NYPPL trivia -

The most viewed summary of a court decision posted on New York Public Personnel Law during 2010:

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively
Matter of Rosenblum v New York City Conflicts of Interest Bd., 75 AD3d 426

This summary is posted at: http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html

Performance in the tenure area is critical when determining an individual’s seniority in such tenure area the purposes of layoff

Performance in the tenure area is critical when determining an individual’s seniority in such tenure area the purposes of layoff
Appeal of Ralph Coviello against the Board of Cooperative Educational Services for the First Supervisory District of Erie County and John E. Snyder regarding layoff, Decisions of the Commissioner of Education, Decision No. 16,200

Ralph Coviello was certified to teach in electrical/electronic equipment occupations (repair and installation) and was granted a probationary appointment by BOCES on or about October 21, 1999 in the technical electronics tenure area.

John E. Snyder was certified to teach in the same tenure area, electrical/electronic equipment occupations (repair and installation), but was granted a probationary appointment by BOCES in the trade electricity tenure area on or about January 14, 2009, retroactive to September 22, 2008.*

In June 2010, BOCES voted to abolish one position in the technical electronics tenure area and advised Coviello that he was the least senior teacher in the technical electronics tenure area and that his employment was terminated. Coviello’s name was placed on a preferred eligibility list.

Coviello appealed, contending that he was improperly terminated in violation of Education Law §3013 and that he had greater seniority than Snyder, whose employment BOCES should have been terminated instead.

Addressing the merits of Coviello’s appeal, the Commissioner stated that Education Law §3013(2) provides that when a BOCES abolishes a position “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” Section 30-1.1(f) of the Commissioner’s regulations defines seniority as “length of service in a designated tenure area ....”

Here, BOCES abolished a position in the technical electronics tenure area. The principal issue in Coviello’s appeal is whether he was the least senior teacher in that tenure area.

The Commissioner, conceding that Coviello has been employed by BOCES for a longer period than Snyder, ruled that Coviello failed to demonstrate that Snyder served in the technical electronics tenure area. Coviello, in fact, contended that Snyder never taught any subjects in the area covered by his certification. BOCES confirmed this, stating that Snyder was appointed to the trade electricity tenure area and never performed any duties in the technical electronics tenure area.

In view of this, the Commissioner ruled that Coviello has failed to meet his burden of demonstrating that Snyder was the least senior teacher in the technical electronics tenure area because Snyder had never taught in that tenure area; Snyder had taught in the trade electricity tenure area, albeit without the requisite tenure area certification.

The Commissioner found that essentially Coviello argued that because the BOCES assigned Snyder to the trade electricity tenure area without regard to appropriate certification, “it should now assign him to a full-time position similarly teaching courses outside his certification on the grounds that he would have obtained the required certification had he been notified that there was a tenure area in trade electricity.” The Commissioner ruled that there was no basis for granting such relief and dismissed Coviello’s appeal.

* The Commissioner explained BOCES’ “retroactive action” as follows: “In June 2010, BOCES allegedly learned that in 2008 Snyder had applied for the wrong certificate to teach in the trade electricity tenure area and that the appropriate credential was the Initial Electrical 7-12 certificate. Upon notifying Snyder of this mistake, Snyder then applied for and was granted the Initial Electrical 7-12 certificate, effective September 1, 2010.”

As a coda to the decision the Commissioner said: … I note, however, that [Coviello] has made serious allegations about BOCES’ practices in assigning and retaining career and technical education teachers. BOCES acknowledges that it initially erred in assigning Snyder to teach trade electricity subjects without the appropriate certification and that it awarded him seniority credit in a tenure area for which he did not hold appropriate certification. I urge [BOCES] to review the certification of all of its career and technical education teachers and the tenure areas of such teachers to ensure compliance with Part 30 of the Rules of the Board of Regents and Part 80 of the Commissioner’s regulations.

This ruling illustrates yet another element in the often complex decision-making situations that confront administrators in their effort to make certain that the statutory seniority rights of individuals in a layoff situation are honored.

N.B. The decision involved individuals in serving in positions in the unclassified service. §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”

In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.

In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”

Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.

§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.

§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16200.htm

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Adjudicating performance

Adjudicating performance
Ratigan v Daemen College, 273 AD2d 891

The Ratigan case sets out the parameters that courts typically use when considering challenges to a school’s decision concerning a student’s academic achievement. Presumably the same standard would be applied in evaluated an employee’s performance in a training program coupled with his or her eligibility to continue in his or her position.

Daemen College dismissed John Ratigan from its physician assistant program based on its substantive evaluation of [Ratigan] academic performance. Ratigan appealed, only to have the Appellate Division, Fourth Department, dismiss his petition.

In contrast to attempting to show that college’s decision was made in bad faith or was arbitrary, capricious, irrational or in violation of the Constitution or a statute, Ratigan’s challenged the evaluation of his academic performance by the college.

This, said the court was fatal to his petition, as a student’s complaint about a particular grade or other academic determination relating to a genuine substantive evaluation of the student’s academic capabilities, is beyond the scope of judicial review. The court cited Susan M. v New York Law School, 76 NY2d 241, in support of its ruling.

Public policy precludes the arbitrating of court’s directing the removal of assigned personnel in alleged violation of the terms of a CBA

Public policy precludes the arbitrating of court’s directing the removal of assigned personnel in alleged violation of the terms of a CBA
Matter of County of Broome v New York State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO, 2011 NY Slip Op 00325, Appellate Division, Third Department

Timothy Mooney is a correction officer with the Broome County Sheriff's Office. In January 2009, the Administrative Judge for the Sixth Judicial District sent a letter to Broome County Sheriff David Harder directing, on behalf of the Broome County Judges, that Harder "immediately and permanently remove Officer Timothy Mooney from all assignments at Broome County court facilities."

Subsequently, the Administrative Judge informed Harder that "under no circumstances will the court allow Officer Mooney to reassume his previous role at or in any Broome [County] court facility."

Harder complied with these directives, and reassigned Mooney from his duties — which included, among other things, guarding inmates in the holding cell at the courthouse and during court appearances.

Council 82 filed a grievance on Mooney's behalf, contending that the reassignment violated the party’s collective bargaining agreement [CBA]. The grievance was denied and the union demanded arbitration pursuant to the CBA. As a remedy it sought Mooney's reinstatement to his previous courthouse assignment.

The County initiated an Article 75 proceeding seeking to stay arbitration. Supreme Court, concluding that public policy prohibits arbitration of this matter, granted the County’s application to stay arbitration and Council 82 appealed.

The Appellate Division said that "Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain [first] whether the parties may arbitrate their dispute and, if so, whether they agreed to do so"

As the Appellate Division found that subject matter of the dispute satisfied the test, it said that it must now determine "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance."

Noting that "judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships," the Appellate Division said that in this instance it concluded that that public policy prohibits arbitration of Council 82’s grievance.

The court explained that public policy implicated here derives from the courts' inherent authority to maintain the integrity of the judicial process, manage their judicial functions, and guarding their independence. Thus, said the court, the Administrative Judge was acting within his responsibility when he directed that Harder, an officer of the court* permanently reassign Mooney from duties that would require him to enter a Broome County courthouse.

Although Council 82 contended that such reassignment of Mooney constituted a disciplinary action taken without resort to the bargained-for disciplinary procedure and sought Mooney's immediate reinstatement to his bid assignment of court holding officer, the Appellate Division concurred with Supreme Court view that that “Mooney's reinstatement to his former court officer duties by an arbitrator would encroach upon the authority of judges to manage their courtrooms.”

Despite Council 82’s argument that the inherent authority of judges to control their courtrooms does not implicate a public policy interest, the Appellate Division said that “such an encroachment upon the court's authority is, in our view, contrary to strong public policy and would frustrate the orderly administration of justice.”**

As there was no dispute that Mooney was reassigned to a position with the same schedule and pay rate that he had in his court holding officer position and there was no allegation that Mooney was aggrieved in any manner beyond his reassignment from his duties at the Broome County Courthouse, the Appellate Division said that “Under these circumstances, the granting of any relief would violate public policy and, accordingly, Supreme Court properly stayed arbitration of this matter.”

* County Law §650

** The Appellate Division also rejected Council 82’s contention that the application to stay arbitration was premature because the arbitrator could fashion relief that would not violate public policy.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00325.htm

Selecting from among conflicting medical opinions

Selecting from among conflicting medical opinions
Bell v NYC Employees’ Retirement System, 273 AD2d 119, Motion for leave to appeal denied, 96 NY2d 701

The New York City Employees’ Retirement System rejected the application for accidental disability retirement filed by Augusta Bell. Bell appealed, contending that the System’s decision was arbitrary and capricious.

The Appellate Division dismissed Bell’s petition, thus sustaining the Systems’ decision. The ruling points out that the System’s Medical Board found that Bell was not disabled while her personal physician had a conflicting opinion.

The court found that the Board’s determination was rationally based on its own examination of Bell. The fact that it chose to rely on the findings of its examiners rather than the conflicting reports of Bell’s physicians is not an indication of arbitrariness.

Testing for illegal drugs

Testing for illegal drugs
Wilson v White Plains, 95 NY2d 783

The Appellate Division reinstated Ian Scott Wilson to his position of firefighter with the City of White Plains. Wilson had been terminated after testing positive for large quantities of benzoylecgonine (a metabolite of cocaine) in his urine.

In annulling Wilson’s dismissal, the Appellate Division said that in directing [Wilson] to submit to blood and urine tests, the fire department officials relied upon an unsubstantiated and anonymous letter and that there was no objective evidence, which would have suggested that the [firefighter] was abusing alcohol or drugs.

The Court of Appeals reversed the Appellate Division’s decision noting that the parties agreed that a public agency may lawfully order an employee to submit to a drug test on reasonable suspicion of drug use.

The Court of Appeals found that the hearing officer concluded that the White Plains had reasonable suspicion to conduct the test, holding that the Appellate Division erred in concluding otherwise.

According to the decision, in addition to its receiving an anonymous letter concerning Wilson’s alleged use of drugs, the City presented evidence of Wilson’s physical manifestations of substance abuse the day he was tested, his long record of excessive absences, his prior substance abuse problems, his reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.

The Court of Appeals then remitted the case to the Appellate Division for it to consider a number of Wilson’s contentions that it had not addressed when the case was initially argued before it in light of its ruling in this appeal.

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.

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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.