Completed school district audits

Completed school district audits
Source: The Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced his office has completed audits of the school districts listed below.

Click on the school name to access the Comptroller's audit report.

Beekmantown Central School District,

Clarkstown Central School District,

Geneva City School District,

Homer Central School District,

Riverhead Central School District and

Taconic Hills Central School District.

Arbitrating health insurance claims

Arbitrating health insurance claims
Correction Officers Benevolent Asso. v Westchester County, Supreme Court, Westchester County, [Not selected for publication in the Official Reports]

Not every grievance concerning health insurance benefits provided pursuant to a collective bargaining agreement is subject to the contract arbitration provisions set out in the Taylor Law contract as the Correction Officers Benevolent Association case demonstrates.

The collective bargaining agreement [CBA] between the Correction Officers Benevolent Association [COBA] and Westchester County provided for the arbitration of contract disputes.

The county’s self-insured health plan, administered by a third party, POMCO, included an appeal procedure allowing COBA members to challenge the denial of a claim.

CBA disputes were subject to binding arbitration. In contrast, the denial of a health insurance claim could be appealed to the plan administrator and, if the individual was not satisfied, he or she could sue in court.

The health insurance plan’s procedure, however, provided that [n]o lawsuit may be started to obtain benefits until after 60 days after written proof of claim or loss is given. No lawsuit may be started more than two years after the time written proof of loss or claim is required to be given and a claims appeal has been requested.

A claim for benefits filed by a COBA member was denied, as was his appeal to the plan administrator. He then sued the county and POMCO.

The employee’s claim for coverage for immunization for chicken pox for his three children under a Well Child Care provision was denied as not covered by the Plan.

Westchester, claiming that the employee had not exhausted his administrative remedies because he failed to file a grievance under the contract grievance procedure, asked a State Supreme Court justice to dismiss the petition.

Justice J. Emmett Murphy denied Westchester’s motion, summarizing the relevant case law as follows:

1. In cases where the collective bargaining agreement contains a broad arbitration agreement which provides that any alleged violation of the Agreement or any dispute with respect to its meaning or application was arbitrable and ... provisions relating to health insurance benefits and a percentage breakdown for premium costs allocable to the parties ... [or] a dispute regarding a substantive change in the health insurance plan, resulting in either an increase in the employee’s contributions and/or a reduction in benefits was arbitrable as an alleged violation of employee’s obligations under the CBA, citing Matter of Watertown City School District, 93 NY2d 132.

2. The fact the changes to the health plan were made by an entity that is not a party to the CBA is not determinative of whether the grievance/dispute is arbitrable.

Here, said Justice Murphy, there was no change in the benefits nor was there any change in the contributions to be made for the plan by participants. Rather, the issue concerned the rejection of a claim for certain medical procedures by the Plan Administrator. The employee claimed he should receive the benefit while the Plan administrator said the benefit demanded was not available to the employee under the Plan.

If the employee’s claim concerned a dispute involving a change to the health plan that would increase an employee’s contributions or reduce benefits, it would constitute an arbitrable issue as to whether or not the County breached its promise in the CBA to retain the current insurance plan.

In contrast, here the disputed did not involve any claim of a substantive change in the existing health plan’s benefits or employee contributions to the plan but, rather, concerned whether a certain service administered by a participating provider is covered within the meaning of the terms of the current health plan, which have not been altered by the County.

This, according to the court, was simply not an issue that was subject to contract arbitration. In other words, the Plan administrator’s determination did not affect any of the terms and conditions set out in the CAB.

The court said that the county’s position that arbitration under the CBA was required is belied by the fact the Plan provides its own dispute resolution mechanism for claims of this nature, i.e., an internal appeal and, thereafter, the commencement by an aggrieved enrollee of the lawsuit to he governed by the laws of New York.

Justice Murphy’s conclusion:

The CBA’s grievance procedure, culminating in arbitration, is not applicable to the dispute that is the subject of this litigation and the Plan itself sets out the procedures available to an individual to resolve disputes concerning the denial of a claimed benefit or coverage.

The county also argued that the issue was subject to PERB’s jurisdiction and the court should dismiss the action and defer to PERB. Justice Murphy disagreed, holding that the case does not involve a refusal to negotiate medical coverage to which a corrections officer is entitled.

Clearly PERB has jurisdiction in cases involving alleged improper labor practices. Here, however, there was no allegation that Westchester violated its agreement with an employee association, which would constitute an improper employee practice under the Taylor Law.

The issue involved the interpretation or the enforcement of a provision in the health insurance plan. In Matter of Kinsella [198 AD2d 824], the Appellate Division said that PERB does not have jurisdiction to resolve such issues or authority to enforce the provisions of a collective bargaining agreement.

Justice Murphy said that the dispute over whether or not a chicken pox vaccine is a covered service involves no improper employer practice, but is merely a question of the meaning and enforcement of the Plan and, thus, is outside the scope of PERB’s jurisdiction.

Essentially the court held that because the plan itself provided for a procedure for resolving disputes concerning the plan, that procedure had to be followed in this instance.

Relying on hearsay evidence in administrative hearings depends on the creditability of the witness.

Relying on hearsay evidence in administrative hearings depends on the creditability of the witness.
Saunders v City of New York, 273 AD2d 103, Motion for leave to appeal denied, 95 NY2d 766

New York City police officer Brian Saunders was terminated from his position after being found guilty of having assaulted and caused physical injuries to two former girlfriends.

Sauders appealed, contending that the Commissioner’s determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that [t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence.

According to the decision [h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined. This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at Sauders’ departmental disciplinary hearing, said the court, was a matter to be assessed by the Deputy Commissioner who presided at the trial.

Accordingly, said the court, determinations concerning the credibility of witnesses is largely beyond our power of review.

Successor union’s liability

Successor union’s liability
Parker v Metropolitan Trans. Authority, USDC, SDNY, [Justice Colleen McMahon]

Donald Parker, a police officer with the Metro-North Commuter Railroad (Metro-North), sued the Metropolitan Transportation Authority, Metro-North, the Metropolitan Transportation Authority Police Benevolent Association [MTA-PBA], the Metro-North Police Benevolent Association, and the Railroad Police Benevolent Association, claiming each had discriminated against him because of his age and disability.

Parker alleged that he was not promoted to sergeant by Metro-North and it removed his name from an internal sergeant promotion list because of discriminatory animus against him. Metro North said it removed Parker’s name from the list in accordance with the terms of the collective bargaining agreement.

Parker was 58 years of age when he took and passed the written examination for sergeant. Assigned to Poughkeepsie, Parker underwent by-pass heart surgery. When he returned to duty, he was temporarily reassigned to light duty in Yonkers.

In December 1991, while on light duty at Yonkers, Parker was offered a sergeant’s position in Grand Central Terminal, some 80 miles from his work site in Poughkeepsie but less than 30 miles from Yonkers. Under the collective bargaining agreement [CBA], an officer could decline a promotion without losing his or her seniority or standing on the promotion list if the reporting point for the new position is located more than 30 miles from the officer’s present reporting point. Parker declined the New York City promotion offer and Metro-North removed his name from the promotion list.*

One of the issues addressed by Judge Colleen McMahon was MTA-PBA’s motion for summary judgment dismissing it from the lawsuit. MTA-PBA pointed out that it was the successor union, and had not negotiated the CBA in question.

MTA-PBA was a separate labor organization from the Metro-North PBA. On January 1, 1998, the Metro-North and Long Island Railroad Police Departments were disbanded and replaced by the MTA Police Department. Subsequently PERB recognized MTA-PBA as the exclusive bargaining agent for MTA police officers including those employed by Metro-North.

MTA-PBA’s basic argument: because the events underlying the alleged acts of unlawful discrimination took place before the MTA-PBA was designated the bargaining agent, MTA-PBA could not have been a participant in any discrimination against [Parker], and thus, cannot be liable.

May MTA-PBA be held responsible for unlawful discrimination on the basis of its status as the successor union and thus subject to liability if Parker proves his charges? Judge McMahon said that said that [t]he little case law that appears to exist on the issue indicates that successor labor organizations may be held liable for the discriminatory acts of their predecessors, according to the same factors used to determine successor liability of corporations, citing an earlier Southern District ruling, EEOC v Local 638, 700 F. Supp. 739. In holding that a successor union could be liable under Title VII for the acts of its predecessor, Judge McMahon said that the Local 638 court considered four elements:

1. The relationship between the predecessor and successor (for example, whether the successor was formed by a merger of the predecessor);

2. Whether substantial continuity of assets and employees existed between the predecessor and successor;

3. Whether the successor had notice of the liabilities and obligations of the predecessor; and

4. The importance of the federal policies at stake.

Here, said Judge McMahon, MTA-PBA did not adequately address any of these factors, but simply argued, in conclusory fashion, that because the MTA-PBA did not come into existence until after [the actions taken by its predecessor were taken] it cannot be liable for any discrimination by the Metro-North PBA [resulting from such actions]. In view of this omission, said the court, that MTA-PBA was not entitled to summary judgment with respect to the claims against the MTA PBA.

The union president, Robert Novy, was also a named defendant. However, as the court said, individual defendants may not be liable under ADEA ... the same rule applies under ADA....

* The collective bargaining agreement also contained a non-discrimination clause that stated that there will be no discrimination against any officers because of race, color, creed, national origin or sex, but did not include any provision specifically prohibiting age or disability discrimination.

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