New York State Bar Association proposes State and Local Government Ethics Reform

New York State Bar Association proposes State and Local Government Ethics Reform
Source: New York State Bar Association

On January 3, 2011 the New York State Bar Association’ House of Delegates approved ethics recommendation proposed by its Ethics Task Force co-chaired by Patricia E. Salkin, associate dean and director of the Government Law Center (Albany Law School), and Michael J. Garcia (Kirkland & Ellis LLP), former U.S. Attorney for the Southern District of New York.

The Task Force recommenced a number of proposals, including: a single ethics commission to oversee officers and employees of state agencies and the Legislature as well as lobbyists. Also recommended were “tougher laws to combat ‘honest services fraud’; expanded disclosure by public officials of outside income; and the first comprehensive overhaul of the law governing municipal ethics in 50 years.”

The Executive Summary of the changes urged is posted on the Internet at:
http://readme.readmedia.com/New-York-State-Bar-Association-Proposes-State-and-Local-Government-Ethics-Reform/1984301

Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law

Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law
Matter of Schoonmaker v Capital Region Bd. of Coop. Educ. Servs., 2011 NY Slip Op 00142, Appellate Division, Third Department

Karen Schoonmaker was employed full time as a Senior Keyboard Specialist by Capital Region Board of Cooperative Educational Services (BOCES). When Schoonmaker division's workload was reduced, BOCES reduced her hours to 75% of full time and her wages was decreased correspondingly.

Alleging that BOCES violated her rights under Civil Service Law §80 by reducing her hours and salary but not reducing the hours of Senior Keyboard Specialists with less seniority, Schoonmaker sued. Holding that BOCES did not violate the statute, Supreme Court dismissed her petition and the Appellate Division sustained the lower court’s determination.

The Appellate Division explained that BOCES did not violate Civil Service Law §80 when it reduced Schoonmaker’s hours, despite her seniority. The issue a question of pure statutory interpretation and as the statutory text is unambiguous, the court was required to give "effect to its plain meaning."

§80 of the Civil Service Law, entitled "[s]uspension or demotion," provides that "[w]here, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion . . . among incumbents [in the same governmental jurisdiction] holding the same or similar positions shall be made in the inverse order of original appointment."

As Schoonmaker’s hours were reduced due to economy, abolition of functions or curtailment of activities, the question becomes whether the reduction in hours and corresponding effect on Schoonmaker’s overall income equate to her position being "abolished or reduced in rank or salary grade."

The Appellate Division held that in this instance the answer was no.

The court explained that while conversion of a full-time position to part time has been considered as an abolition of the full-time position, citing Linney v City of Plattsburgh, 49 AD3d 1020, the local civil service rules in Albany County — which apply to BOCES employees — define part-time employment as a person working 50% or less or earning not more than half of the rate assigned if the position was allocated to a graded salary schedule.

Under those rules, said the court, Schoonmaker’s position remained full time and was not converted to a part-time position. Hence, concluded the court, her "full-time position" had not been abolished.

Also noted by the court that “Had the Legislature intended to require that governmental employers suspend or demote employees in the inverse order of appointment when a position was "abolished or reduced in rank[,] salary grade" or hours, those additional words could have been included in the statute.”

However, when the Legislature attempted to add to the statute by requiring inverse-seniority demotion or suspension when an employer reduced its employees' work hours, the Governor vetoed the bill (see 2003 NY Assembly Bill 8399).

Rejecting Schoonmaker’s policy arguments that its decision will create a slippery slope, allowing governmental entities to reduce a senior employee's hours as punishment or to benefit favored less-senior employees, the Appellate Division pointed out that public employees in New York “are currently protected by the law and may bring an action against an employer if they suffer adverse employment actions based upon decisions rendered in bad faith.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00142.htm

Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law

Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law
Matter of Witkowich v SUNY Alfred State Coll. of Ceramics, 2011 NY Slip Op 00454, Appellate Division, Third Department

Three months after Kenneth Witkowich began serving as the Chief of University Police for Alfred State College he was terminated. A day later, he filed an application for workers' compensation benefits, claiming that in the days immediately prior to his termination he had suffered a "recurrence of posttraumatic stress disorder, [irritable bowel syndrome and] anxiety" — or, a panic attack. He subsequently filed a second claim, alleging that the manner in which he was informed of his termination exacerbated his preexisting psychological conditions.

A Workers' Compensation Law Judge [WCLJ] denied both applications, concluding that Workers' Compensation Law §2(7) barred them. A Workers' Compensation Board panel affirmed that decision, finding that Witkowich’s injuries were not compensable.

In deciding the merits of Witkowich’s appeal, the Appellate Division said that a mental injury, even if job related, is not compensable if it is "a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer," citing Workers' Compensation Law §2[7].

Addressing Witkowich’s claim that the stress he encountered as Chief of Police prompted an exacerbation of a preexisting mental condition that, in turn, caused him to have a panic attack, the Appellate Division said that such a claim will not "be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment."

The court noted that no evidence was introduced at the workers’ compensation hearings that Witkowich’s position as Chief of Police was extraordinarily stressful or that the injuries he claimed to have sustained were caused by conditions that existed in the work place.

The Appellate Division dismissed Witkowich’s challenge to the Board’s determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00454.htm