Applicant rejected after being found overqualified for appointment to the position
City of New London v Harrigan, CA2*
May an individual be so overqualified for the position so as to justify his or her being rejected for an appointment to the title? This was the issue raised in the Harrigan, a case decided by the US Circuit Court of Appeals, Second Circuit on August 23, 2000.
In March 1996 Robert Jordan and some 500 other candidates for appointment as police officers with various municipal police departments in Connecticut were screened using the Wonderlic Personnel Test and Scholastic Level Exam [WPT]. The test is used to measure cognitive ability.
Recommended scores for various professions are listed in the WPT manual and it notes that overqualified candidates may soon become bored with unchallenging work and quit, and that [s]imply hiring the highest scoring employee can be self-defeating. Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.
Jordan then learned that he would not be interviewed by the City of New London because he didn’t fit the profile. New London explained that Jordan had scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants New London only interviewed candidates who scored between 20 and 27.
Jordan sued, contending that the City had denied him equal protection in violation of the Fourteenth Amendment and Article 4, Section 20, of the Connecticut Constitution.
A federal district court judge granted the City’s motion for summary judgment. The Second Circuit affirmed the lower court’s ruling, concluding that:
New London’s use of an upper cut did not violate the equal protection clause since [A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification ... concluding that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed - on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC - that there was such a connection.
* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
December 28, 2010
December 27, 2010
Videotape used in disciplinary hearing to rebut employee’s testimony
Videotape used in disciplinary hearing to rebut employee’s testimony
NYC Department of Corrections v Saint-Phard, OATH Index #172/11
OATH Administrative Law Judge Faye Lewis found that Stanley Saint-Phard, a New York City correction officer, used impermissible force by dispersing a chemical agent in an inmate's face and placing him in a chokehold.
Saint-Phard contended that the use of such force was justified because the inmate made an aggressive motion towards him after disobeying an order to return to his cell.
A videotape introduced into evidence, however, showed that before Saint-Phard deployed the spray, the inmate had turned around and placed his hands behind his back. Further, the video showed that the officer was less than three feet from the inmate when he sprayed him, in violation of a directive prohibiting the use of the spray from close range.
ALJ Lewis also found that Saint-Phard used an impermissible chokehold on the inmate during the ensuing takedown of the inmate. A 60-day suspension was the recommended penalty.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-172.pdf
NYC Department of Corrections v Saint-Phard, OATH Index #172/11
OATH Administrative Law Judge Faye Lewis found that Stanley Saint-Phard, a New York City correction officer, used impermissible force by dispersing a chemical agent in an inmate's face and placing him in a chokehold.
Saint-Phard contended that the use of such force was justified because the inmate made an aggressive motion towards him after disobeying an order to return to his cell.
A videotape introduced into evidence, however, showed that before Saint-Phard deployed the spray, the inmate had turned around and placed his hands behind his back. Further, the video showed that the officer was less than three feet from the inmate when he sprayed him, in violation of a directive prohibiting the use of the spray from close range.
ALJ Lewis also found that Saint-Phard used an impermissible chokehold on the inmate during the ensuing takedown of the inmate. A 60-day suspension was the recommended penalty.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-172.pdf
Dissatisfaction with an employer's drug testing procedure is not “good cause” for resigning for the purposes of claiming unemployment benefits
Dissatisfaction with an employer's drug testing procedure is not “good cause” for resigning for the purposes of claiming unemployment benefits
Matter of French v Town of Lyndon, 2010 NY Slip Op 09451, Decided on December 23, 2010, Appellate Division, Third Department
Kevin M. French, a driver/operator for the Town of Lyndon. He advised Lyndon that he believed that drug testing of drivers was being performed incorrectly by the company Lyndon was then using to perform the tests. This led to Lyndon having the tests administered by a different company.
Sometime later French overheard a Town official telling his immediate supervisor that he was scheduled for a random drug test. French failed to report for work the next day and when contacted, said that “he had quit and did not wish to discuss the matter further.”
French filed for unemployment insurance benefit. The State Department of Labor issued an initial determination disqualifying him for benefits after finding that he voluntarily separated from employment without good cause.
The Appellate Division affirmed the Department’s determination, holding that “Whether a claimant has voluntarily separated from employment without good cause is an issue of fact to be resolved by the Board, and its decision will not be disturbed when supported by substantial evidence.”
As to “good cause,” the court noted that “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09451.htm
Matter of French v Town of Lyndon, 2010 NY Slip Op 09451, Decided on December 23, 2010, Appellate Division, Third Department
Kevin M. French, a driver/operator for the Town of Lyndon. He advised Lyndon that he believed that drug testing of drivers was being performed incorrectly by the company Lyndon was then using to perform the tests. This led to Lyndon having the tests administered by a different company.
Sometime later French overheard a Town official telling his immediate supervisor that he was scheduled for a random drug test. French failed to report for work the next day and when contacted, said that “he had quit and did not wish to discuss the matter further.”
French filed for unemployment insurance benefit. The State Department of Labor issued an initial determination disqualifying him for benefits after finding that he voluntarily separated from employment without good cause.
The Appellate Division affirmed the Department’s determination, holding that “Whether a claimant has voluntarily separated from employment without good cause is an issue of fact to be resolved by the Board, and its decision will not be disturbed when supported by substantial evidence.”
As to “good cause,” the court noted that “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09451.htm
Concerning the employee’s duty to mitigate damages following his or her termination
Concerning the employee’s duty to mitigate damages following his or her termination
Rongiger v McCall, USDC, SDNY, [unpublished]*
The Rongiger case discusses a somewhat infrequently encountered aspect in litigation involving alleged violations of an employees civil rights: the duty of a dismissed employee to mitigate damages and the proof an employer must produce to show that the employee failed to mitigate, or attempt to mitigate, his or her damages following the termination.
George P. Rongiger sued then State Comptroller H. Carl McCall for damages, claiming that McCall had terminated him in retaliation for his exercising his right to free speech in violation of his civil rights. One of the significant major issues in this litigation concerned the question an individual’s duty to mitigate damages.
Rongiger, who had been serving in the Office of the State Deputy Comptroller for the City of New York, a division of the Office of the State Comptroller, alleged that he was terminated after making politically embarrassing statements in deposition testimony concerning correspondence between McCall and then-Mayor David Dinkins in connection with New York City’s efforts to prevent a downgrading of its bond rating.
Did Rongiger have a duty to mitigate damages by seeking substitute employment following his dismissal? In a word, yes! As Federal District Court Justice Sweet noted, citing Dailey v Societe Generale, 108 F.3d 451, an employee who has been subject to discriminatory discharge is required to mitigate his damages.
In Greenway v Buffalo Hilton Hotel, 143 F.3d 47, the Second Circuit explained that this duty means that the discharged employee ‘must use reasonable diligence in finding other suitable employment,’ which need not be comparable to [his] previous positions.
Since the employer charged with discrimination is required to prove any failure on the part of the employee to mitigate damages, McCall retained Dr. Charles L. Sodikoff as an expert on the issue of mitigation and asked him to prepare a report as to his findings.
Sodikoff’s report set out his opinion concerning the length of time it should have taken Rongiger to find a comparably paying job or to build a profitable consulting practice, and the reasonableness of Rongiger’s job search.
Sodikoff concluded that Rongiger should have obtained comparable work within six to ten months of his termination and that he should have built a consulting practice sufficient to replace his compensation in 1994 within two years of his termination. Rongiger challenged the admission of Sodikoff’s report.
After noting that such expert testimony was relevant, Justice Sweet discussed the methods used by Sodikoff in preparing his report and his conclusion. Based on his evaluation of the procedures used by Sodikoff Justice Sweet granted part of Rongiger’s motion to exclude expert testimony.
In contrast, there is no duty on the part of individual who has been terminated after being found guilty following disciplinary action taken pursuant to Section 75 of the Civil Service Law to mitigate his or her damages.
Civil Service Law Sections 76 and 77, which, respectively, deal with reinstatement by a Civil Service Commission or a court following a successful appeal of as Section 75 dismissal and the annulment of the termination, provide that an employee who is reinstated is to receive the salary or compensation he or she would have been entitled by law to have received in his or her position for the period of removal including any prior period of suspension without pay, less the amount of any unemployment insurance benefits he may have received during such period.*
Thus mitigation is not a factor as even if the individual obtains employment after being discharged, any monies earned thereby would not be considered in determining the amount of compensation to be paid as back salary upon reinstatement -- only unemployment insurance benefits are to be considered in determining the back salary due upon reinstatement.
* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.
** Sections 76 and 77 of the Civil Service Law originally provided for an adjustment in consideration of earnings received from other sources, thereby implying a duty to mitigate damages. Chapter 710 of the Law of 1984 deleted the phrase compensation which he may have earned in any other employment or occupation.... from the law.
Rongiger v McCall, USDC, SDNY, [unpublished]*
The Rongiger case discusses a somewhat infrequently encountered aspect in litigation involving alleged violations of an employees civil rights: the duty of a dismissed employee to mitigate damages and the proof an employer must produce to show that the employee failed to mitigate, or attempt to mitigate, his or her damages following the termination.
George P. Rongiger sued then State Comptroller H. Carl McCall for damages, claiming that McCall had terminated him in retaliation for his exercising his right to free speech in violation of his civil rights. One of the significant major issues in this litigation concerned the question an individual’s duty to mitigate damages.
Rongiger, who had been serving in the Office of the State Deputy Comptroller for the City of New York, a division of the Office of the State Comptroller, alleged that he was terminated after making politically embarrassing statements in deposition testimony concerning correspondence between McCall and then-Mayor David Dinkins in connection with New York City’s efforts to prevent a downgrading of its bond rating.
Did Rongiger have a duty to mitigate damages by seeking substitute employment following his dismissal? In a word, yes! As Federal District Court Justice Sweet noted, citing Dailey v Societe Generale, 108 F.3d 451, an employee who has been subject to discriminatory discharge is required to mitigate his damages.
In Greenway v Buffalo Hilton Hotel, 143 F.3d 47, the Second Circuit explained that this duty means that the discharged employee ‘must use reasonable diligence in finding other suitable employment,’ which need not be comparable to [his] previous positions.
Since the employer charged with discrimination is required to prove any failure on the part of the employee to mitigate damages, McCall retained Dr. Charles L. Sodikoff as an expert on the issue of mitigation and asked him to prepare a report as to his findings.
Sodikoff’s report set out his opinion concerning the length of time it should have taken Rongiger to find a comparably paying job or to build a profitable consulting practice, and the reasonableness of Rongiger’s job search.
Sodikoff concluded that Rongiger should have obtained comparable work within six to ten months of his termination and that he should have built a consulting practice sufficient to replace his compensation in 1994 within two years of his termination. Rongiger challenged the admission of Sodikoff’s report.
After noting that such expert testimony was relevant, Justice Sweet discussed the methods used by Sodikoff in preparing his report and his conclusion. Based on his evaluation of the procedures used by Sodikoff Justice Sweet granted part of Rongiger’s motion to exclude expert testimony.
In contrast, there is no duty on the part of individual who has been terminated after being found guilty following disciplinary action taken pursuant to Section 75 of the Civil Service Law to mitigate his or her damages.
Civil Service Law Sections 76 and 77, which, respectively, deal with reinstatement by a Civil Service Commission or a court following a successful appeal of as Section 75 dismissal and the annulment of the termination, provide that an employee who is reinstated is to receive the salary or compensation he or she would have been entitled by law to have received in his or her position for the period of removal including any prior period of suspension without pay, less the amount of any unemployment insurance benefits he may have received during such period.*
Thus mitigation is not a factor as even if the individual obtains employment after being discharged, any monies earned thereby would not be considered in determining the amount of compensation to be paid as back salary upon reinstatement -- only unemployment insurance benefits are to be considered in determining the back salary due upon reinstatement.
* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.
** Sections 76 and 77 of the Civil Service Law originally provided for an adjustment in consideration of earnings received from other sources, thereby implying a duty to mitigate damages. Chapter 710 of the Law of 1984 deleted the phrase compensation which he may have earned in any other employment or occupation.... from the law.
Overturning disability retirement decisions
Overturning disability retirement decisions
Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458
The Guidal decision by the Appellate Division demonstrates the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his or her application for accidental disability retirement benefits.
William Guidal, a New York City firefighter, applied for accidental disability retirement benefits. The Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits.
Guidal’s appeal was rejected by the Appellate Division. The court observed that:
Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury.
The test applied in such cases by the courts: the courts may intervene only where it finds that circumstances allow but one inference with respect to the cause of the disability. In such situations the court may determine the conclusion to be drawn from the inference under the circumstances. In other words, it may decide whether or not the Trustee’s inference and conclusion was correct.
In contrast, where there is a difference of expert medical opinion as to the cause of the disability, the Trustees’ determination must be sustained if supported by substantial evidence.
Accordingly, if there is any credible evidence that the disability was not caused by service-related injuries supporting the Trustee’s determination, that determination must stand.*
In Guidal’s situation, said the court, Guidal failed to establish, as a matter of law, a causal connection between his line-of-duty accidents and his disabling condition since the medical evidence permitted more than one inference to be drawn as to the cause of his disabling condition.
Applying the single inference test, the Appellate Division held that there was no basis to disturb the Trustee’s decision.
* The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where his determination concerning approving an application for accidental or duty-related disability benefits is at issue.
Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458
The Guidal decision by the Appellate Division demonstrates the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his or her application for accidental disability retirement benefits.
William Guidal, a New York City firefighter, applied for accidental disability retirement benefits. The Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits.
Guidal’s appeal was rejected by the Appellate Division. The court observed that:
Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury.
The test applied in such cases by the courts: the courts may intervene only where it finds that circumstances allow but one inference with respect to the cause of the disability. In such situations the court may determine the conclusion to be drawn from the inference under the circumstances. In other words, it may decide whether or not the Trustee’s inference and conclusion was correct.
In contrast, where there is a difference of expert medical opinion as to the cause of the disability, the Trustees’ determination must be sustained if supported by substantial evidence.
Accordingly, if there is any credible evidence that the disability was not caused by service-related injuries supporting the Trustee’s determination, that determination must stand.*
In Guidal’s situation, said the court, Guidal failed to establish, as a matter of law, a causal connection between his line-of-duty accidents and his disabling condition since the medical evidence permitted more than one inference to be drawn as to the cause of his disabling condition.
Applying the single inference test, the Appellate Division held that there was no basis to disturb the Trustee’s decision.
* The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where his determination concerning approving an application for accidental or duty-related disability benefits is at issue.
Past practice - paying for health insurance premiums
Past practice - paying for health insurance premiums
Matter of Ulster County Local 856, 33 PERB 4584
Local 856 filed an improper practice charge with PERB contending that the Town of Shawangunk violated Section 209-a.1(d) of the Civil Service Law when it unilaterally changed the long-standing practice of paying health insurance premiums for unit members after their retirement.
Notwithstanding the Local’s allegation, PERB Administrative Law Judge Gordon R. Mayo found that only two employees who would have been included within the existing negotiating unit had retired -- one in 1978 and the other in 1980 -- were provided with fully paid health insurance by the Town upon their retirement.
Both employees, however, retired prior Local 856 being recognized as the collective bargaining agent for the unit in 1984. Also noted was the fact that no unit member has retired since 1984. In contrast, when a Town employee who was not in the negotiating unit retired in 1992, the town board adopted a resolution allowing this retiree to purchase health insurance on the Town’s policy at his own expense.
Essentially the Local argued that a past practice existed while the Town disagreed. In support of its position it contended that in 1997 it suggested to a CSEA Labor Relations specialist that the topic should be discussed during the next round of collective bargaining by the parties.
Based on this record, Mayo ruled that “[b]ecause of the equivocal nature of the evidence contained within the stipulation of facts, I cannot find that a past practice ever existed within the Town regarding retiree health insurance.”
Matter of Ulster County Local 856, 33 PERB 4584
Local 856 filed an improper practice charge with PERB contending that the Town of Shawangunk violated Section 209-a.1(d) of the Civil Service Law when it unilaterally changed the long-standing practice of paying health insurance premiums for unit members after their retirement.
Notwithstanding the Local’s allegation, PERB Administrative Law Judge Gordon R. Mayo found that only two employees who would have been included within the existing negotiating unit had retired -- one in 1978 and the other in 1980 -- were provided with fully paid health insurance by the Town upon their retirement.
Both employees, however, retired prior Local 856 being recognized as the collective bargaining agent for the unit in 1984. Also noted was the fact that no unit member has retired since 1984. In contrast, when a Town employee who was not in the negotiating unit retired in 1992, the town board adopted a resolution allowing this retiree to purchase health insurance on the Town’s policy at his own expense.
Essentially the Local argued that a past practice existed while the Town disagreed. In support of its position it contended that in 1997 it suggested to a CSEA Labor Relations specialist that the topic should be discussed during the next round of collective bargaining by the parties.
Based on this record, Mayo ruled that “[b]ecause of the equivocal nature of the evidence contained within the stipulation of facts, I cannot find that a past practice ever existed within the Town regarding retiree health insurance.”
December 24, 2010
Governor Paterson issues pardons to the benefit of 24 individuals subject to deportation as a result of a criminal conviction in the past
Governor Paterson issues pardons to the benefit of 24 individuals subject to deportation as a result of a criminal conviction in the past
Source: Office of the Governor
On December 24, 2010,Governor David A. Paterson today announced that he has issued pardons to the 24 individuals listed below otherwise subject to deportation as a result of prior criminal convictions. The Governor said:
"Over the course of my Administration's review of more than 1,100 pardon applications it became abundantly clear that the Federal government's immigration laws are often excessively harsh and in need of modernization," Governor Paterson said. "The individuals pardoned today committed past offenses but paid their debt to society. They now make positive contributions to our State and nation, and I believe they should be protected from inflexible and misguided immigration statutes."
In May 2010, Governor Paterson created a special Immigration Pardon Panel, comprised of members of the his staff and his counsel's office, to collect information and provide recommendations on pardons for deserving individuals to assist them in avoiding deportation.
The initiative was designed to address and counter aspects of the immigration laws that may result in inflexible and unjust decisions to remove legal immigrants from the United States, often tearing them away from their children and spouses. In many of these cases, the individual's efforts toward rehabilitation, their years of living a law-abiding life in the community and their positive contributions to society have not been considered by Immigration and Customs Enforcement (ICE) in the decision to deport.
One harshness of the Federal law results from retroactive changes made in the mid-1990s, whereby crimes that did not previously carry the consequence of deportation were made deportable. In many other cases, individuals previously had pled guilty without being aware that their plea might subject them to mandatory deportation. As a result, many individuals who were convicted many years ago are now facing deportation, often after they apply for citizenship or seek to renew their permanent resident status. Additionally, individuals may face deportation to a country they left as a child, where they now have no relatives, may not speak the language and have no place to live or means to support themselves.
"That our Federal government does not credit rehabilitation, nor account for human suffering is antithetical to the ideals this country represents. With these pardons, I have selected cases that exemplify the values of New York State and any civilized society: atonement, forgiveness, compassion, and the need to achieve justice, and not simply strict adherence to unjust statutes. I will not turn my back on New Yorkers who enrich our lives and care for those who suffer," Governor Paterson concluded.
The individuals who received pardons from the Governor include:
• Tressan Allen, in 2002, was convicted of Attempted Criminal Possession of Marijuana in the Fourth Degree, a class B misdemeanor. She is married to an active duty U.S. Army Specialist who is currently stationed in Germany and will be deployed for his second tour of duty in Afghanistan in February.
• Luz Marina Camacho was convicted of drug sale and possession crimes in 1983. She was sentenced to 15 years to life in prison, but Governor Mario Cuomo commuted her sentence in 1991. Since her release, U.S. Immigration and Customs Enforcement has permitted her to remain in the United States under a "deferred action," which will expire in February 2011.
• Ian Carter pled guilty to Attempted Criminal Sale of Stolen Property in the Third Degree in 1994 and was sentenced to five years on probation. He has demonstrated his rehabilitation by receiving an Associates and a Bachelors Degree, maintaining gainful employment and serving his community by participating in charitable activities. A pardon will remove the basis for his deportation.
• Edouard Colas was brought to the United States from Haiti as a lawful permanent resident at age 10. He was convicted in 1997 of Attempted Burglary in the Third Degree and sentenced to five years on probation. He has maintained gainful employment and is married to a United States citizen with whom he has two young sons. The pardon will remove the basis for his deportation.
• Lucila Cruz has been a lawful permanent resident of the United States since 1992. She was convicted of Attempted Grand Larceny in the Third Degree in 1996, and was sentenced to a conditional discharge. Many supporters, including her employer, have commended her for the care she provides to her severely disabled son. The pardon should remove all grounds for her deportation.
• Vijay Dandapani was pardoned for a 1993 conviction of first-degree grand larceny, for which he served a one-to three year sentence. He cooperated with the prosecution, including providing essential testimony at the trial of his accomplices. A pardon will prevent his deportation, allowing him to remain in the United States with his wife, who is a citizen, and two children.
• Neil Drew has been a lawful permanent resident of the United States since he was 10 years old. He was convicted of third-degree grand larceny in 1998, for which he served a one-to-three year sentence and made restitution. He has earned a Bachelors Degree from the School of Visual Arts in New York City and has been gainfully employed as a graphic designer. His two brothers serve in the U.S. military. The pardon should fully resolve his immigration problems.
• Carol Hamilton, now a Reverend was convicted of two class A misdemeanors of Criminal Possession of Marijuana in the Fourth Degree in 1995 and 1986, for which he was sentenced to a conditional discharge and a fine, respectively. He has now earned a Bachelors and a Masters Degree and works as an ordained minister, counseling youth, ex-offenders and people living with HIV/AIDS. A pardon should assist him in fighting his deportation, allowing him to remain in the United States with his wife and three young children.
• Olusegun Ola Johnson, a lawful permanent resident since 1991, was convicted of three counts of second-degree forgery and one count of third-degree grand larceny in 1990, for which he was sentenced to five years of probation. He has had no further contacts with the criminal justice system, and is now an ordained deacon, who is married to a citizen and is the father of four children.
• Walter Mills, now 60-years-old, was convicted of attempted possession of a firearm in 1973 and was sentenced to a conditional discharge. In the 37 years since this conviction, he has had no other contact with the criminal justice system. He now works full time and cares for his 82-year-old mother. The pardon will be considered a favorable discretionary factor if he is ever placed in deportation proceedings.
• Pedro Montesquieu was convicted in 2000 of attempted Criminal Sale of a Controlled Substance in the Third degree and was sentenced to five years on probation. Montesquieu runs his own business, and is the father of three young children, two of whom suffer from severe and life-threatening illnesses. The pardon should enable Montesquieu to re-open his immigration proceedings and would make him eligible to seek cancellation of removal but because he was convicted of a controlled substance offense, it will not guarantee that he will be permitted to remain in the United States.
Governor Paterson, commenting on this particular case, said: "At a later date, we may have a clearer idea of the impact that a pardon will have for persons with controlled substance convictions who are fighting deportation, but I am granting this pardon for humanitarian reasons because of the sorrowful multiple tragedies that may beset this family."
• Francisco Moya de Leon, who has been a lawful permanent resident of the United States since 1988, was convicted in 1994, of fourth-degree criminal possession of a controlled substance for which he served five years on probation. He is married to a citizen, and his son serves as a police officer in New York City. Moya de Leon is now facing removal as an inadmissible alien because he left the country three times after he was convicted, despite the fact that he has been a lawful permanent resident for 22 years and was re-admitted to the United States after each trip outside the country. Governor Paterson granted the pardon to assist Moya de Leon in overcoming the unfairness of the U.S. Customs and Immigration Services decision.
• Frances Novoa, who is now 63 years old, is being threatened with removal for attempted petit larceny convictions from 1984 and 1974, for which she was sentenced to a conditional discharge. Novoa is gainfully employed, and provides stability to one of her daughters and three of her grandchildren, who would suffer a serious disruption of their lives and extreme emotional harm if she were to be deported.
• Angela Parker was brought to the United States at age four. When her father was killed when Parker was 11 years old she was kicked out of her home and, along with her 16-year-old sister, forced to live on the streets and endure years of abuse and violence. During these tumultuous years, she was convicted, in 1989, of two counts of third-degree criminal sale of a controlled substance and one count of first-degree assault and was sentenced to 1½ to 4½ years in State prison. For the last 17 years, she has raised her oldest son, who served in the U.S. Army, and is now desperate to remain in the United States so that she may help her two younger children have a better life than she had.
• Juan P. Ramirez, who was then the owner of a bodega, was convicted in 2003 of two misdemeanors. Since these convictions, he has been gainfully employed, supporting his wife and children. He has been an active member of his community who has devoted himself to helping others. The pardon should remove all grounds of deportability and allow him to have his green card restored.
• Laurenton Rhodon has been a lawful permanent resident of the United States for twenty years, but now faces removal as a result of a 1995 conviction for Attempted Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to five years probation. Rhodon has sole custody of his 12-year-old daughter. The pardon will make him eligible to seek cancellation of removal, but because he was convicted of a controlled substance offense, there is no guarantee that he will be permitted to remain in the United States.
• Fredy C. Rojas, a veteran of the U.S. Army and after having served our country for 8 years, is deportable as a result of a single misdemeanor drug possession conviction in 1995. Since that time, he has completed drug treatment and, together with his wife, who is a citizen, he is raising his 7-year-old daughter and working as a truck driver.
• Jose Sanchez was granted lawful permanent resident status in 1998, even though he disclosed to immigration officials that he had been convicted in 1989 of fifth-degree criminal possession of a controlled substance and sentenced to five years on probation. Eleven years later, after Sanchez has built a stable life in New York, Immigration and Customs Enforcement is seeking to deport him for that same conviction.
• Melbourne Sinclair has been a lawful permanent resident of the United States since 1986. He was convicted in 1990 of the misdemeanor offense of fourth-degree criminal sale of marijuana and sentenced to a fine. As many permanent residents do, he applied for naturalization, unaware that he was ineligible as a result of his conviction, and he now faces the likelihood of being placed in deportation proceedings. If removed, he would be torn from his wife, who is a citizen, and sons, who would likely be unable to continue their college attendance without their father's support and assistance. If he is placed in proceedings, the pardon will make Sinclair eligible seek cancellation of removal, but will not guarantee that he will be permitted to remain in the United States.
• Eligio Valerio has resided in the United States since 1982, but was recently the subject of immigration proceedings based on a 1986 conviction for fifth-degree criminal sale of a controlled substance and a 1988 conviction for fourth-degree criminal possession of a weapon. In the 22 years since his conviction, Valerio has been gainfully employed, has raised a family and has had no further contact with the criminal justice system. The pardon will make him eligible for cancellation of removal.
Included in the group pardoned by Governor Paterson are four individuals who, due to retroactive changes to the immigration laws, would have been subject to deportation.
These individuals were all convicted of offenses that did not initially carry the penalty of deportation, though that was changed due to subsequent legislation. Those pardoned include:
• Salvador Gonzalez was convicted of first-degree assault in 1975, for which he served a one to three year sentence in State prison. He has had no involvement with the criminal justice system in the 35-years since his conviction, and is now a small-business owner who takes care of his elderly parents and his young son. Gonzalez has been hampered in his efforts to prevent his removal, because retroactively-effective changes in the immigration laws in the 1990s made him ineligible for cancellation of removal – a form of relief that was available to him at the time of his conviction.
• Engels R. Guzman, a lawful permanent resident of the United States since age 15, was convicted of second-degree robbery in 1990, when he was 16 years old. After his release from prison, he worked in the family supermarket business, married and is the father of four young children. He too has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.
• Jose Palma has been a lawful permanent resident of the United States since 1971, but faces deportation as a result of a first-degree reckless endangerment conviction from 1978, for which he served 60 days in jail and five years on probation. He has lived an exemplary life during the 30 years since he was released from parole supervision, having become a business owner and raising his three children with his wife of over 30 years. Like Gonzalez and Guzman, he has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.
• Randy Valentin De La Cruz has been a lawful permanent resident since the age of 13, but now faces removal to an unfamiliar country as a result of a 1984 conviction for first-degree assault, for which he was sentenced to 1½ to 4½ years in prison. In the 26 years since this conviction, De La Cruz and his wife have raised their two children, one of whom has served in the U.S. Navy for the last 11 years. Like other pardon recipients, retroactive changes in the immigration laws have made De La Cruz ineligible for cancellation of removal. The pardon should eliminate all grounds for deportability.
Source: Office of the Governor
On December 24, 2010,Governor David A. Paterson today announced that he has issued pardons to the 24 individuals listed below otherwise subject to deportation as a result of prior criminal convictions. The Governor said:
"Over the course of my Administration's review of more than 1,100 pardon applications it became abundantly clear that the Federal government's immigration laws are often excessively harsh and in need of modernization," Governor Paterson said. "The individuals pardoned today committed past offenses but paid their debt to society. They now make positive contributions to our State and nation, and I believe they should be protected from inflexible and misguided immigration statutes."
In May 2010, Governor Paterson created a special Immigration Pardon Panel, comprised of members of the his staff and his counsel's office, to collect information and provide recommendations on pardons for deserving individuals to assist them in avoiding deportation.
The initiative was designed to address and counter aspects of the immigration laws that may result in inflexible and unjust decisions to remove legal immigrants from the United States, often tearing them away from their children and spouses. In many of these cases, the individual's efforts toward rehabilitation, their years of living a law-abiding life in the community and their positive contributions to society have not been considered by Immigration and Customs Enforcement (ICE) in the decision to deport.
One harshness of the Federal law results from retroactive changes made in the mid-1990s, whereby crimes that did not previously carry the consequence of deportation were made deportable. In many other cases, individuals previously had pled guilty without being aware that their plea might subject them to mandatory deportation. As a result, many individuals who were convicted many years ago are now facing deportation, often after they apply for citizenship or seek to renew their permanent resident status. Additionally, individuals may face deportation to a country they left as a child, where they now have no relatives, may not speak the language and have no place to live or means to support themselves.
"That our Federal government does not credit rehabilitation, nor account for human suffering is antithetical to the ideals this country represents. With these pardons, I have selected cases that exemplify the values of New York State and any civilized society: atonement, forgiveness, compassion, and the need to achieve justice, and not simply strict adherence to unjust statutes. I will not turn my back on New Yorkers who enrich our lives and care for those who suffer," Governor Paterson concluded.
The individuals who received pardons from the Governor include:
• Tressan Allen, in 2002, was convicted of Attempted Criminal Possession of Marijuana in the Fourth Degree, a class B misdemeanor. She is married to an active duty U.S. Army Specialist who is currently stationed in Germany and will be deployed for his second tour of duty in Afghanistan in February.
• Luz Marina Camacho was convicted of drug sale and possession crimes in 1983. She was sentenced to 15 years to life in prison, but Governor Mario Cuomo commuted her sentence in 1991. Since her release, U.S. Immigration and Customs Enforcement has permitted her to remain in the United States under a "deferred action," which will expire in February 2011.
• Ian Carter pled guilty to Attempted Criminal Sale of Stolen Property in the Third Degree in 1994 and was sentenced to five years on probation. He has demonstrated his rehabilitation by receiving an Associates and a Bachelors Degree, maintaining gainful employment and serving his community by participating in charitable activities. A pardon will remove the basis for his deportation.
• Edouard Colas was brought to the United States from Haiti as a lawful permanent resident at age 10. He was convicted in 1997 of Attempted Burglary in the Third Degree and sentenced to five years on probation. He has maintained gainful employment and is married to a United States citizen with whom he has two young sons. The pardon will remove the basis for his deportation.
• Lucila Cruz has been a lawful permanent resident of the United States since 1992. She was convicted of Attempted Grand Larceny in the Third Degree in 1996, and was sentenced to a conditional discharge. Many supporters, including her employer, have commended her for the care she provides to her severely disabled son. The pardon should remove all grounds for her deportation.
• Vijay Dandapani was pardoned for a 1993 conviction of first-degree grand larceny, for which he served a one-to three year sentence. He cooperated with the prosecution, including providing essential testimony at the trial of his accomplices. A pardon will prevent his deportation, allowing him to remain in the United States with his wife, who is a citizen, and two children.
• Neil Drew has been a lawful permanent resident of the United States since he was 10 years old. He was convicted of third-degree grand larceny in 1998, for which he served a one-to-three year sentence and made restitution. He has earned a Bachelors Degree from the School of Visual Arts in New York City and has been gainfully employed as a graphic designer. His two brothers serve in the U.S. military. The pardon should fully resolve his immigration problems.
• Carol Hamilton, now a Reverend was convicted of two class A misdemeanors of Criminal Possession of Marijuana in the Fourth Degree in 1995 and 1986, for which he was sentenced to a conditional discharge and a fine, respectively. He has now earned a Bachelors and a Masters Degree and works as an ordained minister, counseling youth, ex-offenders and people living with HIV/AIDS. A pardon should assist him in fighting his deportation, allowing him to remain in the United States with his wife and three young children.
• Olusegun Ola Johnson, a lawful permanent resident since 1991, was convicted of three counts of second-degree forgery and one count of third-degree grand larceny in 1990, for which he was sentenced to five years of probation. He has had no further contacts with the criminal justice system, and is now an ordained deacon, who is married to a citizen and is the father of four children.
• Walter Mills, now 60-years-old, was convicted of attempted possession of a firearm in 1973 and was sentenced to a conditional discharge. In the 37 years since this conviction, he has had no other contact with the criminal justice system. He now works full time and cares for his 82-year-old mother. The pardon will be considered a favorable discretionary factor if he is ever placed in deportation proceedings.
• Pedro Montesquieu was convicted in 2000 of attempted Criminal Sale of a Controlled Substance in the Third degree and was sentenced to five years on probation. Montesquieu runs his own business, and is the father of three young children, two of whom suffer from severe and life-threatening illnesses. The pardon should enable Montesquieu to re-open his immigration proceedings and would make him eligible to seek cancellation of removal but because he was convicted of a controlled substance offense, it will not guarantee that he will be permitted to remain in the United States.
Governor Paterson, commenting on this particular case, said: "At a later date, we may have a clearer idea of the impact that a pardon will have for persons with controlled substance convictions who are fighting deportation, but I am granting this pardon for humanitarian reasons because of the sorrowful multiple tragedies that may beset this family."
• Francisco Moya de Leon, who has been a lawful permanent resident of the United States since 1988, was convicted in 1994, of fourth-degree criminal possession of a controlled substance for which he served five years on probation. He is married to a citizen, and his son serves as a police officer in New York City. Moya de Leon is now facing removal as an inadmissible alien because he left the country three times after he was convicted, despite the fact that he has been a lawful permanent resident for 22 years and was re-admitted to the United States after each trip outside the country. Governor Paterson granted the pardon to assist Moya de Leon in overcoming the unfairness of the U.S. Customs and Immigration Services decision.
• Frances Novoa, who is now 63 years old, is being threatened with removal for attempted petit larceny convictions from 1984 and 1974, for which she was sentenced to a conditional discharge. Novoa is gainfully employed, and provides stability to one of her daughters and three of her grandchildren, who would suffer a serious disruption of their lives and extreme emotional harm if she were to be deported.
• Angela Parker was brought to the United States at age four. When her father was killed when Parker was 11 years old she was kicked out of her home and, along with her 16-year-old sister, forced to live on the streets and endure years of abuse and violence. During these tumultuous years, she was convicted, in 1989, of two counts of third-degree criminal sale of a controlled substance and one count of first-degree assault and was sentenced to 1½ to 4½ years in State prison. For the last 17 years, she has raised her oldest son, who served in the U.S. Army, and is now desperate to remain in the United States so that she may help her two younger children have a better life than she had.
• Juan P. Ramirez, who was then the owner of a bodega, was convicted in 2003 of two misdemeanors. Since these convictions, he has been gainfully employed, supporting his wife and children. He has been an active member of his community who has devoted himself to helping others. The pardon should remove all grounds of deportability and allow him to have his green card restored.
• Laurenton Rhodon has been a lawful permanent resident of the United States for twenty years, but now faces removal as a result of a 1995 conviction for Attempted Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to five years probation. Rhodon has sole custody of his 12-year-old daughter. The pardon will make him eligible to seek cancellation of removal, but because he was convicted of a controlled substance offense, there is no guarantee that he will be permitted to remain in the United States.
• Fredy C. Rojas, a veteran of the U.S. Army and after having served our country for 8 years, is deportable as a result of a single misdemeanor drug possession conviction in 1995. Since that time, he has completed drug treatment and, together with his wife, who is a citizen, he is raising his 7-year-old daughter and working as a truck driver.
• Jose Sanchez was granted lawful permanent resident status in 1998, even though he disclosed to immigration officials that he had been convicted in 1989 of fifth-degree criminal possession of a controlled substance and sentenced to five years on probation. Eleven years later, after Sanchez has built a stable life in New York, Immigration and Customs Enforcement is seeking to deport him for that same conviction.
• Melbourne Sinclair has been a lawful permanent resident of the United States since 1986. He was convicted in 1990 of the misdemeanor offense of fourth-degree criminal sale of marijuana and sentenced to a fine. As many permanent residents do, he applied for naturalization, unaware that he was ineligible as a result of his conviction, and he now faces the likelihood of being placed in deportation proceedings. If removed, he would be torn from his wife, who is a citizen, and sons, who would likely be unable to continue their college attendance without their father's support and assistance. If he is placed in proceedings, the pardon will make Sinclair eligible seek cancellation of removal, but will not guarantee that he will be permitted to remain in the United States.
• Eligio Valerio has resided in the United States since 1982, but was recently the subject of immigration proceedings based on a 1986 conviction for fifth-degree criminal sale of a controlled substance and a 1988 conviction for fourth-degree criminal possession of a weapon. In the 22 years since his conviction, Valerio has been gainfully employed, has raised a family and has had no further contact with the criminal justice system. The pardon will make him eligible for cancellation of removal.
Included in the group pardoned by Governor Paterson are four individuals who, due to retroactive changes to the immigration laws, would have been subject to deportation.
These individuals were all convicted of offenses that did not initially carry the penalty of deportation, though that was changed due to subsequent legislation. Those pardoned include:
• Salvador Gonzalez was convicted of first-degree assault in 1975, for which he served a one to three year sentence in State prison. He has had no involvement with the criminal justice system in the 35-years since his conviction, and is now a small-business owner who takes care of his elderly parents and his young son. Gonzalez has been hampered in his efforts to prevent his removal, because retroactively-effective changes in the immigration laws in the 1990s made him ineligible for cancellation of removal – a form of relief that was available to him at the time of his conviction.
• Engels R. Guzman, a lawful permanent resident of the United States since age 15, was convicted of second-degree robbery in 1990, when he was 16 years old. After his release from prison, he worked in the family supermarket business, married and is the father of four young children. He too has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.
• Jose Palma has been a lawful permanent resident of the United States since 1971, but faces deportation as a result of a first-degree reckless endangerment conviction from 1978, for which he served 60 days in jail and five years on probation. He has lived an exemplary life during the 30 years since he was released from parole supervision, having become a business owner and raising his three children with his wife of over 30 years. Like Gonzalez and Guzman, he has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.
• Randy Valentin De La Cruz has been a lawful permanent resident since the age of 13, but now faces removal to an unfamiliar country as a result of a 1984 conviction for first-degree assault, for which he was sentenced to 1½ to 4½ years in prison. In the 26 years since this conviction, De La Cruz and his wife have raised their two children, one of whom has served in the U.S. Navy for the last 11 years. Like other pardon recipients, retroactive changes in the immigration laws have made De La Cruz ineligible for cancellation of removal. The pardon should eliminate all grounds for deportability.
Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate
Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate
Matter of Brynien v New York State Dept. of Civ. Serv., 2010 NY Slip Op 09442, Decided on December 23, 2010, Appellate Division, Third Department
The New York State Department of Civil Service asked the State Civil Service Commission to jurisdictionally reclassify over 30 medical job titles from competitive class to the noncompetitive class.*
The New York State Public Employees Federation [PEF], which represented individuals employed, or to be employed, in such titles objected.
Following an “informal hearing,” the Commission approved the Department's request to reclassify as noncompetitive “29 enumerated clinical physician, medical specialist, psychiatrist, pathologist, dentist and veterinarian job titles, but denied reclassification for pharmacy-related titles.”
PEF filed a petition pursuant to Article 78 of the CPLR challenging the Commission’s determination. Supreme Court granted PEF’s petition and annulled the Commission’s determination with respect to the “29 enumerated titles” and the Civil Service Department appealed.
The Appellate Division, noting that “it is axiomatic that a job classification determination is subject to limited judicial review and will not be disturbed absent a showing that it was wholly arbitrary or without a rational basis” and further, “if the classification determination has a rational basis in the record, it will be upheld even if there exists legitimate grounds for a difference of opinion.”
In this instance the Appellate Division concurred with Supreme Court’s determination and dismissed the Department’s appeal.
Starting with the basic proposition that New York State’s Constitution, Article V, §6 mandates that appointments and promotions to civil service positions be made according to merit and fitness to be determined, "as far as practicable," by competitive examination, the court addressed each of the Department’s arguments as set out below.
1.The Department argued that because the job titles at issue already require a license, credential and/or board certification, competitive examination for these positions is "unnecessary, redundant and adds no value to the assessment of candidates' merit and fitness."
The court said that the fact that a competitive examination is "redundant" or "unnecessary" has no bearing on whether such an examination is impracticable.
2. The Department argued that competitive examination "adds little if any value" to the assessment of a candidate's merit and fitness because the license, credential and/or board certification required for the job titles already provides an objective and verifiable measure of a candidate's qualifications for the position.
The Appellate Division rejected this argument, stressing that Article V, §6 mandates that appointments be made according to fitness and merit and although a licensing accreditation process measures whether an applicant is fit to practice in that discipline according to the minimum standards established by the regulating authority it found no factual or rational basis for the conclusion that competitive testing is impracticable because the possession of a credential, license and/or board certification is an adequate substitute for measuring a candidate's fitness and merit.**
3. The Department claim that a competitive examination was impracticable was based on its assertion that candidates who rank highest on the examination — the candidates with the most training and experience — are not necessarily the best qualified for the position.
Noting that “the Department has not submitted any facts or empirical data to support its claim in this regard, other than its conclusory assertion that ‘[e]xperience has shown’ that ranking candidates based upon years of experience does not ensure that candidates with the most experience are the most qualified for the job” the Appellate Division said that “the classification standards issued by the Department for nearly all of the job titles at issue clearly establish that work experience is the primary and distinguishing factor in evaluating a candidate's fitness and merit.” Further, said the court, “[t]o the extent that the Department suggests that a candidate's on-the-job performance, coupled with a noncompetitive examination, would provide a more effective indicator of merit and fitness, we need only note that this is not a valid basis for dispensing with competitive examination,” citing Matter of Wood v Irving, 85 NY2d at 249.
4. The Department claimed that the use of competitive examination causes delay in the hiring process and inhibits the ability to recruit qualified employees.
Such an argument, said the court, is entirely irrelevant to practicability — that is, the ability to objectively and fairly assess candidates' merit and fitness by way of competitive examination.
5. The Department claimed that the competitive examinations for the subject job titles do not rank candidates based on experience and training that is relevant to the specific type of work that the particular position requires.
The Appellate Division rejected this claim as well, commenting that “this could easily be remedied by a mere specification of the particular training needed for any given position.” In addition, the court pointed out that “under the so-called ‘rule of three,’ the appointing authority is never required to appoint or promote the candidate with the highest score.” Rather the appointing authority is given flexibility and may choose among other reachable candidates if it finds them to be more qualified for a particular position.
* Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law].
** The Appellate Division said that the Department's claim of irrelevancy is belied by its own job descriptions for essentially all of the positions, which not only indicate that possession of the required license is only a minimum qualification for the position. Further, said the court, another “distinguishing factor” with respect to a candidate's qualifications is the number of years of work experience he or she claimed.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09442.htm
Matter of Brynien v New York State Dept. of Civ. Serv., 2010 NY Slip Op 09442, Decided on December 23, 2010, Appellate Division, Third Department
The New York State Department of Civil Service asked the State Civil Service Commission to jurisdictionally reclassify over 30 medical job titles from competitive class to the noncompetitive class.*
The New York State Public Employees Federation [PEF], which represented individuals employed, or to be employed, in such titles objected.
Following an “informal hearing,” the Commission approved the Department's request to reclassify as noncompetitive “29 enumerated clinical physician, medical specialist, psychiatrist, pathologist, dentist and veterinarian job titles, but denied reclassification for pharmacy-related titles.”
PEF filed a petition pursuant to Article 78 of the CPLR challenging the Commission’s determination. Supreme Court granted PEF’s petition and annulled the Commission’s determination with respect to the “29 enumerated titles” and the Civil Service Department appealed.
The Appellate Division, noting that “it is axiomatic that a job classification determination is subject to limited judicial review and will not be disturbed absent a showing that it was wholly arbitrary or without a rational basis” and further, “if the classification determination has a rational basis in the record, it will be upheld even if there exists legitimate grounds for a difference of opinion.”
In this instance the Appellate Division concurred with Supreme Court’s determination and dismissed the Department’s appeal.
Starting with the basic proposition that New York State’s Constitution, Article V, §6 mandates that appointments and promotions to civil service positions be made according to merit and fitness to be determined, "as far as practicable," by competitive examination, the court addressed each of the Department’s arguments as set out below.
1.The Department argued that because the job titles at issue already require a license, credential and/or board certification, competitive examination for these positions is "unnecessary, redundant and adds no value to the assessment of candidates' merit and fitness."
The court said that the fact that a competitive examination is "redundant" or "unnecessary" has no bearing on whether such an examination is impracticable.
2. The Department argued that competitive examination "adds little if any value" to the assessment of a candidate's merit and fitness because the license, credential and/or board certification required for the job titles already provides an objective and verifiable measure of a candidate's qualifications for the position.
The Appellate Division rejected this argument, stressing that Article V, §6 mandates that appointments be made according to fitness and merit and although a licensing accreditation process measures whether an applicant is fit to practice in that discipline according to the minimum standards established by the regulating authority it found no factual or rational basis for the conclusion that competitive testing is impracticable because the possession of a credential, license and/or board certification is an adequate substitute for measuring a candidate's fitness and merit.**
3. The Department claim that a competitive examination was impracticable was based on its assertion that candidates who rank highest on the examination — the candidates with the most training and experience — are not necessarily the best qualified for the position.
Noting that “the Department has not submitted any facts or empirical data to support its claim in this regard, other than its conclusory assertion that ‘[e]xperience has shown’ that ranking candidates based upon years of experience does not ensure that candidates with the most experience are the most qualified for the job” the Appellate Division said that “the classification standards issued by the Department for nearly all of the job titles at issue clearly establish that work experience is the primary and distinguishing factor in evaluating a candidate's fitness and merit.” Further, said the court, “[t]o the extent that the Department suggests that a candidate's on-the-job performance, coupled with a noncompetitive examination, would provide a more effective indicator of merit and fitness, we need only note that this is not a valid basis for dispensing with competitive examination,” citing Matter of Wood v Irving, 85 NY2d at 249.
4. The Department claimed that the use of competitive examination causes delay in the hiring process and inhibits the ability to recruit qualified employees.
Such an argument, said the court, is entirely irrelevant to practicability — that is, the ability to objectively and fairly assess candidates' merit and fitness by way of competitive examination.
5. The Department claimed that the competitive examinations for the subject job titles do not rank candidates based on experience and training that is relevant to the specific type of work that the particular position requires.
The Appellate Division rejected this claim as well, commenting that “this could easily be remedied by a mere specification of the particular training needed for any given position.” In addition, the court pointed out that “under the so-called ‘rule of three,’ the appointing authority is never required to appoint or promote the candidate with the highest score.” Rather the appointing authority is given flexibility and may choose among other reachable candidates if it finds them to be more qualified for a particular position.
* Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law].
** The Appellate Division said that the Department's claim of irrelevancy is belied by its own job descriptions for essentially all of the positions, which not only indicate that possession of the required license is only a minimum qualification for the position. Further, said the court, another “distinguishing factor” with respect to a candidate's qualifications is the number of years of work experience he or she claimed.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09442.htm
School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student
School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Purvis v. Oest, ___F.3d____(7th Cir. Aug. 2, 2010), is an interesting case.
The Seventh Circuit held that three school officials who conducted an investigation into allegations that a teacher had sexually abused one of her students were entitled to qualified immunity from the former teacher’s suit that the biased nature of the investigation corrupted the subsequent criminal investigation in violation of her due process rights.
The court also ruled that the chief of police was entitled to qualified immunity from the teacher’s claim of false arrest because he had probable cause to make the arrest.
The teacher had resigned from her employment in exchange for a cash settlement. In finding that the individual defendants were entitled to qualified immunity, the court applied the two-step immunity test:
(1) whether the plaintiff showed a that the defendant had violated a constitutional right; and
(2) whether that right was clearly established at the time the violation occurred.
Mitchell H. Rubinstein
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Purvis v. Oest, ___F.3d____(7th Cir. Aug. 2, 2010), is an interesting case.
The Seventh Circuit held that three school officials who conducted an investigation into allegations that a teacher had sexually abused one of her students were entitled to qualified immunity from the former teacher’s suit that the biased nature of the investigation corrupted the subsequent criminal investigation in violation of her due process rights.
The court also ruled that the chief of police was entitled to qualified immunity from the teacher’s claim of false arrest because he had probable cause to make the arrest.
The teacher had resigned from her employment in exchange for a cash settlement. In finding that the individual defendants were entitled to qualified immunity, the court applied the two-step immunity test:
(1) whether the plaintiff showed a that the defendant had violated a constitutional right; and
(2) whether that right was clearly established at the time the violation occurred.
Mitchell H. Rubinstein
Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege
Statements made to the press about an individual that the individual finds offensive may be protected by a qualified privilege
Liere v Scully, 2010 NY Slip Op 09227, Decided on December 14, 2010, Appellate Division, Second Department
Peter Scully, Regional Director of the State Department of Environmental Conservation told a television reporter alleging the Robert Liere was "bulldozing" his farm to create a "massive solid waste facility," as well as alleging that Liere accepted "land clearing debris" and "yard waste" without obtaining required governmental approvals, just prior to the Department issuing an administrative warrant to inspect Liere’s farm.
Liere sued, contending that he had been defamed by Scully, sued seeking to recover damages. Supreme Court dismissed Liere’s petition and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division ruled that Scully had demonstrated that he was entitled to have Liere’s lawsuit dismissed as a matter of law by presenting evidence that the challenged statements were protected by a qualified privilege.*
A qualified privilege, explained the court, applies to statements that are " fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned."
Scully had shown that he made the statements to which Liere had objected “in his official capacity as regional director of the DEC and that the television reporter to whom he made the statements, and the public in general, had corresponding interests in the statements' subject matter.”
Although the matter could have gone to trial if Liere had shown that there was a triable issue of fact as to whether Scully statements had exceeded the scope of the privilege or whether the statements were made with either spite or ill will [common law malice**] or a high degree of awareness of the statements' probable falsity [constitutional malice***], the Appellate Division ruled that Liere had failed to demonstrate that Scully was guilty of any act that would otherwise defeat his claim to a qualified privilege.
* In contrast, an "absolute privilege" protects the speaker from any and all liability based on statements alleged to be defamatory. Typically this privilege is extended in connection with some governmental function such statements made by a member of a legislative body in connection with his or her legislative duties or when uttered as sworn testimony in a judicial or legislative proceeding.
** Common requires proof of hatred or ill will.
*** See New York Times Co. v. Sullivan, 376 U.S. 254
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09227.htm
Liere v Scully, 2010 NY Slip Op 09227, Decided on December 14, 2010, Appellate Division, Second Department
Peter Scully, Regional Director of the State Department of Environmental Conservation told a television reporter alleging the Robert Liere was "bulldozing" his farm to create a "massive solid waste facility," as well as alleging that Liere accepted "land clearing debris" and "yard waste" without obtaining required governmental approvals, just prior to the Department issuing an administrative warrant to inspect Liere’s farm.
Liere sued, contending that he had been defamed by Scully, sued seeking to recover damages. Supreme Court dismissed Liere’s petition and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division ruled that Scully had demonstrated that he was entitled to have Liere’s lawsuit dismissed as a matter of law by presenting evidence that the challenged statements were protected by a qualified privilege.*
A qualified privilege, explained the court, applies to statements that are " fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned."
Scully had shown that he made the statements to which Liere had objected “in his official capacity as regional director of the DEC and that the television reporter to whom he made the statements, and the public in general, had corresponding interests in the statements' subject matter.”
Although the matter could have gone to trial if Liere had shown that there was a triable issue of fact as to whether Scully statements had exceeded the scope of the privilege or whether the statements were made with either spite or ill will [common law malice**] or a high degree of awareness of the statements' probable falsity [constitutional malice***], the Appellate Division ruled that Liere had failed to demonstrate that Scully was guilty of any act that would otherwise defeat his claim to a qualified privilege.
* In contrast, an "absolute privilege" protects the speaker from any and all liability based on statements alleged to be defamatory. Typically this privilege is extended in connection with some governmental function such statements made by a member of a legislative body in connection with his or her legislative duties or when uttered as sworn testimony in a judicial or legislative proceeding.
** Common requires proof of hatred or ill will.
*** See New York Times Co. v. Sullivan, 376 U.S. 254
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09227.htm
Payment for unused leave credits upon resignation or separation from employment
Payment for unused leave credits upon resignation or separation from employment
Gratto Ausable v Valley CSD. 271 AD2d 175
The Gratto case explores the obligation of the employer to pay an individual for his or her unused vacation credits upon his or her involuntary termination. The general rule set out by the Appellate Division, Third Department in dealing with claims for such payment: use it or lose it!
Ausable Valley CSD Superintendent John Gratto’s employment contract with the school district provided that Gratto was to receive 25 paid vacation days a year, subject to a maximum accumulation of 45 days of vacation credit. The contract, however, was silent with respect to making a cash payment for any unused vacation time upon the termination of Gratto’s employment.
When Gratto was involuntarily terminated from his position he claimed that he was entitled to payment for his unused vacation credits upon his separation as he had earned it. The district disagreed and refused to pay him for his unused leave credits.
The absence of a statement providing for the cash liquidation of leave credits proved to be one of a number of critical elements in the Appellate Division’s resolution of his appeal from a Supreme Court judge’s summarily dismissing his complaint.
The Appellate Division said that “[i]n the absence of a statutory or contractual basis for recovery, a public employee may not recover the monetary value of unused vacation time that has accrued as of the date of termination.”
Gratto attempted to avoid this general rule by contending that a public employee who is involuntarily terminated, is constitutionally entitled to receive the cash value of unused vacation days, citing a Fourth Department decision, Clift v City of Syracuse, 45 AD2d 596 in support of his theory.
In Clift, the Appellate Division, Fourth Department. said that if the employer discharges an employee without having either given him the opportunity to use the vacation he has earned, or in the alternative, compensating him with its monetary value, it transgresses the due process requirements of both the New York State and United States Constitutions and it should not be permitted to do so.
The Third Department, however, decided that Clift has never been interpreted as meaning that a public employee who is involuntarily discharged is automatically entitled to a cash payment for his or her unused vacation. Rather, it viewed the holding as applying only where there are circumstances requiring special considerations.*
The Appellate Division rejected Gratto’s claim that his work responsibilities prevented him from using all of his leave credits for vacations. What was missing in Gratto’s situation? Evidence that a superior or supervisor induced him to forego any vacation time during that year for any reason or that he refrained from using vacation time the entire year because of noncontractual duties.
The Appellate Division affirmed the lower court’s ruling, holding that under the circumstances, Gratto was not entitled to the cash value of his 45 days of unused vacation when he was involuntarily separated.
This is similar to the general rule with respect to State workers subject to the State Civil Service Commission’s Attendance Rules for the Classified Service, 4 NYCRR 30.1. Section 30.1 states that an employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, is not entitled to compensation for vacation credits.
What about a voluntary separation, i.e., the State employee is not involved in a disciplinary action when he or she resigns or retires? Section 30.1 provides that an appointing authority may require, as a condition for such payment that it be given at least two weeks notice prior to the last day of work.
* The special circumstances in Clift: the employee contended that he agreed to defer using his vacation credits based on promises made by his superior and was then involuntarily dismissed. Similarly in May v Ballston Spa CSD, 170 AD2D 920, the Third Department ruled in favor of the employee upon its finding that the employee was induced to forego vacation when his superiors assured him that he would be paid for his unused leave notwithstanding his involuntary separation as a result of a layoff.
Gratto Ausable v Valley CSD. 271 AD2d 175
The Gratto case explores the obligation of the employer to pay an individual for his or her unused vacation credits upon his or her involuntary termination. The general rule set out by the Appellate Division, Third Department in dealing with claims for such payment: use it or lose it!
Ausable Valley CSD Superintendent John Gratto’s employment contract with the school district provided that Gratto was to receive 25 paid vacation days a year, subject to a maximum accumulation of 45 days of vacation credit. The contract, however, was silent with respect to making a cash payment for any unused vacation time upon the termination of Gratto’s employment.
When Gratto was involuntarily terminated from his position he claimed that he was entitled to payment for his unused vacation credits upon his separation as he had earned it. The district disagreed and refused to pay him for his unused leave credits.
The absence of a statement providing for the cash liquidation of leave credits proved to be one of a number of critical elements in the Appellate Division’s resolution of his appeal from a Supreme Court judge’s summarily dismissing his complaint.
The Appellate Division said that “[i]n the absence of a statutory or contractual basis for recovery, a public employee may not recover the monetary value of unused vacation time that has accrued as of the date of termination.”
Gratto attempted to avoid this general rule by contending that a public employee who is involuntarily terminated, is constitutionally entitled to receive the cash value of unused vacation days, citing a Fourth Department decision, Clift v City of Syracuse, 45 AD2d 596 in support of his theory.
In Clift, the Appellate Division, Fourth Department. said that if the employer discharges an employee without having either given him the opportunity to use the vacation he has earned, or in the alternative, compensating him with its monetary value, it transgresses the due process requirements of both the New York State and United States Constitutions and it should not be permitted to do so.
The Third Department, however, decided that Clift has never been interpreted as meaning that a public employee who is involuntarily discharged is automatically entitled to a cash payment for his or her unused vacation. Rather, it viewed the holding as applying only where there are circumstances requiring special considerations.*
The Appellate Division rejected Gratto’s claim that his work responsibilities prevented him from using all of his leave credits for vacations. What was missing in Gratto’s situation? Evidence that a superior or supervisor induced him to forego any vacation time during that year for any reason or that he refrained from using vacation time the entire year because of noncontractual duties.
The Appellate Division affirmed the lower court’s ruling, holding that under the circumstances, Gratto was not entitled to the cash value of his 45 days of unused vacation when he was involuntarily separated.
This is similar to the general rule with respect to State workers subject to the State Civil Service Commission’s Attendance Rules for the Classified Service, 4 NYCRR 30.1. Section 30.1 states that an employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, is not entitled to compensation for vacation credits.
What about a voluntary separation, i.e., the State employee is not involved in a disciplinary action when he or she resigns or retires? Section 30.1 provides that an appointing authority may require, as a condition for such payment that it be given at least two weeks notice prior to the last day of work.
* The special circumstances in Clift: the employee contended that he agreed to defer using his vacation credits based on promises made by his superior and was then involuntarily dismissed. Similarly in May v Ballston Spa CSD, 170 AD2D 920, the Third Department ruled in favor of the employee upon its finding that the employee was induced to forego vacation when his superiors assured him that he would be paid for his unused leave notwithstanding his involuntary separation as a result of a layoff.
Qualifying for reinstatement
Qualifying for reinstatement
Levy v Freeport UFSD, 275 A.D.2d 459, Motion for leave to appeal denied, 95 N.Y.2d 769
Carol L. Levy asked the Freeport Union Free School District to reinstate her to the position of Coordinator of English Language Arts/Reading.
Levy contended that she was qualified for reinstatement to the position because she was certified in reading. Conceding that Levy was certified in reading, the district declined to reinstate her to as the Coordinator because she was not certified in English.
Levy sued, seeking a court order compelling the district to reinstate her to the position.
The Appellate Division set out the general rule for reinstatement as follows:
Although a teacher seeking reinstatement need not be tenured in the area of the vacant position, the vacant position must be similar to the teacher’s former position and the teacher must be legally qualified to teach in the position sought.
Here, said the court, the record is clear: Levy is certified to teach reading, but not to teach English.
Under the circumstances, the court concluded, Levy did not have the appropriate certification for the position of English Language Arts/Reading Coordinator and dismissed her appeal.
Levy v Freeport UFSD, 275 A.D.2d 459, Motion for leave to appeal denied, 95 N.Y.2d 769
Carol L. Levy asked the Freeport Union Free School District to reinstate her to the position of Coordinator of English Language Arts/Reading.
Levy contended that she was qualified for reinstatement to the position because she was certified in reading. Conceding that Levy was certified in reading, the district declined to reinstate her to as the Coordinator because she was not certified in English.
Levy sued, seeking a court order compelling the district to reinstate her to the position.
The Appellate Division set out the general rule for reinstatement as follows:
Although a teacher seeking reinstatement need not be tenured in the area of the vacant position, the vacant position must be similar to the teacher’s former position and the teacher must be legally qualified to teach in the position sought.
Here, said the court, the record is clear: Levy is certified to teach reading, but not to teach English.
Under the circumstances, the court concluded, Levy did not have the appropriate certification for the position of English Language Arts/Reading Coordinator and dismissed her appeal.
Political activities by State officers and employees
NYS Ethics Commission
Periodically the New York State Ethics Commission reminds State workers of the State’s policy regarding political activities. Typically the Commission notes that:
1. State personnel may only engage in campaign activities on their own time;
2. State resources, including telephones, office supplies, photocopying and FAX machines and secretarial support may not be used for campaign purposes.
3. State personnel may not use their official position to solicit funds or coerce or influence co-workers for political purposes.
4. Campaign materials may not indicate or imply any State support or opposition to the candidate except that a candidate may refer to his or her State position in a campaign biography.
Section 107 of the Civil Service Law sets out a number of prohibitions against certain political activities by employees of the State and its political subdivision.
In addition, the political activities of State employees whose employment is Federally financed, in whole or in part, may be further restricted by the federal Hatch Act [53 Stat. 1147].
Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election, using official authority or influence to interfere with or affect the results of an election or nomination directly or indirectly coerce contributions from subordinates in support of a political party or candidate.
Although a public officer or employee may lawfully seek the nomination for such public office, he or she must resign from his or her public employment upon accepting the nomination.
NYS Ethics Commission
Periodically the New York State Ethics Commission reminds State workers of the State’s policy regarding political activities. Typically the Commission notes that:
1. State personnel may only engage in campaign activities on their own time;
2. State resources, including telephones, office supplies, photocopying and FAX machines and secretarial support may not be used for campaign purposes.
3. State personnel may not use their official position to solicit funds or coerce or influence co-workers for political purposes.
4. Campaign materials may not indicate or imply any State support or opposition to the candidate except that a candidate may refer to his or her State position in a campaign biography.
Section 107 of the Civil Service Law sets out a number of prohibitions against certain political activities by employees of the State and its political subdivision.
In addition, the political activities of State employees whose employment is Federally financed, in whole or in part, may be further restricted by the federal Hatch Act [53 Stat. 1147].
Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election, using official authority or influence to interfere with or affect the results of an election or nomination directly or indirectly coerce contributions from subordinates in support of a political party or candidate.
Although a public officer or employee may lawfully seek the nomination for such public office, he or she must resign from his or her public employment upon accepting the nomination.
December 23, 2010
Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior
Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior
Perez v City of New York, 2010 NY Slip Op 09237, Decided on December 14, 2010, Appellate Division, Second Department
New York City police officer Javier Colon accidentally discharged his weapon in the course of unloading it while off-duty and engaged in "personal business," mortally wounding George Perez.
The City of New York and Colon were named as respondents in the lawsuit filed by Kristin Perez on behalf of Perez's estate seeking to recover damages for wrongful death.
Supreme Court granted the City’s motion to dismiss it from the action and denied Perez’s motion for summary judgment against the City on the issue of whether the Colon was acting within the scope of his employment at the time of the accident.
The Appellate Division affirmed the lower court’s ruling.
Pointing out that under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tortious acts when those acts "were committed in furtherance of the employer's business and within the scope of employment," here, said the court, Colon's actions were undertaken “for wholly personal reasons” that were not job related. Accordingly, Colon’s conduct that resulted in the accident “cannot be said to fall within the scope of employment"
Finding that City met its prima facie burden of demonstrating that Colon was not acting within the scope of his employment as a police officer when he unloaded his service weapon and it accidentally discharged, the Appellate Division concluded that Colon’s actions were wholly personal in nature as “he was off duty, engaged in a social activity at his friend's apartment, where he planned to consume alcohol and, concerned about his comfort and the fact that he would consume alcohol, determined that unloading his firearm would be the best method to secure the weapon.”
As Perez failed to demonstrate the existence of a triable issue of fact as to whether Colon was acting within the scope of his employment at the time of the shooting, the Appellate Division decided that Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09237.htm
Perez v City of New York, 2010 NY Slip Op 09237, Decided on December 14, 2010, Appellate Division, Second Department
New York City police officer Javier Colon accidentally discharged his weapon in the course of unloading it while off-duty and engaged in "personal business," mortally wounding George Perez.
The City of New York and Colon were named as respondents in the lawsuit filed by Kristin Perez on behalf of Perez's estate seeking to recover damages for wrongful death.
Supreme Court granted the City’s motion to dismiss it from the action and denied Perez’s motion for summary judgment against the City on the issue of whether the Colon was acting within the scope of his employment at the time of the accident.
The Appellate Division affirmed the lower court’s ruling.
Pointing out that under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tortious acts when those acts "were committed in furtherance of the employer's business and within the scope of employment," here, said the court, Colon's actions were undertaken “for wholly personal reasons” that were not job related. Accordingly, Colon’s conduct that resulted in the accident “cannot be said to fall within the scope of employment"
Finding that City met its prima facie burden of demonstrating that Colon was not acting within the scope of his employment as a police officer when he unloaded his service weapon and it accidentally discharged, the Appellate Division concluded that Colon’s actions were wholly personal in nature as “he was off duty, engaged in a social activity at his friend's apartment, where he planned to consume alcohol and, concerned about his comfort and the fact that he would consume alcohol, determined that unloading his firearm would be the best method to secure the weapon.”
As Perez failed to demonstrate the existence of a triable issue of fact as to whether Colon was acting within the scope of his employment at the time of the shooting, the Appellate Division decided that Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09237.htm
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.
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.
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.
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."
.
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."
.
December 22, 2010
Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award
Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award
Matter of Kowaleski v New York State Dept. of Correctional Servs., 2010 NY Slip Op 09379, Decided on December 21, 2010, Court of Appeals
Barbara Kowaleski, a correction officer employed by the New York State Department of Corrections, was served with disciplinary charges alleging that she violated provisions of the employees' manual on three separate occasions when she "made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates"; argued with a fellow employee; and was "disrespectful and insubordinate" when she ignored a superior's order.
The proposed penalty: termination and the loss of any accrued leave.
Ultimately the matter was submitted to a disciplinary arbitration.
At the outset of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer's misconduct and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law §75-b, contending that §75-b prohibits public employers from retaliating against employees for reporting their coworkers' improper conduct.
The arbitrator determined that because the Collective Bargaining Agreement [CBA] limited his authority "to determinations of guilt or innocence and the appropriateness of proposed penalties," he lacked authority to consider Kowaleski's retaliation defense. The arbitrator, however, indicated that he would consider evidence of retaliation when determining witness credibility and "in the larger context of guilt or innocence."
The arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate and Kowaleski filed a petition pursuant to Article 75 of the CPLR seeking to have the award vacated.
Although Supreme Court and the Appellate Division rejected Kowaleski’s appeal, the Court of Appeals reversed the lower courts’ rulings “[b]ecause we find that the arbitrator's failure to separately consider and determine Kowaleski's affirmative defense of retaliation on the merits requires the award to be vacated”
The Court of Appeals explained that an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made (see CPLR 7511 [b] [1] [iii]). Further, said the court, an arbitrator "exceed[s] his power" under the meaning of the statute where his "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
As the lower courts found, and Correction conceded, the arbitrator “not only had authority to consider Kowaleski's retaliation defense, but was required to do so.”
Further, the opinion indicates that Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" and in the event the employee reasonably believes disciplinary action would not have been taken “but for" the whistle blowing, the employee may assert such as a defense before the designated arbitrator or hearing officer." *
Whatever the terms of the CBA, the Court of Appeals said that "[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision." Further, should the arbitrator or hearing officer find that the disciplinary action is based “solely on the employer's desire to retaliate,” the disciplinary proceeding must be dismissed.
Accordingly, the arbitrator's finding that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the court ruled that the award must be vacated.
Finally, the Court of Appeals noted the Kowaleski has requested that any rehearing be before a different arbitrator. That request, said the court, should be ruled on by Supreme Court in the exercise of its discretion.
* Addendum to original posting: A number of e-mails concerning this ruling have been received since the summary of the decision was posted on December 22, 201. Set out below are the relevant provisions of Section 75-b of the Civil Service Law addressing the basic issue before the Court of Appeals:
3. (a) Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision of the matter. If there is a finding that the dismissal or other disciplinary action is based solely on a violation by the employer of such subdivision, the arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding, as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration procedure, may take other appropriate action as is permitted in the collectively negotiated agreement [emphasis supplied].
(b) Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement [emphasis supplied].
(c) Where an employee is not subject to any of the provisions of paragraph (a) or (b) of this subdivision, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C of the labor law.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09379.htm
Matter of Kowaleski v New York State Dept. of Correctional Servs., 2010 NY Slip Op 09379, Decided on December 21, 2010, Court of Appeals
Barbara Kowaleski, a correction officer employed by the New York State Department of Corrections, was served with disciplinary charges alleging that she violated provisions of the employees' manual on three separate occasions when she "made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates"; argued with a fellow employee; and was "disrespectful and insubordinate" when she ignored a superior's order.
The proposed penalty: termination and the loss of any accrued leave.
Ultimately the matter was submitted to a disciplinary arbitration.
At the outset of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer's misconduct and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law §75-b, contending that §75-b prohibits public employers from retaliating against employees for reporting their coworkers' improper conduct.
The arbitrator determined that because the Collective Bargaining Agreement [CBA] limited his authority "to determinations of guilt or innocence and the appropriateness of proposed penalties," he lacked authority to consider Kowaleski's retaliation defense. The arbitrator, however, indicated that he would consider evidence of retaliation when determining witness credibility and "in the larger context of guilt or innocence."
The arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate and Kowaleski filed a petition pursuant to Article 75 of the CPLR seeking to have the award vacated.
Although Supreme Court and the Appellate Division rejected Kowaleski’s appeal, the Court of Appeals reversed the lower courts’ rulings “[b]ecause we find that the arbitrator's failure to separately consider and determine Kowaleski's affirmative defense of retaliation on the merits requires the award to be vacated”
The Court of Appeals explained that an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made (see CPLR 7511 [b] [1] [iii]). Further, said the court, an arbitrator "exceed[s] his power" under the meaning of the statute where his "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
As the lower courts found, and Correction conceded, the arbitrator “not only had authority to consider Kowaleski's retaliation defense, but was required to do so.”
Further, the opinion indicates that Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" and in the event the employee reasonably believes disciplinary action would not have been taken “but for" the whistle blowing, the employee may assert such as a defense before the designated arbitrator or hearing officer." *
Whatever the terms of the CBA, the Court of Appeals said that "[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision." Further, should the arbitrator or hearing officer find that the disciplinary action is based “solely on the employer's desire to retaliate,” the disciplinary proceeding must be dismissed.
Accordingly, the arbitrator's finding that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the court ruled that the award must be vacated.
Finally, the Court of Appeals noted the Kowaleski has requested that any rehearing be before a different arbitrator. That request, said the court, should be ruled on by Supreme Court in the exercise of its discretion.
* Addendum to original posting: A number of e-mails concerning this ruling have been received since the summary of the decision was posted on December 22, 201. Set out below are the relevant provisions of Section 75-b of the Civil Service Law addressing the basic issue before the Court of Appeals:
3. (a) Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision of the matter. If there is a finding that the dismissal or other disciplinary action is based solely on a violation by the employer of such subdivision, the arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding, as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration procedure, may take other appropriate action as is permitted in the collectively negotiated agreement [emphasis supplied].
(b) Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement [emphasis supplied].
(c) Where an employee is not subject to any of the provisions of paragraph (a) or (b) of this subdivision, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C of the labor law.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09379.htm
Vacating a Section 3020-a arbitration award
Vacating a Section 3020-a arbitration award
Westhampton Beach UFSD v Ziparo, 275 AD2d 411
It is not unusual for a party to decide to challenge the determination of the hearing officer or panel following a Section 3020-a disciplinary action. Essentially a Section 3020-a decision is treated as an arbitration award and thus the provisions of Article 75 of the Civil Practice Act and Rules [CPLR] control any attempt to vacate such an award.
As the Westhampton Beach decision by the Appellate Division, Second Department, demonstrates, the grounds for vacating an award under Article 75 are very limited.
The district filed certain disciplinary charges against David Ziparo. The Section 3020-a hearing officer found him guilty of the charges. The penalty imposed: suspension without pay for one year. In addition, the hearing officer conditioned Ziparo’s return to teaching upon his obtaining a certification of psychiatric fitness.
Westhampton appealed a State Supreme Court’s confirmation of the hearing officer’s determination. The Appellate Division dismissed the appeal, ruling that Westhampton did not demonstrate any basis for vacating the award under CPLR 7511 and the hearing officer’s determination has a rational basis and is supported by the record.
On what basis could a court vacate a determination by a Section 3020-a hearing officer or panel? Section 7511(b)(1) of the CPLR allows a court to vacate or modify an award only if it finds:
1. Corruption, fraud or misconduct in procuring the award; or
2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession;
3. An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
4. The failure to follow the procedure set out in Article 75, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a strong public policy.
Another important consideration when deciding whether to challenge a Section 3020-a disciplinary determination: the statute of limitations. Section 3020-a(5) provides that such a challenge must be filed within ten days of the receipt of the decision -- a very short period in which to perfect the appeal.
Westhampton Beach UFSD v Ziparo, 275 AD2d 411
It is not unusual for a party to decide to challenge the determination of the hearing officer or panel following a Section 3020-a disciplinary action. Essentially a Section 3020-a decision is treated as an arbitration award and thus the provisions of Article 75 of the Civil Practice Act and Rules [CPLR] control any attempt to vacate such an award.
As the Westhampton Beach decision by the Appellate Division, Second Department, demonstrates, the grounds for vacating an award under Article 75 are very limited.
The district filed certain disciplinary charges against David Ziparo. The Section 3020-a hearing officer found him guilty of the charges. The penalty imposed: suspension without pay for one year. In addition, the hearing officer conditioned Ziparo’s return to teaching upon his obtaining a certification of psychiatric fitness.
Westhampton appealed a State Supreme Court’s confirmation of the hearing officer’s determination. The Appellate Division dismissed the appeal, ruling that Westhampton did not demonstrate any basis for vacating the award under CPLR 7511 and the hearing officer’s determination has a rational basis and is supported by the record.
On what basis could a court vacate a determination by a Section 3020-a hearing officer or panel? Section 7511(b)(1) of the CPLR allows a court to vacate or modify an award only if it finds:
1. Corruption, fraud or misconduct in procuring the award; or
2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession;
3. An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
4. The failure to follow the procedure set out in Article 75, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a strong public policy.
Another important consideration when deciding whether to challenge a Section 3020-a disciplinary determination: the statute of limitations. Section 3020-a(5) provides that such a challenge must be filed within ten days of the receipt of the decision -- a very short period in which to perfect the appeal.
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.
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.
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.
December 21, 2010
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
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
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.
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.
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].
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].
December 20, 2010
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
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
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