All necessary parties -- i.e. parties that could be affected by the decision -- must be named in an appeal to the Commissioner of Education
Appeal of Robert W. Fife, Decisions of the Commissioner of Eduction 15,533
Robert W. Fife held a tenured appointment with the Delaware Valley Central School District. Fife’s tenure area: physical education and health. In 1999 Delaware merged with the Jeffersonville-Youngsville and Narrowsburg School Districts to form the Sullivan West Central School District.
As a result of the merger, a .5 full-time equivalent (“FTE”) position in the physical education tenure area and a .5 FTE position in the health tenure area were eliminated. Fife was told that as he was least senior person in those tenure areas, he would be terminated effective June 30, 2005, and that his name would be placed on a preferred eligible list.
Following this, Fife was appointed to a .4 FTE physical education position.
Fife challenged the district’s determination regarding his seniority, contending that while he mathematically devoted less than 40% of his total time providing health instruction during five of his ten years of employment, this was because he taught more classes than the number of periods that was usual and customary. He also claimed that the percentage of his time spent providing health instruction would increase if the time he spent teaching driver education were viewed as a co-curricular activity.
The Commissioner dismissed Fife’s appeal because of a procedural defect – Fife’s failure to “join” a necessary party in his appeal.* A necessary party is one whose rights would be adversely affected by a determination of an appeal in favor of an appellant and must be joined as such.
Fife argued that he had no way of knowing the party or parties who would be adversely affected by a decision in his favor. However, there was only one other teacher employed by the District who held tenure in the area of health. Since Fife’s request for reinstatement, if successful, could affect the employment status of that teacher, the Commissioner ruled that the other teacher should have been joined as a necessary party to Fife’s appeal.
Notwithstanding this technical defect, the Commissioner commented that Fife’s appeal would have been dismissed on the merits had it not been dismissed on procedural grounds.
The Commissioner explained that seniority means length of service in a designated tenure area, rather than length of service in the district. Further, such service need not have been consecutive but “shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator.”
As used in Part 30 of the Commissioner’s regulations, the phrase “substantial portion” means 40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities (8 NYCRR §30.1[g]).
As Fife conceded that he devoted less than 40 percent of his total time providing health instruction during five of his ten years of employment he did not meet this standard.
Further, said the Commissioner, although Fife contended that failed to meet the “40 percent” because he taught more classes than the number of periods that was usual and customary, he did not indicated any legal basis for earning seniority credit in health during the years in which health instruction did not constitute a substantial portion of his time.
As to Fife’s attempt to have his duties teaching driver education as an assigned period during his regular work schedule, the Commissioner ruled that this does not support his contention that this instruction should be viewed as a co-curricular activity.
The Commissioner said that the District’s determination the Fife had less seniority than the teacher it had retained was neither arbitrary nor capricious and dismissed Fife’s appeal.
* Joining a necessary party requires that the individual be clearly named as a respondent in the caption of the appeal and served with a copy of the notice of petition and the petition itself in order to inform the individual that he or she should respond to the petition and enter a defense.
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 11, 2011
January 10, 2011
One party to a collective bargaining agreement cannot compel arbitration of a dispute unless the agreement explicitly so provides
One party to a collective bargaining agreement cannot compel arbitration of a dispute unless the agreement explicitly so provides
Matter of Onondaga Community Coll. v Onondaga Community Coll. Fedn. of Teachers & Adm'rs Aft, Local 1845, 2010 NY Slip Op 09835, Appellate Division, Fourth Department
It is “black letter law” that "A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal' agreement to arbitrate."
Citing God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, the Appellate Division ruled that Supreme Court was correct when it granted Onondaga Community College’s Article 75 motion to stay the arbitration of a grievance filed by an employee whose employment was terminated during his probationary period.
Here, said the court, the employee, a software systems administrator, was terminated within three months after he was hired, “while he undisputedly was a probationary employee.” As the controlling collective bargaining agreement [CBA], explained the Appellate Division, “explicitly excludes the termination of employment of probationary administrators” from the grievance procedures set out in the CBA, including the right to arbitration, Supreme Court correctly granted the College’s motion to stay the arbitration.*
The Appellate Division rejected the Federations characterization of the grievance as “one challenging [the College’s] failure to evaluate the employee in question after nine months pursuant to Article IV of the CBA….”
In the words of the court, “The heart of this dispute is the termination of employment, and any failure by [Onondaga Community College] to comply with the evaluation procedures … is irrelevant in view of the CBA provision rendering arbitration unavailable to probationary administrators who are terminated.”
* The collective bargaining agreement provided that administrators "serving in a probationary period other than a probationary period attendant to and resulting from promotions shall not have [any] right, relief, or access to contest disciplinary action, including dismissal from employment, under the grievance procedure contained herein."
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09835.htm
Matter of Onondaga Community Coll. v Onondaga Community Coll. Fedn. of Teachers & Adm'rs Aft, Local 1845, 2010 NY Slip Op 09835, Appellate Division, Fourth Department
It is “black letter law” that "A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' clear, explicit and unequivocal' agreement to arbitrate."
Citing God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP, 6 NY3d 371, the Appellate Division ruled that Supreme Court was correct when it granted Onondaga Community College’s Article 75 motion to stay the arbitration of a grievance filed by an employee whose employment was terminated during his probationary period.
Here, said the court, the employee, a software systems administrator, was terminated within three months after he was hired, “while he undisputedly was a probationary employee.” As the controlling collective bargaining agreement [CBA], explained the Appellate Division, “explicitly excludes the termination of employment of probationary administrators” from the grievance procedures set out in the CBA, including the right to arbitration, Supreme Court correctly granted the College’s motion to stay the arbitration.*
The Appellate Division rejected the Federations characterization of the grievance as “one challenging [the College’s] failure to evaluate the employee in question after nine months pursuant to Article IV of the CBA….”
In the words of the court, “The heart of this dispute is the termination of employment, and any failure by [Onondaga Community College] to comply with the evaluation procedures … is irrelevant in view of the CBA provision rendering arbitration unavailable to probationary administrators who are terminated.”
* The collective bargaining agreement provided that administrators "serving in a probationary period other than a probationary period attendant to and resulting from promotions shall not have [any] right, relief, or access to contest disciplinary action, including dismissal from employment, under the grievance procedure contained herein."
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09835.htm
Constructive criticism or discipline?
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.
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.
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.
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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. Click on http://section207.blogspot.com/
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
Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step
Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step
Matter of Meegan v Brown, 63 AD3d 1673
In response to a State Comptroller's report concerning a fiscal crisis in the City of Buffalo, the State Legislature passed the Buffalo Fiscal Stability Authority Act on July 3, 2003. The Act, Public Authorities Law §3850 et seq, created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.
On April 21, 2004, the BFSA imposed a wage freeze on all employees of the City. The BFSA subsequently lifted the wage freeze effective July 1, 2007.
One of the issues considered in this case was the impact of the wage freeze on the eligibility of employees to “earn increments” under their respective “salary plan” as set out in various collective bargaining agreements. These agreements between the City and the unions representing various negotiating units contain salary plans or schedules for career advancement or promotion. Essentially the plans provided that as an employee acquires service credit or years of employment, he or she is to receive additional salary within his or her salary grade – i.e., a salary increment -- as a result of their being placed in a higher step in the salary grade.
Upon the lifting of the wage freeze, the employees were told would be entitled only to a one "step" increase in salary, in effect providing a “one-step” advancement in their salary grade from the step that they were at when the salary freeze was imposed in 2004.
In contrast, the unions contended that, although the employees could not be paid salary grade increases to which they otherwise would have been entitled during the wage freeze period, they nevertheless were entitled upon the lifting of the wage freeze to be moved ahead four salary "steps" in their salary grade rather then provided with a "one-step" increase. In other words, the employees should be “credited” for their service notwithstanding the fact that they had not actually received salary increments during the period when the salary plan had been frozen by the BFSA.
In the litigation that followed, Supreme Court concluded that the employees were entitled to their previously negotiated “wage increase benefits” – i.e., the negotiated step advancements -- immediately, thereby allowing them to be placed at the step that they would have otherwise enjoyed but for the “wage freeze imposed” by the BFSA.
The Appellate Division agreed, holding that under the plain meaning of the relevant provisions of Public Authorities Law §3858, the negotiated provision providing for the employees' ongoing advancement on the salary schedules as a result of continued accrual of service credit was not cancelled, annulled or eliminated.
Rather, said the court, “the City's obligation to make payment of the type of wage increases in question was suspended until the wage freeze was terminated” [emphasis supplied by the court].
The Appellate Division explained that although employee wage increases were frozen during the period of fiscal crisis, “The City cannot ignore the fact that the employees have continued to accrue service credit and have climbed the ladder of salary and career increments set forth in the collective bargaining agreements.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04805.htm
Matter of Meegan v Brown, 63 AD3d 1673
In response to a State Comptroller's report concerning a fiscal crisis in the City of Buffalo, the State Legislature passed the Buffalo Fiscal Stability Authority Act on July 3, 2003. The Act, Public Authorities Law §3850 et seq, created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.
On April 21, 2004, the BFSA imposed a wage freeze on all employees of the City. The BFSA subsequently lifted the wage freeze effective July 1, 2007.
One of the issues considered in this case was the impact of the wage freeze on the eligibility of employees to “earn increments” under their respective “salary plan” as set out in various collective bargaining agreements. These agreements between the City and the unions representing various negotiating units contain salary plans or schedules for career advancement or promotion. Essentially the plans provided that as an employee acquires service credit or years of employment, he or she is to receive additional salary within his or her salary grade – i.e., a salary increment -- as a result of their being placed in a higher step in the salary grade.
Upon the lifting of the wage freeze, the employees were told would be entitled only to a one "step" increase in salary, in effect providing a “one-step” advancement in their salary grade from the step that they were at when the salary freeze was imposed in 2004.
In contrast, the unions contended that, although the employees could not be paid salary grade increases to which they otherwise would have been entitled during the wage freeze period, they nevertheless were entitled upon the lifting of the wage freeze to be moved ahead four salary "steps" in their salary grade rather then provided with a "one-step" increase. In other words, the employees should be “credited” for their service notwithstanding the fact that they had not actually received salary increments during the period when the salary plan had been frozen by the BFSA.
In the litigation that followed, Supreme Court concluded that the employees were entitled to their previously negotiated “wage increase benefits” – i.e., the negotiated step advancements -- immediately, thereby allowing them to be placed at the step that they would have otherwise enjoyed but for the “wage freeze imposed” by the BFSA.
The Appellate Division agreed, holding that under the plain meaning of the relevant provisions of Public Authorities Law §3858, the negotiated provision providing for the employees' ongoing advancement on the salary schedules as a result of continued accrual of service credit was not cancelled, annulled or eliminated.
Rather, said the court, “the City's obligation to make payment of the type of wage increases in question was suspended until the wage freeze was terminated” [emphasis supplied by the court].
The Appellate Division explained that although employee wage increases were frozen during the period of fiscal crisis, “The City cannot ignore the fact that the employees have continued to accrue service credit and have climbed the ladder of salary and career increments set forth in the collective bargaining agreements.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04805.htm
Free speech does not protect employee making a racist statement
Free speech does not protect employee making a racist statementPereira v Commissioner of Social Services (SJC-08218), the Supreme Judicial Court, Mass., 432 Mass. 251
The First Amendment’s guarantee of free speech did not shield a twelve-year public employee from dismissal for telling a racist joke at a political gathering.
Linda M. Pereira, a social worker, was terminated after making remarks that she, herself, described as a stupid, racist, and unthinking joke.
While citing a line of cases that included Pickering v Board of Education, 31 U.S. 563, and Connick v Meyers, 461 U.S. 138, 1983, the Massachusetts high court said that although a public employee’s speech may be entitled to constitutional protection if the employee speaks out on a matter of public concern, and his or her interests as a citizen are not outweighed by the state’s interest in performing a public service, Pereira’s speech was not so protected.
Why not? Because, the court explained, while Pereira spoke at a political event, she conceded that her off-the-cuff ‘joke’ was not intended to convey any message and therefore did not address any matter of public concern. Further, the court noted that although the political affair was not a public gathering, Pereira’s remark was widely reported in the press.
January 04, 2011
Executive Order #3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity
Executive Order 8-3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity
Among his first acts as Governor, Governor Andrew M. Cuomo signed an Executive Order, Executive Order 8-3, requiring all Executive Chamber staff and other top state officials to participate in ethics training offered by the Commission on Public Integrity. Individuals covered by EO 8-3 includes agency commissioners and their respective counsels and ethics officers.
The training, which will focus on the rules about serving in government. will be available beginning no later than January 31st and must be completed within sixty days.
"Honor and integrity will be a hallmark of this administration, and I am confident that we have assembled a team that reflects that commitment," Governor Cuomo said. "Nonetheless, it is imperative that Chamber staff and other high ranking government officials be versed in the ethics rules and regulations that apply to them. Top government employees should have no questions, no gray areas, and no possibility of confusion regarding what is proper and what is not."
The Executive Order also requires officials to participate in this ethics training every two years.
The text of the Executive Order follows:
EXECUTIVE ORDER -- No. 3 ETHICS TRAINING
WHEREAS, all New York State taxpayers and residents and all those who depend on New York State government services have the right to expect that government programs will be administered and managed with the highest degree of professionalism;
WHEREAS, it is the obligation of every New York State officer and employee to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust;
WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies are subject to certain ethical statutes and rules, including but not limited to the New York State Code of Ethics, statutory restrictions on business and professional activities and opinions issued by the New York State Commission on Public Integrity;
WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies play an important role in ensuring ethics compliance by all State officers and employees;
WHEREAS, New York State has a responsibility to ensure that its officers and employees are versed in the ethical statutes and rules that apply to them; and
WHEREAS, it is appropriate to take steps to ensure that employees and officers maintain the highest ethical and professional standards;
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the laws of the State of New York, do hereby order as follows:
A. Definitions
1. “Agency” shall mean any state agency, department, office, board, bureau, division, committee, council or office.
2. “Covered Employees” shall mean all officers and employees working in the Executive Chamber in the office of the Governor, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies.
3. “Officers and employees” shall have the meaning given to “state officer or employee” in Section 73 of the Public Officers Law.
B. Ethics Training
1. Every Covered Employee shall participate in an ethics training within sixty days of when such training is prepared and available. The ethics training program will be prepared and available no later than January 31, 2011.
2. New Covered Employees shall participate in such ethics training within sixty days of the later of commencing their employment or when such training is prepared and available.
3. Such training shall include a discussion of the provisions of Sections 73, 73-A, 74 and 78 of the Public Officers Law and Sections 75-b and 107 of the Civil Service Law.
4. Every Covered Employee shall participate in an ethics training every two years following his or her initial training session pursuant to this order.
5. Covered Employees shall submit a signed statement certifying their participation in each training session pursuant to this order, which statements shall be placed in their personnel files.
6. The Executive Chamber shall coordinate with the ethics officers of state agencies, and with the Commission on Public Integrity, to establish regular training sessions sufficient to allow affected individuals to comply with this order.
C. Penalties
Any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing officer of the individual committing such violation.
Among his first acts as Governor, Governor Andrew M. Cuomo signed an Executive Order, Executive Order 8-3, requiring all Executive Chamber staff and other top state officials to participate in ethics training offered by the Commission on Public Integrity. Individuals covered by EO 8-3 includes agency commissioners and their respective counsels and ethics officers.
The training, which will focus on the rules about serving in government. will be available beginning no later than January 31st and must be completed within sixty days.
"Honor and integrity will be a hallmark of this administration, and I am confident that we have assembled a team that reflects that commitment," Governor Cuomo said. "Nonetheless, it is imperative that Chamber staff and other high ranking government officials be versed in the ethics rules and regulations that apply to them. Top government employees should have no questions, no gray areas, and no possibility of confusion regarding what is proper and what is not."
The Executive Order also requires officials to participate in this ethics training every two years.
The text of the Executive Order follows:
EXECUTIVE ORDER -- No. 3 ETHICS TRAINING
WHEREAS, all New York State taxpayers and residents and all those who depend on New York State government services have the right to expect that government programs will be administered and managed with the highest degree of professionalism;
WHEREAS, it is the obligation of every New York State officer and employee to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust;
WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies are subject to certain ethical statutes and rules, including but not limited to the New York State Code of Ethics, statutory restrictions on business and professional activities and opinions issued by the New York State Commission on Public Integrity;
WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies play an important role in ensuring ethics compliance by all State officers and employees;
WHEREAS, New York State has a responsibility to ensure that its officers and employees are versed in the ethical statutes and rules that apply to them; and
WHEREAS, it is appropriate to take steps to ensure that employees and officers maintain the highest ethical and professional standards;
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the laws of the State of New York, do hereby order as follows:
A. Definitions
1. “Agency” shall mean any state agency, department, office, board, bureau, division, committee, council or office.
2. “Covered Employees” shall mean all officers and employees working in the Executive Chamber in the office of the Governor, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies.
3. “Officers and employees” shall have the meaning given to “state officer or employee” in Section 73 of the Public Officers Law.
B. Ethics Training
1. Every Covered Employee shall participate in an ethics training within sixty days of when such training is prepared and available. The ethics training program will be prepared and available no later than January 31, 2011.
2. New Covered Employees shall participate in such ethics training within sixty days of the later of commencing their employment or when such training is prepared and available.
3. Such training shall include a discussion of the provisions of Sections 73, 73-A, 74 and 78 of the Public Officers Law and Sections 75-b and 107 of the Civil Service Law.
4. Every Covered Employee shall participate in an ethics training every two years following his or her initial training session pursuant to this order.
5. Covered Employees shall submit a signed statement certifying their participation in each training session pursuant to this order, which statements shall be placed in their personnel files.
6. The Executive Chamber shall coordinate with the ethics officers of state agencies, and with the Commission on Public Integrity, to establish regular training sessions sufficient to allow affected individuals to comply with this order.
C. Penalties
Any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing officer of the individual committing such violation.
Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled
Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled
Matter of Neeley v Town of Colonie, 2010 NY Slip Op 09606, Appellate Division, Third Department
William Neeley was appointed to the position of Public Works Operation Supervisor in 1998, while Thomas Romano was appointed to the position of Highway Maintenance Supervisor in 2005.
Both Neeley and Romano worked for the Town of Colonie Department of Public Works and both were suspended from their respective positions in July 2008 pending the resolution of certain disciplinary charges that had been filed against them.
Found guilty of misconduct, the penalty imposed on both Neeley and Romano was demotion in title and grade.
Neeley and Romano appealed to the Town's personnel officer and ultimately their respective demotions were rescinded and a new penalty - suspension without pay for 30 days - was imposed on each.
Although Neeley and Romano were reinstated to their titles, grades and salaries, they appealed contending that certain of their former duties had been curtailed and, therefore, they had been subject to a de facto demotion.
Supreme Court dismissed their Article 78 petition as moot and the Appellate Division affirmed the lower court’s action.
The Appellate Division said that as it was “undisputed” that both Neeley and Romano had been restored to their original titles, grades and salaries in compliance with the decision issued by the Town's personnel officer, they had received “all the relief to which they were entitled.”
Accordingly, said the court, Supreme Court’s dismissal of their petition as moot was correct.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09606.htm
Matter of Neeley v Town of Colonie, 2010 NY Slip Op 09606, Appellate Division, Third Department
William Neeley was appointed to the position of Public Works Operation Supervisor in 1998, while Thomas Romano was appointed to the position of Highway Maintenance Supervisor in 2005.
Both Neeley and Romano worked for the Town of Colonie Department of Public Works and both were suspended from their respective positions in July 2008 pending the resolution of certain disciplinary charges that had been filed against them.
Found guilty of misconduct, the penalty imposed on both Neeley and Romano was demotion in title and grade.
Neeley and Romano appealed to the Town's personnel officer and ultimately their respective demotions were rescinded and a new penalty - suspension without pay for 30 days - was imposed on each.
Although Neeley and Romano were reinstated to their titles, grades and salaries, they appealed contending that certain of their former duties had been curtailed and, therefore, they had been subject to a de facto demotion.
Supreme Court dismissed their Article 78 petition as moot and the Appellate Division affirmed the lower court’s action.
The Appellate Division said that as it was “undisputed” that both Neeley and Romano had been restored to their original titles, grades and salaries in compliance with the decision issued by the Town's personnel officer, they had received “all the relief to which they were entitled.”
Accordingly, said the court, Supreme Court’s dismissal of their petition as moot was correct.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09606.htm
A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years
A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years
Matter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third Department
It is “black letter law” that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.
Chand Sultana, a per diem substitute teacher employed by the New York City Department of Education, worked a total of 138 days during the school year. At the end of the school year Sultana received a letter from the Department “assuring her of continued employment” during the upcoming school year. The letter indicated the amount of work available and that the economic terms and conditions of employment were to be substantially the same as in the school year then ending.
Sultana applied for unemployment insurance benefits for the intervening summer but Unemployment Insurance Appeal Board determined that she was ineligible to receive them because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).
The Appellate Division rejected Sultana’s appeal challenging the Board’s determination.
The court explained that the record indicated that a Department of Education representative testified that Sultana would have as many opportunities to work during the succeeding school year as she had the prior year inasmuch as more schools were to be opened, resulting in greater demand for substitute teachers and there had been no reduction in the budget. Such testimony, together with the letter sent to Sultana by the Department, constituted substantial evidence supporting the Unemployment Insurance Board's determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09598.htm
Matter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third Department
It is “black letter law” that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.
Chand Sultana, a per diem substitute teacher employed by the New York City Department of Education, worked a total of 138 days during the school year. At the end of the school year Sultana received a letter from the Department “assuring her of continued employment” during the upcoming school year. The letter indicated the amount of work available and that the economic terms and conditions of employment were to be substantially the same as in the school year then ending.
Sultana applied for unemployment insurance benefits for the intervening summer but Unemployment Insurance Appeal Board determined that she was ineligible to receive them because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).
The Appellate Division rejected Sultana’s appeal challenging the Board’s determination.
The court explained that the record indicated that a Department of Education representative testified that Sultana would have as many opportunities to work during the succeeding school year as she had the prior year inasmuch as more schools were to be opened, resulting in greater demand for substitute teachers and there had been no reduction in the budget. Such testimony, together with the letter sent to Sultana by the Department, constituted substantial evidence supporting the Unemployment Insurance Board's determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09598.htm
Health insurance for retirees
Health insurance for retirees
Erie County Retirees Assn. v County of Erie [PA], 220 F.3d 193 (3d Cir. 2000), Certiorari denied, 121 S.Ct. 1247
Many public employers provide health insurance to retired public employees. Some employers may have elected to provide a different type or level of health insurance coverage to retirees eligible for Medicare than it provides to retirees not eligible for Medicare. This, as the Erie County case demonstrates, could prove dangerous.
According to the ruling in Erie County Retirees, a public employer may be sued for alleged age discrimination within the meaning of the Age Discrimination in Employment Act if it modifies its health insurance plan to provide retirees who are 65 or older (and therefore eligible for Medicare) with less generous benefits than its retirees under age 65.*
The decision indicates that initially Erie classified employees and retirees into three main health insurance coverage groups:
1. Current employees;
2. Medicare-eligible retirees; and
3. Retirees not eligible for Medicare. Each group had separate but similar traditional indemnity health insurance coverage.
When the county subsequently initiated changes in carriers in response to increases in health insurance costs, the retirees age 65 or older were enrolled in a health insurance plan called the SecurityBlue Plan.
Claiming that SecurityBlue provided inferior coverage compared to other plans and to the traditional indemnity coverage previously available to age 65+ retirees, the Association sued. Its basic argument: the county’s action violated the ADEA by placing retired employee into SecurityBlue on the basis of their having attained age 65.
The County, on the other hand, argued that it based its decision to place Medicare-eligible retirees in SecurityBlue not because of their age but for three age-neutral factors: (1) active versus inactive employment status, (2) cost, and (3) availability of plans. Its theory: ADEA allows an employer to take any action otherwise prohibited ... where the differentiation is based on reasonable factors other than age.
The relevant provisions of the ADEA make it unlawful for an employer to:
1. Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s age; [or]
2. Limit, segregate, or classify his employees in any way, which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s age.
The district court dismissed the Association’s petition, holding that while eligibility for Medicare is an age-based factor ... the ADEA clearly was not intended to apply to retirees....
The Circuit Court, however, disagreed and said the issue should go to trial to determine if the County violated the ADEA by treating age 65+ retirees less favorably than retirees under age 65 with respect to health insurance.
As to the applicability of ADEA to retirees, the Circuit Court observed that the ordinary meaning of the term employee benefit should be understood to encompass health coverage and other benefits, which a retired person receives from his or her former employer.
The court said that:
It is clear that the ADEA covers discrimination in a post-employment benefit where the facially discriminatory policy is instituted while an individual is still an active employee, even if the event occurred one day prior to his or her retirement. Thus, it was inconceivable to the Third Circuit that Congress intended to allow an individual to challenge the employer’s action that occurred while still an employee but bar such action if the policy were adopted two days later, one day after the date of retirement....
The court decided that Congress did not intended to expressly prohibit discrimination in employee benefits for active workers, yet allow employers to discriminatorily deny or limit post-employment benefits to former employees at or after their retirement, although they had earned those employee benefits through years of service with the employer.
Agreeing with the position taken by EEOC, the Third Circuit ruled that the ADEA applies even if the retirees’ benefits are structured discriminatorily after retirement. The court said that the age 65+ retirees are individuals who have been treated differently by their employer with respect to [their] compensation, terms, conditions, or privileges of employment.
The court said that the fact that the county’s action was the result neither of some malevolent motive nor due to some hostile age-based stereotypes was irrelevant.
Also of some significance is the Court’s rejection of the County’s argument that “... the underwriting criteria adopted by another of its carriers, Highmark Blue Cross/Blue Shield, disqualified Medicare-eligible retirees from enrollment ....” Why? Because, said the court, the Supreme Court has indicated that an employer cannot avoid responsibility for a facially discriminatory benefit plan simply because the discrimination arises from the criteria imposed by outside entities with whom the employer has contracted to participate in providing the benefit.
The court’s conclusion: the County has treated age 65+ retirees differently than other retirees with respect to their compensation, terms, conditions, or privileges of employment, because of ... age. Accordingly, such retirees were found to have established a claim of age discrimination under the ADEA, 29 USC 623(a)(1).
Presumably, the Association will prevail unless the county can prove that one of the ADEA’s safe harbors is found applicable -- i.e., there were some qualified, non-discriminatory reasons for its action.
What would satisfy this standard? The Circuit Court said that that the safe harbor provided [by the ADEA] is applicable if the County can meet the equal benefit or equal cost standard.
* The Association withdrew its claim alleging differences in benefits for retirees and active County employees violated the ADEA and proceeded only on its ADEA claim that the differences in benefits between the age 65 and older retirees and retirees under age 65 violate the ADEA.
Erie County Retirees Assn. v County of Erie [PA], 220 F.3d 193 (3d Cir. 2000), Certiorari denied, 121 S.Ct. 1247
Many public employers provide health insurance to retired public employees. Some employers may have elected to provide a different type or level of health insurance coverage to retirees eligible for Medicare than it provides to retirees not eligible for Medicare. This, as the Erie County case demonstrates, could prove dangerous.
According to the ruling in Erie County Retirees, a public employer may be sued for alleged age discrimination within the meaning of the Age Discrimination in Employment Act if it modifies its health insurance plan to provide retirees who are 65 or older (and therefore eligible for Medicare) with less generous benefits than its retirees under age 65.*
The decision indicates that initially Erie classified employees and retirees into three main health insurance coverage groups:
1. Current employees;
2. Medicare-eligible retirees; and
3. Retirees not eligible for Medicare. Each group had separate but similar traditional indemnity health insurance coverage.
When the county subsequently initiated changes in carriers in response to increases in health insurance costs, the retirees age 65 or older were enrolled in a health insurance plan called the SecurityBlue Plan.
Claiming that SecurityBlue provided inferior coverage compared to other plans and to the traditional indemnity coverage previously available to age 65+ retirees, the Association sued. Its basic argument: the county’s action violated the ADEA by placing retired employee into SecurityBlue on the basis of their having attained age 65.
The County, on the other hand, argued that it based its decision to place Medicare-eligible retirees in SecurityBlue not because of their age but for three age-neutral factors: (1) active versus inactive employment status, (2) cost, and (3) availability of plans. Its theory: ADEA allows an employer to take any action otherwise prohibited ... where the differentiation is based on reasonable factors other than age.
The relevant provisions of the ADEA make it unlawful for an employer to:
1. Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s age; [or]
2. Limit, segregate, or classify his employees in any way, which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s age.
The district court dismissed the Association’s petition, holding that while eligibility for Medicare is an age-based factor ... the ADEA clearly was not intended to apply to retirees....
The Circuit Court, however, disagreed and said the issue should go to trial to determine if the County violated the ADEA by treating age 65+ retirees less favorably than retirees under age 65 with respect to health insurance.
As to the applicability of ADEA to retirees, the Circuit Court observed that the ordinary meaning of the term employee benefit should be understood to encompass health coverage and other benefits, which a retired person receives from his or her former employer.
The court said that:
It is clear that the ADEA covers discrimination in a post-employment benefit where the facially discriminatory policy is instituted while an individual is still an active employee, even if the event occurred one day prior to his or her retirement. Thus, it was inconceivable to the Third Circuit that Congress intended to allow an individual to challenge the employer’s action that occurred while still an employee but bar such action if the policy were adopted two days later, one day after the date of retirement....
The court decided that Congress did not intended to expressly prohibit discrimination in employee benefits for active workers, yet allow employers to discriminatorily deny or limit post-employment benefits to former employees at or after their retirement, although they had earned those employee benefits through years of service with the employer.
Agreeing with the position taken by EEOC, the Third Circuit ruled that the ADEA applies even if the retirees’ benefits are structured discriminatorily after retirement. The court said that the age 65+ retirees are individuals who have been treated differently by their employer with respect to [their] compensation, terms, conditions, or privileges of employment.
The court said that the fact that the county’s action was the result neither of some malevolent motive nor due to some hostile age-based stereotypes was irrelevant.
Also of some significance is the Court’s rejection of the County’s argument that “... the underwriting criteria adopted by another of its carriers, Highmark Blue Cross/Blue Shield, disqualified Medicare-eligible retirees from enrollment ....” Why? Because, said the court, the Supreme Court has indicated that an employer cannot avoid responsibility for a facially discriminatory benefit plan simply because the discrimination arises from the criteria imposed by outside entities with whom the employer has contracted to participate in providing the benefit.
The court’s conclusion: the County has treated age 65+ retirees differently than other retirees with respect to their compensation, terms, conditions, or privileges of employment, because of ... age. Accordingly, such retirees were found to have established a claim of age discrimination under the ADEA, 29 USC 623(a)(1).
Presumably, the Association will prevail unless the county can prove that one of the ADEA’s safe harbors is found applicable -- i.e., there were some qualified, non-discriminatory reasons for its action.
What would satisfy this standard? The Circuit Court said that that the safe harbor provided [by the ADEA] is applicable if the County can meet the equal benefit or equal cost standard.
* The Association withdrew its claim alleging differences in benefits for retirees and active County employees violated the ADEA and proceeded only on its ADEA claim that the differences in benefits between the age 65 and older retirees and retirees under age 65 violate the ADEA.
Judicial review of a disciplinary action
Judicial review of a disciplinary action
Horgan v Safir, 273 AD2d 135; Motion for leave to appeal denied, 95 NY2d 765
A court’s review of an administrative decision following a hearing is significantly more limited than would be the case when a higher court considers an appeal from a trial court’s ruling. This limitation proved critical in the Appellate Division, First Department’s consideration of the Horgan case.
New York City police officer John Horgan was found guilty of using discourteous and disrespectful remarks concerning race following an administrative disciplinary hearing. The penalty imposed: forfeiture of 20 days of vacation. Horgan appealed the Police Commissioner’s determination.
The Appellate Division dismissed Horgan’s appeal. The court, however, specifically commented that it had to dismiss the appeal despite the fact that if the Commissioner’s determination was reviewed under the standards applicable to a trial court decision, it would have been disposed to annul it as against the weight of the credible evidence.
The Appellate Division said that courts have very limited review powers over administrative agency determinations. Accordingly, it said that it was constrained to confirm [the Commissioner’s] findings in the disciplinary hearing, citing Berenhaus v Ward, 70 NY2d 436.
Horgan v Safir, 273 AD2d 135; Motion for leave to appeal denied, 95 NY2d 765
A court’s review of an administrative decision following a hearing is significantly more limited than would be the case when a higher court considers an appeal from a trial court’s ruling. This limitation proved critical in the Appellate Division, First Department’s consideration of the Horgan case.
New York City police officer John Horgan was found guilty of using discourteous and disrespectful remarks concerning race following an administrative disciplinary hearing. The penalty imposed: forfeiture of 20 days of vacation. Horgan appealed the Police Commissioner’s determination.
The Appellate Division dismissed Horgan’s appeal. The court, however, specifically commented that it had to dismiss the appeal despite the fact that if the Commissioner’s determination was reviewed under the standards applicable to a trial court decision, it would have been disposed to annul it as against the weight of the credible evidence.
The Appellate Division said that courts have very limited review powers over administrative agency determinations. Accordingly, it said that it was constrained to confirm [the Commissioner’s] findings in the disciplinary hearing, citing Berenhaus v Ward, 70 NY2d 436.
January 03, 2011
Leading by example, Governor Andrew M. Cuomo will return five percent of his statutory compensation of $179,000 to the State
Leading by example, Governor Andrew M. Cuomo will return five percent of his statutory compensation of $179,000 to the State
Source: Office of the Governor
Governor Andrew M. Cuomo today announced that he will reduce his salary by five percent. The salary for the Governor, $179,000, is set by state law and has not changed since 1999. The Governor said that he will return to the State the amount his salary reduction.
In addition, Lt. Governor Robert J. Duffy and newly hired senior members of the Cuomo Administration who are filling existing positions in the Executive Chamber are also taking salary reductions and have agreed to take a pay cut of 5 percent from their predecessors' salaries. This includes the Governor's Secretary, Counsel, Director of State Operations, Counselor and the Chief of Staff.
Governor Cuomo also directed that the budget for the Executive Chamber be reduced by five percent.
"Change starts at the top and we will lead by example," Governor Cuomo said. "Families and business owners in every corner of the state have learned to do more with less in order to live within their means and government must do the same."
The Secretary to the Governor has initiated a review of all Executive Chamber expenses to determine where the reductions will be made.
Source: Office of the Governor
Governor Andrew M. Cuomo today announced that he will reduce his salary by five percent. The salary for the Governor, $179,000, is set by state law and has not changed since 1999. The Governor said that he will return to the State the amount his salary reduction.
In addition, Lt. Governor Robert J. Duffy and newly hired senior members of the Cuomo Administration who are filling existing positions in the Executive Chamber are also taking salary reductions and have agreed to take a pay cut of 5 percent from their predecessors' salaries. This includes the Governor's Secretary, Counsel, Director of State Operations, Counselor and the Chief of Staff.
Governor Cuomo also directed that the budget for the Executive Chamber be reduced by five percent.
"Change starts at the top and we will lead by example," Governor Cuomo said. "Families and business owners in every corner of the state have learned to do more with less in order to live within their means and government must do the same."
The Secretary to the Governor has initiated a review of all Executive Chamber expenses to determine where the reductions will be made.
Political tests for appointment to the public service in New York State
Political tests for appointment to the public service in New York State
NYPPL trivia – January 2011
Subdivision 1 of §107 of the Civil Service Law essentially prohibits “Recommendations based on political affiliations.” Subdivision 1, in pertinent part, provides that “No recommendation or question under the authority of [the Civil Service Law] shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of [the Civil Service Law] or the rules established thereunder, shall be in any manner affected or influenced by such opinions or affiliations.
Subdivision 2 of §107 prohibits “Inquiry concerning political affiliations.” Subdivision 2, in pertinent part, provides that “No person shall directly or indirectly ask, indicate or transmit orally or in writing the political affiliations of any employee in the civil service of the state or of any civil division thereof or of any person dependent upon or related to such an employee, as a test of fitness for holding office.”
However, in some instances an individual’s political affiliation determines his or her eligibility for appointment to a position in public service in New York State as a matter of law. Name one such position.
E-mail your answer to NYPPL at publications@nycap.rr.com with the word “Trivia - 2011” in the subject line on or before January 31, 2011. Only the first entry submitted by an individual will be considered. The correctness of the answer submitted by an individual shall be determined by solely by NYPPL.
The individual submitting the "first correct entry" will receive a free copy of the 2011 edition of The Discipline Book, [regular price $195] upon its publication later this year. In the event more than one correct entry is received, the “first correct entry” will be determined by NYPPL’s making a selection at random from among the “correct e-mails” received on or before January 31, 2011.
Your submission of an entry constitutes your agreement to above terms and conditions.
.
NYPPL trivia – January 2011
Subdivision 1 of §107 of the Civil Service Law essentially prohibits “Recommendations based on political affiliations.” Subdivision 1, in pertinent part, provides that “No recommendation or question under the authority of [the Civil Service Law] shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of [the Civil Service Law] or the rules established thereunder, shall be in any manner affected or influenced by such opinions or affiliations.
Subdivision 2 of §107 prohibits “Inquiry concerning political affiliations.” Subdivision 2, in pertinent part, provides that “No person shall directly or indirectly ask, indicate or transmit orally or in writing the political affiliations of any employee in the civil service of the state or of any civil division thereof or of any person dependent upon or related to such an employee, as a test of fitness for holding office.”
However, in some instances an individual’s political affiliation determines his or her eligibility for appointment to a position in public service in New York State as a matter of law. Name one such position.
E-mail your answer to NYPPL at publications@nycap.rr.com with the word “Trivia - 2011” in the subject line on or before January 31, 2011. Only the first entry submitted by an individual will be considered. The correctness of the answer submitted by an individual shall be determined by solely by NYPPL.
The individual submitting the "first correct entry" will receive a free copy of the 2011 edition of The Discipline Book, [regular price $195] upon its publication later this year. In the event more than one correct entry is received, the “first correct entry” will be determined by NYPPL’s making a selection at random from among the “correct e-mails” received on or before January 31, 2011.
Your submission of an entry constitutes your agreement to above terms and conditions.
.
Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect
Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect
Appeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,184
Greg Johnston alleged that Assistant to the Superintendent William Shine threatened physical violence against him during a meeting of the School Board and asked School Superintendent Charles Cardillo to take disciplinary action against Shine. When Cardillo advised Johnston that no disciplinary action would be taken against Shine, Johnston appealed to the Commissioner.*
The Commissioner dismissed Johnston’s appeal for a number of technical reasons, including Johnston's failure "to join necessary parties” – i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.
Here, said the Commissioner, both Cardillo and Shine would clearly be affected if should the relief sought by Johnston be granted. However, there was nothing in the record to indicate that either Cardillo or Shine had been served with a copy of the notice of petition and petition filed by Johnston.
Further, said the Commissioner, Cardillo was not named in the caption of the petition or in the notice of petition. Accordingly, the Commissioner ruled that Johnston’s claims against both Cardillo and Shine must be dismissed.
Similarly, Johnston’s petition seeking Shine’s removal was also dismissed because the notice of Johnston's petition was defective.
Clearly any one of these omissions standing alone would consitute a fatal defect if it could not be timely cured.
In any event, the Commissioner said that even had Johnston been properly filed and served on the necessary parties, it would have been dismissed as it “fails to state a claim upon which relief may be granted.”
Although Johnston cited Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine, the Commissioner pointed out that “such reliance is misplaced,” as that provision pertains only to official acts of a district superintendent of schools rather than a superintendent of a school district [emphasis supplied].
Further, Education Law §306 authorizes the Commissioner to remove a trustee, a member of a board of education, a clerk, a collector, a treasurer, a district superintendent, a superintendent of schools or other school officers. An assistant to the superintendent is a district employee and not a school officer subject to removal by the Commissioner pursuant to §306 of the Education Law.
As to Johnston’s asking the Commissioner to initiate disciplinary action against Shine, the Commissioner lacks authority to do so as it is the board of education, rather than the Commissioner of Education, in which the authority to take disciplinary action against a school district employee is vested.
* The decision to discipline an employee of a school district is a matter involving the exercise of discretion by the appointing authority. Two decisions by the Commissioner of Education, Gaul, Decisions of the Commissioner #14432 and Matter of Middleton, Decisions of the Commissioner #14431, address challenges to the exercise of discretion with respect to filing disciplinary charges against an employee of a school district or BOCES.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16184.htm
.
Appeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,184
Greg Johnston alleged that Assistant to the Superintendent William Shine threatened physical violence against him during a meeting of the School Board and asked School Superintendent Charles Cardillo to take disciplinary action against Shine. When Cardillo advised Johnston that no disciplinary action would be taken against Shine, Johnston appealed to the Commissioner.*
The Commissioner dismissed Johnston’s appeal for a number of technical reasons, including Johnston's failure "to join necessary parties” – i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.
Here, said the Commissioner, both Cardillo and Shine would clearly be affected if should the relief sought by Johnston be granted. However, there was nothing in the record to indicate that either Cardillo or Shine had been served with a copy of the notice of petition and petition filed by Johnston.
Further, said the Commissioner, Cardillo was not named in the caption of the petition or in the notice of petition. Accordingly, the Commissioner ruled that Johnston’s claims against both Cardillo and Shine must be dismissed.
Similarly, Johnston’s petition seeking Shine’s removal was also dismissed because the notice of Johnston's petition was defective.
Clearly any one of these omissions standing alone would consitute a fatal defect if it could not be timely cured.
In any event, the Commissioner said that even had Johnston been properly filed and served on the necessary parties, it would have been dismissed as it “fails to state a claim upon which relief may be granted.”
Although Johnston cited Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine, the Commissioner pointed out that “such reliance is misplaced,” as that provision pertains only to official acts of a district superintendent of schools rather than a superintendent of a school district [emphasis supplied].
Further, Education Law §306 authorizes the Commissioner to remove a trustee, a member of a board of education, a clerk, a collector, a treasurer, a district superintendent, a superintendent of schools or other school officers. An assistant to the superintendent is a district employee and not a school officer subject to removal by the Commissioner pursuant to §306 of the Education Law.
As to Johnston’s asking the Commissioner to initiate disciplinary action against Shine, the Commissioner lacks authority to do so as it is the board of education, rather than the Commissioner of Education, in which the authority to take disciplinary action against a school district employee is vested.
* The decision to discipline an employee of a school district is a matter involving the exercise of discretion by the appointing authority. Two decisions by the Commissioner of Education, Gaul, Decisions of the Commissioner #14432 and Matter of Middleton, Decisions of the Commissioner #14431, address challenges to the exercise of discretion with respect to filing disciplinary charges against an employee of a school district or BOCES.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16184.htm
.
State government policy makers not covered by Age Discrimination in Employment Act [ADEA]
State government policy makers not covered by Age Discrimination in Employment Act [ADEA]
Source: Findlaw.Com Weekly Labor & Employment Law Newsletter, December 27-31, 2010
Opp v. Office of the State's Attorney of Cook County, No. 09-3714 - United States Seventh Circuit, 12/29/2010
”In former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA), district court's grant of defendants' motions to dismiss in ruling that the plaintiffs were excluded from the ADEA's coverage because they held policymaking positions as a matter of law, is affirmed where:
1) district court's determination as a matter of law of the policymaking status of the plaintiffs' positions was proper because the plaintiffs' positions as assistant state's attorneys gave them inherent policymaking authority, and the plaintiffs' roles as assistant state attorneys were clearly defined by statute; and
2) plaintiffs' argument that they were not appointed by the state's attorney and thus cannot be considered "appointees" on the policymaking level is without merit."
Click here to Read more...”
Source: Findlaw.Com Weekly Labor & Employment Law Newsletter, December 27-31, 2010
Opp v. Office of the State's Attorney of Cook County, No. 09-3714 - United States Seventh Circuit, 12/29/2010
”In former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA), district court's grant of defendants' motions to dismiss in ruling that the plaintiffs were excluded from the ADEA's coverage because they held policymaking positions as a matter of law, is affirmed where:
1) district court's determination as a matter of law of the policymaking status of the plaintiffs' positions was proper because the plaintiffs' positions as assistant state's attorneys gave them inherent policymaking authority, and the plaintiffs' roles as assistant state attorneys were clearly defined by statute; and
2) plaintiffs' argument that they were not appointed by the state's attorney and thus cannot be considered "appointees" on the policymaking level is without merit."
Click here to Read more...”
Evaluating the credibility of a witness in a disciplinary action
Evaluating the credibility of a witness in a disciplinary action
Jackson v McMahon, 275 AD2d 546
The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning.
The troopers had stopped the two patrol cars in which they were riding to set up radar surveillance during the early morning and were found asleep during a random check by their supervisor. The Disciplinary Board found them guilty of charges of misconduct and neglect of duty and recommended penalties ranging from suspension without pay for ten days and censure to suspension for twenty days and censure for this misconduct. The Superintendent adopted the Board’s findings and recommendations.
The troopers appealed their being found guilty of the charges and the penalties imposed, alleging that Disciplinary Board’s determinations were not supported by substantial evidence.
The Appellate Division rejected their claims, holding that its review of the record indicated that the supervisor gave detailed testimony concerning his observations of troopers that indicated that the four were asleep while performing his supervisory check.
True, said the court, the troopers denied that they were sleeping when approached by the supervisor. True, said the court, the troopers submitted testimony casting doubt on the accuracy of the supervisor’s observations. This, however, presented a question of credibility, which the Board was free to resolve against troopers and the court declined to substitute its judgment for that of the Board and the Superintendent.
The Appellate Division said that the test applied [i]n assessing whether an administrative decision is supported by substantial evidence is whether the finding is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached, citing Doolittle v McMahon, 245 AD2d 736. Under these standards, the court said that it could not say that the supervisor’s testimony did not support the findings of guilt and declined to disturb the Board’s determinations.
As to the penalties imposed, the court said that much deference is to be afforded to an agency’s determination regarding a sanction, especially in situations where, as here, matters of internal discipline in a law enforcement organization are concerned, quoting from Santos v Chesworth, 133 AD2d 1001. Considering the particular circumstances presented in this case, the court said that it did not find the penalties imposed upon troopers so disproportionate to the offense as to shock one’s sense of fairness.
Jackson v McMahon, 275 AD2d 546
The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning.
The troopers had stopped the two patrol cars in which they were riding to set up radar surveillance during the early morning and were found asleep during a random check by their supervisor. The Disciplinary Board found them guilty of charges of misconduct and neglect of duty and recommended penalties ranging from suspension without pay for ten days and censure to suspension for twenty days and censure for this misconduct. The Superintendent adopted the Board’s findings and recommendations.
The troopers appealed their being found guilty of the charges and the penalties imposed, alleging that Disciplinary Board’s determinations were not supported by substantial evidence.
The Appellate Division rejected their claims, holding that its review of the record indicated that the supervisor gave detailed testimony concerning his observations of troopers that indicated that the four were asleep while performing his supervisory check.
True, said the court, the troopers denied that they were sleeping when approached by the supervisor. True, said the court, the troopers submitted testimony casting doubt on the accuracy of the supervisor’s observations. This, however, presented a question of credibility, which the Board was free to resolve against troopers and the court declined to substitute its judgment for that of the Board and the Superintendent.
The Appellate Division said that the test applied [i]n assessing whether an administrative decision is supported by substantial evidence is whether the finding is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached, citing Doolittle v McMahon, 245 AD2d 736. Under these standards, the court said that it could not say that the supervisor’s testimony did not support the findings of guilt and declined to disturb the Board’s determinations.
As to the penalties imposed, the court said that much deference is to be afforded to an agency’s determination regarding a sanction, especially in situations where, as here, matters of internal discipline in a law enforcement organization are concerned, quoting from Santos v Chesworth, 133 AD2d 1001. Considering the particular circumstances presented in this case, the court said that it did not find the penalties imposed upon troopers so disproportionate to the offense as to shock one’s sense of fairness.
Decertification of a union sought by dissatisfied unit member
Decertification of a union sought by dissatisfied unit member
Matter of Seneca Fall Support Staff Association, 33 PERB 3028.
A number of unit members dissatisfied with the representation provided by the existing collective bargaining agent, CSEA, formed the Seneca Falls Support Staff Organization [SFSSO].
SFSSO ultimately filed a petition seeking (1) decertification of CSEA as the collective bargaining agent for the support staff and (2) certification as the collective bargaining agent for support staff then represented by CSEA.
Finding that the CFC was acting independently and not as a shell organization for another union seeking representation rights as CSEA contended, PERB affirmed the ruling by its administrative law judge that a representation election be scheduled.
Matter of Seneca Fall Support Staff Association, 33 PERB 3028.
A number of unit members dissatisfied with the representation provided by the existing collective bargaining agent, CSEA, formed the Seneca Falls Support Staff Organization [SFSSO].
SFSSO ultimately filed a petition seeking (1) decertification of CSEA as the collective bargaining agent for the support staff and (2) certification as the collective bargaining agent for support staff then represented by CSEA.
Finding that the CFC was acting independently and not as a shell organization for another union seeking representation rights as CSEA contended, PERB affirmed the ruling by its administrative law judge that a representation election be scheduled.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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