Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias

Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The 7th Circuit recently held that the lower court properly granted judgment as a matter of law on the age discrimination claim of a plant employee who was fired after several heated disputes with his coworkers.Runyon v Applied Extrusion Techs, Inc, ____F.3d____(7th Cir. August 30, 2010).

Although a younger coworker who was involved in an altercation with the employee was not fired, the Seventh agreed with the district court that there was no evidence the employer’s action was motivated by age.

Mitchell H. Rubinstein

Name clearing hearings

Name clearing hearings
Ortiz v Ward, 546 NY2d 624

The Appellate Division, 1st Department, was asked to consider the issue of the right of a probationer discharged after the employer determines that he or she has not satisfactorily completed his or her probationary period to either (1) a "pre-termination hearing" before being discharged or (2) a “name-clearing hearing" following his or her termination.

As to the right to a "pre-termination hearing," the Court said that a probationary employee could be discharged without a hearing so long as the termination was made in good faith. However, it appears that the employer may be called upon to demonstrate that the dismissal was made in good faith by providing some evidence to support its decision to terminate the probationer.

In this case the Appellate Division said that "the evidence in this record supports the conclusion that [Ortiz] was discharged for good reason and, accordingly, no hearing was necessary before terminating [Ortiz'] employment."

Although it is frequently said that a probationer may be terminated from his or her employment at any time after completing the minimum probationary period and before the end of the maximum period of probation without any reason being required to be given for the discharge, if the termination is challenged the employer will probably have to disclose the underlying reason or reasons for the firing. Further, these judgments by the employer will have satisfy the court with respect to their being reasonable and made in good faith.

If, on the other hand, the employer wishes to terminate the probationer before he or she has completed the minimum probationary period required for the position, it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration.

In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. Courts in the past have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA
Butler v NYS Dept. of Law, CA2, [Appeal from summary judgment in favor of the State, see Butler v. New York State Dep’t of Law, 998 F. Supp. 336]

Who is a policy maker? This was one of the issues before the court when former Assistant Attorney General Barbara B. Butler sued then Attorney General Dennis Vacco, contending that she had been unlawfully fired from her position as a Deputy Bureau Chief.

Was Butler was a policy maker and thus subject to dismissal for reasons of political patronage? The Court concluded that Butler was a policy maker.

In determining whether an individual is a policymaker in accordance with the Elrod [427 US at 367] and Branti [445 US 507] standards, the Second Circuit said it considers whether or not the employee:

(1) is exempt from civil service protection;

(2) has some technical competence or expertise;

(3) controls others;

(4) is authorized to speak in the name of policymakers;

(5) is perceived as a policymaker by the public;

(6) influences government programs;

(7) has contact with elected officials; and

(8) is responsive to partisan politics and political leaders.

The Circuit Court said that as Deputy Bureau Chief, Butler was not protected against a political patronage dismissal because her position fell within the policymaker exception to First Amendment protection.

Further, said the court, Butler was not protected under Title VII because her position came within the statutory exception for an appointee on the policymaking level.

Finally, Butler’s ADEA claim failed because the State’s Eleventh Amendment immunity prevented her from suing the State Department of Law for age discrimination under ADEA.

Make-up examination

Make-up examination
Alves v NYC Dept. of Citywide Administrative Services, Supreme Court, New York County, Justice Weissberg, [Not selected for publication in the Official Reports]

The New York City Department of Citywide Administrative Services [DCAS] held the written test for fire lieutenant on Saturday, September 27, 1997. 3,627 firefighters took the test. Those unable to take the test on the 27th could take a special test if the reason why they could not appear is on an enumerated list, which includes religious observances and military duties.

A special examination was taken by two firefighters who were Sabbath observers on Friday, September 26. On October 8, 1997, a make-up examination was administered to thirteen firefighters who were unable to appear on September 27. The questions on all three tests were the same, but the order in which they were presented was different.

On October 7, 1997, DCAS received an anonymous complaint alleging that a copy of the September 27 examination was seen in a Brooklyn firehouse on the evening of September 26 and that copies of the examination were, after September 27, seen in firehouses throughout the City. The October 8 make-up test was held as scheduled.

The City’s Department of Investigation (DOI) investigated the alleged breach in the integrity of the test. It found that that copies of the September 27 examination were widely available between September 27 and October 8; that many of the firefighters who took the October 8 examination admitted that they had seen a copy of the September 27 examination and discussed it with other firefighters before they took their test. DOI also reported that the test scores for the applicants who took the October 8 examination were higher than the scores for those who took the September 27 test. DOI concluded that the integrity of the October 8 make-up examination had been compromised and recommended that the results of that examination be nullified. DOI also concluded that there was no evidence that the integrity of the September 27 examination had been compromised.

Based on these DOI findings and conclusions, DCAS nullified the results of the October 8 examination. Four of the candidates who took the October 8 make-up test sued, contending that never saw a copy of the September 27 examination or discussed the questions on the examination prior to taking the October 8 make-up exam. They also contended that there was no specific finding that any individual petitioner cheated on the examination or otherwise engaged in fraud or deception.

The decision notes that one applicant, John Spillane, who was on military duty on September 27 was appointed as a provisional Fire Lieutenant on the basis of his test score as part of the settlement of a complaint he filed with the United States Department of Labor.

After properly nullifying the October 8 examination, DCAS decided that a second, separate make-up examination was impracticable because of the time and effort necessary to prepare and administer such a test and only 13 candidates were affected. It decided that the make-up for the October 8 examination would be the next scheduled general test for promotion to Lieutenant which, as petitioners point out, will likely not be conducted until at least the year 2001,

Justice Franklin R. Weissberg was not impressed by this and ruled that [i]n view of the fact that the respondents have conceded that the petitioners did not engage in any acts of misconduct, they should offer a viable and fair alternative thereto, such as they did for Mr. Spillane in agreeing to use his scores from the October 8 examination [to qualify him for provisional promotion] until ... the next scheduled examination....

Representation and indemnification of a public employee being sued

Representation and indemnification of a public employee being sued
Ganzman v Hess, App. Div., 273 A.D.2d 352

Defending a public employee who is being sued as a result of some act or omission in the performance of his or her official duties is an important benefit. When Joel Ganzman, the Deputy Public Administrator of the Office of the Public Administrator of Kings County [Office] was named as a defendant in a Federal discrimination suit, [Gryga v Ganzman, Docket No. 97 Civ 3929, USDC, EDNY], he asked Michael D. Hess, Corporation Counsel of the City of New York and the City of New York, to defend him and, if necessary, indemnify him if he was held liable for damages. Hess rejected Ganzman’s request on the ground that he was not a City employee.

Ganzman sued and won a court order by a State Supreme Court Justice requiring Hess, and the City of New York, to defend and indemnify him should the need arise.

Hess appealed. The Appellate Division affirmed the result, but for a different reason. It said that it is undisputed that the expenses of the Office are funded at least in part by the City. Accordingly, said the court, the Office is an agency of the City as defined by General Municipal Law Section 50-k(1)(a). Since Ganzman holds a position in the Office, he is an employee as defined by GML Section 50-k(1)( e). Conclusion: he is entitled to the defense available to any employee under GML Section 50-k(2).

Casual employment of BOCES board member by a school district

Casual employment of BOCES board member by a school district
Informal Opinions of the Attorney General 2007 - 2

According to an Informal Opinion by the Attorney General, Education Law §1950(9) bars a member of a board of a BOCES from being employed as a per diem substitute by a school district that is one of the component school districts served by the BOCES.

For the full text of the opinion, go to:

http://www.oag.state.ny.us/lawyers/opinions/2007/informal/2007-2.pdf

Determining eligibility for an accidental disability retirement allowance

Determining eligibility for an accidental disability retirement allowance
Matter of McCabe v Hevesi, 38 A.D.3d 1035
Matter of Wise v New York State Comptroller, 38 A.D.3d 1032
Matter of Stack v Board of Trustees of the N. Y. City Fire Dept., Art. I-B pension fund, 38 A.D.3d 562

The McCabe, Wise and Stack decisions consider the question of what constitutes an accident for the purpose of qualifying for accidental disability retirement benefits.

The courts have viewed the term “accident” for the purpose of qualifying for an accidental disability retirement allowance to mean a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” and “the precipitating event must emanate from a risk that is not an inherent element of the applicant's regular employment duties.”

1. In the McCabe case, the applicant, a police officer said that he had injured his back when he stumbled in a stairway while searching for a possible intruder. McCabe said that "I started to walk into the basement and caught [my] right foot on short step landing."* However, McCabe also testified that in the performance of his routine duties over the years, he had encountered thousands of stairways, many of which were substandard or defective. In this instance, the court said it found that substantial evidence in the record supports the retirement system’s determination that McCabe was injured by his own misstep, and did not suffer an accident within the meaning of the Retirement and Social Security Law.

2. Wise worked as a senior court officer and his regular job duties entailed, among other things, escorting criminal defendants in the courtroom and physically restraining unruly individuals. A prisoner suffered “unexpected seizure” while being escorted by Wise, who was injured as a result. The Appellate Division said that neither the “unexpected seizure” nor being injured while restraining a “combative defendant” constitute being injured as the result of an accident within the meaning of the Retirement and Social Security Law.

3. In Stack’s case, a somewhat different issue was addressed. Stack’s application for accidental disability retirement and his application of ordinary disability retirement were both rejected. Although the Appellate Division ruled that medical findings supported the determination of the Medical Board that Stack was not entitled to accidental disability retirement benefits, it found that the Board’s determination concerning Stack’s parallel application for ordinary disability retirement benefits was not supported by anything in the record. Accordingly, the court remanded the case to the Medical Board for it to reconsider its determination with respect to Stack’s application for ordinary disability retirement benefits.

For the full text of these decisions, go to:

McCabe v Hevesi
http://nypublicpersonnellawarchives.blogspot.com/2007/03/accidental-disability-retirement-what.html

Matter of Wise v New York State Comptroller
http://nypublicpersonnellawarchives.blogspot.com/2007/03/injury-involving-risk-that-is-inherent.html

Matter of Stack v Board of Trustees of the N. Y. City Fire Dept
http://nypublicpersonnellawarchives.blogspot.com/2007/03/applications-for-disability-retirement.html

* In his workers' compensation claim he reported that he "tripped [and] fell on [a] faulty interior stairway."

Decisions by the Public Employment Relations Board

Decisions by the Public Employment Relations Board
Summaries of rulings

Managerial positions: Incumbents of positions of Campus-wide Academic Deans at a community college are excluded from the faculty negotiating unit in view of their campus-wide responsibility for supervision and formulating policy notwithstanding the fact that other dean positions such as Dean of Students, Dean of Student Development and Dean of Retention Services are currently in the negotiating unit. [Matter of Administrators Association of Erie Community College, 33 PERB 3023]

Change in terms and conditions of employment: The fact that earlier executive orders did not specifically direct employees to report incidents involving criminal activity such as fraud and corruption under threat of disciplinary action for non-compliance now set out in newly promulgated executive orders does not constitute evidence of a change in the terms and conditions of employment subject to mandatory collective bargaining. [Public Employees Federation v State of New York, 33 PERB 3024]

Payroll deductions: Although a letter ruling by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers’ compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain. [Matter of Westchester County Correction Officers Benevolent Association, 33 PERB 3025]

Statute of limitation: The statute of limitations begins to run on the date of the injury, here the date when the union first learned of the change in the disciplinary procedure rather than the date on which discipline against an individual was implemented. [Matter of Local 100 TWU, 33 PERB 3026]

Attaining tenure by estoppel

Attaining tenure by estoppel
Lilley v Mills, App. Div., 274 A.D.2d 644

Robert Lilley was employed by the George Junior Republic Union Free School District to replace the district’s part-time per-diem school psychologist for the 1993-1994 academic year. As Lilley was paid on a per-diem basis, he did not receive any of the fringe benefits, such as health insurance, provided to full-time employees.

The record indicated that Lilley was not obligated to report to work on a daily basis nor was the district required to utilize his services on a daily basis or pay him for days he did not work.

In July 1994, Lilley was given a probationary appointment as a full-time school psychologist. He was terminated effective June 30, 1997. Lilley objected to his termination and appealed to the Commissioner of Education claiming that he had attained tenure by estoppel on the basis of his service as a per-diem substitute school psychologist during the 1993-1994 school year. Lilley later amended his claim, contending simply that he was employed full-time by the district commencing October 1993.

The Commissioner of Education dismissed Lilley’s appeal, holding that he had not attained tenure by estoppel. Lilley filed an Article 78 petition seeking to overturn the Commissioner’s determination.

The Appellate Division, Third Department, commenced its analysis by noting that:

Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher’s probationary term ...,” citing McManus v Hempstead Union Free School District, 87 NY2d 183.

The key to resolving Lilley’s problem: as he had to satisfactorily complete a three-year probationary period to attain tenure, he had the burden of proving that he had acquired tenure by estoppel by showing that he was entitled to probationary service credit for his services during academic 1993-1994.”

The court commented that the Commissioner had indicated that part-time service is generally insufficient to establish tenure by estoppel. After the Commissioner reviewed Lilley’s employment history for academic 1993-1994, he concluded that Lilley failed to meet his burden of proof that he had been employed full-time for this period.

The Appellate Division sustained the Commissioner’s determination, noting the following significant points:

1. The true nature of an individual’s employment status cannot be determined by the label given to it by the District and depends instead on the realities of the position and its accompanying duties.

2. The record showed that the change of Lilley’s status to full time in July 1994 involved more than merely changing the label of the position.

3. During academic 1993-1994 Lilley was paid only for days he actually worked and did not receive the fringe benefits provided to the District’s full-time employees.

4. Lilley was paid a salary and received the additional benefits provided to the district’s full-time professional staff commencing with academic 1994-95.

5. The superintendent stated that Lilley’s duties changed after July 1994 and provided examples such as his beginning to serve as Chair of the Committee on Special Education.

Thus, said the court, the record before the Commissioner contained sufficient evidence to provide a rational basis to support his rejection of Lilley’s appeal.

Citing Catlin v Sobol, 77 NY2d 552, the Appellate Division said that “[i]n such cases the Commissioner’s determination must be upheld unless it is arbitrary and capricious and without rational basis.”

Although Lilley attempted to support his claims by listing the duties contained in the district’s job description for the full-time school psychologist position and contended that he performed those duties during the 1993-1994 school year, he also conceded that his duties intensified after July 1994.

Considering the conclusory nature of Lilley’s answer to the district’s claims and Lilley’s “concession that his duties ‘intensified’, the absence of any independent evidence such as documents or affidavits of disinterested persons with knowledge of the facts to support [Lilley’s] self-serving allegations and the failure to include his claim concerning his 1993-1994 duties in his petition,” the Appellate Division held that there was nothing arbitrary, capricious or irrational in the Commissioner’s rejecting Lilley’s appeal.

Disciplinary action follows failure to report for medical exam

Disciplinary action follows failure to report for medical exam
Santiago v Koehler, 546 NYS2d 625

An appointment was schedule for an employee to be evaluated by the employer's Health Management Division. This apparently was one of a series of such appointments. Earlier appointments that had been scheduled for the employee but he failed to appear for the examination. When the Santiago failed to appear for this, the most recent scheduled appointment, he was served with disciplinary charges alleging misconduct based on his failure to report for the medical examination as scheduled.

Found guilty, Santiago was told that he had a choice as to the penalty to be imposed. He could elect either a five-day suspension without pay or, in the alternative, agree to pay a fine of 300 dollars. Santiago elected the five-day suspension without pay rather than the $300 fine. He then sued to vacate the disciplinary action, asking the court to rescind the penalty he had elected.

The Appellate Division, 1st Department, decided that the disciplinary determination was supported by substantial evidence. This evidence apparently included admissions by Santiago concerning the event. It then said that “the penalty of five days suspension, chosen by [Santiago] from the options adopted by the Commissioner, is not excessive in relation to the repeated infractions here involved.”

Enlarging the probationary period

Enlarging the probationary period
Caruso v Ward, 546 NYS2d 853

The New York City Police Department decided to change the initial probationary period for police officers from eighteen months to two years. The Union challenged the decision and asked the Courts to annul the change.

The Appellate Division sustained the Department’s changing the term of the probationary period for newly appointed police officers, citing a number of reasons for its ruling.

The Court said that the Union:

(1) had failed to show that it had a clear legal right to the relief it sought [reversion to the 18 month probationary period] and

(2) it did not present any evidence of bad faith, illegality or arbitrary action by the Department in extending the maximum period of probation for new appointees to the force.

The Appellate Division then said that “the decision to enlarge the probationary period was rationally related to the goal of more thorough evaluation of [a] new officers’ fitness for duty” and denied the union’s appeal.

Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections

Employee’s “informal” comment that he or she “may need FMLA leave” may not be sufficient to trigger FMLA protections
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Upon learning that his wife was pregnancy and due in early 2008, Chad Wilson told his supervisor that he might need to take leave to care for his newborn if his mother-in-law was unavailable. Wilson was subsequently terminated for dismissing his supervisor's concerns about Wilson’s failure to follow the chain of command regarding a pay issue.

Wilson sued alleging that his termination was in retaliation for exercising FMLA rights. He argued that he engaged in FMLA-protected activity by requesting leave to care for his child. The FMLA provides that an employee must "provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave" [29 CFR 825.302(c)].

The Fifth Circuit found that Wilson failed to provide adequate notice of the need for FMLA leave. Wilson, the Court observed, " never informed Noble that he intended to take leave, only that he "might" need to take leave and that there was a "possibility" that he would need to take leave." The Court held that these comments were insufficient to make his employer aware that he needed FMLA-qualifying leave.

The Court also found that Wilson failed to notify his employer of the "anticipated timing and duration" of any leave. Wilson conceded that he did not get into any specifics as to who, what, when, or where of the leave. Telling his supervisor that he "might" need to take leave "early in the year after the baby was here" failed to inform the employer of the anticipated timing and duration of the leave, the Court held.

The Court held that Wilson failed to establish that his removal was in retaliation for requesting FMLA leave.

Wilson v. Noble Drilling Service, Inc., 10-20129 (5th Cir. Dec. 23, 2010)

Mr. Bosland Comments: While employees need not invoke the FMLA by name when requesting leave, they must provide their employer with sufficient information to alert the employer that FMLA leave may be needed.

Telling an employer that you "might" or "possibly" may need FMLA leave, even for an FMLA-qualifying reason, is not sufficient. To be a valid request, courts also want more specificity in terms of the timing and duration of the leave. Employees do not invoke the protections of the FMLA by telling your employer that you may need leave at unknown time in the future.

To invoke the FMLA, employees need to provide more specifics, not less, when requesting leave.

Added to NYPPL’s sidebar of Lawblogs

Added to NYPPL’s sidebar of Lawblogs

New York City Employment Lawyer has been added to NYPPL's listing of "Links to Other Useful Web Pages".

Focusing on “Employment Law for Attorneys, Employees, and the General Public” and authored by Josh Bernstein, Esq., the Internet address of this LawBlog is: http://jbernsteinpc.com/blog/

Mr. Bernstein's recent posts include the following:

Employee Tip of the Week: Take Your Personal Property With You

Toyota Whistleblower Slammed With $2.6 Million Dollar Arbitration Verdict For Disclosing Confidential Documents

Employee Tip of the Week: Be Direct, and Be Clear

Employee Tip of the Week: Make a Record

The New York City Human Rights Law’s Canon of Liberal Construction

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position

Duties of the position assigned to employees in a different negotiating unit following the abolishment of the position
CSEA Orange County Local 836 v PERB, 273 A.D.2d 626

The Local 836 case concerns an employee organization’s right to negotiate the impact of a legislative body’s eliminating a certain position and the duties previously performed by incumbent of the abolished position are to be performed by an employee in another collective bargaining unit.

On December 31, 1994, the Newburgh City Council eliminated positions of animal control officer for budgetary reasons. These positions were in the negotiating unit represented by CSEA Orange County Local 836. The City reassigned the duties being performed by the former incumbents of the abolished positions to uniformed City police officers -- who were in a different collective bargaining unit.

Local 836 filed charges alleging that the City committed an improper employer practice when it assigned the duties previously performed by the animal control officers to non-unit police officers. Ultimately, PERB said that the transfer of the work from the animal control officers to police officers necessarily resulted in a significant change in qualifications and that the propriety of the transfer was therefore to be determined under the balancing test set out in its ruling in Matter of the Niagara Frontier Transportation Authority, 18 PERB 3083.

After applying the Niagara test, PERB held that when weighed against a mere loss of unit work, Newburgh’s managerial concerns clearly prevail and thus the transfer of duties was not a mandatory subject of collective bargaining. Accordingly, Newburgh was not required to negotiate its decision to transfer “unit work” and PERB dismissed the charge. The Appellate Division affirmed PERB’s determination.

The court said that because of the special employment qualifications required of, and possessed by, police officers and firefighters, the substitution of civilian employees for uniformed officers would of itself constitute a substantial change in job qualifications. It necessarily follows that the converse is true and that a substitution of police officers for civilian employees will also involve the requisite significant change.

The Appellate Division ruled that PERB rationally concluded that the transfer of job functions from civilian to uniformed employees effected a significant change in job qualifications without reference to the actual duties performed by the two classes of employees.

As to the balancing test applied by PERB, the court agreed with view expressed by PERB that because the animal control officer positions had been previously eliminated as the result of the City’s legislative action, the loss of those jobs was not a factor that entered into the test.

Accordingly, the loss of the jobs in the unit represented by Local 836 was not a consequence that flowed from the City’s reassignment of the non-emergency animal control duties to the police, it is the action that precipitated the assignment of unit work to non-unit employees.

The court’s conclusion: The loss of jobs under such circumstances cannot be a part of the balancing test to determine whether the City’ s action in transferring the unit work to nonunit employees violated the [Public Employees’ Fair Employment Act (Civil Service Law Article 14) because it did not occur as a result of the transfer of unit duties and thus the impact of this change was not a mandatory subject of collective bargaining.

What is the balancing test scenario used in situations involving the type unilateral transfer of unit work referred to in the Newburgh case?

First there must a determination as to whether the work been performed by unit employees exclusively and, second, a determination as to whether the reassigned tasks substantially similar to those previously performed by unit employees.

If the answer to both of these questions is yes, there has been a violation of Article 14 unless the qualifications for the job have been changed significantly.

If there is no such change in the qualifications for the position, the loss of unit work to the group is sufficient a detriment to support a finding of a violation.

If, however, there has been a significant change in the job qualifications and the change has not been mandated by the appropriate legislative body, then a balancing test is used and the respective interests of the public employer and the unit employees, both individually and collectively, must be weighed against each other.

Unemployment insurance and Section 75 disciplinary finding

Unemployment insurance and Section 75 disciplinary finding
Dimps v NYC Human Resources Administration, 274 A.D.2d 625

Dimps had been found guilty of 12 of 20 specifications of misconduct by an administrative law judge [ALJ] following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

The ALJ recommended that Dimps be dismissed and HRA adopted the hearing officer’s findings and recommendation regarding the penalty to be imposed. The New York City Civil Service Commission affirmed HRA’s Section 75 determination and the penalty imposed.

Dimps then applied for unemployment insurance benefits, which were denied on the ground that her employment was terminated due to her misconduct. A hearing was scheduled and an Unemployment Insurance Administrative Law Judge allowed Dimps to explain nine of the specifications on which she was found guilty.

HRA objected, contending that the doctrine of collateral estoppel should apply to the findings of fact made at the disciplinary hearing with respect to Dimps’ appeal of her disqualification for unemployment benefits.

Ultimately the ALJ agreed with HRA’s argument and did not consider Dimps’ explanation in making his determination. The ALJ ruled that Dimps was ineligible for unemployment insurance benefits because she had been terminated for misconduct.

The Unemployment Insurance Appeals Board ruled that Shirley Dimps was disqualified for unemployment insurance benefits because she had been terminated for misconduct. Dimps appealed the Board’s decision to the Appellate Division.

Was the application of the doctrine of collateral estoppel appropriate in Dimps’ case before the Unemployment Insurance Appeals Board? The Appellate Division, Third Department, ruled that it was and dismissed Dimps’ appeal.

In the words of the Appellate Division:

... inasmuch as claimant was given a full and fair opportunity to litigate the issue of misconduct at the disciplinary hearing, the ALJ at the unemployment insurance hearing properly accorded collateral estoppel effect to the ensuing factual findings.

The court noted that at the disciplinary hearing, Dimps was represented by counsel, testified on her own behalf, cross-examined the employer’s witnesses and had the opportunity to present and examine relevant evidence.

As an alternative, Dimps argued that the Unemployment Insurance Board’s determination was not supported by substantial evidence. The Appellate Division said that it found to the contrary and that there was substantial evidence supporting the Board’s determination that Dimps committed disqualifying misconduct, i.e., she continuously refused to abide by reasonable directives of her supervisor....

All necessary parties -- i.e. parties that could be affected by the decision -- must be named in an appeal to the Commissioner of Education

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.

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

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.

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.

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.”

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.

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

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

Employee terminated after being found guilty of excessive absence from work

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

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

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

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

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

The decision reports that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Discontinuing General Municipal Law Section 207-c disability benefits

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court said:

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

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

The same rationale would probably be applied in cases involving disputes arising under Section 207-a of the General Municipal Law. Section 207-c applies to law enforcement personnel injured in the line of duty while Section 207-a covers firefighters injured in the line of duty.
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Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Appendix 1 (Exempt Class)

Appendix 2 (Non-competitive Class)

Statutory Authority:

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

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

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

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

Public Comments:

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

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

Equal pay for equal work

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court denied Arkport’s motion.

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

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

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