Appointment and removal of Special Police Officers

Appointment and removal of Special Police Officers
O'Donnell v. Ferguson, App. Div., Fourth Dept., 273 AD2d 905; Motion for leave to appeal denied, 96 NY2d 701*

The O’Donnell case sets out some of the relevant law concerning the appointment and removal of special police officers by a town.

Since 1990, the Town of Evans had annually appointed John O’Donnell as a part-time police officer. When on duty for the Town, O’Donnell had the same powers and responsibilities as the full-time members of the Town’s Police Department. He also carried the same firearm, wore the same uniform as the full-time officers and was required to complete the same specialized training as the full -time officers.

Evans Chief of Police Robert R. Catalino posted a note on a bulletin board stating that effective November 17, 1998, O’Donnell would no longer work for the Town.** O’Donnell had no prior notice of this, nor was he informed of the reason why he would no longer work for the Town.

O’Donnell sued. A State Supreme Court issued an order directing the Town to reinstate O’Donnell as a part-time police officer and directed that he remain in that position unless suspended or dismissed pursuant to Section 155 of the Town Law.**** The court also ordered a hearing on damages.

The Town appealed, contending that because O’Donnell was a special police officer appointed pursuant to Section 158.1 of the Town Law, he served at the pleasure of the Town Board and therefore was not entitled to the protections of Section 155. The Appellate Division agreed and vacated the lower court’s order.

The Appellate Division said the Supreme Court erred in determining that the Town Board lacked authority to dismiss [O’Donnell] without first complying with Town Law Section 155. The court pointed out that contrary to O’Donnell’s claim that he was employed on a regular basis as a part-time police officer rather than as a special police officer, O’Donnell was not scheduled to work on a regular part-time basis but was called only from time to time to work on a temporary basis.

This decision suggests that the critical element in determining if an individual is a part-time police officer or a special police officer is whether or not the individual has a regular work schedule.

* In O'Donnell v. Ferguson, 23 A.D.3d 1005, a later decision involving the same parties but a different issue, the Appellate Division, 4th Department, commented that the “Defendants are incorrect to the extent that they contend that, as an "at-will" employee, plaintiff could be terminated for a constitutionally impermissible or statutorily proscribed purpose.”

** O’Donnell was a full-time employee of the New York State Department of Corrections and had worked a total of 27.5 days for the Town from January 1998 through October 1998.

*** Section 155 provides that a town police officer is entitled to a disciplinary hearing and if found guilty of charges of neglect or dereliction in the performance of official duty, or of violation of rules or regulations or disobedience, or of incompetency to perform official duty, or of an act of delinquency seriously affecting his general character or fitness for office, he or she may be punished by reprimand, loss of pay for up to 20 days, extra tours of duty not to exceed 20 days, suspension without pay for up to 20 days or dismissal.

**** Section 155 provides that a town board may employ temporary police officers from time to time ... and such officers shall serve at the pleasure of the Town Board. Such personnel are shall be known as `special policemen’ and shall have all the power and authority conferred upon constables by the general laws of the state....'

Applying for reinstatement following a §73 termination from a §72 disability leave

Applying for reinstatement following a §73 termination from a §72 disability leave
Matter of Coleman v State of New York, Appellate Division, Third Department, 38 AD3d 1044

Coleman was involved in an off-duty automobile accident and was placed on disability leave pursuant to §72 of the Civil Service Law. After she had been continuously absent for more than one year, the Department terminated her in accordance with the provisions of §73 of the Civil Service Law.*

§73 provides that an individual terminated after being absent on leave pursuant to §72 may apply for reinstatement to his or her former position within one year after the termination the disability underlying being placed on §72 leave by applying to the civil service department or municipal commission having jurisdiction over the position “for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”

When Coleman initially applied for reinstatement she was evaluated to determine is she was fit to perform the essential duties of a correction officer.

Ultimately, the New York State Department of Correctional Services disqualified Delores Coleman for employment as a correction officer based on the Department’s medical expert opinion that Coleman was not psychologically qualified for the position. Coleman appealed.

Although Coleman was initially approved for reinstatement, information subsequently provided by the Department resulted in a second evaluation that concluded that she was "poorly suited" for the position. According to the decision, Coleman’s responses to specific questions during a subsequent psychological interview raised significant concerns about her judgment and integrity and as a result, she was denied reinstatement to her former position of correction officer..

Coleman contended that: Corrections incorrectly utilized the standards required of a new correction officer outlined in Correction Law §8 in rejecting her request to be reinstated to her former position with the Department.

The Appellate Division rejected Coleman’s argument, noting that although prior to 2004, a correction officer seeking reinstatement was examined solely to determine whether the disability still existed, by January 2004, [the Department] changed the medical evaluation processing of correction officer reinstatements to mirror the processing of correction officer trainee candidates.**

Accordingly, said the court, Corrections had the statutory authority under Civil Service Law §73 to determine if Coleman was mentally fit to return to her position as a correction officer and its use of the psychological standards detailed in Correction Law §8 for that purpose was entirely proper, It then dismissed her appeal.

* Section 73 of the Civil Service Law provides for the removal of a tenured employee in the classified service if he or she has been continuously absent from work for one year or more because of a non-work related injury or illness. Termination pursuant to Section 73 is at the discretion of the appointing authority. [Termination following a cumulative period absence of one year or more due to a work-connected injury or illness is controlled by §71 of the Civil Service Law. Again, termination of an individual placed on a §71 leave of absence is at the discretion of the appointing authority.]

** Correction Law Section 8 (2) provides that all applicants for the position of correction officer must undergo a psychological evaluation to determine if they are "suffering from psychotic disorders, serious character disorders, or other disorders which could hinder performance on the job [and] may be deemed ineligible for appointment."

Unemployment Insurance Appeals Board determines if there is disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Unemployment Insurance Appeals Board determines if there is disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Matter of Green v Village of Hempstead, 2011 NY Slip Op 00137, Appellate Division, Third Department

The Village of Hempstead dismissed Deputy Village Attorney Donna M. Green from her position for alleged misconduct. When the Unemployment Insurance Appeals Board approved unemployment insurance benefits for Green, the Village appealed.

Hempstead argued that that the credible evidence established that Green was discharged for conducting her private legal practice on “Village time,” and that her discharge was not, as she claimed, merely politically motivated.

The Appellate Division said that whether an employee was terminated for misconduct is a factual question for the Unemployment Insurance Appeals Board to resolve. Thus, said the court, “its resolution of this issue will not be disturbed if supported by substantial evidence, citing Matter of Ponce, 75 AD3d 1041.

According to the decision, Hempstead said that it had given three memoranda to Green concerning her performance of her duties but Green had testified that she had received only one of these three documents prior to her termination -- and she refuted the claims stated within the documents.

Further, the court said that two witnesses supporting Green’s allegation that she and other members of the Village’s legal staff were discharged for political reasons following the election of a new mayor, and the employer did not offer evidence refuting this testimony.

As to the merits of Hempstead’s opposition to the Board’s determination, the Appellate Division, after reviewing the conflicting evidence, noted that Green's occasional receipt of private legal mail at her Village office, “standing alone, did not conclusively establish that she conducted her private practice on the employer's time.”

The Appellate Division found that “there was no other evidence of wrongdoing [on the part of Green]” and her tardiness on one occasion “does not necessarily constitute disqualifying misconduct … even if [Green’s] explanation was inaccurate. ” citing Matter of Massucci, 8 AD3d 737.

Thus, concluded the court, substantial evidence supports the Board's conclusion that [1] Green had not engaged in disqualifying misconduct and [2] she was entitled to unemployment insurance benefits.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00137.htm

Failure to meet contract deadlines does not void disciplinary action

Failure to meet contract deadlines does not void disciplinary action
Covino v Kane, 273 AD2d 380, Motion for leave to appeal denied, 96 NY2d 701

The significant issue raised in the Covino case concerns the impact of the employer’s failing to meet a contract-specified deadline in issuing a disciplinary determination.

A member of the Nassau County Police Department, Craig S. Covino, was found guilty of violating seven departmental rules and regulations and a disciplinary penalty was imposed.

Covino objected, complaining that the Police Commissioner, issued his decision late in violation of Section 6.3-1 of the collective bargaining agreement between the Police Department and the Covino’s union. This failure to make a timely determination as to Covino’s guilt and the penalty to be imposed as punishment, Covino argued, required that the disciplinary action be rescinded. Section 6.3-1 of the collective bargaining agreement provided that:

A determination as to guilt or innocence and punishment, if any, shall be made within sixty (60) days after the hearing is concluded unless an employee or the [Superior Officers Association] consents to a longer period.

According to the decision, Covino was served with charges and specifications and his disciplinary hearing was concluded in September 1998.

The hearing officer’s report, dated November 20, 1998, recommended that Covino be found guilty of all of the charges preferred against him. On January 4, 1999 the Commissioner concurred with the findings of the hearing officer as to Covino’s being guilty of the charges filed against him and imposed penalties based upon those findings and recommendations.

Should the Commissioner’s determination be overturned because he failed to meet the 60-day deadline for issuing a decision as required by the agreement?

No! said the Supreme Court, Nassau County, the Commissioner’s decision should not be vacated or rescinded and dismissed Covino’s petition. The court ruled that in the absence of specific language barring further action, an employer’s failure to act within the time frame contemplated in a collective bargaining agreement does not preclude further action by the employer.

The Appellate Division, Second Department, agreed.

In affirming the lower court’s ruling, the Appellate Division pointed out that in interpreting similar contractual provisions, the Second Department has repeatedly held that, in the absence of prejudice, the failure to timely render a determination pursuant to the terms of the parties’ contract does not warrant vacatur of the determination, citing Correctional Unit Employees v State of New York Department of Correctional Services, 236 AD2d 546.

The decision by the Appellate Division suggests that the Supreme Court decided, or assumed, that the 60-day period for the Commissioner to issue a timely decision in accordance with relevant contract provision started when the hearing was concluded in September 1999. If, on the other hand, the disciplinary hearing is not deemed concluded until the hearing officer issued his or her determination and recommendations, this 60-day period would begin to run not before the date the hearing officer issued his or her report -- November 20, 1998.

Another case contract time limits: City of Newburgh v DeGidio, 273 A.D.2d 468. In this Article 75 action to stay arbitration, the Appellate Division to the parties to proceed to arbitration to resolve the issue. Reversing the Supreme Court’s ruling to the contrary, the Appellate Division, citing County of Rockland v Primiano Construction Co., 51 NY2d 1, held:

Where the collective bargaining agreement does not contain an express provision making compliance with the time limitations set forth in the grievance procedure a condition precedent to binding arbitration, the issues related to compliance with the time limitations set forth in the grievance procedure are matters of procedural arbitrability for the arbitrator to decide.

In other words, the arbitrator is to decide whether if the demand for arbitration was valid under the terms of the agreement.
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Transfer to a different retirement plan

Transfer to a different retirement plan
Overton v Southampton, 273 AD2d 242; Motion for leave to appeal denied, 95 NY2d 764

In the Overton case, the Appellate Division, Second Department, ruled that if a member of the State Employees’ Retirement System transfers from one plan to a different plan, he or she is subject to the relevant provisions of law concerning the plan into which he or she has transferred.

The Town of Southampton adopted a resolution on November 23, 1999. This resolution terminated the employment of its Chief of Police, James P. Overton, effective January 7, 1999, Overton’s 55th birthday. The Town’s action was based on the retirement plan to which Overton had previously transferred -- the Section 384-d plan.

According to the decision, although Overton was initially enrolled in a 25-year retirement plan with a mandatory retirement age of 70, he later elected to transfer into an optional 20-year retirement plan when the optional plan became available to the Town’s police officers pursuant to Section 384-d of the Retirement and Social Security Law.

Although Section 384-d requires members to retire no later than age 62, in 1971 a new subdivision, subdivision (m), was added to Section 384-d. Subdivision m applied only to Southampton law enforcement personnel and required police officers in the Section 384-d plan to retire at age 55.

Subdivision (m) provides that [n]otwithstanding any inconsistent provision of law, if the town board of the town of Southampton elects to make the benefits of this section available to the members of its police department, each member of such department shall be separated from service upon completion of twenty years of service, provided, however, that the town board may permit a member to continue in service on an annual basis after the completion of twenty years of service, but in no event shall such annual service be continued after a member has attained age fifty-five.

Approaching age 55, Overton decided he wanted to withdraw from the Section 384-d 20-year plan and transfer back into the 25-year plan so that he could continue his employment with the Town after reaching age 55. The Town, however, adopted a resolution separating him from service effective January 7, 2000, his 55th birthday.

Another factor in the litigation: The State Comptroller had issued an opinion indicating that Section 384-d(m) requires any Town police officer who ever enrolled in the 20-year plan to separate from service at age 55, regardless of whether the officer has subsequently withdrawn from the plan.*

Overton sued the Town and the Comptroller in an effort to annul the Town’s action and be approved for transfer into another plan. Unsuccessful in Supreme Court, he appealed. The Appellate Division reversed the lower court’s ruling, holding that the resolution in question adopted by the Town of Southampton on November 23, 1999, is annulled.

The rationale for the court’s annulling the Town’s resolution:

Section 384-d(b) of the Retirement and Social Security Law allows a member who elects to participate in a 20-year plan to withdraw from the plan and enroll in another retirement plan. According to the decision, the plain meaning of the statute, read as a whole, is that a Town police officer may withdraw from the 20-year plan and enroll in another available retirement plan.

The court rejected the Town’s arguments in support of its action, commenting that subdivision (m) does not require a member who changes plans to nevertheless retire at age 55.

The court said that nothing in the Retirement and Social Security Law suggests that Overton was required to retire at age 55 upon his transfer to another plan with a higher mandatory retirement age.

The bottom line: the court decided that Overton has the right to withdraw from the 20-year retirement plan and transfer to the 25-year retirement plan available to Town police officers with a mandatory retirement age of 70.

* The Comptroller was severed from the lawsuit, having earlier agreed that if the Town’s resolution is annulled, the Retirement System would not prevent Overton from continuing in service and obtaining credit for such service for “retirement allowance” purposes.

Challenging administrative rulings

Challenging administrative rulings
Malitz v NYC Transit Authority, NYS Supreme Court, Justice Stallman [Not selected for publication in the Official Reports]

The Malitz case points out the differences in the standards that are used by the courts when reviewing different types of agency or administrative determinations.

In cases involving challenges to an agency’s administrative determination made without having held an administrative hearing, the test applied is whether or not the agency’s determination can be supported on any reasonable basis. Stated another way: was the administrative determination arbitrary or capricious?*

In contrast, Justice Michael D. Stallman pointed out that when a court considers a challenge to an administrative determination resulting from a quasi-judicial proceeding, i.e., an administrative hearing, it applies the substantial evidence test. The substantial evidence standard arises only when there has been a quasi-judicial hearing, and evidence taken pursuant to law, said Justice Stallman, citing Colton v Berman, 21 NY2d 322.

The issue before the court in the Malitz case: which was the appropriate test to be applied in addressing Malitz’s Article 78 petition?

The case arose as a result of the New York City Transit Authority [NYCTA] filing disciplinary charges against one of its railroad clerks, Bryan Malitz. NYCTA alleged that Malitz failed to properly relieve another railroad clerk, Holmes.

According to the decision, on August 1, 1997 Holmes had incorrectly tallied fare cards resulting in a $2,100 shortage. Malitz did not detect this error and carried over the same incorrect information during his shift. Malitz’s relief, Bayo, repeated Holmes’ and Malitz’s error. Holmes then relieved Bayo without detecting the error. Finally the $2,100 error was discovered by Malitz when he relieved Holmes for a second time.

The Authority terminated Malitz. The grievance arbitration panel upheld the termination, ruling that Malitz did not make a ‘proper relief’ [and] this failure did warrant dismissal since the per se procedural violation went to the heart of a railroad clerk’s responsibilities and was a serious failure of duty. Neither Holmes nor Bayo were terminated as a result of the error that Holmes made on August 1.

Malitz then filed a complaint with the New York State Division of Human Rights [NYSDHR] contending that he had been unlawfully terminated from his position due to his sleep apnea disability in violation of the New York State Human Rights Law [Section 296, Executive Law]. He also asserted that the charges leading to his dismissal were false. NYSDHR dismissed his discrimination complaint, finding that there was a lack of probable cause.

NYSDHR decided that Malitz had been terminated because of performance infractions unrelated to his sleep apnea. In reviewing Malitz’s complaint, the Division took into consideration various performance infractions set out in Malitz’s personnel record. These other infractions included episodes involving insubordination, arguing with customers, closing his window, refusing to sell tokens, exposing himself while on duty and sleeping on duty.

NYSDHR decided that NYCTA’s decision to penalize but not terminate Holmes or Boyd did not support a claim that NYCTA’s termination of Malitz constituted unlawful discrimination. NYSDHR noted that Holmes’ and Boyd’s employment dossiers, unlike Malitz’s, did not contain any reports of procedural violations prior to the August 1, 1997 incident.

Malitz appealed NYSDHR’s determination. His Article 78 petition alleged that NYSDHR’s dismissal of his complaint was not supported by substantial evidence. The court rejected this theory, indicating that Malitz’s reliance on the substantial evidence test in his case was misplaced.

The decision states that NYSDHR has the discretion to (1) determine how an investigation will be conducted and (2) to dismiss a complaint for lack of probable cause without a hearing where appropriate. As there was no hearing held concerning Malitz’s complaint, the appropriate test to be applied was whether the Division’s determination was rational, not whether it was supported by substantial evidence.

Justice Stallman ruled that the division’s action satisfied the rational test. He said that NYSDHR dismissed petitioner’s discrimination claim for lack of probable cause after a thorough investigation and review of all factors, including his sleep apnea diagnosis. Under the circumstances this, the court concluded, was reasonable.

Clearly, since Malitz’s complaint was dismissed for lack of probable cause and a quasi-judicial hearing was not held by the NYSDHR, the substantial evidence test was not applicable. As to his challenge to the administrative dismissal of his complaint, the court said that because he did not present any evidence that NYSDHR’s dismissal of his complaint was arbitrary or capricious, his petition had to be dismissed.

* The arbitrary and capricious standard involves a review of whether a particular administrative action is justified. In effect, the rationality of the decision is reviewed under this standard.

State Comptroller finds that some school districts paid for health benefits for deceased or ineligible retirees and dependents

State Comptroller finds that some school districts paid for health benefits for deceased or ineligible retirees and dependents
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli reports that his auditors found that ten school districts in New York State paid nearly $239,000 for health insurance benefits for deceased or ineligible retirees. DiNapoli also said $117,556 had been recovered.

The audit, which covered July 1, 2008 to May 31, 2010, examined school districts with a high percentage of retirees who do not contribute toward the cost of their health insurance.

The auditors found that only two districts of those audited – Somers Central School District and Yonkers City School District – had written guidelines to ensure the accuracy and appropriateness of health insurance payments.

DiNapoli’s audit recommended that school district officials:

1. Develop written policies and procedures to periodically monitor the status of all retirees, their spouses and dependents receiving health insurance coverage; and

2. Consider establishing systems to maintain adequate information on retirees and their dependents, including social security numbers and emergency contact information, which can be used to ensure eligibility for health insurance coverage.

The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/swr/retireehealth/global.pdf

Use of leave credits and the FMLA

Use of leave credits and the FMLA
Repa v. Roadway Express, Inc. USCA, 7th Circuit, 477 F.3d 938

Alice M. Repa complained that her employer, Roadway Express, Inc., required her to use her sick and vacation leave accruals while she was on FMLA leave although she was simultaneously receiving short-term disability benefit – i.e., paid leave - under Roadway’s disability plan.

The Circuit Court sustained a federal district court’s ruling that Roadway had violated the FMLA by requiring Repa to charge her FMLA-absence to her leave accruals. The lower court held that absence from work under a temporary disability benefit plan is not subject to a provision in the FMLA that allows employers to require employees to substitute paid leave for unpaid FMLA leave.

The decision states that “the purpose of the FMLA is, in part, “to entitle employees to take reasonable leave for medical reasons . . . in a manner that accommodates the legitimate interests of employers.” Although the employer is not required to pay an employee while the employee is on FMLA leave, [see 29 U.S.C. §2612(c)], the “employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for [FMLA] leave provided” [see 29 U.S.C. § 2612(d)(2)].*

In this instance, said the court, short-term disability leave pursuant to Roadways’ temporary disability benefit plan was not unpaid leave. Accordingly, the FMLA provision allowing the employer to require the employee to substitute paid leave for unpaid FMLA absences was inapplicable.

In addition, the decision noted that the employer may designate the short-term disability leave as FMLA leave and count the disability leave as running concurrently for purposes of both the benefit plan and the employee’s FMLA leave entitlement. Further, said the court, “If the requirements to qualify for payments pursuant to the employer’s temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments.”

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/short-term-disability-program-use-of.html

* The Circuit Court noted that Department of Labor regulations [29 C.F.R. §825.207(d)(1)] places certain limitations with respect to the application of this provision and indicated that disability leave for the birth of a child would be considered “FMLA leave for a serious health condition” and counted in the 12 weeks of leave permitted under FMLA.