Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration

Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration
Matter of Schuyler County v Schuyler County Highway Unit, Local 849, Unit 8600, AFSCME, CSEA Local 1000, 2011 NY Slip Op 00479, Appellate Division, Third Department

The parties entered into a collective bargaining agreement (CBA) for the years 2006-2009 that provided for a four-step grievance process, the third being advisory arbitration.

The CBA's compensation provisions included a clause specifying that employees would receive wage step increases every year, with the steps defined in a wage schedule showing the effect that annual base wage increases from 2006-2009 would have on them.

When a successor agreement negotiated in a timely fashion, Schuyler County declined to grant employees step increases in 2010. The County contended that the increases at issue “were not intended to continue beyond the term of the CBA”

Local 849 filed a grievance which was denied by the County. When the Local demanded that the grievance be submitted to arbitration the County filed an Article 75 petition seeking a court order staying arbitration.

Although Supreme Court granted the County’s petition, the Appellate Division reversed the lower court’s ruling.

The Appellate Division explained that the issue was whether the step increase provision of the CBA continued upon that agreement's expiration and, in that regard, Civil Service Law §209-a (1)(e) provides that an expired CBA's provisions will continue until a new agreement is negotiated unless those provisions create "rights which by their very terms were intended to expire with the agreement."*

The court said that there was neither law nor policy barring either party from submitting a question of contract interpretation regarding wages to arbitration, including the central issue in this action: "whether the CBA's language evinces an intent to an intent to 'sunset' the step increase provision."

Turning to the County’s argument that an arbitration award interpreting the CBA in such a way as to require post-expiration step increases would be violative of public policy, the Appellate Division said that "such a potential does not mandate a stay of arbitration.” The court said that should the County’s claim prove correct, the remedy is vacatur," citing Matter of County of Sullivan,** rather than a court order staying the arbitration.

* Section 209-a(1)(e) is the codification the Triboro Doctrine earlier promulgated by PERB.

** Sullivan County Empls. Assn., 235 AD2d at 750].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00479.htm

Individuals receiving unemployment Insurance Benefits are ineligible to receive emergency unemployment compensation benefits

Individuals receiving unemployment Insurance Benefits are ineligible to receive emergency unemployment compensation benefits
Matter of Umpierre v Commissioner of Labor, 2011 NY Slip Op 00470, Appellate Division, Third Department

Jose A. Umpierre, received unemployment insurance benefits for a benefit year beginning in February 2008, which were paid for the full duration permitted (see Labor Law §§ 521, 590[4]). Umpierre then received emergency unemployment compensation (EUC) benefits.

EUC benefits are available to individuals who "exhausted all rights to regular compensation under the [s]tate law or under [f]ederal law with respect to a benefit year."*

At the end of his initial benefit year Umpierre reapplied for unemployment insurance benefits and was found to have a valid original claim that entitled him to renewed regular benefits, but at a rate substantially lower than he had been receiving in the previous year.**

The Unemployment Insurance Appeal Board, however, determined that Umpierre was not entitled to ongoing EUC benefits because of his renewed eligibility for "regular benefits."

Umpierre appealed the Board’s decision but the Appellate Division sustained the Board’s ruling, noting that “As a matter of federal law, federally funded EUC benefits are only available when a claimant's right to receive regular benefits under state law is exhausted.”

The Appellate Division explained that although Umpierre had “exhausted his right to regular benefits in the prior benefit year, he had renewed eligibility for benefits in the next, and the Board properly determined that he was not entitled to ongoing EUC benefits as a result.”

The fact that the new “regular benefits” were less than the amount that Umpierre had been initiallly receiving was apparently irrelevant insofar as his eligibility for EUC benefits were concerned.

* Public Law 110-252, Title IV, § 4001 [b] [1], 122 US Stat 2323.

** See Labor Law §527.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00470.htm

Designating a disciplinary hearing officer

Designating a disciplinary hearing officer
Pieczonka v Village of Blasdell, 273 AD2d 842

If nothing else, the Pieczonka demonstrates the importance of the parties dotting all of the i’s and crossing all of the t’s in processing a disciplinary action brought pursuant to Civil Service Law Section 75.

The Town of Blasdell served Robert Pieczonka with disciplinary charges. It later wrote to him informing him of the date, time and location of the hearing and the name of the hearing officer. The hearing officer found Pieczonka guilty and the Town terminated him.

Pieczonka appealed, contending that his termination was unlawful because:

1. The Village failed to comply with Section 75(2) of the Civil Service Law since it had not designates the hearing officer in writing;

2. The determination made by the hearing officer was not supported by substantial evidence; and

3. The penalty imposed was excessive.

The Appellate Division never got to consider Pieczonka’s second and third arguments because it ruled that the disciplinary action taken by the Town had to be annulled because the procedure was defective: the hearing officer had not been so designated in writing.

Citing Wiggins v Board of Education, 60 NY2d 385, the court said that “[i]n the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee.”

Section 75(2), in relevant part, provides that the hearing of charges preferred against an employee shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose.

The Appellate Division rejected the Town’s contention that its written notice to Pieczonka advising him of the name of the hearing officer and the time and place of the hearing constituted the required written delegation of authority.

A failure to comply with the written notice requirements set out in Section 75(2) may have other serious consequences.

In Perez v NYS Dept. of Labor, 244 AD2d 844, the Appellate Division, Third Department, annulled a Section 75 disciplinary determination because there was no evidence that the hearing officer who presided over his disciplinary hearing had been so designated in writing. The court ordered Perez reinstated to his former position with back salary and benefits.

Perez then asked for attorney fees and expenses, contending that as the prevailing party, he was entitled to such payments under Section 8601 of the Civil Practice Law and Rules. A State Supreme Court justice agree and awarded Perez $19,907.84, $9275 of which was for Perez’s legal expenses incurred in the Section 75 administrative disciplinary action. The Labor Department appealed.

The Appellate Division sustained the lower court’s ruling. It specifically rejected the department’s argument that its failure to designate the hearing officer in writing was a mere technicality and its actions that ultimately resulted in Perez’s termination were otherwise substantially justified. In addition, the Appellate Division ruled that Perez was entitled to the fees and expenses incurred in connection with the department’s appeal challenging the Supreme Court’s decision.

====================

Now available, the 2011 edition of The Discipline Book, a concise guide to disciplinary actions involving public employees in New York State. For more informeation about this 1272 page electronic book [e-book], click on http://thedisciplinebook.blogspot.com/

====================

Political party officials, others, barred from receiving court fiduciary appointments

Political party officials, others, barred from receiving court fiduciary appointments
Kraham v Lippman, USCA, 2nd Circuit, Docket No.06-2695 cv

Section 36.2(c) of the Rules of the Chief Judge of the State of New York [22 NYCRR 36.2, et seq.] sets out a number of “disqualifications for appointment” as “guardians” or “receivers” by New York State courts. Among those ineligible for such appointments are certain political party officials and their families or associates. Bonnie Kraham sued, contending that the rule violates her first Amendment right to freedom of association.

The U.S. Circuit Court of Appeals, Second Circuit, affirmed a lower court ruling summarily dismissing Kraham’s petition.

The specific provision challenged by Kraham, 22 NYCRR 36.2(c)(4)(I), provides as follows:

No person who is the chair or executive director, or their equivalent, of a State or county political party, or the spouse, sibling, parent or child of that official, shall be appointed while that official serves in that position and for a period of two years after that official no longer holds that position. This prohibition shall apply to the members, associates, counsel and employees of any law firms or entities while the official is associated with that firm or entity.

Kraham, an attorney, was elected to serve as co-chair of the Orange County Democratic Committee. She remained in her position after the adoption of the Rule and, around the time it went into effect, held court appointments as a guardian or receiver. Kraham’s petition alleged that the Rule resulted in her being denied three legal employment opportunities – one to form a partnership with another attorney, and two to involving her joining existing law firms – because members of the law firms did not want to become ineligible for judicial appointments.

Kraham contended that in limiting her employment opportunities because of her party leadership, the Rule violated her freedom of political association as protected by the First Amendment.* The Circuit Court disagreed. It said:

Because the Rule advanced New York’s legitimate interest in “eliminating corruption and favoritism in the judicial appointment process,” the [district] court concluded that it withstood rational basis review.. We agree with the district court’s well-reasoned analysis.

Responding to Kraham argument that “the denial of employment opportunities is “[b]y definition . . . significant” and that, in her case, the practical effect was particularly severe because she lives in a small legal community providing few employment options.” the Circuit Court said the burden on Kraham’s employment is no more severe than those the United State Supreme Court upheld in U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, and Broadrick v. Oklahoma, 413 U.S. 601.

In Letter Carriers, the Supreme Court upheld the Hatch Act’s prohibition on federal employees’ participation in a wide variety of political activities, including holding party office, while in Broadrick it upheld a similar state statute, 413 U.S. 602.

The Circuit Court observed that:

Appointing others in the law firms of political party leaders creates the public perception of favoritism in the judicial appointment process.

The two-year post-resignation prohibition period reasonably prevents a “quick turnaround” from party leader to court appointee, noting that “This period …. is consistent with the New York Public Officers Law’s limitation on the professional activities of state officers, employees, and party officers for two years after they leave office or state employment [see Public Officers Law §73(8); and

Permitting waivers would vitiate the Rule’s very purpose – to reduce judicial discretion in the appointment process – by opening the door to politically motivated waivers and thereby creating the perception that politically motivated appointments are possible.

The court’s conclusion: 22 NYCRR 36.2(c)(4)(i) of the Rules of the Chief Judge of the State of New York does not violate the First Amendment. It then affirmed the judgment of the federal district court judge dismissing Kraham’s petition.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/high-ranking-political-party-officials.html

* Kraham, conceding the importance of the interest behind the Rule, argued that it is over-inclusive, such that a substantial portion of the burden it places on associational rights does not advance the asserted government interests because the Rule extends not just to party leaders but to their law firms, regardless of the size of the firm and the number of appointments it has received; that it continues to apply for two years after party leaders resign; and that it does not allow for waivers under any circumstances.

Employee suspended without pay ineligible for ERISA benefits

Employee suspended without pay ineligible for ERISA benefits
Pollett v Rinker Materials Corp., USCA 6th Circuit, #05-6459

William Pollett was suspended without pay pending the investigation of allegations that he had failed to respond to an equipment malfunction while at work in the proper manner. While on suspension without pay his physician determined that Pollett unable to work due to numerous physical ailments. That same day, Pollett notified Rinker Materials that he was unable to work and provided Rinker with his physician’s written assessment.

Pollett then applied for “short term disability benefits” under Rinker Materials’ ERISA plan. The plan provides up to 70% of an employee’s basic weekly earnings commencing on the fifteenth day of continuous disability, for a maximum of 12 weeks.

The plan administrator disapproved his application. When Pollett sued, a federal district court judge dismissed Pollett’s challenge to the plan administrator’s determination.

Sustaining the lower court’s decision, the Circuit Court said that in order to qualify for short term disability benefits under the plan, an employee must be “actively at work” when he notifies his employee of a disability. Under the plan, “[a]n employee will be considered actively at work if he was actually at work on the day immediately preceding: . . . an excused leave of absence . . . .”

Pollett contended that he was an “active employee” and thus eligible for benefits because “A suspension without pay equates with an excused leave of absence” and he was at work the day before Rinker suspended him.

The court said “While novel, Pollett’s argument is unpersuasive” It rejected Pollett’s claim that he was “actively at work” for the purposes of eligibility for short-term disability benefits under Rinker’s ERISA plan because equating “a suspension without pay with an excused leave defies common sense.”

In the words of the court, “A suspension without pay constitutes a unilateral penalty which an employer imposes upon an employee” while “an excused leave is more akin to a bilateral understanding during which an employer grants an employee permission to be absent from work.” In this instance, said Circuit Court “the plain meaning of the phrase ‘suspended without pay’ denotes Rinker barred Pollett from employment and all its attendant privileges during the period of his suspension.

Under the facts of this case, the court said that it had little difficulty concluding that an ordinary person would not view Pollett’s suspension without pay as an excused leave of absence and dismissed his appeal.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/suspended-without-pay-employee-not.html

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