Decided on November 4, 2010, Appellate Division, Third Department

Although typically an applicant for accidental disability retirement benefits or performance of duty disability benefits has the burden of proof with respect to showing that his or her disability resulted from the performance of his or duties, such is not always the case.

For example, the Retirement and Social Security Law §507-b(c) sets out a rebuttable presumption that where an individual has "successfully passed a physical examination on entry into service as a correction officer" that did not reveal evidence of heart disease and later becomes disabled as the result of a heart condition sustained during employment, it is presumed that the disability was "incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence."

Juan C. Rivera’s had successfully passed his physical examination when he began his employment as a correction officer. He subsequently suffered a myocardial infarction after falling ill while at work.

When it was determined that he could not return to work because of his resulting medical condition, Rivera applied for performance of duty disability retirement benefits.

The New York State and Local Retirement System [ERS], however, denied his application, concluding that although Rivera was permanently incapacitated, his disability "was not sustained as a result of the performance or discharge of his . . . duties."

Ultimately the Comptroller sustained the ERS’s denial of his application for benefits and Rivera filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Comptroller’s determination.

Under the circumstances, said the Appellate Division, ERS had the obligation to rebut the statutory presumption that Rivera's disability occurred as a result of his performance and discharge of his duties as a correction officer.

The Appellate Division concluded that ERS had rebutted the presumption that Rivera’s disability was related to his employment as a correction officer by presenting evidence of risk factors coupled with expert testimony that excludes an applicant's employment as a causative factor" and sustained the Comptroller’s decision.

The court said that considering the record as a whole, it found that ERS had “effectively rebutted” the presumption set out in RSSL §507-b(c) and thus Rivera’s application for benefits was properly denied.

The record indicated that ERS had relied on the opinion of a cardiologist who, after examining Rivera, concluded that while work-related stress "can aggravate the symptoms of coronary artery disease," Rivera's coronary artery disease "was not related to his employment as a correction officer." The cardiologist made reference to the fact that Rivera suffered from a variety of risk factors commonly associated with coronary heart disease, including obesity and hypertension.

The Appellate Division said that it had previously held "the [statutory] presumption is effectively rebutted when evidence of risk factors is coupled with expert testimony that excludes an applicant's employment as a causative factor," citing Bryant v Hevesi, 41 AD3d at 932.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07852.htm
NYPPL

Independent contractors in the public service

Independent contractors in the public service
Roesch v BOCES, App Div, 259 AD2d 900

The Roesch case is another in a series of actions involving claims for retroactive membership in a public retirement system.

Dorothy E. Roesch claimed that her service as a school psychologist with the Wayne-Finger Lakes BOCES qualified her for retroactive membership in the New York State Teachers’ Retirement System [TRS]. BOCES had rejected Roesch’s application on the grounds that she was a consultant on a per diem basis serving as an independent contractor and therefore she was ineligible to join TRS during the time in question.

The decision indicated that there were neither payroll or personnel records nor any formal appointment action by BOCES to employ her.

In contrast, such types of records were produced concerning others serving in similar positions indicating that such personnel “were formally appointed” to positions as employees of BOCES. Was this sufficient to support the conclusion that Roesch served as an independent contractor rather than as a BOCES employee?

The Appellate Division ruled that it was, sustaining BOCES’ rejection of Roesch’s application. The court said that there was rational basis for this determination, noting that the BOCES’ minutes of board meetings during the relevant period established that BOCES had a pattern and practice of making formal appointments of full and part-time employees.

The court said that the minutes “were devoid of any reference to the appointment of Roesch during this period when other school psychologists were so appointed by BOCES.”

This, coupled with the lack of any [IRS payroll withholding] W-4 forms that were completed by Roesch while others were produced for school psychologists employed near the relevant time period, “provides a rational basis to support the denial of Roesch’s application for retroactive membership in TRS based on her status as an independent contractor.”

The decision is silent as to whether or not BOCES produced copies of “an employment contract” between it and Roesch or copies of IRS Forms 1099, Miscellaneous to support its position that Roesch was an independent contractor rather than an employee. Typically, an individual providing personnel services to a public entity is deemed to be a public employee unless a contract for “personnel services” is authorized under law and a contract providing for such services has actually been executed by the parties.

In another application for retroactive membership in TRS case, Storrar v Mahopac Central School District, 257 AD2d 628, [motion to appeal denied, 93 NY2d 808], that the statement of the school district’s former payroll clerk that she and Barbara Storrar, a former member of TRS, discussed “FICA [Social Security] deductions versus reenrollment” in TRS was sufficient to establish that the district had “procedure that a reasonable person would recognize as an explanation or request requiring a formal decision ... to join a public retirement system” in place.
NYPPL