Governor David A. Paterson fined $62,125 after being found guilty of charges that he received complimentary tickets to Game 1 of the 2009 World Series

Governor David A. Paterson fined $62,125 after being found guilty of charges that he received complimentary tickets to Game 1 of the 2009 World Series
Source: The New York State Commission on Public Integrity

On December 21, 2010, the New York State Commission on Public Integrity announced that it had fined Governor David A. Paterson $62,125* after finding him guilty of charges that he solicited, accepted and received five complimentary tickets to Game One of the 2009 World Series for himself, two aides, his teenage son and his son's friend.

The Commission reports that "It is the largest fine imposed on a public official" by it.

The Commission said that “The Governor's false testimony is . . . evidence that he knew his conduct was unlawful and, thus, is one factor underlying the Commission's determination that the Governor violated Public Officers Law §§73(5)(a), 73(5)(b), 74(3)(d), 74(3)(f) and 74(3)(h).”

The Decision also noted that Governor Paterson “did not perform a ceremonial function at the game, and his attendance was not related to his duties and responsibility as a public official.” Further, the Commission indicated that “Even if the Governor had performed a ceremonial function at the game, it would not have entitled him to free tickets for his son and his son's friend.”

The Commission noted that the Yankees have “myriad and continuing business and financial interests that relate to New York State government,” including real estate, stadium development and tax matters.

“The moral and ethical tone of any organization is set at the top. Unfortunately the Governor set a totally inappropriate tone by his dishonest and unethical conduct. Such conduct cannot be tolerated by any New York State employee, particularly our Governor,” commented Michael Cherkasky, the Chairman of the Commission.

* The $62,125 civil penalty consists of the value of the tickets, $2,125, plus $25,000 for violating Public Officers Law §73(5)(a), $25,000 for violating Public Officers Law §73(5)(b), and $10,000 for violating Public Officers Law §74(3)(d). The law does not authorize a civil penalty for a violation of Public Officers Law §§74(3)(f) and §74(3)(h).

Click here to read the Hearing Officer's Decision dated 12/9/2010.

Teacher placement and the ADA

Teacher placement and the ADA
Arbitration between the United Educators of San Francisco and San Francisco [California] Unified School District, Arbitrator William E. Riker

In 1997 a hearing impaired California teacher, certified to teach deaf students at the high school level and regular students from kindergarten through eighth grade, was laid off when her position was eliminated. Her name was placed on a preferred list.

Assigned to clerical work, in April 1998, the teacher asked to be assigned to teach kindergarten or first-grade. She also asked for a reasonable accommodation, including an interpreter to translate her signed conversation. The district rejected her request and continued employing her in a clerical capacity.

Ultimately, the teacher filed a grievance contending that the district violated the collective bargaining agreement by not placing her in a classroom and that the district discriminated against her because of her disability. She also filed a disability discrimination complaint under the Americans with Disabilities Act.

Arbitrator William E. Riker denied her grievance, ruling that the school district was not required to place a hearing-disabled teacher in a kindergarten or first-grade classroom unless she is able to perform the essential functions of the position.

Riker’s rationale: The ADA requires fair treatment of qualified individuals with disabilities, but it does not require the employer to change the essential functions of a job to accommodate a disabled employee who cannot perform them.

Riker ruled that kindergarten and first grade teachers must be able to carefully listen to children’s speech and help them to develop and mimic speech patterns and thought processes.

Absence of the name of an individual on a list of members as required by law deemed evidence that the individual is not a member of the organization

Absence of the name of an individual on a list of members as required by law deemed evidence that the individual is not a member of the organization
Murphy v Town of Ramapo, 2010 NY Slip Op 09233, Decided on December 14, 2010, Appellate Division, Second Department

Dennis Murphy, Jr., then a 16-year-old member of the "youth corps" of the Ramapo Valley Ambulance Corp. Inc., sued Ramapo to recover for personal injuries he suffered as a result of his being injured when a pen thrown by a member of Ramapo struck him in the eye while he was on Ramapo's premises.

Ramapo’s motion for summary judgment dismissing Murphy’s action on the grounds that it was barred by the exclusivity provision of the Volunteer Ambulance Workers' Benefit Law §19 was denied by Supreme Court.*

The Appellate Division agreed with the Supreme Court's result, but for a different reason.

Essentially the Appellate Division ruled that Ramapo failed to show that Murphy within the statutory definition of “a volunteer ambulance worker” and thus he was not barred from suing by reason of the statutory "exclusivity provision" set out in §19. Why? Because Murphy's name was not on the list of Ramapo's members.

The court pointed out that §3[1] of the Volunteer Ambulance Workers' Benefit Law defines a "[v]olunteer ambulance worker" as ‘an active volunteer member of an ambulance company as specified on a list regularly maintained by that company for the purpose of this chapter’."

Ramapo, said the court, did not submit proof that Murphy was on such a list and thus failed to meet its burden of showing that the provisions of Volunteer Ambulance Workers' Benefit Law §19 controlled insofar as Murphy’s maintaining his action against Ramapo was concerned.

N.B. "Being listed" is critical in public employment situations as well. For example, the status of an individual appointed to a position in the classified service of the State as an employer or a political subdivision of the State is determined by records of the responsible civil service commission notwithstanding the belief or intent of the appointing officer concerned making the appointment.

* §19 of the Volunteer Ambulance Workers' Benefit Law §19 provides, in pertinent part, that "the benefits provided by this chapter shall be the exclusive remedy of a volunteer ambulance worker … otherwise entitled to recover damages, at common law or otherwise, for or on account of an injury … resulting from an injury to a volunteer ambulance worker in line of duty."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09233.htm

Employee may be terminated on the grounds that he or she make a material false statement of his or her application for employment

Employee may be terminated on the grounds that he or she make a material false statement of his or her application for employment
Matter of Walsh v Kelly, 2010 NY Slip Op 09346, Decided on December 16, 2010,* Appellate Division, First Department

New York City Civil Service Commission, after a hearing, affirmed the determination of the New York City Department of Citywide Administrative Services to disqualify and terminate Gary Walsh as a New York City police officer.

The basis for the Department’s action, Walsh had omitted and falsified pertinent facts about his background in his application for employment.

The Appellate Division said that the determination to terminate Walsh’s employment was “rationally supported by testimony and documents adduced at the hearing” showing that Walsh had concealed that he had been a suspect in a criminal homicide while in the army and had associated with members of a gang that had committed a homicide.

Civil Service Law §50.4 provides, in pertinent part, the “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible:

(f) who has intentionally made a false statement of any material fact in his application; or

(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment ….”

* The hearing before the Civil Service Commission was not mandated by law and, therefore, the proceeding was improperly transferred to the Appellate Division which, nevertheless, elected to decide the matter on the merits.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09346.htm

Violating the employer’s “Use of the Internet Policies” while at work

Violating the employer’s “Use of the Internet Policies” while at work
Schnaars v Copiague Union Free School District, 275 AD2d 462

Public employers are adopting policies dealing with its employees using the agency’s computers to access the Internet for personal business and transmitting and receiving personal e-mail. Some employee organizations have included demands to negotiate computer and e-mail policies among its collective bargaining proposals.

Recognizing the growing concerns of both the employer and employee organizations in this area, the Schnaars case serves to illustrate the problem and its resolution when one employee was found guilty of violating the employer’s computer policy.

The Copiague Union Free School District distributed a written memorandum advising its custodial staff that using its computers to access inappropriate material on the Internet violated district policy after it learned of the unauthorized use of its equipment by district employees.

The memorandum also cautioned that employees who violated the policy would be subject to disciplinary proceedings, which could result in suspension and/or termination.

About three months after promulgating its policy, the district learned that Robert Schnaars, the head custodian of the night crew at Copiague High School, used the school’s computers to view pornographic web sites on the Internet with his subordinates during two night shifts.

Schnaars was served with disciplinary charges and ultimately found guilty of using the District’s computers to view inappropriate material. Rejecting the hearing officer’s recommended that Schnaars be demoted from his position of head custodian, the district imposed the penalty of dismissal.

Schnaars, however, contested his termination on the grounds that the penalty imposed by the district was disproportionate to the offense. The Appellate Division agreed and remanded the matter to the district with instructions that it impose a penalty other than dismissal in light of Schnaars’ previous unblemished 13-year record of loyal service to the District with many accolades.

The court said that in its view, the District did not give sufficient weight to these mitigating factors. But for Schnaars’ unblemished 13-year record of employment with the district, the court might well have sustained his dismissal for violating the policy.

Clearly the court was neither troubled by the fact that the district had adopted a computer use policy nor that it had initiated disciplinary action when it learned that an individual had violated the policy. Its only concern in this case was the nature of the penalty imposed in view of Schnaars employment history with the district.

It appears that the courts will not treat violations of policies addressing the personal use of computers by employees lightly.

Burden of proof in disability claims

Burden of proof in disability claims
Musa v Nassau County Police Dept., 276 AD2d 851

The Musa decision demonstrates the burden place on an applicant seeking workers’ compensation death benefits.

Musa, a Nassau County police officer, committed suicide while at home. His widow, Nancy Musa, filed an application for workers’ compensation benefits death benefits.

The basis for her claim: her husband committing suicide because of work-related stress caused by the Nassau Police Department’s use of improper practices to reprimand him and to prevent his promotion.

The Workers’ Compensation Board, reversing a Workers’ Compensation Law Judge’s ruling, concluded that Musa’s death did not arise out of and in the course of his employment and rejected Mrs. Musa’s application for workers’ compensation death benefits. The Board concluded that Musa’s suicide was precipitated by an underlying depressive condition unrelated to any stress experienced by decedent at work.

Mrs. Musa appealed, arguing that the Board’s determination was not supported by substantial evidence because it was based, in part, on a report by a medical expert who failed to appear at the hearing. While the Appellate Division agreed with Mrs. Musa that the Board incorrectly relied upon this expert’s medical report in making its determination, it nevertheless affirmed the Board’s decision to reject her claim for benefits.

The reason for this, said the court, was that workers’ compensation death benefits may be awarded in cases of suicide only where the suicide results from insanity, brain derangement or a pattern of mental deterioration caused by a work-related injury. While Musa’s husband’s depressive condition might qualify as a brain derangement permitting an award of death benefits, Mrs. Musa failed to meet her burden of establishing by competent medical proof that a causal relationship existed between her husband’s employment and his depression and the suicide.

According to the decision, the only medical evidence offered by Mrs. Musa concerning causation was the testimony of her husband’s treating psychologist. While the psychologist testified that Musa’s suicide was causally related to employment stress, the Board rejected this opinion, finding that it was based upon information provided by Mrs. Musa and her attorney following the decedent’s suicide rather than the psychologist’s independent recollection of treating Musa’s husband five years earlier.

Affirming the Board’s decision, the Appellate Division commented that because the Board found that the psychologist’s opinion lacked evidentiary support in the record, the opinion had no probative value on the issue of causal relationship and the Board correctly declined to consider it.

Criminal investigations and the Taylor law

Criminal investigations and the Taylor law
New York City v Uniformed Fire Officers Asso., 95 NY2d 273

With increasing frequency, procedures addressing employee rights in the course of an employer-initiated investigation are being included in Taylor Law agreements. Typically disputes involving alleged violations of such negotiated procedures are to be resolved under the relevant contract arbitration procedure.

However, an investigation of employee conduct may be conducted by an outside independent agency. If the outside agency uses a procedure that the employee organization claims violates the provisions set out collective bargaining agreement can the union treat the situation as a contract violation and invoke the contract grievance procedure? Stated another way, does the investigation provisions of a collective bargaining procedure trump the procedures adopted by an outside investigatory body?

This was the major issue addressed by the Court of Appeals in the Fire Officers Association case. The case arose after New York City’s Department of Investigation [DOI] issued subpoenas to several firefighters as part of several criminal investigations it was conducting.*

Local 854, referring to provisions in a city-wide Taylor Law contract setting out procedures to be followed in the event of an investigation of an employee, complained that the procedures used by the DOI did not comply with the procedures set out in the agreement. Alleging that DOI’s procedures violated the contract’s employee rights Article, it demanded arbitration.

The City objected but the New York City Board of Collective Bargaining [BCB] issued a determination ruling that the dispute should be submitted to arbitration under the contract. The City next sued, seeking to stay the arbitration and annul the BCB ruling. The basic arguments advanced by the City:

1. The City never agreed to arbitrate the procedures used by the DOI in conducting its criminal investigations;

2. A collective bargaining agreement cannot, as a matter of public policy, supplant or impair DOI’s investigation; and

3. The grievances challenging DOI’s procedures are not arbitrable as a matter of strong public policy.

The Court of Appeals said that the public policy issue concerned DOI’s ability to conduct criminal investigations. The court initially noted that it has recognized that “[p]ublic policy whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may restrict the freedom to arbitrate,” citing Susquehanna Valley School District v Susquehanna Valley Teachers Association, 37 NY2d 614.

In this instance the court concluded that considering the statutory and decisional law concerning the DOI and its purpose and its powers, a strong public policy bars arbitrating the grievance. In the words of the court, [t]he City (and its residents) has a significant interest in ensuring that the inner workings of the machinery of public service are honest and free of corruption. We conclude that this public policy restricts the freedom to arbitrate under the circumstances presented here.

The court’s rationale: allowing an arbitrator to grant a city employee or a union the ability to restrict the DOI’s investigatory procedures by invoking the employee rights provisions of a collective bargaining agreement would amount to an impermissible delegation of the broad authority of the City to investigate its internal affairs.

The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments and thus such the denial of tenure is not subject to grievance arbitration.”

In contrast, however, the court distinguished the granting of tenure by an arbitrator to his or her enforcing bargained-for procedural steps preliminary to the board’s final action to grant or withhold tenure. While denying tenure is not arbitrable, alleged violations of procedures to be followed in determining whether to grant or deny tenure are arbitrable.

The court also noted that there are other situations in which no arbitration remedy could be granted without violating public policy. To illustrate this point the court cited Blackburne v Governor’s Office of Employee Relations, 87 NY2d 660).

In Blackburne, an employee, who had violated the Federal Hatch Act, claimed that he was terminated in violation of the procedural guarantees found in the relevant Taylor Agreement.

The Court of Appeals decided that the arbitrator could not mandate compliance with the collective bargaining agreement’s procedural guarantees concerning employee termination without subjecting the State to the loss of Federal funds because of Blackburne’s Hatch Act violation. To do so, said the court, would constitute an impermissible delegation of the State’s sovereign authority.

The general rule set out by the court: Where a court examines an arbitration agreement or an award and concludes that the granting of any relief would violate public policy, courts may intervene and bar arbitration.

In contrast to the situation in the Susquehanna Valley School District case, where the issue concerned the compliance with procedural steps leading to a tenure determination, here, said the court, granting of any relief under the procedural protections of the Taylor Law contract would not only impinge on DOI’s ability to conduct a criminal investigation, but would add another layer of process, decision-making and potential conflict. Thus, public policy considerations preclude referring the matter to arbitration in this instance.

Declining to defer to BCB’s interpretation of the City’s collective bargaining law, the Court of Appeals ruled that the demand for arbitration must be permanently stayed.

* One such investigation, for example, concerned an alleged scam attempted by a firefighter to obtain greater pension benefits by fraudulently claiming that he sustained a disabling injury in the line of duty. The scheme allegedly involved one firefighter calling in a false alarm to afford the injured firefighter the opportunity to claim that his injury occurred in responding to the alarm. Among those firefighters interviewed were members of the Uniformed Fire Officers Association, Local 854 [Local 854].

Employee serving a disciplinary probationary period may be dismissed prior to the expiration of the probationary period without a hearing

Employee serving a disciplinary probationary period may be dismissed prior to the expiration of the probationary period without a hearing
Matter of Bifolco v Kelly, 2010 NY Slip Op 09335, decided on December 16, 2010, Appellate Division, First Department

New York City Police Commissioner Raymond W. Kelly terminated NYC Police Officer Michael Bifolco’s employment while Bifolco was serving a disciplinary probationary period. Bifolco sued seeking reinstatement to his former position.

The Appellate Division affirmed Supreme Court’s dismissal of Bifolco’s petition, noting that the incidents leading to Bifolco’s dismissal well within his disciplinary probationary period, during which time the Commissioner could terminate him without a hearing.

As the Appellate Division said in Witherspoon v Horn, 19 AD3d 250, “It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that his or her dismissal was [made] in bad faith, [was] for a constitutionally impermissible purpose or [was] in violation of the law.”

Further, the former employee’s carries the burden of proof that the appointing authority’s action was unlawful or made in bad faith.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09335.htm

Compulsory interest arbitration

Compulsory interest arbitration
Matter of White Plains and White Plains PBA, 33 PERB 4588

Section 209.4 of the Civil Service Law provides for resolving impasses in collective negotiations between a public employer and an employee organization representing police or fire personnel through arbitration. Not all matters that have gone to impasse may be resolved be referral of the Section 209.4 panel, as the White Plains determination by PERB’s Director of Public Employment Practices and Representation demonstrates.

The White Plains PBA’s collective bargaining proposals included grievance procedures that were to be followed in connection with internal investigations.

In addition to providing for the right to representation during interrogation, the individual was to be advised on the nature of the investigation prior to interrogation and allowed to make notes if he or she was the subject of a criminal investigation [Proposal 8(C)]. Proposal 8(F) provided that [i]f a Police Officer is “under arrest or if such officer is a suspect or the target of a criminal investigation, the officer shall be given MIRANDA warnings* and shall have the opportunity to decline answering any questions.”

White Plains filed an improper practice charge with PERB in which it argued that the PBA had filed a petition for compulsory interest arbitration of its grievance procedure demand and on other matters that were nonmandatory subjects of collective bargaining. In addition to its objection to negotiating the grievance item, White Plains objected to arbitrating to PBA proposals providing that:

1. No Employee shall be denied any overtime [Proposal 12].

2. ... employees on maternity leave in excess of 60 calendar days shall continue to accrue vacation time [Proposal 13].

A few weeks later the PBA filed an improper practice charge with PERB alleging that the City’s answer to its petition for compulsory interest arbitration included a proposal concerning a nonmandatory subject of negotiations.

Toomey found that Proposals 8(C) and 8(F) were nonmandatory subjects of collective bargaining as they addressed procedures to be followed when a unit member was the subject of a criminal investigation.

Although there were other elements set out in Proposal 8 that clearly were mandatory subjects of collective bargaining under the Taylor Law, they did not survive for the purposes of compulsory interest arbitration. Why not? Because, ruled Toomey, Proposal 8 was presented as a single package, it must be found to be nonmandatory in its entirety based on the nonmandatory aspect of some of its parts.

Toomey also found that Proposal 12 was not a mandatory subject of collective bargaining. Toomey explained that in contrast to constituting a demand for overtime compensation, its purpose was to allow employees to work overtime on demand.

As to Proposal 13, Toomey deemed it unlawful and thus not subject to collective bargaining as it provided a special benefit in connection with maternity not available to other employees on paid or unpaid leaves. Toomey, citing School District 6 v NYSHRB, 35 NY2d 371, said that such a personnel policy, even if the product of negotiations under [the Taylor Law] would violate the State’s Human Rights Law and is therefore a prohibited subject of negotiations.

* See Miranda v Arizona, 384 US 436

Conflict of interest

Conflict of interest
Peterson v Corbin, 275 AD2d 35*

Gregory P. Peterson, the President of the Nassau OTB, sued Roger H. Corbin in an effort to prevent Corbin, a member of the Nassau County legislature, from voting on any appointment to the board of directors of the Nassau OTB.

The reason advanced by Peterson in support of his petition: Corbin was employed as a branch manager for the New York City Off-Track Betting Corporation (NYC-OTB) and was a member of Local 858 of the International Brotherhood of Teamsters, pointing out that Local 858 represented all of the employees of the Nassau OTB and the branch managers of NYC-OTB. This employment and union membership, alleged Peterson, constituted a conflict of interest with respect to Corbin’s performing his duties as a Nassau County Legislator.

A Supreme Court judge issued a preliminary injunction preventing Corbin from voting on OTB appointments based on a finding of the existence of an appearance of impropriety. Corbin appealed. The Appellate Division, Second Department, reversed the lower court’s determination.

Peterson, said the Appellate Division, was required to demonstrate a likelihood of success on the merits by making a prima facie showing, at least by affidavits, if not by testimony, of conflicts of interest. This, said the court, he was unable to do.

According to the Appellate Division, Corbin’s employment as a NYC-OTB branch manager and his position as a member of the Nassau County Legislature pose no conflict since there was nothing in the record indicating the existence of any dealings between NYC-OTB and the Nassau County Legislature.

As to Corbin’s membership in Local 858, the court pointed out that according to the record, he is not an officer or member of the negotiating team of that union.

The court noted that while Local 858 also represents the Nassau OTB employees, there is no connection between the contracts reached by Local 858 and the two OTBs and the record shows that there are two negotiating units within Local 858; one dealing with NYC-OTB branch managers and the other dealing with all the Nassau OTB employees.

The Appellate Division also commented that “even if we assume, without evidence, that Peterson will not be reappointed to the board of directors of the Nassau OTB as a result of Corbin’s decisive vote, this could not be considered irreparable harm [and] Peterson does not have a protected property interest in his position as a director of the Nassau OTB.”

Balancing Peterson’s failure to demonstrate any potential harm in the absence of a preliminary injunction against the right of Corbin’s constituents to be represented in the vote for OTB directors, the court concluded that the preliminary injunction had to be vacated.

* The Court of Appeals dismissed the appeal on its own motion after concluding that the Appellate Division’s order denying the preliminary injunction did not necessarily affect the final judgment of Supreme Court, as required by CPLR 5601 (d), [95 NY2d 919].