Accidental disability retirement - determining proximate cause
Sepanara v NYS Employees’ Retirement System, 272 AD2d 830
City of Johnstown police officer Michael C. Sepanara, claiming that he was permanently disabled as a result of a line-of-duty injury, filled applications for accidental and performance of duty disability retirement benefits.
According to the facts set out in the Appellate Division’s decision, Sepanara was on duty when he stumbled and fell on a broken piece of asphalt in an eroding parking lot, allegedly sustaining neck, wrist and back injuries. Sepanara testified at the hearing held by the Retirement System and he and the System elected to rely upon medical records presented at the hearing.
The Retirement System conceded that Sepanara was disabled -- but concluded that neither his slipping or falling in the parking lot was the cause of his disability. Essentially the System decided that Sepanara’s disability was the sole result of a preexisting degenerative back condition. The Comptroller agreed and denied Sepanara’s applications for disability retirement benefits. Sepanara sued, seeking to overturn the Comptroller’s determination.
The Appellate Division affirmed the Comptroller’s ruling, holding that Sepanara failed to sustain his burden of proving that his permanent disability was the natural and proximate result of the April 1995 accident.
The court pointed out that the relevant medical records indicated that Sepanara began experiencing neck and shoulder pain in the 1980s and was diagnosed with degenerative cervical abnormalities and arthritis in his neck as early as 1988.
In addition, the System’s medical experts, after examining Sepanara and reviewing his medical history, concluded that his chronic degenerative disc disease and arthritis of the cervical spine were the sole cause of [his] disability and that these conditions were completely unrelated to the April 1995 accident nor were they aggravated by that accident.
While there was medical evidence that could support a finding that Sepanara’s April 1995 accident was the proximate cause of his disability, it was within the Comptroller’s authority to evaluate the conflicting medical opinions and to resolve the dispute by according greater weight to the considered opinions offered by [the System’s] experts than to those offered by the other experts.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
February 09, 2011
Using the word “should” in a policy memorandum’s means it is not mandatory
Using the word “should” in a policy memorandum’s means it is not mandatory
Port Wash. Teachers' Ass'n v. Board of Educ. of the Port Wash. Union Free Sch. Dist., No. 06-0708-CV 67, (USCA, 2d Cir.)
The superintendent of the Port Washington Union Free School District, Dr. Geoffrey N. Gordon, issued a policy memorandum advising members of the school district’s staff of the actions they should take in the event they learn that a student is pregnant.
The teachers' union sued, but a federal district court judge, Judge Thomas C. Platt, dismissed the petition. Judge Platt held that the action could not be maintained because there was (1) “a lack of standing,” (2) the claims were not ripe, and (3) the complaint failed to state a viable claim.
The Circuit Court of Appeals affirmed Judge Platt’s ruling.
Dr. Gordon’s “Policy Memorandum” setting out the District’s policy stated that that a student's communications to one of them that a student is pregnant “is not a communication protected by a legal privilege, but rather may trigger legal reporting obligations.”
The policy indicated that a staff member who becomes aware of a student pregnancy should report it immediately to the school social worker. The policy also addressed the action that staff members should take in cases where statutory rape or incest was suspected. It also stated that the parents of the student should be advised of the pregnancy by school personnel if the student refused to do so.
The court said that the union offer little more than conclusory statements to support its assertion that social workers risk civil liability and their professional license by complying with the Policy Memorandum or that staff members were in jeopardy of disciplinary action if they did not comply with the policy.
In affirming the dismissal of the complaint by the district court judge, the Circuit Court said that “Because the plaintiffs have not established that civil liability or professional discipline is actual or imminent, the theoretical possibility that either might occur in the future does not amount to injury in fact.”
In addition, the court noted that the Policy “repeatedly uses the word ‘should’ in setting forth the notification procedures, thus easily supporting the understanding that adherence to them was not mandatory, by law or otherwise.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/notification-of-pregnancy-to-parents-of.html
Port Wash. Teachers' Ass'n v. Board of Educ. of the Port Wash. Union Free Sch. Dist., No. 06-0708-CV 67, (USCA, 2d Cir.)
The superintendent of the Port Washington Union Free School District, Dr. Geoffrey N. Gordon, issued a policy memorandum advising members of the school district’s staff of the actions they should take in the event they learn that a student is pregnant.
The teachers' union sued, but a federal district court judge, Judge Thomas C. Platt, dismissed the petition. Judge Platt held that the action could not be maintained because there was (1) “a lack of standing,” (2) the claims were not ripe, and (3) the complaint failed to state a viable claim.
The Circuit Court of Appeals affirmed Judge Platt’s ruling.
Dr. Gordon’s “Policy Memorandum” setting out the District’s policy stated that that a student's communications to one of them that a student is pregnant “is not a communication protected by a legal privilege, but rather may trigger legal reporting obligations.”
The policy indicated that a staff member who becomes aware of a student pregnancy should report it immediately to the school social worker. The policy also addressed the action that staff members should take in cases where statutory rape or incest was suspected. It also stated that the parents of the student should be advised of the pregnancy by school personnel if the student refused to do so.
The court said that the union offer little more than conclusory statements to support its assertion that social workers risk civil liability and their professional license by complying with the Policy Memorandum or that staff members were in jeopardy of disciplinary action if they did not comply with the policy.
In affirming the dismissal of the complaint by the district court judge, the Circuit Court said that “Because the plaintiffs have not established that civil liability or professional discipline is actual or imminent, the theoretical possibility that either might occur in the future does not amount to injury in fact.”
In addition, the court noted that the Policy “repeatedly uses the word ‘should’ in setting forth the notification procedures, thus easily supporting the understanding that adherence to them was not mandatory, by law or otherwise.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/notification-of-pregnancy-to-parents-of.html
February 08, 2011
Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other
Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other
Matter of Uddin v NYC/Human Resources Admin., 2011 NY Slip Op 00695, Appellate Division, Second Department
§76 of the Civil Service Law provides that an aggrieved employee may appeal a §75 administrative disciplinary determination by either:
1. Filing an application to the state or municipal commission having jurisdiction within twenty days after service of the written notice of the disciplinary determination; or
2. By filing a petition in accordance with the provisions of Article 78 of the Civil Practice Law and Rules [CPLR].
New York City Human Resources Administration sustained the disciplinary determination and the recommended penalty issued by an administrative law judge that found Jamal Uddin guilty of misconduct.
Uddin then filed a petition pursuant to CPLR Article 78 with Supreme Court, Kings County. The court, however, granted Human Resources’ motion to dismiss the petition, and dismissed the proceeding.
The Appellate Division sustained the lower court’s decision, noting that Uddin sought judicial review of a §75 disciplinary determination after seeking a review pursuant to Civil Service Law §76 before the New York City Civil Service Commission [NYCCSC], said he was barred from commencing the underlying CPLR Article 78 proceeding.*
The court then commented that “To the extent that this proceeding may also be considered a challenge to the determination of the NYCCSC,” Uddin failed to demonstrate that the NYCCSC's determination falls within a recognized exception to the statutory prohibition on judicial review of such by virtue of its being unconstitutional, violative of state law, or in excess of the NYCCSC's authority.
Accordingly, the Appellate Division ruled that judicial review of the NYCCSC's determination was precluded.
* §76.3, in pertinent part, provides that “The decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00695.htm
Matter of Uddin v NYC/Human Resources Admin., 2011 NY Slip Op 00695, Appellate Division, Second Department
§76 of the Civil Service Law provides that an aggrieved employee may appeal a §75 administrative disciplinary determination by either:
1. Filing an application to the state or municipal commission having jurisdiction within twenty days after service of the written notice of the disciplinary determination; or
2. By filing a petition in accordance with the provisions of Article 78 of the Civil Practice Law and Rules [CPLR].
New York City Human Resources Administration sustained the disciplinary determination and the recommended penalty issued by an administrative law judge that found Jamal Uddin guilty of misconduct.
Uddin then filed a petition pursuant to CPLR Article 78 with Supreme Court, Kings County. The court, however, granted Human Resources’ motion to dismiss the petition, and dismissed the proceeding.
The Appellate Division sustained the lower court’s decision, noting that Uddin sought judicial review of a §75 disciplinary determination after seeking a review pursuant to Civil Service Law §76 before the New York City Civil Service Commission [NYCCSC], said he was barred from commencing the underlying CPLR Article 78 proceeding.*
The court then commented that “To the extent that this proceeding may also be considered a challenge to the determination of the NYCCSC,” Uddin failed to demonstrate that the NYCCSC's determination falls within a recognized exception to the statutory prohibition on judicial review of such by virtue of its being unconstitutional, violative of state law, or in excess of the NYCCSC's authority.
Accordingly, the Appellate Division ruled that judicial review of the NYCCSC's determination was precluded.
* §76.3, in pertinent part, provides that “The decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00695.htm
Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals
Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals
Meagher v Safir, 272 AD2d 114
One of the issues in the Justin Meagher’s appeal from the disciplinary penalty imposed upon him by the New York City Commissioner of Police was that his punishment was the forfeiture of ten days of vacation while the penalty imposed on another officer involved in the same event was the loss of five days of vacation.*
Both officers, who were partners, were found guilty of using excessive force in making a particular arrest.
The Appellate Division held that the record provides no basis for imposing different penalties on the two police officers involved in this incident. Rather, said the court, the record indicated that appointing authority’s designee, the First Deputy Commissioner, improperly cited [Meagher’s] election to pursue an administrative trial as justification for the higher penalty.
The Appellate Division, concluding that the penalty imposed on Meagher was disproportionate to the offense. Rather than remand the case to the department for the imposition of a new penalty, the Appellate Division elected to exercise its discretion and changed the penalty to be imposed on Meagher to the loss of five days vacation.**
* In addition, the record indicates that the department discontinued its scholarship support for Meagher’s law school tuition as a result of his being found guilty of misconduct.
** Apparently, however, the court did not reinstate the Department’s scholarship support of Meagher’s law school tuition.
Meagher v Safir, 272 AD2d 114
One of the issues in the Justin Meagher’s appeal from the disciplinary penalty imposed upon him by the New York City Commissioner of Police was that his punishment was the forfeiture of ten days of vacation while the penalty imposed on another officer involved in the same event was the loss of five days of vacation.*
Both officers, who were partners, were found guilty of using excessive force in making a particular arrest.
The Appellate Division held that the record provides no basis for imposing different penalties on the two police officers involved in this incident. Rather, said the court, the record indicated that appointing authority’s designee, the First Deputy Commissioner, improperly cited [Meagher’s] election to pursue an administrative trial as justification for the higher penalty.
The Appellate Division, concluding that the penalty imposed on Meagher was disproportionate to the offense. Rather than remand the case to the department for the imposition of a new penalty, the Appellate Division elected to exercise its discretion and changed the penalty to be imposed on Meagher to the loss of five days vacation.**
* In addition, the record indicates that the department discontinued its scholarship support for Meagher’s law school tuition as a result of his being found guilty of misconduct.
** Apparently, however, the court did not reinstate the Department’s scholarship support of Meagher’s law school tuition.
Taylor Law considerations concerning General Municipal Law Section 207-a/207-c
Taylor Law considerations concerning General Municipal Law Section 207-a/207-c
Barnes v Council 82, [David Monroe], Court of Appeals, 94 NY2d 719
Watertown v Watertown PBA, Court of Appeals, 95 NY2d 73
Local 2562, IAFF, AFL-CIO, v Cohoes, Court of Appeals, 94 NY2d 686
The Court of Appeals has handed down three rulings concerning issues involving collective bargaining under the Taylor Law as they relate to negotiating procedures to implement and administer General Municipal Law Sections 207-a and 207-c with respect to the approval, and continuation of, benefits pursuant to these provisions.
In the Watertown P.B.A. case, the Court considered the negotiability of Section 207-c issues under the Taylor Law. In Barnes, the court addressed matters concerning procedures dealing with reporting for light or full duty assignments in accordance with a negotiated procedure. In Cohoes, one of the significant issues concerned due process requirements.
The Watertown PBA case
Referring to its determination in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, the Court of Appeals said that the employer’s authority under Section 207-c to make initial determinations in these matters is not a mandatory subject of collective bargaining.
Is a demand to negotiate procedures for the administration of the provisions of Section 207-c following the initial determination by the employer a mandatory subject of collective bargaining for the purposes of the Taylor Law? Yes, such demands were mandatory subjects of collective bargaining, said the court, noting the strong and sweeping presumption in favor of mandatory bargaining.
The case arose when the Watertown Police Benevolent Association [PBA] proposed that the parties bargain about the procedures to be followed if an officer wishes to contest the city’s initial Section 207-c determination in contrast to bargaining the City’ s right to make the initial determination. PBA wanted to have disagreements with the City’s initial determination to final and binding arbitration pursuant PERB’s Voluntary Disputes Resolution Procedure.
When the City refused to negotiate the demand, PBA filed an unfair labor practice charge with PERB. PERB ruled that since Section 207-c provides no procedural framework for resolving disputes, and because eligibility determinations [under Section 207-c] clearly affect terms and conditions of employment, “a demand for a dispute resolution procedure ending in arbitration ... is mandatorily negotiable.”
The Court of Appeals agreed, concluding that “the arbitration sought by ... the PBA is not a matter which the Legislature has circumscribed from the State’s strong and sweeping policy of bargaining with regard to terms and conditions of employment.”
Citing Public Sector Labor and Employment Law [Lefkowitz, Osterman & Townley, published by the New York State Bar Association,], the Court of Appeals observed that “... bargaining is mandatory even for a subject treated by statute unless the statute clearly preempt[s] the entire subject matter or the demand to bargain diminish[es] or merely restate[s] the statutory benefits.” Unless, said the court, there is clear evidence that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining.
In addition to making the initial determination, Section 207-c gives the employer the exclusive right to appoint a physician to examine a sick or injured officer, to prescribe and provide medical or surgical treatment if indicated, and to issue an initial back-to-work order if the physician concludes that the officer is capable of performing regular or light duty. Accordingly, these areas are not are not mandatorily negotiable.
Nor is bargaining required with respect to an employer’s ability to issue an initial order that a police officer assume a light duty position or to ordering a disabled officer to submit to surgery or requiring the employee to sign a medical confidentiality waiver form concerning the officer’s medical condition related to his or her ability to perform the duties of the position as a condition of his or her receiving, or continuing to receive, Section 207-c benefits.
As to the nonmandatory negotiating subjects of collective bargaining identified by the court, it may be significant that the decision does not characterize them as prohibited subjects of negotiations. Accordingly, it would appear that these issues are permissive subjects of collective bargaining.
The Barnes Case
The Barnes case starts where Watertown stops. While Watertown concerns a negotiating demand, in Barnes the parties had already agreed to a Section 207-c Procedure. The issue before the court concerned the processing of disputes arising under the procedure -- specifically arbitrating the employer’s order directing an individual on Section 207-c leave to report for a light or full duty assignment.
There was no question that such a dispute could be arbitrated said the Court of Appeals, pointing to its recent ruling in Board of Education of Watertown City School District (93 NY2d 132).
In Watertown School District, the court ruled that arbitration is an available procedure for resolving personnel disputes in the public sector if the party demanding arbitration is able to satisfy two tests:
1. The claim was lawfully fit for arbitration, i.e., there was no public policy, statutory or constitutional restriction placing arbitration off-limits; and
2. The parties must have agreed to refer the particular subject matter of the dispute to arbitration.
While here arbitration ultimately would have available to David Monroe to resolve the dispute, the Court of Appeals decided that there was no short cut to the arbitrator: under the facts of this case, Monroe had to comply with the requirements set out in the Article XI of the Section 207-c Procedure agreed upon by the County and Council 82.
The court found that although the parties had agreed to arbitrate disputes concerning directing an individual to report for light duty, Monroe’s demand for arbitration was premature because he failed to comply with the administrative procedures to be followed in resolving such disputes.
The case arose after Schenectady County Sheriff William W. Barnes, relying on the County’s medical expert’s conclusion that David Monroe, a corrections officer on Section 207-c leave, could perform light duty work, directed him to report for light duty. Monroe objected to the directive, as did his union, Council 82, contending that Monroe’s personal physician had said he was unfit to perform light duty.
The County said that “the proper route for Mr. Monroe [to challenge its decision] is to file a step 3 grievance ... within ten days of [Monroe’s] receipt of the order to light duty, citing Article XI of its Section 207-c procedure.”
The Section 207-c Procedure was established pursuant to a Memorandum of Agreement between the County and Council 82 and provided for submitting an adverse step 3 grievance determination by the County to arbitration.
Instead of filing a step 3 grievance, pursuant to Article XI, Council 82 demanded arbitration in accordance with Article VI (B) (2) of the procedure, contending that the question of whether or not Monroe is fit for a light duty assignment should be determined by the arbitrator because, in contrast to the County’s physician’s finding, Monroe’s personal physician had determined that he was not fit for light duty. The County, on the other hand, argued that the issue had to be first submitted as a step 3 grievance. The County won a court order staying arbitration.
The Court of Appeals affirmed the lower court’s granting of the stay, pointing out that Monroe had failed to satisfy the second test it had set out in Watertown School District. Why? Because, said the court, there was no agreement to submit the dispute in question directly to arbitration and Monroe did not satisfy the conditions precedent under the 207-c procedure that would have allowed the issue to ultimately be submitted to arbitration.
Two provisions of the Procedure were involved. Article VI, Section (B)(2) of the procedure provided that where this is a conflict in medical opinions concerning the light duty assignment, ... the duty or duties in dispute cannot be assigned until such dispute is resolved. Such dispute over said duties shall be submitted directly to arbitration...
The second provision, relied upon by the County was Article XI. The County argued that Article VI (B) (2) applied only in instances of medical disagreements arise as to the ability of the individual to perform the specific work assignments upon the employee’s reporting for light duty.
In contrast, where the individual raises an objection to an order to report for light duty based on the individual’s claim that he or she is physically unable to return to duty regardless of the nature of the assignment, his or her objection must be processed in accordance with Article XI as a Step 3 grievance regarding such decision.
Essentially the County argued that Article VI(B)(2) applies in situations where there is no dispute as to the individual’s ability to perform light duty -- only the particular light duty proposed -- while Article XI applies where the employee’s physician states that the individual is unable to perform any light duty whatsoever.
Agreeing with Schenectady County’s argument, the Court of Appeals said that because the basic issue concerned a conflict of medical opinions as to Monroe’s ability to perform any light duty, the issue was to be resolved in accordance with Article XI of the procedure. As Monroe had not filed a Step 3 grievance, he did not satisfy a condition precedent for any arbitration under the terms of the Collective Bargaining Agreement. Accordingly, the Court of Appeals affirmed the stay of arbitration.
The Cohoes case
The physician for the City of Cohoes found that five of six firefighters on Section 207-a leave were qualified to perform light duty while the remaining firefighter was qualified to return to full duty.
Although given written orders to report for full duty or to perform light duty assignments, the six did not report as directed. The union objected to the report-for-duty orders on the ground that the members may not be ordered back to work without specification of the proposed duties and an opportunity to challenge the proposed return to work order at a due process hearing. In response, Cohoes discontinued their Section 207-a benefits.*
In addition to suing, the firefighters, through filed grievances under their collective bargaining agreement and ultimately demanded arbitration of their grievances before the State Public Employment Relations Board. The City obtained a stay of arbitration.
As to the firefighters’ claim that they were entitled to an evidentiary hearing on their medical ability to perform light duty assignments before an order to return could be issued, the Court of Appeals said that although an administrative hearing may ultimately be required before Section 207-a payments are terminated, recipients are not entitled to a hearing prior to the issuance of a report for light duty order. They become entitled to such a hearing only if they submit a contrary opinion from their personal physician.
In the words of the court, due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts.
As to the demand for arbitration, the Court of Appeals decided that the City was not required to arbitrate its orders to report for light duty assignments. Its rationale: as the collective bargaining agreement is entirely silent concerning the contractual rights provided to regular duty firefighters being available to firefighters on Section 207-a leave, the lack of an express provision in the negotiated agreement making it applicable to firefighters in 207-a leave status is fatal to any claim of a contractual right to arbitrate these claim.
Citing Chalachan v City of Binghamton, 55 NY2d 989, the court commented that apart from contractual entitlements, “[t]he collective bargaining agreement should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. Any additional benefits must be expressly provided for in the agreement.”
* In the course of litigating this case, the Appellate Division held that if an individual submitted medical documentation of their continued total disability, his or her Section 207-a benefits may not be discontinued prior to the employer’s holding a hearing (Matter of City of Cohoes, 258 AD2d 24). The Court of Appeals affirmed this aspect of the Appellate Division’s decision.
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For additional information see General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar laws at: http://section207.blogspot.com/
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Barnes v Council 82, [David Monroe], Court of Appeals, 94 NY2d 719
Watertown v Watertown PBA, Court of Appeals, 95 NY2d 73
Local 2562, IAFF, AFL-CIO, v Cohoes, Court of Appeals, 94 NY2d 686
The Court of Appeals has handed down three rulings concerning issues involving collective bargaining under the Taylor Law as they relate to negotiating procedures to implement and administer General Municipal Law Sections 207-a and 207-c with respect to the approval, and continuation of, benefits pursuant to these provisions.
In the Watertown P.B.A. case, the Court considered the negotiability of Section 207-c issues under the Taylor Law. In Barnes, the court addressed matters concerning procedures dealing with reporting for light or full duty assignments in accordance with a negotiated procedure. In Cohoes, one of the significant issues concerned due process requirements.
The Watertown PBA case
Referring to its determination in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, the Court of Appeals said that the employer’s authority under Section 207-c to make initial determinations in these matters is not a mandatory subject of collective bargaining.
Is a demand to negotiate procedures for the administration of the provisions of Section 207-c following the initial determination by the employer a mandatory subject of collective bargaining for the purposes of the Taylor Law? Yes, such demands were mandatory subjects of collective bargaining, said the court, noting the strong and sweeping presumption in favor of mandatory bargaining.
The case arose when the Watertown Police Benevolent Association [PBA] proposed that the parties bargain about the procedures to be followed if an officer wishes to contest the city’s initial Section 207-c determination in contrast to bargaining the City’ s right to make the initial determination. PBA wanted to have disagreements with the City’s initial determination to final and binding arbitration pursuant PERB’s Voluntary Disputes Resolution Procedure.
When the City refused to negotiate the demand, PBA filed an unfair labor practice charge with PERB. PERB ruled that since Section 207-c provides no procedural framework for resolving disputes, and because eligibility determinations [under Section 207-c] clearly affect terms and conditions of employment, “a demand for a dispute resolution procedure ending in arbitration ... is mandatorily negotiable.”
The Court of Appeals agreed, concluding that “the arbitration sought by ... the PBA is not a matter which the Legislature has circumscribed from the State’s strong and sweeping policy of bargaining with regard to terms and conditions of employment.”
Citing Public Sector Labor and Employment Law [Lefkowitz, Osterman & Townley, published by the New York State Bar Association,], the Court of Appeals observed that “... bargaining is mandatory even for a subject treated by statute unless the statute clearly preempt[s] the entire subject matter or the demand to bargain diminish[es] or merely restate[s] the statutory benefits.” Unless, said the court, there is clear evidence that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining.
In addition to making the initial determination, Section 207-c gives the employer the exclusive right to appoint a physician to examine a sick or injured officer, to prescribe and provide medical or surgical treatment if indicated, and to issue an initial back-to-work order if the physician concludes that the officer is capable of performing regular or light duty. Accordingly, these areas are not are not mandatorily negotiable.
Nor is bargaining required with respect to an employer’s ability to issue an initial order that a police officer assume a light duty position or to ordering a disabled officer to submit to surgery or requiring the employee to sign a medical confidentiality waiver form concerning the officer’s medical condition related to his or her ability to perform the duties of the position as a condition of his or her receiving, or continuing to receive, Section 207-c benefits.
As to the nonmandatory negotiating subjects of collective bargaining identified by the court, it may be significant that the decision does not characterize them as prohibited subjects of negotiations. Accordingly, it would appear that these issues are permissive subjects of collective bargaining.
The Barnes Case
The Barnes case starts where Watertown stops. While Watertown concerns a negotiating demand, in Barnes the parties had already agreed to a Section 207-c Procedure. The issue before the court concerned the processing of disputes arising under the procedure -- specifically arbitrating the employer’s order directing an individual on Section 207-c leave to report for a light or full duty assignment.
There was no question that such a dispute could be arbitrated said the Court of Appeals, pointing to its recent ruling in Board of Education of Watertown City School District (93 NY2d 132).
In Watertown School District, the court ruled that arbitration is an available procedure for resolving personnel disputes in the public sector if the party demanding arbitration is able to satisfy two tests:
1. The claim was lawfully fit for arbitration, i.e., there was no public policy, statutory or constitutional restriction placing arbitration off-limits; and
2. The parties must have agreed to refer the particular subject matter of the dispute to arbitration.
While here arbitration ultimately would have available to David Monroe to resolve the dispute, the Court of Appeals decided that there was no short cut to the arbitrator: under the facts of this case, Monroe had to comply with the requirements set out in the Article XI of the Section 207-c Procedure agreed upon by the County and Council 82.
The court found that although the parties had agreed to arbitrate disputes concerning directing an individual to report for light duty, Monroe’s demand for arbitration was premature because he failed to comply with the administrative procedures to be followed in resolving such disputes.
The case arose after Schenectady County Sheriff William W. Barnes, relying on the County’s medical expert’s conclusion that David Monroe, a corrections officer on Section 207-c leave, could perform light duty work, directed him to report for light duty. Monroe objected to the directive, as did his union, Council 82, contending that Monroe’s personal physician had said he was unfit to perform light duty.
The County said that “the proper route for Mr. Monroe [to challenge its decision] is to file a step 3 grievance ... within ten days of [Monroe’s] receipt of the order to light duty, citing Article XI of its Section 207-c procedure.”
The Section 207-c Procedure was established pursuant to a Memorandum of Agreement between the County and Council 82 and provided for submitting an adverse step 3 grievance determination by the County to arbitration.
Instead of filing a step 3 grievance, pursuant to Article XI, Council 82 demanded arbitration in accordance with Article VI (B) (2) of the procedure, contending that the question of whether or not Monroe is fit for a light duty assignment should be determined by the arbitrator because, in contrast to the County’s physician’s finding, Monroe’s personal physician had determined that he was not fit for light duty. The County, on the other hand, argued that the issue had to be first submitted as a step 3 grievance. The County won a court order staying arbitration.
The Court of Appeals affirmed the lower court’s granting of the stay, pointing out that Monroe had failed to satisfy the second test it had set out in Watertown School District. Why? Because, said the court, there was no agreement to submit the dispute in question directly to arbitration and Monroe did not satisfy the conditions precedent under the 207-c procedure that would have allowed the issue to ultimately be submitted to arbitration.
Two provisions of the Procedure were involved. Article VI, Section (B)(2) of the procedure provided that where this is a conflict in medical opinions concerning the light duty assignment, ... the duty or duties in dispute cannot be assigned until such dispute is resolved. Such dispute over said duties shall be submitted directly to arbitration...
The second provision, relied upon by the County was Article XI. The County argued that Article VI (B) (2) applied only in instances of medical disagreements arise as to the ability of the individual to perform the specific work assignments upon the employee’s reporting for light duty.
In contrast, where the individual raises an objection to an order to report for light duty based on the individual’s claim that he or she is physically unable to return to duty regardless of the nature of the assignment, his or her objection must be processed in accordance with Article XI as a Step 3 grievance regarding such decision.
Essentially the County argued that Article VI(B)(2) applies in situations where there is no dispute as to the individual’s ability to perform light duty -- only the particular light duty proposed -- while Article XI applies where the employee’s physician states that the individual is unable to perform any light duty whatsoever.
Agreeing with Schenectady County’s argument, the Court of Appeals said that because the basic issue concerned a conflict of medical opinions as to Monroe’s ability to perform any light duty, the issue was to be resolved in accordance with Article XI of the procedure. As Monroe had not filed a Step 3 grievance, he did not satisfy a condition precedent for any arbitration under the terms of the Collective Bargaining Agreement. Accordingly, the Court of Appeals affirmed the stay of arbitration.
The Cohoes case
The physician for the City of Cohoes found that five of six firefighters on Section 207-a leave were qualified to perform light duty while the remaining firefighter was qualified to return to full duty.
Although given written orders to report for full duty or to perform light duty assignments, the six did not report as directed. The union objected to the report-for-duty orders on the ground that the members may not be ordered back to work without specification of the proposed duties and an opportunity to challenge the proposed return to work order at a due process hearing. In response, Cohoes discontinued their Section 207-a benefits.*
In addition to suing, the firefighters, through filed grievances under their collective bargaining agreement and ultimately demanded arbitration of their grievances before the State Public Employment Relations Board. The City obtained a stay of arbitration.
As to the firefighters’ claim that they were entitled to an evidentiary hearing on their medical ability to perform light duty assignments before an order to return could be issued, the Court of Appeals said that although an administrative hearing may ultimately be required before Section 207-a payments are terminated, recipients are not entitled to a hearing prior to the issuance of a report for light duty order. They become entitled to such a hearing only if they submit a contrary opinion from their personal physician.
In the words of the court, due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts.
As to the demand for arbitration, the Court of Appeals decided that the City was not required to arbitrate its orders to report for light duty assignments. Its rationale: as the collective bargaining agreement is entirely silent concerning the contractual rights provided to regular duty firefighters being available to firefighters on Section 207-a leave, the lack of an express provision in the negotiated agreement making it applicable to firefighters in 207-a leave status is fatal to any claim of a contractual right to arbitrate these claim.
Citing Chalachan v City of Binghamton, 55 NY2d 989, the court commented that apart from contractual entitlements, “[t]he collective bargaining agreement should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. Any additional benefits must be expressly provided for in the agreement.”
* In the course of litigating this case, the Appellate Division held that if an individual submitted medical documentation of their continued total disability, his or her Section 207-a benefits may not be discontinued prior to the employer’s holding a hearing (Matter of City of Cohoes, 258 AD2d 24). The Court of Appeals affirmed this aspect of the Appellate Division’s decision.
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For additional information see General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar laws at: http://section207.blogspot.com/
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February 07, 2011
If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval
If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval
Matter of Mendez v New York City Dept. of Educ., 2011 NY Slip Op 50067(U), Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]
Mildred Mendez challenged the New York City Department of Education's ("DOE") denial of her request to withdraw her letter of resignation and asked the court to issue an order compelling the DOE to accept her withdrawal, to reinstate her as a teacher, and to provide back pay.
Supreme Court Judge Jane S. Solomon granted Mendez’s motion in its entirety.
The issue presented, said the court, is whether the New York City Department of Education [DOE] acted in accordance with the Education Law and its own governing rules (as authorized pursuant to Education Law §2590-g). In the words of Judge Solomon was DOE “authorized to treat with Mendez as a resigned teacher under the circumstances presented.”
The court said that if DOE never accepted a resignation from Mendez, or if she validly withdrew her resignation, the DOE, as a matter of law, was not authorized to treat her as a resigned teacher and she must be reinstated.
Significantly, said Judge Solomon, NYC Chancellor's Regulation 205(29) states, “in mandatory language,” that a teacher’s request to withdraw his or her resignation "shall be granted" subject to the Chancellor's approval.
According to the decision, DOE told Mendez that "Based on the resignation letter submitted to our Human Resources Office on June 24, 2008, you are no longer a reassigned employee.” The court noted that DOE’s letter did not note that an “administrative determination” had been made by the Chancellor regarding her withdrawal of her resignation.
In this instance the court found that the Chancellor took no action. In other words, the Chancellor did not determine that her withdrawal request should be dishonored within the meaning of Chancellor's Regulation 205.
Judge Solomon, granting Mendez’s petition, ordered DOE to reinstate “Mendez to her teaching position, with back pay and all other economic benefits of employment from August 28, 2008.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50067.htm
Matter of Mendez v New York City Dept. of Educ., 2011 NY Slip Op 50067(U), Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]
Mildred Mendez challenged the New York City Department of Education's ("DOE") denial of her request to withdraw her letter of resignation and asked the court to issue an order compelling the DOE to accept her withdrawal, to reinstate her as a teacher, and to provide back pay.
Supreme Court Judge Jane S. Solomon granted Mendez’s motion in its entirety.
The issue presented, said the court, is whether the New York City Department of Education [DOE] acted in accordance with the Education Law and its own governing rules (as authorized pursuant to Education Law §2590-g). In the words of Judge Solomon was DOE “authorized to treat with Mendez as a resigned teacher under the circumstances presented.”
The court said that if DOE never accepted a resignation from Mendez, or if she validly withdrew her resignation, the DOE, as a matter of law, was not authorized to treat her as a resigned teacher and she must be reinstated.
Significantly, said Judge Solomon, NYC Chancellor's Regulation 205(29) states, “in mandatory language,” that a teacher’s request to withdraw his or her resignation "shall be granted" subject to the Chancellor's approval.
According to the decision, DOE told Mendez that "Based on the resignation letter submitted to our Human Resources Office on June 24, 2008, you are no longer a reassigned employee.” The court noted that DOE’s letter did not note that an “administrative determination” had been made by the Chancellor regarding her withdrawal of her resignation.
In this instance the court found that the Chancellor took no action. In other words, the Chancellor did not determine that her withdrawal request should be dishonored within the meaning of Chancellor's Regulation 205.
Judge Solomon, granting Mendez’s petition, ordered DOE to reinstate “Mendez to her teaching position, with back pay and all other economic benefits of employment from August 28, 2008.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50067.htm
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.
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.
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.
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.
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.
February 05, 2011
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
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
February 04, 2011
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
========================
Layoff, Preferred List and Reinstatement - A 674 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions is available from BookLocker.
For more information please click on: http://www.booklocker.com/books/5216.html
===========================
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
========================
Layoff, Preferred List and Reinstatement - A 674 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions is available from BookLocker.
For more information please click on: http://www.booklocker.com/books/5216.html
===========================
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.
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
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.
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.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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