Petitioner has the burden of proving that his or her probationary termination was made in bad faith

Petitioner has the burden of proving that his or her probationary termination was made in bad faith
Negron v Jackson, 273 AD2d 241

The New York State Department of Motor Vehicles terminated Pedro Negron during his probationary period. Negro objected but his appeal was rejected by the Appellate Division, Second Department.

The court pointed out that A probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a showing that the termination was for a constitutionally impermissible purpose, made in bad faith, or in violation of statutory or decisional law, citing Iannuzzi v Town of Brookhaven, 258 AD2d 651.

Further, the discharged employee has the burden of demonstrating bad faith by competent evidence, not speculation. This, apparently, was the defect in Negron’s appeal. The court said that his petition failed to allege facts that supported his conclusory claim of discrimination or to otherwise demonstrate bad faith. Ruling that this constituted a fatal defect, the court said that his petition was properly dismissed by the lower court.

Ability to perform “light duty” defeats accidental disability retirement claim

Ability to perform “light duty” defeats accidental disability retirement claim
Matter of Roache v Hevesi, 38 AD3d 1036

Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.

Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.

Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.

The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.

The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."

Members of the NYSERS experiencing "discontinued service” [layoff] may be eligible for certain retirement benefits

Members of the NYSERS experiencing "discontinued service” [layoff] may be eligible for certain retirement benefits
Retirement and Social Security Law §73.b

Considering the various statements suggesting a potential for a significant number of State an municipal employees being laid off appearing in the press, it may be timely to consider the benefits available to members of the New York State Employees' Retirement System pursuant to §73.b of the Retirement and Social Security Law.

This section, captioned “Discontinued Service,” authorizes certain retirement benefits for individuals who became members of the New York State Employees’ Retirement System on or after April 8, 1943* who are laid off if they have 20 or more years of service.

§73.b, in pertinent part, provides that:

“1. A person who last became a member on or after April eighth, nineteen hundred forty-three, and who is discontinued from service while a member, through no fault or delinquency on his [or her] part, may elect to receive his [or her] accumulated contributions or a retirement allowance pursuant to the provisions of paragraph two of this subdivision b if:

“(a) He [or she] shall have completed twenty years of total service, and

“(b) During the six months immediately preceding such discontinuance, he [or she] shall have been in paid service continuously, regularly and without interruption.”**

The benefits payable to those eligible and electing to retire upon being laid off are set out in the statute as follows:

2. A retirement allowance granted pursuant to the provisions of this subdivision b shall consist of:

(a) An annuity of equivalent actuarial value to the member's accumulated contributions, and

(b) A pension which is the actuarial equivalent of the reserve-for-increased-take-home-pay to which he may be entitled, if any, and

(c) A pension, to begin immediately, which shall be composed of one or more of the following parts:

(1) One which is the actuarial equivalent, at his age at the time of such discontinuance, of a pension, beginning at age sixty, of one-seventieth of his final average salary multiplied by the number of years for which he has prior service credit and credit for service in war after world war I, if any, plus

(2) One which is the actuarial equivalent, at his age at the time of such discontinuance, of one-one hundred fortieth of his final average salary multiplied by the number of years for which he has member service credit, plus

(3) If the member shall have attained age fifty, one which equals fifty per centum of the difference between the pension payable to him pursuant to items one and two of this subparagraph (c) and the pension that would be allowable to him were he age sixty.

3. Application shall be made for a discontinued service retirement allowance pursuant to this subdivision b in the same manner and subject to the same conditions, which govern applications and elections for superannuation retirement allowances.

* Section 73.1.a. applies to individuals who last became members of the Retirement System before April 8, 1943.

** N.B. §73.b provides that “The provisions of subparagraph (b) of this paragraph one shall not apply to legislative employees or laborers who have served as such for at least parts of each of the two years immediately preceding such discontinuance.”

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For additional information concerning Layoff, Preferred Lists and Reinstatement, click on http://nylayoff.blogspot.com/

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Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected

Continuing wrong theory to excuse an untimely appeal to the Commissioner of Education rejected
Michael P. Thomas and the New York City Department of Education, Decision No. 16,193

Michael P. Thomas, a tenured teacher employed by the New York City Department of Education, objected to the placement of certain documents in his personnel file.

Noting that an appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown, the Commissioner noted that Cardozo had commenced his appeal more than six months after the date of the most recent document he objected to having been placed in his personnel file.

Conceding that his appeal was not filed in a timely manner, Thomas argued that the placement of these letters and documents in his personnel file constitutes a continuing wrong.

The Commissioner rejected Thomas’ theory, noting that the continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual, unlawful appointments to a district’s shared decision-making team, an improperly constituted professional development team, certain expenditures under an austerity budget that did not comply with the law.

In contrast, the Commissioner said that the doctrine did apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful.

Although the parties disagreed as to the nature of each letter and document, the Commissioner ruled that placement of letters and grievance documents in a personnel file is not an inherently unlawful action, ruling that the continuing wrong doctrine does not apply and dismissed Thomas’ appeal as untimely.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16193.htm

Providing legal representation to public officers and employees being sued

Providing legal representation to public officers and employees being sued
Vitucci v City of New York, 272 AD2d 620

A New York City employee, Jacqueline Vitucci, was named as a defendant in a federal lawsuit. He asked Corporation Counsel to defend him in accordance with Section 50-k of the General Municipal Law.

Like similar representation provisions, Section 50-k(2) requires the Corporation Counsel to defend municipal employees in civil actions which the corporation counsel finds occurred while the employee was acting within the scope of his [or her] public employment and in the discharge of his duties and was not in violation of any rule or regulation of his [or her] agency at the time the alleged act or omission occurred.

When Vitucci’s request was denied, he filed a petition seeking a court order requiring the Corporation Counsel to defend him. The Appellate Division sustained a lower court ruling dismissing his petition.

The court’s rationale: Whether an employee was acting within the scope of his or her employment and is entitled to legal representation must be determined in the first instance by the Corporation Counsel, whose determination may be set aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious.

The court said that the report prepared by the Special Commissioner for Investigation for the New York City School District provided the Corporation Counsel with a sufficient factual basis to determine that the acts allegedly committed by Vitucci were not within the scope of his employment.

Retirees claim they were mislead by union concerning accepting a retirement incentive

Retirees claim they were mislead by union concerning accepting a retirement incentive
Dolce v Bayport-Blue Point UFSD, 286 AD2d 316

A number of school districts have negotiated retirement incentive provisions in the course of collective bargaining. Sometimes hindsight causes an individual to regret his or her decision to accept or reject the opportunity. The Dolce case concerns a number of teachers who had accepted a retirement incentive only to later regret their decision.

Essentially the retired teachers complained they were misled by their union when they decided to accept the incentive and retire.

According to the decision, Bayport-Blue Point Union Free School District and the teachers’ union negotiated a retirement incentive providing for a one-time payment of $34,000 to eligible teachers who retired by a specified date. Teachers electing the incentive were required to submit irrevocable resignations on or before April 28, 1997.

Dolce alleged that a number of teachers decided to take advantage of the incentive and retire because the Union’s chief negotiator advised them that this was the best offer they would get and that it would never be offered again.

As things turned out, the chief negotiator may have been somewhat pessimistic. In December 1998, the district and the union negotiated a second retirement incentive that provided for the same one-time payment to teachers who elected to retire by June 30, 1999. The second agreement specifically provided that it would not apply to teachers who had previously submitted their resignations.

Dolce and the other teachers sued, complaining that they lost substantial salary and pension benefits in reliance upon the Union’s representation that the 1997 one-time retirement incentive would not be offered again. They also objected to the district’s refusal to allow them to rescind or recant their resignations in order to take advantage of the second retirement incentive. Justice Emerson dismissed the petition, holding that it was untimely.

State Supreme Court Justice Emerson said that while Dolce’s petition concerning the union is based on allegations of breach of contract and fraud, Dolce’s remedy against the Union is an action for breach of the duty of fair representation.

The Appellate Division agreed, holding that:

Supreme Court correctly determined that the plaintiffs' claims against the Teachers' Association were time-barred, citing Bitterman v Herricks Teachers' Association, 220 AD2d 473. Further, as the claims against the superintendent of schools and other school officials, such claims are “inextricably intertwined with the claims against the Teachers' Association for breach of duty of fair representation.” Accordingly, said the court, they are governed by the four-month Statute of Limitations in CPLR 217 (2) (b), and thus, they are also time-barred [with respect to suing the district officials].

Another critical element in pursuing this lawsuit: Dolce had neglected to file a timely notice of claim as mandated by Section 3813(l) of the Education Law, a condition precedent to suing a school district concerning a “personal matter.”

Designation of a representative in writing found critical to making a lawful determination

Designation of a representative in writing found critical to making a lawful determination
Matter of Richards v City of Binghamton, 2011 NY Slip Op 00306, Appellate Division, Third Department

James Richards, a City of Binghamton firefighter, was receiving benefits pursuant to General Municipal Law §207-a as a result of his suffering a job-related disability.

Binghamton’s independent medical examiner subsequently determined that Richards was capable of returning to modified duty with specific restrictions and Fire Chief Daniel Thomas sent Richards a letter directing him to complete certain medical procedures and tests “within 30 days and report to work for light duty on a date six days from the date of the letter.” Richards was also advised that he had 10 days to appeal the determination by submitting a written request for appeal, accompanied by medical documentation that he was unable to perform light duty tasks.

Richards “was away on vacation” when Chief Thomas sent him the letter. The letter, however, was not received until after the deadlines for Richards to report to work or appeal had passed. Ultimately the city terminated Richards’ §207-a benefits following a number of communications and Richards sued, complaining that Binghamton failed to “comply with proper procedures.” Supreme Court agreed and directed the city to “continue paying benefits,” ruling that Richards was entitled to a hearing.

The Appellate Division agreed, holding that “Because [Binghamton] did not comply with its own procedures prior to terminating [Richards’] benefits, Supreme Court properly annulled the determination.”

The court noted that “A municipality is entitled to order medical examinations of a firefighter who is receiving benefits and direct the employee to return to light duty work if medically able (see General Municipal Law § 207-a [1], [3]).” Further, said the court, a municipality may terminate benefits if a firefighter refuses to report for such work, citing General Municipal Law §207-a[3].

Although §207-a does set out a procedural framework that must be followed for such determinations, it does permit "each municipality to formulate its own procedure consistent with the demands of due process” and such procedures may be established through collective bargaining.

In this instance, said the Appellate Division, the collective bargaining agreement [CBA] between Richards’ union and Binghamton provides that disagreements concerning determinations, other than initial determinations, — including whether a firefighter is able to perform light duty work — "will be resolved in accordance with the current City procedure using an impartial hearing officer."

The CBA, however, did not define what constituted the "current City procedure" and the parties did not agree on the meaning of that term. This did not create any insurmountable obstacle for the court, however, as the Appellate Division held that “Even if we accept [the city’s] contention that the CBA incorporates an undated document entitled Firefighter's and Police Officer's Disability Procedure (FPODP) as the current procedure, [the city] cannot prevail because it failed to comply with the FPODP.

The FPODP provided, in pertinent part, that "the Commissioner shall order the individual to report for such available modified duty.” Further, the parties agreed that Binghamton’s mayor is the "Commissioner," although that term is defined to also include "an agent appointed by" the Commissioner and so designated in writing by the Mayor.*

The Appellate Division found that because the record did not contain any written designation by the mayor granting “an agent” authority to perform the functions of the Commissioner, Chief Thomas did not qualify as the Commissioner's agent.

Accordingly, said the court, Thomas's letter does not constitute an order by the Commissioner, so Richards’ “noncompliance with that letter” cannot serve as a proper basis for discontinuing benefits.

Further, assuming that Chief Thomas’ letter was proper, the FPODP merely requires an individual who disagrees with the Commissioner's determination regarding a modified duty assignment to serve the Commissioner with "a demand for a hearing," It does not mention any supporting medical documentation is required to perfect such a demand.

Accordingly, the Appellate Division rejected the city’s argument that “pursuant to case law, [Richards] was not entitled to a hearing because he did not provide medical proof that he is unable to perform modified duties.

The court ruled that the case law cited by Binghamton, which included Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, was inapplicable as the city had chosen “a procedural framework that does not require that medical proof be submitted along with the hearing request.”

* The designation of an “agent” in writing may critical in other situations as well. For example, Section 75.2 of the Civil Service Law permits an appointing authority to designate “a deputy or other person ... in writing” to conduct a disciplinary hearing for the purpose of making findings of fact and recommendations concerning the disposition of the charges filed against the employee and the penalty, if any, to be imposed. The importance of naming a hearing officer in writing is demonstrated by Perez v NYS Dept. of Labor, 665 NYS2d 714. Citing the Court of Appeals ruling in Wiggins v Board of Education, 60 NY2d 385, the Appellate Division said that because there was no written designation appointing the hearing officer, the appointing authority “lacked jurisdiction” to maintain the initial disciplinary proceeding” against Perez.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00306.htm

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For additional information about concerning administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder go to: http://booklocker.com/books/3916.html

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Right to counsel in a disciplinary action

Right to counsel in a disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307

The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Edwin Elmore, alleging that Elmore had engaged in inappropriate conduct toward a student. Found guilty following a disciplinary hearing held pursuant to Section 3020-a of the Education Law, the district terminated Elmore.

Elmore appealed, contending that he had been unfairly denied his right to counsel when the Hearing Officer ruled that he could not discuss his testimony with his attorney during any adjournments in his cross-examination by the school district’s attorney. According to the decision, the five days of Elmore’s cross-examination extended over a period of 10 weeks. In other words, the hearing officer barred Elmore from discussing his testimony with his attorney for a ten-week period.

A State Supreme Court judge vacated the determination and the penalty imposed. The Appellate Division sustained the lower court’s decision. The Appellate Division pointed out that Section 3020-a(3)(c)(i) provides that a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.

However, because there were no cases discussing the precise issue herein, namely, to what extent a Hearing Officer may circumscribe a teacher’s contact with his attorney between adjourned dates of hearings, cited in the briefs submitted by the parties, the Appellate Division applied the rationale followed in criminal prosecutions involving similar situations -- barring the client from conferring with his or her attorney.

Commenting that teacher disciplinary proceedings are not criminal actions, the court said it was mindful that “a tenured teacher has a protected property interest in his [or her] position which raises due process considerations when a teacher is faced with termination of his employment, presumably deeming the loss of employment the economic equivalent of incarceration.”

As New York courts have disapproved forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division, citing Goldfinger v Lisker, 68 NY2d 225, decided that such a restriction in an administrative disciplinary proceeding was inappropriate in view of the due process considerations involved when a tenured employee is threatened with termination of his or her employment -- particularly in Elmore-type situation, where the time period involved was 10 weeks. The Appellate Division directed the district to hold a new hearing.

The court’s rationale would probably be applied in disciplinary actions taken against an individual pursuant to Section 75 of the Civil Service Law.