Constructive criticism or discipline?
Matter of Fusco, Comm. of Ed. Decision 14,396
Matter of Irving, Comm. of Ed. Decision 14,373
Sometimes it may be difficult to determine the location of that thin line that separates lawful constructive criticism of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature.
As the Court of Appeals indicated in Holt v Webutick Central School District, 52 NY2d 625, a counseling memorandum that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.
In other words, comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.
In the opinion of the Commissioner of Education, the employers crossed the line in both the Fusco and Irving situations.
The Fusco Case
Two questions were raised by Esther Fusco, a tenured Jefferson Central School District school principal, in her appeal to the Commissioner of Education challenging her 1998 performance evaluation that was prepared by the school board itself.
1. Is a school board authorized to conduct performance evaluations of school district administrators?
2. If a school board may undertake such evaluations, did the board’s 1998 performance evaluation of her work constitute disciplinary action?
First Fusco contended that only a school superintendent was authorized to undertake a performance evaluation of school administrators and teachers. Her second complaint: her 1998 was evaluation by the board was unlawful because it constituted disciplinary action within the meaning of Section 3020-a of the Education Law and she was not served with charges or given a hearing.
According to the ruling, Jefferson’s superintendent, Dr. Wayne Jones, prior to his leaving the district in October 1997, had evaluated school administrators. Fusco was not evaluated by any of the district’s acting superintendents who served following Jones’ departure.
On July 29, 1998, the school board gave Fusco a memorandum entitled Board Evaluation of Principal Work Performance in which the board characterized Fusco’s performance during both academic 1996-1997 and 1997-1998 as unsatisfactory. The board’s examples of Fusco’s unsatisfactory performance set out in the evaluation included allegations that Fusco:
1. Demonstrated unsuitable judgment;
2. Exhibited unsuitable behavior;
3. Engaged in insubordinate and disrespectful behavior; and
4. Exhibited poor leadership.
The board placed a copy of its evaluation in Fusco’s personnel file and Fusco appealed to the Commissioner. Fusco argued that:
1. Only the superintendent of schools is authorized to evaluate her performance and thus the board’s action constituted a violation 8 NYCRR 100.2(o); and
2. Assuming that board could conduct such evaluations, the evaluation, when placed in her personnel file, constituted an impermissible disciplinary reprimand, issued without complying with the procedural protections of Education Law Section 3020-a.
The board defended its action, contending that (1) it did, in fact, have authority to evaluate Fusco’s performance and (2) its action was constructive criticism of Fusco’s performance permitted by law and thus did not constitute disciplinary action within the meaning of Section 3020-a.
The Commissioner agreed with the board in part.
First he pointed out that while 8 NYCRR 100.2(o) requires that the superintendent develop formal procedures for the review of the performance of all personnel of the district, there is nothing in the regulation that requires the superintendent to conduct the evaluation.
Accordingly, the Commissioner ruled that in the absence of a provision that would prohibit a board of education from doing so, a school board may itself conduct such an evaluation.
What of Fusco’s second claim -- that the evaluation constituted unlawful disciplinary action and thus must be removed from her personnel file?
The Commissioner said that while the general rule is that personnel given critical administrative evaluations by a supervisor is not entitled to Section 3020-a protections, a disciplinary reprimand may not be issued without a finding of misconduct pursuant to Section 3020-a.
Did Fusco’s evaluation constitute disciplinary action without the benefit of the protections of Section 3020-a? Yes, ruled the Commissioner, it did.
The Commissioner said that contents of the memorandum did not fall within the parameters of a permissible evaluation and despite the board’s representation that it was intended to encourage positive change in Fusco’s performance, it contains no constructive criticism or a single suggestion for improvement. Rather, said the Commissioner, the memorandum focused on castigating [Fusco] for prior alleged misconduct.
Instead of constructive criticism, the Commissioner concluded that the evaluation chastised [Fusco] for serious misconduct, including improper release of confidential information, harassment of staff members, damaging district/union relationships...and poor leadership.
The district was directed to remove the evaluation from Fusco’s personnel file as it does not constitute a performance evaluation but rather an impermissible reprimand.
Two other procedural points were considered by the Commissioner.
The district had also argued that portions of Fusco’s appeal concerned Taylor Law* matters and thus the Commissioner should defer to the Public Employment Relations Board. The district argued that PERB had exclusive jurisdiction over such issues.
The Commissioner ruled that his disposition of the appeal considered matters unrelated to the Taylor Law and thus his dismissal of Fusco’s appeal and deferral to PERB was not required.
In addition, the district asked the Commissioner for permission to submit two additional documents it claimed addressed substantive issues related to Fusco’s conduct after it had filed its answer to Fusco’s petition:
1. An affidavit by an individual; and
2. [A]n affirmation by an attorney.
The Commissioner agreed to accept both documents because that information was not available to the district prior to its submission of its answer.
The Irving Case
Troy City School District Superintendent Armand Reo, after discussing letters of complaint received from parents and other concerns with the school board and Elementary School Principal Mozella Irving, gave Irving a letter of counseling in which he, among other things, said:
You are hereby counseled that in future dealings with the parents of our students you must avoid a confrontational attitude ... avoid making rude or inappropriate comments to parents and you should generally make every attempt to accommodate reasonable requests [received from] parents.
A copy of this letter was placed in Irving’s personnel file.
The next day, October 8, 1999, Reo gave Irving a second letter in which he told her that she was transferred to a different school, where she would serve as assistant principal effective October 14, 1999 and that such action was being taken in the best interest of the school district.
Protesting that her involuntary reassignment and demotion was disciplinary in nature and illegally deprived her of her rights to due process as set out in Section 3020-a of the Education Law, Irving appealed Reo’s action to the Commissioner of Education.
The Commissioner sustained Irving’s appeal, holding that:
The record convinces me that disciplinary action was taken and that Irving was deprived of her rights under Education Law Section 3020-a.
Conceding that Sections 1711 and 2508 of the Education Law authorize a superintendent to transfer personnel, the problem here, said the Commissioner, was that Irving’s alleged staff mistreatment and parental mistreatment were the only reasons for reassigning and demoting Irving set out in the record.
The Commissioner pointed out that the several meetings between Reo and Irving, and Reo and the board, and the two letters given to Irving by Reo, are all part of a single process, and it is inescapable that the sole reason for [Irving’s] transfer was her alleged misconduct as a principal.
Considering all of these circumstances as a whole, the Commissioner concluded that Irving was entitled to the protections of Section 3020-a, including the right to contest formal charges, and those rights have been violated here.
Another consideration that the Commissioner found persuasive: all of the materials submitted by the board in responding to Irving’s appeal were directed toward demonstrating misconduct on the part of [Irving]. This, the Commissioner pointed out, was exactly the type of proof that the district would have been expected to introduce in a Section 3020-a disciplinary hearing.
Rejecting the district’s argument that Irving’s transfer was for the good of the district and thus not disciplinary in nature, the Commissioner said this theory misses the mark. He observed that one would hope that every school district disciplinary action or proceeding, taken in good faith, is for the good of the district.
The Commissioner annulled Irving’s reassignment from her position as principal of School 2 to assistant principal of School 14 without prejudice to any further action, which may be appropriate under the terms of this decision. The standard used by the Commissioner in formulating his ruling:
A superior may issue a letter critical of an individual’s performance and place a copy of such a letter in the individual’s personnel file without initiating disciplinary action pursuant to Section 3020-a where the document deals with a relatively minor shortcoming and urges or directs better performance on the part of the individual in the future.
Had Reo’s letter of October 7, 1999 been the only action taken by the district, said the Commissioner, a plausible argument that Irving had not been subjected to disciplinary action could have been made. However, this letter, coupled with the letter of October 8, 1999 demoting and transferring Irving to another school, together with the discussions of the matter by the board, persuaded the Commissioner that Irving had been disciplined within the meaning of Holt.
Another concern: A counseling memorandum is placed in an individual’s personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including the events set out in the counseling memorandum in the charges constitute double jeopardy?
No, according to the Court of Appeal’s ruling in Patterson v Smith, 53 NY2d 98.
In Patterson, the court said that including charges concerning performance that were addressed in a counseling memorandum was not double jeopardy. The court’s rationale: as a proper counseling memoranda contains a warning and an admonition to comply with the expectations of the employer, it is not a form of punishment in and of itself.
Clearly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event and the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty.
* As to Taylor Law considerations, PERB has recognized the difference between criticism of employee performance and disciplinary action. In Port Jefferson Union Free School District v United Aides and Assistants, U-5713, PERB rejected a union’s claim that every written criticism of an employee was a reprimand.
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
January 10, 2011
Determining the issue in arbitration
Determining the issue in arbitration
Matter of the Schenectady Federation of Teachers, Jeffrey M. Selchick, Esq., Arbitrator
In most instances, the parties are able to agree on the issue to be resolved by the arbitrator among themselves or with the assistance of the arbitrator. This was not the case in the Matter of the Arbitration between the Schenectady Federation of Teachers and the Schenectady City School District. Here the parties simply could not agree on the issue to be decided by Arbitrator Jeffrey M. Selchick.
Did this mean that the matter could not be submitted to the arbitrator?
No, said Selchick, referring to How Arbitration Works by Elkouri and Elkouri, 5th Edition.
Quoting from the text, Selchick said that:
Where the parties cannot agree upon an issue, the arbitrator may arrive at a precise statement of the issue or issues after studying the entire record of the case, including if available, such matters as the original grievance statement and the grievance procedure minutes, the demand for arbitration and any reply of the other party, correspondence of the parties, the transcript of the hearing [or arbitrator’s notes], the parties’ exhibits, and the parties’ briefs.
The collective bargaining agreement provision at issue concerned a requirement that teachers attend meetings, including home school activities -- activities intended to improve students’ achievement levels.
The Federation alleged the District had violated the contract when it gave teachers a schedule setting out the pattern applicable to home school activities under the agreement that required them to perform such activities on Tuesdays and Thursdays.
The issue as formulated by the Federation essentially asked if there was a contractual meeting of the minds. The District, on the other hand, simply assumed that there was such a meeting of the minds and asked the arbitrator to determine if the agreement gave it exclusive authority to schedule home school activities.
Selchick, after reviewing the record, concluded that there was a meeting of the mind and decided that the issue to be resolved was:
Did the District violate ... the Agreement when it established the schedule for home school activities ...?
After considering the contract language, Selchick ruled that the provision was clear -- the District had the right to establish a schedule for all meetings, which includes home school activities ... and, in addition, could require that teachers maintain a professional log recording the activities the teacher performed on a scheduled home school date.
Matter of the Schenectady Federation of Teachers, Jeffrey M. Selchick, Esq., Arbitrator
In most instances, the parties are able to agree on the issue to be resolved by the arbitrator among themselves or with the assistance of the arbitrator. This was not the case in the Matter of the Arbitration between the Schenectady Federation of Teachers and the Schenectady City School District. Here the parties simply could not agree on the issue to be decided by Arbitrator Jeffrey M. Selchick.
Did this mean that the matter could not be submitted to the arbitrator?
No, said Selchick, referring to How Arbitration Works by Elkouri and Elkouri, 5th Edition.
Quoting from the text, Selchick said that:
Where the parties cannot agree upon an issue, the arbitrator may arrive at a precise statement of the issue or issues after studying the entire record of the case, including if available, such matters as the original grievance statement and the grievance procedure minutes, the demand for arbitration and any reply of the other party, correspondence of the parties, the transcript of the hearing [or arbitrator’s notes], the parties’ exhibits, and the parties’ briefs.
The collective bargaining agreement provision at issue concerned a requirement that teachers attend meetings, including home school activities -- activities intended to improve students’ achievement levels.
The Federation alleged the District had violated the contract when it gave teachers a schedule setting out the pattern applicable to home school activities under the agreement that required them to perform such activities on Tuesdays and Thursdays.
The issue as formulated by the Federation essentially asked if there was a contractual meeting of the minds. The District, on the other hand, simply assumed that there was such a meeting of the minds and asked the arbitrator to determine if the agreement gave it exclusive authority to schedule home school activities.
Selchick, after reviewing the record, concluded that there was a meeting of the mind and decided that the issue to be resolved was:
Did the District violate ... the Agreement when it established the schedule for home school activities ...?
After considering the contract language, Selchick ruled that the provision was clear -- the District had the right to establish a schedule for all meetings, which includes home school activities ... and, in addition, could require that teachers maintain a professional log recording the activities the teacher performed on a scheduled home school date.
Officials serving without compensation to pay full cost of health insurance coverage
Officials serving without compensation to pay full cost of health insurance coverage
Formal Opinions of the Attorney General, 2007 - F1
The Attorney General has issued an opinion indicating that public authorities, whose board members are State Officers and which members, pursuant to statute, serve without salary or other compensation, may not pay for health insurance coverage for current or retired board members.
With respect to political subdivisions of the State paying employer contributions for health insurance on behalf of unpaid officers and employees, the Regulations of the President of the Civil Service Commission [4 NYCRR 73.1(c)(1)(ii)] provide, in pertinent part that:
….any unpaid local elective official who occupies a position which by statute, local law, ordinance or resolution is expressly prohibited from receiving compensation or school board member electing to participate by reason of such membership shall be required to pay both the employer and the employee contribution for any coverage elected under the [New York State Health Insurance] plan …
The President’s Regulations apply only to State officers and employees and the officers and employees of those political subdivisions of the State that are “participating employers”* in the New York State Health Insurance Plan [NYSHIP].
In this regard, the Department of Civil Service has interpreted §167.2 of the Civil Service Law to permit uncompensated personnel of a public authority that is a participating employer to elect to participate in NYSHIP but bars the authority from making employer contributions for NYSHIP coverage on behalf of those serving without compensation.
Essentially, Opinion F-1 addresses the eligibility of “State Officers” serving without compensation to have employer contributions to NYSHIP made on their behalf.
It is unclear whether the Opinion is intended to apply to a political subdivision of the State that is not a “participating employer” in NYSHIP insofar as its officers and employees serving without compensation are concerned where such contributions are otherwise authorized by the jurisdiction involved.
* §163.4 of the Civil Service Law provides that: “Any public authority, public benefit corporation, school district, special district, district corporation, municipal corporation, or other agency, subdivision or quasi-public organization of the state, whose employees and retired employees are authorized to be included in the plan as provided by subdivision two, may elect to participate in such plan.” Such entities are referred to as “participating employers.”
Formal Opinions of the Attorney General, 2007 - F1
The Attorney General has issued an opinion indicating that public authorities, whose board members are State Officers and which members, pursuant to statute, serve without salary or other compensation, may not pay for health insurance coverage for current or retired board members.
With respect to political subdivisions of the State paying employer contributions for health insurance on behalf of unpaid officers and employees, the Regulations of the President of the Civil Service Commission [4 NYCRR 73.1(c)(1)(ii)] provide, in pertinent part that:
….any unpaid local elective official who occupies a position which by statute, local law, ordinance or resolution is expressly prohibited from receiving compensation or school board member electing to participate by reason of such membership shall be required to pay both the employer and the employee contribution for any coverage elected under the [New York State Health Insurance] plan …
The President’s Regulations apply only to State officers and employees and the officers and employees of those political subdivisions of the State that are “participating employers”* in the New York State Health Insurance Plan [NYSHIP].
In this regard, the Department of Civil Service has interpreted §167.2 of the Civil Service Law to permit uncompensated personnel of a public authority that is a participating employer to elect to participate in NYSHIP but bars the authority from making employer contributions for NYSHIP coverage on behalf of those serving without compensation.
Essentially, Opinion F-1 addresses the eligibility of “State Officers” serving without compensation to have employer contributions to NYSHIP made on their behalf.
It is unclear whether the Opinion is intended to apply to a political subdivision of the State that is not a “participating employer” in NYSHIP insofar as its officers and employees serving without compensation are concerned where such contributions are otherwise authorized by the jurisdiction involved.
* §163.4 of the Civil Service Law provides that: “Any public authority, public benefit corporation, school district, special district, district corporation, municipal corporation, or other agency, subdivision or quasi-public organization of the state, whose employees and retired employees are authorized to be included in the plan as provided by subdivision two, may elect to participate in such plan.” Such entities are referred to as “participating employers.”
Concealing misconduct may result in a hasher penalty than might otherwise be imposed
Concealing misconduct may result in a hasher penalty than might otherwise be imposed
Application of Gonzalez, 273 AD2d 140
The lesson in the Gonzalez case is that an employee’s efforts to suppress his or her misconduct may result in a harsher penalty than might otherwise be imposed.
The Appellate Division, First Department, sustained the dismissal of New York City police officer Antonio Gonzalez after he was found guilty of wrongfully discharged his firearm and thereafter lying about the event and attempting to conceal evidence of his misconduct. Citing Berenhaus v Ward, 70 NY2d 436, the court said that under the circumstances, “[t]he penalty of dismissal does not shock our sense of fairness.”
In La Chance v Erickson, 522 US 262, the US Supreme Court said that federal employees being investigated for alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for such misconduct.
The court said that “an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.”
As to a Fifth Amendment defense in such cases, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator’s questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.
Application of Gonzalez, 273 AD2d 140
The lesson in the Gonzalez case is that an employee’s efforts to suppress his or her misconduct may result in a harsher penalty than might otherwise be imposed.
The Appellate Division, First Department, sustained the dismissal of New York City police officer Antonio Gonzalez after he was found guilty of wrongfully discharged his firearm and thereafter lying about the event and attempting to conceal evidence of his misconduct. Citing Berenhaus v Ward, 70 NY2d 436, the court said that under the circumstances, “[t]he penalty of dismissal does not shock our sense of fairness.”
In La Chance v Erickson, 522 US 262, the US Supreme Court said that federal employees being investigated for alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for such misconduct.
The court said that “an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.”
As to a Fifth Amendment defense in such cases, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator’s questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.
January 08, 2011
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.”
__________________
* The Report is posted on the Internet at: http://www.scribd.com/doc/46469466/Bloomberg-Workforce-Report
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.”
__________________
* 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.
January 07, 2011
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
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
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
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.
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.
______________
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/
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.
______________
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/
January 06, 2011
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
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.
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.
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.
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.
January 05, 2011
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
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
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
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