Report of the Workforce Reform Task Force created by NYC Mayor Michael Bloomberg

Report of the Workforce Reform Task Force created by NYC Mayor Michael Bloomberg

The Workforce Reform Task Force created by New York City Mayor Michael Bloomberg issued its Report and Recommendations on January 6, 2011.*

Mayor Bloomberg established the Task Force in an effort to address that the Task Force characterizes as a system that has been "codified by a needlessly complex and restrictive set of rules and restrictions." Its mission: to study and develop recommendations "that will give the City the flexibility to empower and manage its workforce while strengthening its talent, skills and diversity."

Clearly many of the problems and the Task Force’s suggested solutions require careful consideration and analysis. NYPPL believes that solutions can be developed that would be consistent with the mandates of the State Constitution. Such solutions, of course, may require amendments to the Civil Service Law as well as modifications of existing procedures and processes. NYPPL believes that with study and imagination, many, if not all, of the difficulties identified by the Task Force will yield to the benefit of the City, its citizens and its employees.

Below are NYPPL’s reactions** to the first 10 of the Task Force's 23 recommendations:

Recommendation 1: Amend State Law to eliminate the State Civil Service Commission’s oversight authority over the City

NYPPL Comments: Many of the “problems” recited in this portion of the Report may well result from that often fatal administrative disease, “hardening of the categories.” Innovation, consistent with the mandates of Article V, Section 6 regarding selection by merit and fitness, rather than the destruction of a system that, when used with imagination, is flexible and responsive, appears to be the better alternative.


Recommendation 2: Empower the New York City Transit Authority and the Triborough Bridge & Tunnel Authority to administer their civil service systems

NYPPL Comments: Certainly doable.


Recommendation 3: Move certain titles out of the competitive class, including all senior management and executive titles

NYPPL Comments: Two court rulings that address many of the issues underlying this portion of the Report are:

[1] Brynien v NYS Department of Civil Service [Civil Service Commission’s jurisdictional reclassification of 29 titles to the noncompetitive class violated Article V, §6’s merit and fitness mandate] NYPPL's summary of the Brynien decision is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2010/12/employees-alleging-that-they-were.html

and

[2] City of Long Beach v Civil Service Employees Association, Inc. [Contract provisions agreed upon in the course of collective negotiations pursuant to the Taylor Law cannot not override a statutory mandate.] NYPPL's summary of the City of Long Beach decision is posted on the Internet at:
http://publicpersonnellaw.blogspot.com/2010/10/contract-provisions-agreed-upon-in.html


Recommendation 4: Broadband and consolidate existing titles

NYPPL Comments: The Civil Service Law currently recognizes the concept of Broadbanding Titles [See CSL §52.6 as an example of such a device.] Similarly, “consolidation of titles” might be appropriate under certain circumstances but essentially this appears to be a “position classification” and “allocation to a salary grade” issue.


Recommendation 5: Increase the use of education and experience exams for competitive titles

NYPPL Comments: The rating of Training and Experience [T&E] is not a new concept. It has been used successfully in many instances. Again, however, where a competitive class position is involved, the T&E examination must likewise be competitive.


Recommendation 6: Adopt band-scoring methodology where possible

NYPPL Comments: This Recommendation appears to advocate the broader use of “Zone Scoring” examination results.


Recommendation 7: Give credit for high performing provisional service on exams

NYPPL Comments: This is a troublesome recommendation as it is, in NYPPL's opinion, inconsistent with basic merit and fitness concepts as it advantages the individual selected for the provisional employment over one not so favored although the latter might be the better candidate. As an example of a prohibition barring so favoring provisional appointees, §52.10 of the Civil Service Law, provides

10. Credit for provisional service. No credit in a promotion examination shall be granted to any person for any time served as a provisional appointee in the position to which promotion is sought or in any similar position, provided, however, such provisional appointee by reason of such provisional appointment shall receive credit in his permanent position from which promotion is sought for such time served in such provisional appointment.


Recommendation 8: Increase the appropriate use of selective certification in hiring

NYPPL Comments: This recommendation, when used in specific and appropriate situations, is doable. The idea underlying the recommendation is well recognized as demonstrated by the use of a parenthetic title such as “Secretary {Spanish Speaking)" and similar “parenthetic titles” in State and municipal service.


Recommendation 9: Eliminate Test Validation Boards and reform the process for challenging competitive civil service exams

NYPPL Comments: At the risk of oversimplification, the genesis of “test validation boards” was to provide the professional support necessary to demonstrate the test was “valid” in the context of rebuffing challenges alleging that the examination unlawfully discriminated against a “protected class” by not being job related, etc.


Recommendation 10: Streamline processes to enable employees to move across functions and use Rule 6.1.9 more effectively to transfer titles and employees between agencies

NYPPL Comments: Suffice it to note that the Task Force Report states that “the flexibility provided by [Rule 6.1.9] appears to be underutilized by agency managers.”
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* The Report is posted on the Internet at: http://www.scribd.com/doc/46469466/Bloomberg-Workforce-Report

** Prepared by Harvey Randall, Editor and General Counsel, Public Employment Law Press.

Employee terminated after being found guilty of excessive absence from work

Employee terminated after being found guilty of excessive absence from work
Matter of Wallis v Sandy Cr. Cent. School Dist. Bd. of Educ., 2010 NY Slip Op 09814, Appellate Division, Fourth Department

The Sandy Creek Central School District served disciplinary charges against school bus driver Mary W. Wallis pursuant to §75 of the Civil Service Law charging Wallis with incompetency or misconduct because of her excessive absenteeism.

Found guilty, Sandy Creek terminated her employment with the school district. Wallis appealed, contending that Sandy Creek’s determination “must be annulled because all of her absences were for legitimate reasons, including a period of time during which she was absent due to a work-related injury.”

The Appellate Division rejected Wallis’ argument, holding that as she had been found guilty of incompetency or misconduct based on excessive absenteeism the school district was “entitled to terminate her on those grounds even in the event that her ‘excessive absences [were] caused by physical incapacity.’"

Accordingly, said the court, it was irrelevant that Wallis had legitimate reasons for missing work.
The issue with respect to the charge against Wallis, said the Appellate Division, was whether her excessive absences "and [their] disruptive and burdensome effect on the employer rendered [her] incompetent to continue [her] employment."

The decision reports that:

[1] There was substantial evidence in the record establishing that Wallis was insubordinate and

[2] That her absences had a disruptive and burdensome effect on the school district. Although the record indicated that Wallis had received several warnings about her excessive absenteeism, she had an absentee rate of over 60% for a period of approximately 1½ years.

Under the circumstances of this case the Appellate Division decided that the penalty of termination of employment is not " so disproportionate to the offense as to be shocking to one's sense of fairness' " and thus does not constitute an abuse of discretion as a matter of law.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09814.htm

Existence of conflicting evidence in an administrative proceeding requires conducting a hearing “to fully develop the record”

Existence of conflicting evidence in an administrative proceeding requires conducting a hearing “to fully develop the record”
Matter of Carr v Cairo Fire Dist., 2011 NY Slip Op 00056, Appellate Division, Third Department

James A. Carr, a volunteer firefighter, suffered an injury to the back of his right hand when it was struck by a rotating hose reel handle.

Initially unable to work, while recovering Carr resumed working as a house painter, apparently performing all of his work with his left hand. Subsequently Carr complained of numbness and significant pain in both hands and applied for Workers’ Compensation Benefits.

In the Workers’ Compensation hearing that followed the Workers’ Compensation Law Judge [WCLJ] asked Carr two questions but no sworn testimony was taken, nor was Carr cross-examined by the insurance carrier's attorney notwithstanding the attorney's requesting a "full development of the record with testimony of [Carr] and treating physician,.

Rather, the WCLJ ruled that the carrier had no right to medical testimony and neither Carr’s testimony nor medical testimony was necessary. The Workers' Compensation Board affirmed the decision of the WCLJ, and the insurance carrier appealed.

The carrier argued that the WCLJ should have granted its request to develop the record by obtaining Carr's testimony and by cross-examining Carr's treating physician. The Appellate Division agreed, holding that "[E]ither the claimant or the employer or his insurance carrier may introduce witnesses . . . in compensation proceedings."

The court, noting that there was “conflicting medical evidence” and as “no formal testimony was taken at the . . . hearing,” ruled that the WCLJ’s denial of the insuance carrier's request to cross-examine Carr's attending physician to explore such issues “clearly prejudiced the employer."

The Appellate Division returned the matter to the Workers' Compensation Board “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00056.htm

Contracts for personal and related services questioned by the State Comptroller’s auditors

Contracts for personal and related services questioned by the State Comptroller’s auditors
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reports that during the period April 1, 2006 through December 21, 2009, the Office of Temporary and Disability Assistance [OTDA] had 245 active personal and miscellaneous service contracts in place with a total value of more than $847 million.

The Comptroller’s auditors examined whether the office was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.

After reviewing a sample of 27 contracts the auditors found that OTDA was not able demonstrate that it had formally evaluated and justified the need for any of the selected contracts nor had it periodically reassessed whether such contracts could be deferred, eliminated or reduced.

The text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093011/09s101.pdf

Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals

Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals
Application of Gary Berman to remove a member of the Boards of Education of the Valley Stream Central High School District and the Valley Stream Union Free District No. 13., Decisions of the Commissioner No. 15,537

Gary Berman asked the Commissioner of Education to remove Dr. Frank Chiachiere from his positions as president and member of the Board of Education of the Valley Stream Central High School District and as a member of the Board of Education of the Valley Stream Union Free School District No. 13. Berman, in support of his request, alleged that that Dr. Chiachiere ignored, and has permitted district officers to ignore, the requirements of the State Freedom of Information Law (Public Officers Law §§84-90) (usually referred to as “FOIL”) and Title IX of the Education Amendments of 1972 (see 20 USC §1681 et seq.).

The Commissioner said that Berman’s complaints involving alleged violations of FOIL requests in January 2006, must be dismissed because §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York. Accordingly, alleged FOIL violations may not be adjudicated in an appeal to the Commissioner.

Similarly, the Commissioner said that he did not have jurisdiction to adjudicate Title IX claims.

However, the Commissioner said that there was one additional administrative matter to consider in connection with Berman’s appeal -- Dr. Chiachiere’s request that the Commissioner grant him a certificate of good faith pursuant to Education Law §3811(1).

Granting such a certificate would allow the school board to indemnify Dr. Chiachiere for legal fees and expenses he incurred in defending a proceeding arising out of the exercise of his powers or performance of his duties as a member and, or, president of the board.

The Commissioner said that “[i]t is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith. Finding no evidence of bad faith on the part of Dr. Chiachiere in record before him, the Commission ruled that Dr. Chiachiere was entitled to receive a certificate of good faith.

Discontinuing General Municipal Law Section 207-c disability benefits

Discontinuing General Municipal Law Section 207-c disability benefits
Gamma v Bloom, 274 AD2d 14

In Gamma, the Appellate Division concluded that an agreement negotiated pursuant to the Taylor Law can set out the controlling procedures for resolving disputes concerning Section 207-c benefits, including resolving any dispute concerning light duty assignments and the continuation of such benefits through arbitration.

City of Newburgh police officer Stephen J. Gamma suffered a line-of-duty back injury in June 1996. Newburgh approved his claim for disability benefits pursuant to General Municipal Law Section 207-c.

A year later Gamma was examined by a Newburgh police surgeon and found fit to perform light duty. Gamma reported to his light duty assignment as directed but he left work before the completion of his first shift, complaining of pain and fatigue.

When Gamma, contending that he was still disabled, failed to return to work following his initial reporting for light duty, Newburgh terminated his Section 207-c effective June 21, 1997. The City placed Gamma on sick leave and his absence charged to his leave accruals.

Effective October 22, 1997, Gamma’s Section 207-c benefits were restored to him. Gamma, however, sued, contending that he was entitled to benefits for the period June 21, 1997, through and including October 21, 1997.

Gamma argued that Newburgh improperly discontinued his Section 207-c benefits in violation of due process because it did not give him any pre-termination due process hearing. A New York Supreme Court judge directed Newburgh to (1) restore his Section 207-c benefits and, (2) recredit Gamma with any accumulated sick leave credits that Gamma had used to remain on the payroll.

Newburgh challenged the court’s ruling, claiming that Gamma had failed to exhaust his administrative remedies because the collective bargaining agreement between the PBA and Newburgh mandated arbitration of any dispute over continuing Section 207-c benefits.

The City argued that the issues of Gamma’s qualification for light duty, the restoration of his sick leave credits and the reinstatement of his Section 207-c benefits should have been submitted to arbitration.

The PBA, on the other hand, asked the Appellate Division to affirm the lower court’s ruling, contending that Gamma could bring his Article 78 action because the collective bargaining agreement merely preserved Gamma’s rights under the statute and that he had the option of proceeding by way of arbitration or judicial review.

The Appellate Division said no, holding that Newburgh was correct -- arbitration was the only means available to Gamma if he wished to contest Newburgh’s decision.

The court declined to consider the merits of the issue, holding that the arbitrator had to resolve those issues as mandated by the parties’ collective bargaining agreement.

The relevant contract provision provides that [i]f the [Union] and the Chief of Police fail to agree on an on-the-job injury or continuation of, then both sides agree to send the issue to grievance arbitration.

Accordingly, said the Appellate Division, whether Gamma remained disabled within the meaning of Section 207-c, and whether the collective bargaining agreement required arbitration prior to the termination of benefits, are issues for the arbitrator to resolve.

The court also indicated that disability benefits payable to police officers pursuant to Section 207-c, once awarded, are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment.

The Court of Appeals in Uniform Firefighters of Cohoes Local 2562, v City of Cohoes, 94 NY2d 686, addressed this issue, clarifying the requirements of due process in terminating such benefits under the procedures set forth under the statute, which include the ability to seek judicial review pursuant to CPLR article 78.

This, however, said the Appellate Division, did not mean that a union and an employer could not agree to follow different procedures in resolving disputes concerning Section 207-c matters, including the termination of Section 207-c disability benefits.

Finding that the collective bargaining agreement did not provide Gamma with the option of seeking arbitration or, in the alternative, judicial review, the court held that prior to the exhaustion of the contractual remedy of arbitration, judicial relief pursuant to CPLR article 78 is not warranted.

The court decided that the questions raised by Gamma must be submitted to arbitration as that was the exclusive remedy available to him under the collective bargaining agreement.

In another case involving essentially the same parties, Gamma v Ferrara, 274 AD2d 479, decided on the same day, the Appellate Division, Second Department, addressed the issue of the reinstatement of the payment of Section 207-c benefits to Gamma pending receipt of an arbitration award.

This appeal concerned Newburgh’s petition pursuant to Article 75 of the Civil Practice Law and Rules to compel arbitration of Gamma’s Section 207-c claims.

The court said:

... because the continuation of Gamma’s General Municipal Law Section 207-c benefits during the pendency of the arbitration cannot be sustained as provisional relief granted pursuant to CPLR 7502(c), in that the failure to grant such relief will not render any subsequent arbitration award in Gamma’s favor ineffectual, the grant of such relief must be reversed. If Gamma prevails after arbitration, he will be entitled to reimbursement of all benefits found to have been improperly denied.

This means that if Newburgh elects to discontinue its payment of Section 207-c benefits to Gamma pending receipt of the arbitrator’s determination, Gamma must charge his absences to his leave accruals or be placed on leave without pay.

The same rationale would probably be applied in cases involving disputes arising under Section 207-a of the General Municipal Law. Section 207-c applies to law enforcement personnel injured in the line of duty while Section 207-a covers firefighters injured in the line of duty.
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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. Click on http://section207.blogspot.com/

Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed

Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed
Source: State Register, January 5, 2011

The NYS Register dated January 5, 2011 reports that “Pursuant to section 207 of the State Administrative Procedure Act (SAPA), notice is hereby provided of rules adopted by the New York State Civil Service Commission and President of the Commission during calendar years 2001 and 2006.”

Below is a brief description of each rule to be reviewed, the statutory authority underlying its promulgation, and a statement setting forth the justification for the ongoing need for each rule and its proposed continuation without further modification.

Rules adopted by the New York State Civil Service Commission during the Calendar Year 2001

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service) Statutory Authority: Civil Service Law section 64(4)

Description of the Rule: The rule repealed sections 4.11 and 4.12 of the Rules for the Classified Service and added a new section 4.11 to such Rules.

The rule describes the rights and limitations of ‘‘contingent permanent’’ appointments to positions in the competitive, non-competitive and labor classes, which are defined as permanent appointments to positions that have been temporarily left vacant due to a leave of absence of the permanent incumbent of the position.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.

Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions) Statutory Authority: Civil Service Law section 6

Description of the Rules: The rules amended sections 28-1.3(b), 28-2.1(c) and 28-3.7(a) and (c) of the Attendance Rules for managerial/confidential employees in New York State Departments and Institutions.

Sections 28-1.3(b) and 28-2.1(c) were amended upon the request of the Governor's Office of Employee Relations (GOER) to provide that qualified managerial/confidential employees may utilize up to 200 days of accrued sick leave credits to pay for health insurance premiums during retirement.

The amendments to sections 28-3.7(a) and (c) provide that the rules governing donations of leave credits for managerial/confidential employees shall be consistent with such leave donation policies granted represented employees through collective bargaining agreements.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.


Rules adopted by the New York State Civil Service Commission or Regulations adopted by the President of the Civil Service Commission during the Calendar Year 2006

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified
Service) Statutory Authority: Civil Service law section 63

Description of the Rule: The rule revised section 4.5 of the Rules for the Classified Service to provide for probationary terms for positions of University Police Officer 1 and University Police Officer 1 (Spanish Language) of not less than 52 nor more than 78 weeks.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.

Amendment to Chapter V of the Title 4 of NYCRR (Regulations of the Department of Civil Service [President's regulations]) Statutory Authority: Public Officers Law sections 87, 89

Description of the Rule: Public Officers Law Article 6 (Freedom of Information Law; ‘‘FOIL’’) requires subject agencies to adopt regulations regarding public access to records.

The regulation amended Part 80 of the President's Regulations, ‘‘Public Access to Records,’’ to conform the language of such Part with provisions of FOIL by replacing references to ‘‘applications’’ for records with ‘‘requests ‘‘for records.

In accordance with FOIL, the regulation specifies how requests shall be acknowledged and addresses when the Department is unable to grant or deny a request for records within the initial twenty day period from when the request is received.

Proposed Action: The rule is required by the Public Officers Law and shall be continued without modification.

Various amendments to the Appendices to the Rules for the Classified Service

Appendix 1 (Exempt Class)

Appendix 2 (Non-competitive Class)

Statutory Authority:

Appendix 1: Civil Service Law, sections 6 and 41; 4 NYCRR 2.1

Appendix 2: Civil Service Law, sections 6 and 42; 4 NYCRR 2.2

N.B. Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from compliance with Executive Order No. 20 review requirements by the Governor's Office of Regulatory Reform (GORR), upon a finding by GORR that such review lacked substantial benefit.

Based upon this determination by GORR, and pursuant to subdivision (5) of SAPA section 207, a full recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted by the Civil Service Commission during calendar years and 2001 and 2006 is hereby omitted.

Public Comments:

There is a forty-five (45) day public comment period following publication of this notice in the State Register on January 5, 2011.

Requests for information and public comments should be addressed to Judith I. Ratner, Esq., Deputy Commissioner and Counsel, Department of Civil Service, Alfred E. Smith Bldg., Albany, NY, 12239, (518) 473-2624, or by e-mail to judith.ratner@cs.state.ny.us

Equal pay for equal work

Equal pay for equal work
Bertoldi v State of New York, 275 AD2d 227; Motion to appeal denied, 96 NY2d 706; Motion to appeal on constitutional grounds denied, 95 NY2d 958

Section 115 of the Civil Service Law provides that State employees are entitled to equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.

While Section 115 applies only to employees of the State of New York, in Evans v Newman, 71 AD2d 240, the Appellate Division ruled that nonjudicial court employees were to be treated consistent with the provisions of Civil Service Law Article 8, Classification and Compensation of State Employees.

The Appellate Division, First Department’s interpretation of Section 115 proved critical in resolving Bertoldi’s claim that certain trial court clerks were entitled to back salary because their positions had been improperly allocated to a lower salary grade.

The New York State Court Clerks Association and other clerks employed by the State’s Unified Court System complained that appellate court level clerk positions had been allocated to higher salary grades than trial court clerk positions. The Classification Review Board found that trial clerks and appellate clerks were essentially performing the same type of work with equivalent difficulty, and that they were therefore entitled to equal pay.

The trial clerks then sued to recover the salary differential for the approximately 14 years the appellate clerks received a higher salary. The Appellate Division rejected the trial clerks’ theory that Section 115 mandated that they be awarded such retroactive pay. The court said that:

1. The principle of equal pay for equal work need not be applied in all cases under any and all circumstances; and

2. Section 115 enunciates a policy and confers no jurisdiction on a court to enforce such policy.

The court characterized the discrepancy in pay as due to oversight or error and therefore insufficient to establish that [the trial clerks] were not provided equal pay for equal work.

Also rejected was the trial clerks’ contention that they were denied equal protection under the New York State and United States Constitutions as a result of the allocation of the two titles to different salary grades.

The court’s rationale: the decision not to award the trial clerk’s the pay differential had a rational relationship to a legitimate state interest in view of the high costs involved and the limited ability of the court system to absorb such costs within its existing budget.