Random searches at work

Random searches at work
Morris v NY-NJ Port Authority, 290 AD2d 22

Robert Morris and the Port Authority Police Benevolent Association [PBA] sued the Port Authority in an effort to obtain a judicial declaration that random searches of the Port Authority police officers’ lockers were (1) unconstitutional and (2) a breach of a Memorandum of Agreement [MOA] between the PBA and the Authority.

The lockers in question are owned by the Authority and were being used by Authority police officers. A search on October 13, 1999 found radios belong to the Authority in the lockers of two officers in violation of its directive to pass the radios on to their shift replacements. The officers were disciplined for violating the directive.

The court dismissed the complaint citing the Appellate Division’s ruling in Moore v Constantine, 191 AD2d 769. Moore challenged his termination as a result of the search of his personal locker and “the seizure of evidence ... which was admitted in evidence” at a disciplinary hearing. The court said that the seizure of evidence from Moore’s locker did not violate his rights under the 4th Amendment.

According to the decision, in order to be entitled to assert a violation of the 4th Amendment, the individual must establish that he or she possessed a reasonable expectation of privacy as to the searched premises.

The right to privacy in the workplace asserted Moore’s situation, said the court, must bend to the superior governmental-societal interest of efficiency in the State Police. All public employees, especially police officers, have a diminished expectation of privacy in the work place.

As the U.S. Supreme Court said in O’Connor v Ortega, 480 US 709, when a public employer conducts such a search, the court must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.

The court’s conclusion: “In light of the foregoing, the searches in question, whether they were consensual or not, did not violate plaintiffs’ constitutional rights, and therefore plaintiffs’ claim that they have a likelihood of success on this issue is unpersuasive.”

As to the PBA’s claim that the Authority violated provisions of the MOA, the court ruled that the question was for the arbitrator to determine, as it appears that this dispute is governed by the collective bargaining agreement.

Requests for union leave

Requests for union leave
Matter of the Erie County Sheriff’s Police Benevolent Association, 33 PERB 4570

Provisions for union leave are included in many Taylor Law agreements.

Here the collective bargaining agreement between the Erie County Sheriff’s Police Benevolent Association [SPBA] and the Erie County Sheriff’s Department [department] included a provision allowing specified SPBA members to be absent on union leave. The contract also set out the total number of union leave days available and the procedure to be followed in requesting approval for such leave.

SPBA filed an improper practice charge with PERB in which it alleged that the department had violated Civil Service Law Sections 209-a.1(b) [prohibiting employer attempts to dominate or interfere with the ... administration of any employee organization] and 209-a.1(d) [barring employers from refusing to negotiate in good faith] when it unilaterally decided to require unit members to include an explanation for their absence when requesting union leave.

SPBA also claimed that if the department disapproved of the explanation given by the member, it withheld its approval of the request for the leave. According to SPBA, this was a contract violation in as much as the agreement also provided that requests for union leave shall not be unreasonably withheld.

PERB’s administrative law judge Monte Klein dismissed the charge. Klein said that PERB did not have any jurisdiction to consider such a complaint in view of the fact that the union leave provision was a contract benefit.

Where, said Klein, a right or benefit emanates from the collective bargaining agreement, and the agreement provides a reasonably arguable source of right with respect to the subject matter, a charge alleging improper unilateral action with respect to such a right or benefit is beyond PERB’s jurisdiction. Kline decided that there appeared to be an alternative procedure available to SPBA to resolve its complaint under the terms of the collective bargaining agreement.

In other words, SPBA’s allegations might constitute a breach of the collective bargaining agreement.

Although Klein did not suggest that any specific procedure available to the SPBA to challenge the department’s action, his language suggests that the SPBA could file a contract grievance concerning its allegations. Thus, if SPBA’s allegations constitute a grievance under the collective bargaining agreement, it might allow it to ultimately demand arbitration as to whether the department violated the agreement by:

1. Requiring explanations in connection with requests for union leave; or

2. Unreasonably withholding its approval of requests for union leave by eligible SPBA unit members.

In a similar type of situation, Matter of Suffolk Detectives Association, 33 PERB 4573, the Association initially filed an improper practice charge with PERB alleging that Suffolk County had violated Civil Service Law Sections 209-a.1(a) [the employer has interfered with, coerced or restrained public employees from exercising their rights under the Taylor Law] and 209-a.1(e) [employer to continue all of the terms of an expired collective bargaining agreement until a new agreement is negotiated].

The basis for the Association’s charge: Suffolk issued a memorandum changing the terms under which unit members would receive payment when recalled to duty. PERB administrative law judge Philip L. Maier conditionally dismissed the charge after the parties advised him that they had submitted the matter to binding arbitration.

Retirement benefits and divorce

Retirement benefits and divorce
Smith v NYS Police and Firefighter Retirement System, 275 AD2d 536

A divorce settlement frequently will have an impact on the distribution of retirement benefits. Typically courts have the final word on how such benefits are to be distributed under the terms of the settlement. As the Smith case demonstrates, sometimes the Comptroller will have the authority to make that determination rather than the courts.

The Qualified Domestic Relations Order [QDRO] issued when Sophie and Nicolas Smith divorced provided that the retirement benefits accrued by Nicolas Smith as a member of the New York State and Local Retirement Systems during the marriage were marital property.

Nicholas Smith later remarried and named his new spouse as his primary beneficiary for pre-retirement death benefits. Smith died in 1997. As he had not yet retired, Sophie Smith applied for the pre-retirement death benefit. The Retirement System told her that under its interpretation of the QDRO only 33.2% of the benefit was payable to her.

The Appellate Division dismissed Sophie’s challenge to this determination, pointing out that [o]nce the Comptroller determined that the Retirement System was obligated to comply with the terms of the QDRO, the only remaining issue involved the interpretation of those terms.

Ordinarily the interpretation of the terms of a court order such as a QDRO would be for the court rather than the Comptroller to resolve. Not only that, the Smith’s QDRO expressly provided that the Supreme Court had continuing jurisdiction to implement and supervise the payment of retirement benefits upon the parties’ application.

Here, however, Appellate Division decided that the courts no longer had jurisdiction to decide the issue. Why did the courts lose jurisdiction? Because, said the Appellate Division, the parties did not seek the court’s assistance in resolving the question, but elected to submit the issue to the Comptroller as part of Sophie Smith’s application for the death benefit.

Under such circumstances, said the Appellate Division, the Comptroller has the authority to resolve disputes over the interpretation of the terms of the QDRO and his determination is binding and must be upheld if it is found rational and supported by substantial evidence.

Extension of the probationary period

Extension of the probationary periodMaras v Schenectady CSD, 275 AD2d 551

The Schenectady City School District told probationary school psychologist Roberta J. Maras, that she was not to be granted tenure and terminated her employment effective November 15, 1998. Maras sued, seeking a court order annulling her termination on the theory that she had acquired tenure by estoppel.

Maras was serving a three-year probationary period due to end on September 1, 1998. The district, however, had unilaterally extended Maras’ probationary period through November 16, 1998 because, it said, she had been absent for 11 days in excess of her contractually allotted sick days during her three-year probationary period. On October 16, 1998 the district wrote Maras advising her that she would not be recommended for tenure and, consequently, her employment would terminate on November 15, 1998.

Did Maras attain tenure by estoppel? The Appellate Division said she had, ruling that the district improperly extended Maras’ probationary period beyond September 12, 1998. According to the court, Schenectady could lawfully have extended Maras’ probationary term for the period of time [Maras] was absent from school in excess of her contractually allotted sick days – i.e., an “11-day extension”.

Although Schenectady had the authority to exclude from the computation of Maras’ three-year probationary period any noncontractual absences, it did not have any authority to exclude Maras’ absences provided for by contract. According to the ruling, the district excluded Maras’ 20 days of sick leave, five days of personal time and five days of medical leave that fell on school-wide vacation days.

The Appellate Division, in support of its ruling, cited England v Commissioner of Education, 169 AD2d 868.

The court also observed that Section 2509.7 of the Education Law expressly prohibits extension of an employee’s probationary period by adding thereto contractually bargained for sick or personal leave days or school-wide vacation days.

Section 2509.7 provides that ... no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights.

The court’s conclusion: Maras attained tenure by estoppel because (1) the district failed to take action to grant or deny petitioner tenure prior to September 12, 1998; and (2) the record indicated that the district was aware of Maras’ continuing service in its employ beyond September 12, 1998.

Maras was an employee in the Unclassified Service [see Civil Service Law Section 35]. The general rule is different with respect to extensions of the probationary period for employees in the Classified Service [see Civil Service Law Section 40]. In the event a probationary employee in the Classified Service is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974].

For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”

Some jurisdictions allow the appointing authority to waive some of time a probationer was absent during his or her probationary period, thereby reducing the time the individual actually serves in the probationary period.

The New York State Civil Service Commission's Rules for the Classified Service, for example, provide that "any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary period ... may, in the discretion of the appointing authority, be considered as time served in the probationary term."

Such extensions of the probationary period may be applicable in other situations as well.

For example, in the event an employee injured on the job is given a "light duty assignment," the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes [Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601]. In such cases the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of their satisfactory performance of "light duty."
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