Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits

Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits
Greenway v NYS Employees’ Retirement System, 274 AD2d 662; Motion to appeal dismissed as untimely, 95 NY2d 917

Corrections Officer Gary Greenway’s appeal of a determination by the New York State Employees’ Retirement System rejecting his application for performance of duty disability retirement appeared to present a familiar scenario: the System’s physician concluded that Greenway was not permanently disabled; Greenway’s physician came to the opposite conclusion.

However, there was a significant difference between the two opinions. The System’s medical expert’s opinion was based on his physical examination of Greenway and his review of Greenway’s medical records and diagnostic test results. In contrast, although Greenway’s medical expert concluded that he was permanently incapacitated, the court pointed out that his opinion was not based upon Greenway’s present condition but upon the possibility that Greenway might sustain a serious permanent injury in the event that he was assaulted by an inmate in the future.

The court said that in order to demonstrate his entitlement to accidental and performance of duty disability retirement benefits, Greenway was required to demonstrate that he currently was permanently incapacitated from the performance of his duties. This he failed to do considering the statement of his medical expert that he could be permanently disabled as the result of an assault by an inmate in the future.

Given the nature of conflicting medical opinions offered in this case, the Appellate Division concluded that it was within the Comptroller’s discretion to weigh the expert testimony in the record and to accept the opinion of one medical expert as more credible than that of the other. The court then dismissed Greenway’s appeal.

Union’s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action

Union’s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action
Arkport Staff United v Arkport Cent. School Dist., 2010 NY Slip Op 09745, Appellate Division, Fourth Department

The Arkport Staff United claimed that members were entitled to longevity increases under Article 27 of a collective bargaining agreement between it and the Arkport Central School District.

Claiming that the union’s lawsuit was untimely, the School District asked Supreme Court to dismiss the union’s petition court in view of the four-month statute of limitations applicable to CPLR article 78 proceedings.

Supreme Court denied Arkport’s motion.

The Appellate Division sustained the Supreme Court’s determination, holding that the union’s action was subject to the six-year statute of limitations applicable to "breach of contract" actions rather than the four-month statute of limitations controlling filing an Article 78 action.

As the union’s “underlying claim” is an action on the contract – in this instance a collective bargaining agreement -- the Appellate Division said that its lawsuit was timely as it had been commenced “within six years of the alleged breach” of the agreement.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09745.htm

Arbitrator cannot add “implied contract terms” based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms

Arbitrator cannot add “implied contract terms” based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms
Matter of Monroe County Sheriff's Off. v Monroe County Deputy Sheriffs' Assn., Inc., 2010 NY Slip Op 09797, Appellate Division, Fourth Department

In a CPLR Article 75 proceeding seeking to vacate an arbitration award Supreme Court held that the arbitrator had exceeded his authority by adding an implied contract term to the collective bargaining agreement (CBA) based on the Sheriff Department’s past practice.

The Appellate Division agreed, explaining that while "[p]ast practices may be considered by an arbitrator . . . when interpreting a specific contractual provision . . .[, a]n arbitrator may not rewrite a contract by adding a new clause based upon past practices," citing Hunsinger v Minns, 197 AD2d 871.

On the other hand, said the court, it agreed with the Deputy Sheriff’s Association that Supreme Court was incorrect in concluding that the arbitrator exceeded his authority by determining that Sheriff’s Office’s denial of paid release time requests submitted by members of Association t to prepare for upcoming contract negotiations with the Office was unreasonable.

The court noted that the CBA provided that requests for "[r]elease time for union business shall not be unreasonably denied" by the Sheriff’s Office.

Accordingly, it ruled that the arbitrator determination that that the denial of the Association’s requests “to keep overtime costs down” was unreasonable absent evidence of some "financial exigency."

In addition, the Appellate Division said that it deemed that the arbitrator's reasonableness determination was not irrational inasmuch as "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09797.htm

Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step

Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step
Matter of Meegan v Brown, 63 AD3d 1673

In response to a State Comptroller's report concerning a fiscal crisis in the City of Buffalo, the State Legislature passed the Buffalo Fiscal Stability Authority Act on July 3, 2003. The Act, Public Authorities Law §3850 et seq, created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.

On April 21, 2004, the BFSA imposed a wage freeze on all employees of the City. The BFSA subsequently lifted the wage freeze effective July 1, 2007.

One of the issues considered in this case was the impact of the wage freeze on the eligibility of employees to “earn increments” under their respective “salary plan” as set out in various collective bargaining agreements. These agreements between the City and the unions representing various negotiating units contain salary plans or schedules for career advancement or promotion. Essentially the plans provided that as an employee acquires service credit or years of employment, he or she is to receive additional salary within his or her salary grade – i.e., a salary increment -- as a result of their being placed in a higher step in the salary grade.

Upon the lifting of the wage freeze, the employees were told would be entitled only to a one "step" increase in salary, in effect providing a “one-step” advancement in their salary grade from the step that they were at when the salary freeze was imposed in 2004.

In contrast, the unions contended that, although the employees could not be paid salary grade increases to which they otherwise would have been entitled during the wage freeze period, they nevertheless were entitled upon the lifting of the wage freeze to be moved ahead four salary "steps" in their salary grade rather then provided with a "one-step" increase. In other words, the employees should be “credited” for their service notwithstanding the fact that they had not actually received salary increments during the period when the salary plan had been frozen by the BFSA.

In the litigation that followed, Supreme Court concluded that the employees were entitled to their previously negotiated “wage increase benefits” – i.e., the negotiated step advancements -- immediately, thereby allowing them to be placed at the step that they would have otherwise enjoyed but for the “wage freeze imposed” by the BFSA.

The Appellate Division agreed, holding that under the plain meaning of the relevant provisions of Public Authorities Law §3858, the negotiated provision providing for the employees' ongoing advancement on the salary schedules as a result of continued accrual of service credit was not cancelled, annulled or eliminated.

Rather, said the court, “the City's obligation to make payment of the type of wage increases in question was suspended until the wage freeze was terminated” [emphasis supplied by the court].
The Appellate Division explained that although employee wage increases were frozen during the period of fiscal crisis, “The City cannot ignore the fact that the employees have continued to accrue service credit and have climbed the ladder of salary and career increments set forth in the collective bargaining agreements.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04805.htm

Free speech does not protect employee making a racist statement

Free speech does not protect employee making a racist statementPereira v Commissioner of Social Services (SJC-08218), the Supreme Judicial Court, Mass., 432 Mass. 251

The First Amendment’s guarantee of free speech did not shield a twelve-year public employee from dismissal for telling a racist joke at a political gathering.

Linda M. Pereira, a social worker, was terminated after making remarks that she, herself, described as a stupid, racist, and unthinking joke.

While citing a line of cases that included Pickering v Board of Education, 31 U.S. 563, and Connick v Meyers, 461 U.S. 138, 1983, the Massachusetts high court said that although a public employee’s speech may be entitled to constitutional protection if the employee speaks out on a matter of public concern, and his or her interests as a citizen are not outweighed by the state’s interest in performing a public service, Pereira’s speech was not so protected.

Why not? Because, the court explained, while Pereira spoke at a political event, she conceded that her off-the-cuff ‘joke’ was not intended to convey any message and therefore did not address any matter of public concern. Further, the court noted that although the political affair was not a public gathering, Pereira’s remark was widely reported in the press.

Executive Order #3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity

Executive Order 8-3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity

Among his first acts as Governor, Governor Andrew M. Cuomo signed an Executive Order, Executive Order 8-3, requiring all Executive Chamber staff and other top state officials to participate in ethics training offered by the Commission on Public Integrity. Individuals covered by EO 8-3 includes agency commissioners and their respective counsels and ethics officers.

The training, which will focus on the rules about serving in government. will be available beginning no later than January 31st and must be completed within sixty days.

"Honor and integrity will be a hallmark of this administration, and I am confident that we have assembled a team that reflects that commitment," Governor Cuomo said. "Nonetheless, it is imperative that Chamber staff and other high ranking government officials be versed in the ethics rules and regulations that apply to them. Top government employees should have no questions, no gray areas, and no possibility of confusion regarding what is proper and what is not."

The Executive Order also requires officials to participate in this ethics training every two years.

The text of the Executive Order follows:


EXECUTIVE ORDER -- No. 3 ETHICS TRAINING

WHEREAS, all New York State taxpayers and residents and all those who depend on New York State government services have the right to expect that government programs will be administered and managed with the highest degree of professionalism;

WHEREAS, it is the obligation of every New York State officer and employee to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust;

WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies are subject to certain ethical statutes and rules, including but not limited to the New York State Code of Ethics, statutory restrictions on business and professional activities and opinions issued by the New York State Commission on Public Integrity;

WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies play an important role in ensuring ethics compliance by all State officers and employees;

WHEREAS, New York State has a responsibility to ensure that its officers and employees are versed in the ethical statutes and rules that apply to them; and

WHEREAS, it is appropriate to take steps to ensure that employees and officers maintain the highest ethical and professional standards;

NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the laws of the State of New York, do hereby order as follows:

A. Definitions

1. “Agency” shall mean any state agency, department, office, board, bureau, division, committee, council or office.

2. “Covered Employees” shall mean all officers and employees working in the Executive Chamber in the office of the Governor, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies.

3. “Officers and employees” shall have the meaning given to “state officer or employee” in Section 73 of the Public Officers Law.

B. Ethics Training

1. Every Covered Employee shall participate in an ethics training within sixty days of when such training is prepared and available. The ethics training program will be prepared and available no later than January 31, 2011.

2. New Covered Employees shall participate in such ethics training within sixty days of the later of commencing their employment or when such training is prepared and available.

3. Such training shall include a discussion of the provisions of Sections 73, 73-A, 74 and 78 of the Public Officers Law and Sections 75-b and 107 of the Civil Service Law.

4. Every Covered Employee shall participate in an ethics training every two years following his or her initial training session pursuant to this order.

5. Covered Employees shall submit a signed statement certifying their participation in each training session pursuant to this order, which statements shall be placed in their personnel files.

6. The Executive Chamber shall coordinate with the ethics officers of state agencies, and with the Commission on Public Integrity, to establish regular training sessions sufficient to allow affected individuals to comply with this order.

C. Penalties

Any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing officer of the individual committing such violation.

Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled

Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled
Matter of Neeley v Town of Colonie, 2010 NY Slip Op 09606, Appellate Division, Third Department

William Neeley was appointed to the position of Public Works Operation Supervisor in 1998, while Thomas Romano was appointed to the position of Highway Maintenance Supervisor in 2005.

Both Neeley and Romano worked for the Town of Colonie Department of Public Works and both were suspended from their respective positions in July 2008 pending the resolution of certain disciplinary charges that had been filed against them.

Found guilty of misconduct, the penalty imposed on both Neeley and Romano was demotion in title and grade.

Neeley and Romano appealed to the Town's personnel officer and ultimately their respective demotions were rescinded and a new penalty - suspension without pay for 30 days - was imposed on each.

Although Neeley and Romano were reinstated to their titles, grades and salaries, they appealed contending that certain of their former duties had been curtailed and, therefore, they had been subject to a de facto demotion.

Supreme Court dismissed their Article 78 petition as moot and the Appellate Division affirmed the lower court’s action.

The Appellate Division said that as it was “undisputed” that both Neeley and Romano had been restored to their original titles, grades and salaries in compliance with the decision issued by the Town's personnel officer, they had received “all the relief to which they were entitled.”

Accordingly, said the court, Supreme Court’s dismissal of their petition as moot was correct.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09606.htm

A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years

A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years
Matter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third Department

It is “black letter law” that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.

Chand Sultana, a per diem substitute teacher employed by the New York City Department of Education, worked a total of 138 days during the school year. At the end of the school year Sultana received a letter from the Department “assuring her of continued employment” during the upcoming school year. The letter indicated the amount of work available and that the economic terms and conditions of employment were to be substantially the same as in the school year then ending.

Sultana applied for unemployment insurance benefits for the intervening summer but Unemployment Insurance Appeal Board determined that she was ineligible to receive them because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).

The Appellate Division rejected Sultana’s appeal challenging the Board’s determination.
The court explained that the record indicated that a Department of Education representative testified that Sultana would have as many opportunities to work during the succeeding school year as she had the prior year inasmuch as more schools were to be opened, resulting in greater demand for substitute teachers and there had been no reduction in the budget. Such testimony, together with the letter sent to Sultana by the Department, constituted substantial evidence supporting the Unemployment Insurance Board's determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09598.htm