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
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 05, 2011
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.
Testing for illegal drugs
Testing for illegal drugs
Wilson v White Plains, 95 NY2d 783
The Appellate Division reinstated Ian Scott Wilson to his position of firefighter with the City of White Plains. Wilson had been terminated after testing positive for large quantities of benzoylecgonine (a metabolite of cocaine) in his urine.
In annulling Wilson’s dismissal, the Appellate Division said that in directing [Wilson] to submit to blood and urine tests, the fire department officials relied upon an unsubstantiated and anonymous letter and that there was no objective evidence, which would have suggested that the [firefighter] was abusing alcohol or drugs.
The Court of Appeals reversed the Appellate Division’s decision noting that the parties agreed that a public agency may lawfully order an employee to submit to a drug test on reasonable suspicion of drug use.
The Court of Appeals found that the hearing officer concluded that the White Plains had reasonable suspicion to conduct the test, holding that the Appellate Division erred in concluding otherwise.
According to the decision, in addition to its receiving an anonymous letter concerning Wilson’s alleged use of drugs, the City presented evidence of Wilson’s physical manifestations of substance abuse the day he was tested, his long record of excessive absences, his prior substance abuse problems, his reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.
The Court of Appeals then remitted the case to the Appellate Division for it to consider a number of Wilson’s contentions that it had not addressed when the case was initially argued before it in light of its ruling in this appeal.
Wilson v White Plains, 95 NY2d 783
The Appellate Division reinstated Ian Scott Wilson to his position of firefighter with the City of White Plains. Wilson had been terminated after testing positive for large quantities of benzoylecgonine (a metabolite of cocaine) in his urine.
In annulling Wilson’s dismissal, the Appellate Division said that in directing [Wilson] to submit to blood and urine tests, the fire department officials relied upon an unsubstantiated and anonymous letter and that there was no objective evidence, which would have suggested that the [firefighter] was abusing alcohol or drugs.
The Court of Appeals reversed the Appellate Division’s decision noting that the parties agreed that a public agency may lawfully order an employee to submit to a drug test on reasonable suspicion of drug use.
The Court of Appeals found that the hearing officer concluded that the White Plains had reasonable suspicion to conduct the test, holding that the Appellate Division erred in concluding otherwise.
According to the decision, in addition to its receiving an anonymous letter concerning Wilson’s alleged use of drugs, the City presented evidence of Wilson’s physical manifestations of substance abuse the day he was tested, his long record of excessive absences, his prior substance abuse problems, his reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.
The Court of Appeals then remitted the case to the Appellate Division for it to consider a number of Wilson’s contentions that it had not addressed when the case was initially argued before it in light of its ruling in this appeal.
February 03, 2011
Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration
Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration
Matter of Schuyler County v Schuyler County Highway Unit, Local 849, Unit 8600, AFSCME, CSEA Local 1000, 2011 NY Slip Op 00479, Appellate Division, Third Department
The parties entered into a collective bargaining agreement (CBA) for the years 2006-2009 that provided for a four-step grievance process, the third being advisory arbitration.
The CBA's compensation provisions included a clause specifying that employees would receive wage step increases every year, with the steps defined in a wage schedule showing the effect that annual base wage increases from 2006-2009 would have on them.
When a successor agreement negotiated in a timely fashion, Schuyler County declined to grant employees step increases in 2010. The County contended that the increases at issue “were not intended to continue beyond the term of the CBA”
Local 849 filed a grievance which was denied by the County. When the Local demanded that the grievance be submitted to arbitration the County filed an Article 75 petition seeking a court order staying arbitration.
Although Supreme Court granted the County’s petition, the Appellate Division reversed the lower court’s ruling.
The Appellate Division explained that the issue was whether the step increase provision of the CBA continued upon that agreement's expiration and, in that regard, Civil Service Law §209-a (1)(e) provides that an expired CBA's provisions will continue until a new agreement is negotiated unless those provisions create "rights which by their very terms were intended to expire with the agreement."*
The court said that there was neither law nor policy barring either party from submitting a question of contract interpretation regarding wages to arbitration, including the central issue in this action: "whether the CBA's language evinces an intent to an intent to 'sunset' the step increase provision."
Turning to the County’s argument that an arbitration award interpreting the CBA in such a way as to require post-expiration step increases would be violative of public policy, the Appellate Division said that "such a potential does not mandate a stay of arbitration.” The court said that should the County’s claim prove correct, the remedy is vacatur," citing Matter of County of Sullivan,** rather than a court order staying the arbitration.
* Section 209-a(1)(e) is the codification the Triboro Doctrine earlier promulgated by PERB.
** Sullivan County Empls. Assn., 235 AD2d at 750].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00479.htm
Matter of Schuyler County v Schuyler County Highway Unit, Local 849, Unit 8600, AFSCME, CSEA Local 1000, 2011 NY Slip Op 00479, Appellate Division, Third Department
The parties entered into a collective bargaining agreement (CBA) for the years 2006-2009 that provided for a four-step grievance process, the third being advisory arbitration.
The CBA's compensation provisions included a clause specifying that employees would receive wage step increases every year, with the steps defined in a wage schedule showing the effect that annual base wage increases from 2006-2009 would have on them.
When a successor agreement negotiated in a timely fashion, Schuyler County declined to grant employees step increases in 2010. The County contended that the increases at issue “were not intended to continue beyond the term of the CBA”
Local 849 filed a grievance which was denied by the County. When the Local demanded that the grievance be submitted to arbitration the County filed an Article 75 petition seeking a court order staying arbitration.
Although Supreme Court granted the County’s petition, the Appellate Division reversed the lower court’s ruling.
The Appellate Division explained that the issue was whether the step increase provision of the CBA continued upon that agreement's expiration and, in that regard, Civil Service Law §209-a (1)(e) provides that an expired CBA's provisions will continue until a new agreement is negotiated unless those provisions create "rights which by their very terms were intended to expire with the agreement."*
The court said that there was neither law nor policy barring either party from submitting a question of contract interpretation regarding wages to arbitration, including the central issue in this action: "whether the CBA's language evinces an intent to an intent to 'sunset' the step increase provision."
Turning to the County’s argument that an arbitration award interpreting the CBA in such a way as to require post-expiration step increases would be violative of public policy, the Appellate Division said that "such a potential does not mandate a stay of arbitration.” The court said that should the County’s claim prove correct, the remedy is vacatur," citing Matter of County of Sullivan,** rather than a court order staying the arbitration.
* Section 209-a(1)(e) is the codification the Triboro Doctrine earlier promulgated by PERB.
** Sullivan County Empls. Assn., 235 AD2d at 750].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00479.htm
Individuals receiving unemployment Insurance Benefits are ineligible to receive emergency unemployment compensation benefits
Individuals receiving unemployment Insurance Benefits are ineligible to receive emergency unemployment compensation benefits
Matter of Umpierre v Commissioner of Labor, 2011 NY Slip Op 00470, Appellate Division, Third Department
Jose A. Umpierre, received unemployment insurance benefits for a benefit year beginning in February 2008, which were paid for the full duration permitted (see Labor Law §§ 521, 590[4]). Umpierre then received emergency unemployment compensation (EUC) benefits.
EUC benefits are available to individuals who "exhausted all rights to regular compensation under the [s]tate law or under [f]ederal law with respect to a benefit year."*
At the end of his initial benefit year Umpierre reapplied for unemployment insurance benefits and was found to have a valid original claim that entitled him to renewed regular benefits, but at a rate substantially lower than he had been receiving in the previous year.**
The Unemployment Insurance Appeal Board, however, determined that Umpierre was not entitled to ongoing EUC benefits because of his renewed eligibility for "regular benefits."
Umpierre appealed the Board’s decision but the Appellate Division sustained the Board’s ruling, noting that “As a matter of federal law, federally funded EUC benefits are only available when a claimant's right to receive regular benefits under state law is exhausted.”
The Appellate Division explained that although Umpierre had “exhausted his right to regular benefits in the prior benefit year, he had renewed eligibility for benefits in the next, and the Board properly determined that he was not entitled to ongoing EUC benefits as a result.”
The fact that the new “regular benefits” were less than the amount that Umpierre had been initiallly receiving was apparently irrelevant insofar as his eligibility for EUC benefits were concerned.
* Public Law 110-252, Title IV, § 4001 [b] [1], 122 US Stat 2323.
** See Labor Law §527.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00470.htm
Matter of Umpierre v Commissioner of Labor, 2011 NY Slip Op 00470, Appellate Division, Third Department
Jose A. Umpierre, received unemployment insurance benefits for a benefit year beginning in February 2008, which were paid for the full duration permitted (see Labor Law §§ 521, 590[4]). Umpierre then received emergency unemployment compensation (EUC) benefits.
EUC benefits are available to individuals who "exhausted all rights to regular compensation under the [s]tate law or under [f]ederal law with respect to a benefit year."*
At the end of his initial benefit year Umpierre reapplied for unemployment insurance benefits and was found to have a valid original claim that entitled him to renewed regular benefits, but at a rate substantially lower than he had been receiving in the previous year.**
The Unemployment Insurance Appeal Board, however, determined that Umpierre was not entitled to ongoing EUC benefits because of his renewed eligibility for "regular benefits."
Umpierre appealed the Board’s decision but the Appellate Division sustained the Board’s ruling, noting that “As a matter of federal law, federally funded EUC benefits are only available when a claimant's right to receive regular benefits under state law is exhausted.”
The Appellate Division explained that although Umpierre had “exhausted his right to regular benefits in the prior benefit year, he had renewed eligibility for benefits in the next, and the Board properly determined that he was not entitled to ongoing EUC benefits as a result.”
The fact that the new “regular benefits” were less than the amount that Umpierre had been initiallly receiving was apparently irrelevant insofar as his eligibility for EUC benefits were concerned.
* Public Law 110-252, Title IV, § 4001 [b] [1], 122 US Stat 2323.
** See Labor Law §527.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00470.htm
Designating a disciplinary hearing officer
Designating a disciplinary hearing officer
Pieczonka v Village of Blasdell, 273 AD2d 842
If nothing else, the Pieczonka demonstrates the importance of the parties dotting all of the i’s and crossing all of the t’s in processing a disciplinary action brought pursuant to Civil Service Law Section 75.
The Town of Blasdell served Robert Pieczonka with disciplinary charges. It later wrote to him informing him of the date, time and location of the hearing and the name of the hearing officer. The hearing officer found Pieczonka guilty and the Town terminated him.
Pieczonka appealed, contending that his termination was unlawful because:
1. The Village failed to comply with Section 75(2) of the Civil Service Law since it had not designates the hearing officer in writing;
2. The determination made by the hearing officer was not supported by substantial evidence; and
3. The penalty imposed was excessive.
The Appellate Division never got to consider Pieczonka’s second and third arguments because it ruled that the disciplinary action taken by the Town had to be annulled because the procedure was defective: the hearing officer had not been so designated in writing.
Citing Wiggins v Board of Education, 60 NY2d 385, the court said that “[i]n the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee.”
Section 75(2), in relevant part, provides that the hearing of charges preferred against an employee shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose.
The Appellate Division rejected the Town’s contention that its written notice to Pieczonka advising him of the name of the hearing officer and the time and place of the hearing constituted the required written delegation of authority.
A failure to comply with the written notice requirements set out in Section 75(2) may have other serious consequences.
In Perez v NYS Dept. of Labor, 244 AD2d 844, the Appellate Division, Third Department, annulled a Section 75 disciplinary determination because there was no evidence that the hearing officer who presided over his disciplinary hearing had been so designated in writing. The court ordered Perez reinstated to his former position with back salary and benefits.
Perez then asked for attorney fees and expenses, contending that as the prevailing party, he was entitled to such payments under Section 8601 of the Civil Practice Law and Rules. A State Supreme Court justice agree and awarded Perez $19,907.84, $9275 of which was for Perez’s legal expenses incurred in the Section 75 administrative disciplinary action. The Labor Department appealed.
The Appellate Division sustained the lower court’s ruling. It specifically rejected the department’s argument that its failure to designate the hearing officer in writing was a mere technicality and its actions that ultimately resulted in Perez’s termination were otherwise substantially justified. In addition, the Appellate Division ruled that Perez was entitled to the fees and expenses incurred in connection with the department’s appeal challenging the Supreme Court’s decision.
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Now available, the 2011 edition of The Discipline Book, a concise guide to disciplinary actions involving public employees in New York State. For more informeation about this 1272 page electronic book [e-book], click on http://thedisciplinebook.blogspot.com/
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Pieczonka v Village of Blasdell, 273 AD2d 842
If nothing else, the Pieczonka demonstrates the importance of the parties dotting all of the i’s and crossing all of the t’s in processing a disciplinary action brought pursuant to Civil Service Law Section 75.
The Town of Blasdell served Robert Pieczonka with disciplinary charges. It later wrote to him informing him of the date, time and location of the hearing and the name of the hearing officer. The hearing officer found Pieczonka guilty and the Town terminated him.
Pieczonka appealed, contending that his termination was unlawful because:
1. The Village failed to comply with Section 75(2) of the Civil Service Law since it had not designates the hearing officer in writing;
2. The determination made by the hearing officer was not supported by substantial evidence; and
3. The penalty imposed was excessive.
The Appellate Division never got to consider Pieczonka’s second and third arguments because it ruled that the disciplinary action taken by the Town had to be annulled because the procedure was defective: the hearing officer had not been so designated in writing.
Citing Wiggins v Board of Education, 60 NY2d 385, the court said that “[i]n the absence of a written delegation authorizing a deputy or other person to conduct the hearing, the removing board or officer has no jurisdiction to discipline an employee.”
Section 75(2), in relevant part, provides that the hearing of charges preferred against an employee shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose.
The Appellate Division rejected the Town’s contention that its written notice to Pieczonka advising him of the name of the hearing officer and the time and place of the hearing constituted the required written delegation of authority.
A failure to comply with the written notice requirements set out in Section 75(2) may have other serious consequences.
In Perez v NYS Dept. of Labor, 244 AD2d 844, the Appellate Division, Third Department, annulled a Section 75 disciplinary determination because there was no evidence that the hearing officer who presided over his disciplinary hearing had been so designated in writing. The court ordered Perez reinstated to his former position with back salary and benefits.
Perez then asked for attorney fees and expenses, contending that as the prevailing party, he was entitled to such payments under Section 8601 of the Civil Practice Law and Rules. A State Supreme Court justice agree and awarded Perez $19,907.84, $9275 of which was for Perez’s legal expenses incurred in the Section 75 administrative disciplinary action. The Labor Department appealed.
The Appellate Division sustained the lower court’s ruling. It specifically rejected the department’s argument that its failure to designate the hearing officer in writing was a mere technicality and its actions that ultimately resulted in Perez’s termination were otherwise substantially justified. In addition, the Appellate Division ruled that Perez was entitled to the fees and expenses incurred in connection with the department’s appeal challenging the Supreme Court’s decision.
====================
Now available, the 2011 edition of The Discipline Book, a concise guide to disciplinary actions involving public employees in New York State. For more informeation about this 1272 page electronic book [e-book], click on http://thedisciplinebook.blogspot.com/
====================
Political party officials, others, barred from receiving court fiduciary appointments
Political party officials, others, barred from receiving court fiduciary appointments
Kraham v Lippman, USCA, 2nd Circuit, Docket No.06-2695 cv
Section 36.2(c) of the Rules of the Chief Judge of the State of New York [22 NYCRR 36.2, et seq.] sets out a number of “disqualifications for appointment” as “guardians” or “receivers” by New York State courts. Among those ineligible for such appointments are certain political party officials and their families or associates. Bonnie Kraham sued, contending that the rule violates her first Amendment right to freedom of association.
The U.S. Circuit Court of Appeals, Second Circuit, affirmed a lower court ruling summarily dismissing Kraham’s petition.
The specific provision challenged by Kraham, 22 NYCRR 36.2(c)(4)(I), provides as follows:
No person who is the chair or executive director, or their equivalent, of a State or county political party, or the spouse, sibling, parent or child of that official, shall be appointed while that official serves in that position and for a period of two years after that official no longer holds that position. This prohibition shall apply to the members, associates, counsel and employees of any law firms or entities while the official is associated with that firm or entity.
Kraham, an attorney, was elected to serve as co-chair of the Orange County Democratic Committee. She remained in her position after the adoption of the Rule and, around the time it went into effect, held court appointments as a guardian or receiver. Kraham’s petition alleged that the Rule resulted in her being denied three legal employment opportunities – one to form a partnership with another attorney, and two to involving her joining existing law firms – because members of the law firms did not want to become ineligible for judicial appointments.
Kraham contended that in limiting her employment opportunities because of her party leadership, the Rule violated her freedom of political association as protected by the First Amendment.* The Circuit Court disagreed. It said:
Because the Rule advanced New York’s legitimate interest in “eliminating corruption and favoritism in the judicial appointment process,” the [district] court concluded that it withstood rational basis review.. We agree with the district court’s well-reasoned analysis.
Responding to Kraham argument that “the denial of employment opportunities is “[b]y definition . . . significant” and that, in her case, the practical effect was particularly severe because she lives in a small legal community providing few employment options.” the Circuit Court said the burden on Kraham’s employment is no more severe than those the United State Supreme Court upheld in U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, and Broadrick v. Oklahoma, 413 U.S. 601.
In Letter Carriers, the Supreme Court upheld the Hatch Act’s prohibition on federal employees’ participation in a wide variety of political activities, including holding party office, while in Broadrick it upheld a similar state statute, 413 U.S. 602.
The Circuit Court observed that:
Appointing others in the law firms of political party leaders creates the public perception of favoritism in the judicial appointment process.
The two-year post-resignation prohibition period reasonably prevents a “quick turnaround” from party leader to court appointee, noting that “This period …. is consistent with the New York Public Officers Law’s limitation on the professional activities of state officers, employees, and party officers for two years after they leave office or state employment [see Public Officers Law §73(8); and
Permitting waivers would vitiate the Rule’s very purpose – to reduce judicial discretion in the appointment process – by opening the door to politically motivated waivers and thereby creating the perception that politically motivated appointments are possible.
The court’s conclusion: 22 NYCRR 36.2(c)(4)(i) of the Rules of the Chief Judge of the State of New York does not violate the First Amendment. It then affirmed the judgment of the federal district court judge dismissing Kraham’s petition.
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/high-ranking-political-party-officials.html
* Kraham, conceding the importance of the interest behind the Rule, argued that it is over-inclusive, such that a substantial portion of the burden it places on associational rights does not advance the asserted government interests because the Rule extends not just to party leaders but to their law firms, regardless of the size of the firm and the number of appointments it has received; that it continues to apply for two years after party leaders resign; and that it does not allow for waivers under any circumstances.
Kraham v Lippman, USCA, 2nd Circuit, Docket No.06-2695 cv
Section 36.2(c) of the Rules of the Chief Judge of the State of New York [22 NYCRR 36.2, et seq.] sets out a number of “disqualifications for appointment” as “guardians” or “receivers” by New York State courts. Among those ineligible for such appointments are certain political party officials and their families or associates. Bonnie Kraham sued, contending that the rule violates her first Amendment right to freedom of association.
The U.S. Circuit Court of Appeals, Second Circuit, affirmed a lower court ruling summarily dismissing Kraham’s petition.
The specific provision challenged by Kraham, 22 NYCRR 36.2(c)(4)(I), provides as follows:
No person who is the chair or executive director, or their equivalent, of a State or county political party, or the spouse, sibling, parent or child of that official, shall be appointed while that official serves in that position and for a period of two years after that official no longer holds that position. This prohibition shall apply to the members, associates, counsel and employees of any law firms or entities while the official is associated with that firm or entity.
Kraham, an attorney, was elected to serve as co-chair of the Orange County Democratic Committee. She remained in her position after the adoption of the Rule and, around the time it went into effect, held court appointments as a guardian or receiver. Kraham’s petition alleged that the Rule resulted in her being denied three legal employment opportunities – one to form a partnership with another attorney, and two to involving her joining existing law firms – because members of the law firms did not want to become ineligible for judicial appointments.
Kraham contended that in limiting her employment opportunities because of her party leadership, the Rule violated her freedom of political association as protected by the First Amendment.* The Circuit Court disagreed. It said:
Because the Rule advanced New York’s legitimate interest in “eliminating corruption and favoritism in the judicial appointment process,” the [district] court concluded that it withstood rational basis review.. We agree with the district court’s well-reasoned analysis.
Responding to Kraham argument that “the denial of employment opportunities is “[b]y definition . . . significant” and that, in her case, the practical effect was particularly severe because she lives in a small legal community providing few employment options.” the Circuit Court said the burden on Kraham’s employment is no more severe than those the United State Supreme Court upheld in U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, and Broadrick v. Oklahoma, 413 U.S. 601.
In Letter Carriers, the Supreme Court upheld the Hatch Act’s prohibition on federal employees’ participation in a wide variety of political activities, including holding party office, while in Broadrick it upheld a similar state statute, 413 U.S. 602.
The Circuit Court observed that:
Appointing others in the law firms of political party leaders creates the public perception of favoritism in the judicial appointment process.
The two-year post-resignation prohibition period reasonably prevents a “quick turnaround” from party leader to court appointee, noting that “This period …. is consistent with the New York Public Officers Law’s limitation on the professional activities of state officers, employees, and party officers for two years after they leave office or state employment [see Public Officers Law §73(8); and
Permitting waivers would vitiate the Rule’s very purpose – to reduce judicial discretion in the appointment process – by opening the door to politically motivated waivers and thereby creating the perception that politically motivated appointments are possible.
The court’s conclusion: 22 NYCRR 36.2(c)(4)(i) of the Rules of the Chief Judge of the State of New York does not violate the First Amendment. It then affirmed the judgment of the federal district court judge dismissing Kraham’s petition.
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/high-ranking-political-party-officials.html
* Kraham, conceding the importance of the interest behind the Rule, argued that it is over-inclusive, such that a substantial portion of the burden it places on associational rights does not advance the asserted government interests because the Rule extends not just to party leaders but to their law firms, regardless of the size of the firm and the number of appointments it has received; that it continues to apply for two years after party leaders resign; and that it does not allow for waivers under any circumstances.
Employee suspended without pay ineligible for ERISA benefits
Employee suspended without pay ineligible for ERISA benefits
Pollett v Rinker Materials Corp., USCA 6th Circuit, #05-6459
William Pollett was suspended without pay pending the investigation of allegations that he had failed to respond to an equipment malfunction while at work in the proper manner. While on suspension without pay his physician determined that Pollett unable to work due to numerous physical ailments. That same day, Pollett notified Rinker Materials that he was unable to work and provided Rinker with his physician’s written assessment.
Pollett then applied for “short term disability benefits” under Rinker Materials’ ERISA plan. The plan provides up to 70% of an employee’s basic weekly earnings commencing on the fifteenth day of continuous disability, for a maximum of 12 weeks.
The plan administrator disapproved his application. When Pollett sued, a federal district court judge dismissed Pollett’s challenge to the plan administrator’s determination.
Sustaining the lower court’s decision, the Circuit Court said that in order to qualify for short term disability benefits under the plan, an employee must be “actively at work” when he notifies his employee of a disability. Under the plan, “[a]n employee will be considered actively at work if he was actually at work on the day immediately preceding: . . . an excused leave of absence . . . .”
Pollett contended that he was an “active employee” and thus eligible for benefits because “A suspension without pay equates with an excused leave of absence” and he was at work the day before Rinker suspended him.
The court said “While novel, Pollett’s argument is unpersuasive” It rejected Pollett’s claim that he was “actively at work” for the purposes of eligibility for short-term disability benefits under Rinker’s ERISA plan because equating “a suspension without pay with an excused leave defies common sense.”
In the words of the court, “A suspension without pay constitutes a unilateral penalty which an employer imposes upon an employee” while “an excused leave is more akin to a bilateral understanding during which an employer grants an employee permission to be absent from work.” In this instance, said Circuit Court “the plain meaning of the phrase ‘suspended without pay’ denotes Rinker barred Pollett from employment and all its attendant privileges during the period of his suspension.
Under the facts of this case, the court said that it had little difficulty concluding that an ordinary person would not view Pollett’s suspension without pay as an excused leave of absence and dismissed his appeal.
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/suspended-without-pay-employee-not.html
Pollett v Rinker Materials Corp., USCA 6th Circuit, #05-6459
William Pollett was suspended without pay pending the investigation of allegations that he had failed to respond to an equipment malfunction while at work in the proper manner. While on suspension without pay his physician determined that Pollett unable to work due to numerous physical ailments. That same day, Pollett notified Rinker Materials that he was unable to work and provided Rinker with his physician’s written assessment.
Pollett then applied for “short term disability benefits” under Rinker Materials’ ERISA plan. The plan provides up to 70% of an employee’s basic weekly earnings commencing on the fifteenth day of continuous disability, for a maximum of 12 weeks.
The plan administrator disapproved his application. When Pollett sued, a federal district court judge dismissed Pollett’s challenge to the plan administrator’s determination.
Sustaining the lower court’s decision, the Circuit Court said that in order to qualify for short term disability benefits under the plan, an employee must be “actively at work” when he notifies his employee of a disability. Under the plan, “[a]n employee will be considered actively at work if he was actually at work on the day immediately preceding: . . . an excused leave of absence . . . .”
Pollett contended that he was an “active employee” and thus eligible for benefits because “A suspension without pay equates with an excused leave of absence” and he was at work the day before Rinker suspended him.
The court said “While novel, Pollett’s argument is unpersuasive” It rejected Pollett’s claim that he was “actively at work” for the purposes of eligibility for short-term disability benefits under Rinker’s ERISA plan because equating “a suspension without pay with an excused leave defies common sense.”
In the words of the court, “A suspension without pay constitutes a unilateral penalty which an employer imposes upon an employee” while “an excused leave is more akin to a bilateral understanding during which an employer grants an employee permission to be absent from work.” In this instance, said Circuit Court “the plain meaning of the phrase ‘suspended without pay’ denotes Rinker barred Pollett from employment and all its attendant privileges during the period of his suspension.
Under the facts of this case, the court said that it had little difficulty concluding that an ordinary person would not view Pollett’s suspension without pay as an excused leave of absence and dismissed his appeal.
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/suspended-without-pay-employee-not.html
February 02, 2011
New York State Bar Association proposes State and Local Government Ethics Reform
New York State Bar Association proposes State and Local Government Ethics Reform
Source: New York State Bar Association
On January 3, 2011 the New York State Bar Association’ House of Delegates approved ethics recommendation proposed by its Ethics Task Force co-chaired by Patricia E. Salkin, associate dean and director of the Government Law Center (Albany Law School), and Michael J. Garcia (Kirkland & Ellis LLP), former U.S. Attorney for the Southern District of New York.
The Task Force recommenced a number of proposals, including: a single ethics commission to oversee officers and employees of state agencies and the Legislature as well as lobbyists. Also recommended were “tougher laws to combat ‘honest services fraud’; expanded disclosure by public officials of outside income; and the first comprehensive overhaul of the law governing municipal ethics in 50 years.”
The Executive Summary of the changes urged is posted on the Internet at:
http://readme.readmedia.com/New-York-State-Bar-Association-Proposes-State-and-Local-Government-Ethics-Reform/1984301
Source: New York State Bar Association
On January 3, 2011 the New York State Bar Association’ House of Delegates approved ethics recommendation proposed by its Ethics Task Force co-chaired by Patricia E. Salkin, associate dean and director of the Government Law Center (Albany Law School), and Michael J. Garcia (Kirkland & Ellis LLP), former U.S. Attorney for the Southern District of New York.
The Task Force recommenced a number of proposals, including: a single ethics commission to oversee officers and employees of state agencies and the Legislature as well as lobbyists. Also recommended were “tougher laws to combat ‘honest services fraud’; expanded disclosure by public officials of outside income; and the first comprehensive overhaul of the law governing municipal ethics in 50 years.”
The Executive Summary of the changes urged is posted on the Internet at:
http://readme.readmedia.com/New-York-State-Bar-Association-Proposes-State-and-Local-Government-Ethics-Reform/1984301
Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law
Reduction of an employees’ hours and compensation not always equal to the abolishment of a position for the purposes of §80 of the Civil Service Law
Matter of Schoonmaker v Capital Region Bd. of Coop. Educ. Servs., 2011 NY Slip Op 00142, Appellate Division, Third Department
Karen Schoonmaker was employed full time as a Senior Keyboard Specialist by Capital Region Board of Cooperative Educational Services (BOCES). When Schoonmaker division's workload was reduced, BOCES reduced her hours to 75% of full time and her wages was decreased correspondingly.
Alleging that BOCES violated her rights under Civil Service Law §80 by reducing her hours and salary but not reducing the hours of Senior Keyboard Specialists with less seniority, Schoonmaker sued. Holding that BOCES did not violate the statute, Supreme Court dismissed her petition and the Appellate Division sustained the lower court’s determination.
The Appellate Division explained that BOCES did not violate Civil Service Law §80 when it reduced Schoonmaker’s hours, despite her seniority. The issue a question of pure statutory interpretation and as the statutory text is unambiguous, the court was required to give "effect to its plain meaning."
§80 of the Civil Service Law, entitled "[s]uspension or demotion," provides that "[w]here, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion . . . among incumbents [in the same governmental jurisdiction] holding the same or similar positions shall be made in the inverse order of original appointment."
As Schoonmaker’s hours were reduced due to economy, abolition of functions or curtailment of activities, the question becomes whether the reduction in hours and corresponding effect on Schoonmaker’s overall income equate to her position being "abolished or reduced in rank or salary grade."
The Appellate Division held that in this instance the answer was no.
The court explained that while conversion of a full-time position to part time has been considered as an abolition of the full-time position, citing Linney v City of Plattsburgh, 49 AD3d 1020, the local civil service rules in Albany County — which apply to BOCES employees — define part-time employment as a person working 50% or less or earning not more than half of the rate assigned if the position was allocated to a graded salary schedule.
Under those rules, said the court, Schoonmaker’s position remained full time and was not converted to a part-time position. Hence, concluded the court, her "full-time position" had not been abolished.
Also noted by the court that “Had the Legislature intended to require that governmental employers suspend or demote employees in the inverse order of appointment when a position was "abolished or reduced in rank[,] salary grade" or hours, those additional words could have been included in the statute.”
However, when the Legislature attempted to add to the statute by requiring inverse-seniority demotion or suspension when an employer reduced its employees' work hours, the Governor vetoed the bill (see 2003 NY Assembly Bill 8399).
Rejecting Schoonmaker’s policy arguments that its decision will create a slippery slope, allowing governmental entities to reduce a senior employee's hours as punishment or to benefit favored less-senior employees, the Appellate Division pointed out that public employees in New York “are currently protected by the law and may bring an action against an employer if they suffer adverse employment actions based upon decisions rendered in bad faith.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00142.htm
Matter of Schoonmaker v Capital Region Bd. of Coop. Educ. Servs., 2011 NY Slip Op 00142, Appellate Division, Third Department
Karen Schoonmaker was employed full time as a Senior Keyboard Specialist by Capital Region Board of Cooperative Educational Services (BOCES). When Schoonmaker division's workload was reduced, BOCES reduced her hours to 75% of full time and her wages was decreased correspondingly.
Alleging that BOCES violated her rights under Civil Service Law §80 by reducing her hours and salary but not reducing the hours of Senior Keyboard Specialists with less seniority, Schoonmaker sued. Holding that BOCES did not violate the statute, Supreme Court dismissed her petition and the Appellate Division sustained the lower court’s determination.
The Appellate Division explained that BOCES did not violate Civil Service Law §80 when it reduced Schoonmaker’s hours, despite her seniority. The issue a question of pure statutory interpretation and as the statutory text is unambiguous, the court was required to give "effect to its plain meaning."
§80 of the Civil Service Law, entitled "[s]uspension or demotion," provides that "[w]here, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion . . . among incumbents [in the same governmental jurisdiction] holding the same or similar positions shall be made in the inverse order of original appointment."
As Schoonmaker’s hours were reduced due to economy, abolition of functions or curtailment of activities, the question becomes whether the reduction in hours and corresponding effect on Schoonmaker’s overall income equate to her position being "abolished or reduced in rank or salary grade."
The Appellate Division held that in this instance the answer was no.
The court explained that while conversion of a full-time position to part time has been considered as an abolition of the full-time position, citing Linney v City of Plattsburgh, 49 AD3d 1020, the local civil service rules in Albany County — which apply to BOCES employees — define part-time employment as a person working 50% or less or earning not more than half of the rate assigned if the position was allocated to a graded salary schedule.
Under those rules, said the court, Schoonmaker’s position remained full time and was not converted to a part-time position. Hence, concluded the court, her "full-time position" had not been abolished.
Also noted by the court that “Had the Legislature intended to require that governmental employers suspend or demote employees in the inverse order of appointment when a position was "abolished or reduced in rank[,] salary grade" or hours, those additional words could have been included in the statute.”
However, when the Legislature attempted to add to the statute by requiring inverse-seniority demotion or suspension when an employer reduced its employees' work hours, the Governor vetoed the bill (see 2003 NY Assembly Bill 8399).
Rejecting Schoonmaker’s policy arguments that its decision will create a slippery slope, allowing governmental entities to reduce a senior employee's hours as punishment or to benefit favored less-senior employees, the Appellate Division pointed out that public employees in New York “are currently protected by the law and may bring an action against an employer if they suffer adverse employment actions based upon decisions rendered in bad faith.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00142.htm
Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law
Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law
Matter of Witkowich v SUNY Alfred State Coll. of Ceramics, 2011 NY Slip Op 00454, Appellate Division, Third Department
Three months after Kenneth Witkowich began serving as the Chief of University Police for Alfred State College he was terminated. A day later, he filed an application for workers' compensation benefits, claiming that in the days immediately prior to his termination he had suffered a "recurrence of posttraumatic stress disorder, [irritable bowel syndrome and] anxiety" — or, a panic attack. He subsequently filed a second claim, alleging that the manner in which he was informed of his termination exacerbated his preexisting psychological conditions.
A Workers' Compensation Law Judge [WCLJ] denied both applications, concluding that Workers' Compensation Law §2(7) barred them. A Workers' Compensation Board panel affirmed that decision, finding that Witkowich’s injuries were not compensable.
In deciding the merits of Witkowich’s appeal, the Appellate Division said that a mental injury, even if job related, is not compensable if it is "a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer," citing Workers' Compensation Law §2[7].
Addressing Witkowich’s claim that the stress he encountered as Chief of Police prompted an exacerbation of a preexisting mental condition that, in turn, caused him to have a panic attack, the Appellate Division said that such a claim will not "be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment."
The court noted that no evidence was introduced at the workers’ compensation hearings that Witkowich’s position as Chief of Police was extraordinarily stressful or that the injuries he claimed to have sustained were caused by conditions that existed in the work place.
The Appellate Division dismissed Witkowich’s challenge to the Board’s determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00454.htm
Matter of Witkowich v SUNY Alfred State Coll. of Ceramics, 2011 NY Slip Op 00454, Appellate Division, Third Department
Three months after Kenneth Witkowich began serving as the Chief of University Police for Alfred State College he was terminated. A day later, he filed an application for workers' compensation benefits, claiming that in the days immediately prior to his termination he had suffered a "recurrence of posttraumatic stress disorder, [irritable bowel syndrome and] anxiety" — or, a panic attack. He subsequently filed a second claim, alleging that the manner in which he was informed of his termination exacerbated his preexisting psychological conditions.
A Workers' Compensation Law Judge [WCLJ] denied both applications, concluding that Workers' Compensation Law §2(7) barred them. A Workers' Compensation Board panel affirmed that decision, finding that Witkowich’s injuries were not compensable.
In deciding the merits of Witkowich’s appeal, the Appellate Division said that a mental injury, even if job related, is not compensable if it is "a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer," citing Workers' Compensation Law §2[7].
Addressing Witkowich’s claim that the stress he encountered as Chief of Police prompted an exacerbation of a preexisting mental condition that, in turn, caused him to have a panic attack, the Appellate Division said that such a claim will not "be sustained absent a showing that the stress experienced by the affected claimant was greater than that which other similarly situated workers experienced in the normal work environment."
The court noted that no evidence was introduced at the workers’ compensation hearings that Witkowich’s position as Chief of Police was extraordinarily stressful or that the injuries he claimed to have sustained were caused by conditions that existed in the work place.
The Appellate Division dismissed Witkowich’s challenge to the Board’s determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00454.htm
Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list
Passing an examination does not give an eligible a right to demand that he or she be appointed from the eligible list
Paolini v Nassau County, Supreme Court, Justice Winick, [Not selected for publication in the Official Reports]
The fact that an individual passes an examination does not give him or her any right to demand that he or she be appointed from the eligible list. The Paolini case involved such a demand, however.
A number of individuals serving as Social Welfare Examiner I with the Nassau County Department of Social Services had taken and passed the competitive promotion examination for Social Welfare Examiner II, Examination Number 71-299. Although the list had been established effective May 13, 1996, no appointments had been made from it.
The list had been extended in 1997, and again in 1998 and in 1999. However, it was due to expire in accordance with the provisions of Section 56(1) of the Civil Service Law. Section 56(1), subject to certain exceptions not relevant in this case, provides that the maximum life of an eligible list is four years from the date of promulgation.
Although Paolini did not claim that the Commissioner of the Department of Social Welfare took any steps to promote anyone on the eligible list, nor that any funds were approved to pay for promotions, he asked to the court to:
1. Extend the eligible list beyond May 13, 2000; and
2. Order the department to promote each petitioner to the position of Social Welfare Examiner II from the eligible list number 71-299 and pay them retroactive to the date on which they each first became eligible for promotion to date, with interest.
Paolini contended that a November 17, 1992 decision by State Supreme Court Justice Lockman -- Livingston v Nassau County Civil Service Commission, [Index 14457-92, not selected for publication in the Official Reports] -- was a precedent for this relief.
In Livingston the employer, the Fire Commission, met on September 5, 1991 and actually made a number of promotions from the eligible list. The minutes of the meeting indicated the appointments were approved. In addition, the salaries for these appointments were included in the County budget but the paperwork had not been processed because of a fiscal crisis. Judge Lockman ruled that the paperwork was a ministerial act, and directed that Livingston be compensated at the higher salaries retroactive to September 5, 1991.
Such was not the case with respect to any claimed action to promote the Paolini plaintiffs to a higher-grade position. Paolini conceded that the Department took no steps to effectuate the promotions nor was there any evidence of any communication to the County Executive or approval of the legislative body to make any such appointment.
Holding that the facts in Paolini were clearly distinguishable from the facts in the Livingston case, the court said that [o]ther than holding the test, no steps had been taken to promote anyone to Social Welfare Examiner II.
Finally, the court said that there is no proof that any monies were appropriated for higher salaries or that the higher-grade positions were budgeted at the time the Paolini plaintiffs passed the Civil Service test, as was the case in Livingston.
Accordingly, said the court, here there was more than a ministerial act required to effectuate the promotions -- and such required actions were not shown to have been taken by the county.
The court dismissed Paolini’s petition, noting a number of other procedural defects that otherwise would bar its granting any relief in this case.
1. There was no prior determination by an administrative body, a prerequisite for bringing an Article 78 proceeding. The administrative remedies must be exhausted with a final determination for the court to review.
2. This was no decision by the Civil Service Commission to review and it is not within the court’s power to usurp the ability of an administrative agency to make such determinations.
3. There was no Notice of Claim filed with the county as required by Section 58-e of the General Municipal Law.
Paolini v Nassau County, Supreme Court, Justice Winick, [Not selected for publication in the Official Reports]
The fact that an individual passes an examination does not give him or her any right to demand that he or she be appointed from the eligible list. The Paolini case involved such a demand, however.
A number of individuals serving as Social Welfare Examiner I with the Nassau County Department of Social Services had taken and passed the competitive promotion examination for Social Welfare Examiner II, Examination Number 71-299. Although the list had been established effective May 13, 1996, no appointments had been made from it.
The list had been extended in 1997, and again in 1998 and in 1999. However, it was due to expire in accordance with the provisions of Section 56(1) of the Civil Service Law. Section 56(1), subject to certain exceptions not relevant in this case, provides that the maximum life of an eligible list is four years from the date of promulgation.
Although Paolini did not claim that the Commissioner of the Department of Social Welfare took any steps to promote anyone on the eligible list, nor that any funds were approved to pay for promotions, he asked to the court to:
1. Extend the eligible list beyond May 13, 2000; and
2. Order the department to promote each petitioner to the position of Social Welfare Examiner II from the eligible list number 71-299 and pay them retroactive to the date on which they each first became eligible for promotion to date, with interest.
Paolini contended that a November 17, 1992 decision by State Supreme Court Justice Lockman -- Livingston v Nassau County Civil Service Commission, [Index 14457-92, not selected for publication in the Official Reports] -- was a precedent for this relief.
In Livingston the employer, the Fire Commission, met on September 5, 1991 and actually made a number of promotions from the eligible list. The minutes of the meeting indicated the appointments were approved. In addition, the salaries for these appointments were included in the County budget but the paperwork had not been processed because of a fiscal crisis. Judge Lockman ruled that the paperwork was a ministerial act, and directed that Livingston be compensated at the higher salaries retroactive to September 5, 1991.
Such was not the case with respect to any claimed action to promote the Paolini plaintiffs to a higher-grade position. Paolini conceded that the Department took no steps to effectuate the promotions nor was there any evidence of any communication to the County Executive or approval of the legislative body to make any such appointment.
Holding that the facts in Paolini were clearly distinguishable from the facts in the Livingston case, the court said that [o]ther than holding the test, no steps had been taken to promote anyone to Social Welfare Examiner II.
Finally, the court said that there is no proof that any monies were appropriated for higher salaries or that the higher-grade positions were budgeted at the time the Paolini plaintiffs passed the Civil Service test, as was the case in Livingston.
Accordingly, said the court, here there was more than a ministerial act required to effectuate the promotions -- and such required actions were not shown to have been taken by the county.
The court dismissed Paolini’s petition, noting a number of other procedural defects that otherwise would bar its granting any relief in this case.
1. There was no prior determination by an administrative body, a prerequisite for bringing an Article 78 proceeding. The administrative remedies must be exhausted with a final determination for the court to review.
2. This was no decision by the Civil Service Commission to review and it is not within the court’s power to usurp the ability of an administrative agency to make such determinations.
3. There was no Notice of Claim filed with the county as required by Section 58-e of the General Municipal Law.
February 01, 2011
When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition
When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition
Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425, Appellate Division, First Department
Dismissing an Article 78 petition seeking one form of relief does not necessarily mean that that portion of the petition seeking other relief must be dismissed as well.
Janice A. Donoghue, a teacher employed by the New York City Department of Education, asked to be granted tenure as an earth science teacher as of September 1, 2005. When the New York City Department of Education failed to act, Donoghue filed an Article 78 petition. Although Supreme Court granted the Department’s motion to dismiss her petition, the Appellate Division reversed the lower court ruling “on the law and in the exercise of discretion.” And reinstated the petition.
Nor, said the court, is Donoghue’s appeal “moot,” since Donoghue has not obtained all of the relief she sought.
The Appellate Division explained that an Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act.
The decision indicates that although Donoghue had asked the Department to retroactively grant her tenure in earth science, the Department had failed to act on her request.
Addressing the question “Is Donoghue’s action barred by the statute of limitations?”-- the Appellate Division said that Donoghue’s Article 78 petition was in the nature of a prayer for “mandamus relief.”
In such an action the petitioner is required to make a demand and await a refusal before the matter is ripe for possible litigation. Significantly, statute of limitations does not commence to run “until the refusal" is served on the individual or his or her attorney.*
Thus, said the court, “[i]f there is no refusal, the limitations period does not begin to run.”
Considering another procedural issue, the Appellate Division noted that Donohue’s request was not made within the four-months required. However the court, in an “exercise” of its discretion determined that the proceeding was not barred by laches because "[i]f a petition and answer ‘can be construed as the necessary demand and refusal’ [Donoghue’s] pre-petition demand should not be deemed untimely.”
* As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168].
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00425.htm
Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425, Appellate Division, First Department
Dismissing an Article 78 petition seeking one form of relief does not necessarily mean that that portion of the petition seeking other relief must be dismissed as well.
Janice A. Donoghue, a teacher employed by the New York City Department of Education, asked to be granted tenure as an earth science teacher as of September 1, 2005. When the New York City Department of Education failed to act, Donoghue filed an Article 78 petition. Although Supreme Court granted the Department’s motion to dismiss her petition, the Appellate Division reversed the lower court ruling “on the law and in the exercise of discretion.” And reinstated the petition.
Nor, said the court, is Donoghue’s appeal “moot,” since Donoghue has not obtained all of the relief she sought.
The Appellate Division explained that an Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act.
The decision indicates that although Donoghue had asked the Department to retroactively grant her tenure in earth science, the Department had failed to act on her request.
Addressing the question “Is Donoghue’s action barred by the statute of limitations?”-- the Appellate Division said that Donoghue’s Article 78 petition was in the nature of a prayer for “mandamus relief.”
In such an action the petitioner is required to make a demand and await a refusal before the matter is ripe for possible litigation. Significantly, statute of limitations does not commence to run “until the refusal" is served on the individual or his or her attorney.*
Thus, said the court, “[i]f there is no refusal, the limitations period does not begin to run.”
Considering another procedural issue, the Appellate Division noted that Donohue’s request was not made within the four-months required. However the court, in an “exercise” of its discretion determined that the proceeding was not barred by laches because "[i]f a petition and answer ‘can be construed as the necessary demand and refusal’ [Donoghue’s] pre-petition demand should not be deemed untimely.”
* As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168].
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00425.htm
Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid
Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid
Matter of Falkouski v City of Rensselaer Fire Dept., 2011 NY Slip Op 00446, Appellate Division, Third Department
A City of Rensselaer part-time paid assistant fire chief also served as a member of a City of Rensselaer volunteer fire company. He died after suffering a ruptured cerebral aneurysm while at a fire.
His surviving spouse, Susan Falkouski, filed claims under both the Workers' Compensation Law and the Volunteer Firefighters' Benefit Law.
Although a Workers' Compensation Law Judge found that the fassistant cheif’s death was causally related to his volunteer firefighter duties, the Workers' Compensation Board reversed, finding that he had died while working in his capacity as an assistant fire chief.
Accordingly the Board ruled that the Workers' Compensation Law, rather than the Volunteer Firefighters’ Benefit Law, controlled insofar as Mrs. Falkouski’s claims for benefits were concerned.
Mrs. Falkouski’s late husband, as an assistant fire chief, received biweekly pay and took on responsibilities beyond those of a volunteer firefighter such as carrying a City-supplied pager and he was obligated to respond to all fires. Further, said the court, “there was evidence that his duties as assistant fire chief required him to supervise volunteer fire companies responding to the scene of a fire, he wore a different color hat indicating his supervisory role and he was acting in such capacity at the time of the subject fire.”
Under these circumstances, the Appellate Division sustained the Board’s determination, ruling that substantial evidence supports the Board's determination that, at the time of his death, Mrs. Falkouski’s late husband was engaged in work as an employee in his paid position as an assistant fire chief.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00446.htm
Matter of Falkouski v City of Rensselaer Fire Dept., 2011 NY Slip Op 00446, Appellate Division, Third Department
A City of Rensselaer part-time paid assistant fire chief also served as a member of a City of Rensselaer volunteer fire company. He died after suffering a ruptured cerebral aneurysm while at a fire.
His surviving spouse, Susan Falkouski, filed claims under both the Workers' Compensation Law and the Volunteer Firefighters' Benefit Law.
Although a Workers' Compensation Law Judge found that the fassistant cheif’s death was causally related to his volunteer firefighter duties, the Workers' Compensation Board reversed, finding that he had died while working in his capacity as an assistant fire chief.
Accordingly the Board ruled that the Workers' Compensation Law, rather than the Volunteer Firefighters’ Benefit Law, controlled insofar as Mrs. Falkouski’s claims for benefits were concerned.
Mrs. Falkouski’s late husband, as an assistant fire chief, received biweekly pay and took on responsibilities beyond those of a volunteer firefighter such as carrying a City-supplied pager and he was obligated to respond to all fires. Further, said the court, “there was evidence that his duties as assistant fire chief required him to supervise volunteer fire companies responding to the scene of a fire, he wore a different color hat indicating his supervisory role and he was acting in such capacity at the time of the subject fire.”
Under these circumstances, the Appellate Division sustained the Board’s determination, ruling that substantial evidence supports the Board's determination that, at the time of his death, Mrs. Falkouski’s late husband was engaged in work as an employee in his paid position as an assistant fire chief.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00446.htm
The State Commissioner of Education lacks jurisdiction to consider an appeal involving the non-renewal of the charter of a Charter School
The State Commissioner of Education lacks jurisdiction to consider an appeal involving the non-renewal of the charter of a Charter School
Appeal of Ross Global Academy Charter School regarding the nonrenewal of its charter. Decisions of the Commissioner of Education, Decision #16,194
The New York City Chancellor of Education, as a charter entity pursuant to Education Law §2851(3)(a), entered into a proposed charter agreement with Ross Global Academy Charter School [RGACS] for the operation of a charter school for five years. The proposed charter agreement was submitted to the New York State Board of Regents, which approved and issued it in January 2006.
In 2010, RGACS submitted an application to the Chancellor for the renewal of its charter for an additional five years, but was advised by the Chancellor’s staff in December 2010 that its charter would not be renewed by the Chancellor beyond the end of the 2010-2011 school year.
RGACS appealed, contending that the Chancellor and his staff [1] failed to follow appropriate policies and procedures in making the nonrenewal decision; [2] that it was treated differently than other allegedly “similarly situated” charter school; and [3] that its charter should be renewed.
The Commissioner dismissed RGACS’ appeal “for lack of jurisdiction.” The Commissioner said that Education Law §2852(6) provides that, “[n]otwithstanding any provision of law to the contrary,” the denial of an application for a charter school by a charter entity “is final and shall not be reviewable in any court or by any administrative body.”
The Commissioner explained that as the appeal submitted by RGACS is an administrative proceeding that challenges the denial of an application for a charter school, he lacks jurisdiction to consider it “Because the legislature has proscribed administrative review….”
The Commissioner rejected RGACS’ argument that Education Law §2852(6) is not applicable because it applies only to the denial of an initial charter application and not, as here, to an application for the renewal of an existing charter school, noting that “Education Law §2851(4) provides, in pertinent part, that “[c]harters may be renewed, upon application, for a term of up to five years in accordance with the provisions of this article for the issuance of such charters pursuant to section twenty-eight hundred fifty-two of this article”
As to RGACS’ claim that the Regents was the ultimate authority with respect to ruling on its application for renewal, the Commissioner said that “it is the charter entity (in this case, the Chancellor) that has the ultimate authority to deny an application for a charter school’s renewal.”* The Commissioner said that the Board of Regents "does not have the ability" to reject or veto a “recommendation” of another charter entity or modify a proposed charter submitted by such entity, citing Bd. of Educ. of the Roosevelt UFSD., et al. v. Bd. of Trustees of the State University of New York, et al., 282 AD2d 166).
* The Commissioner noted that although the Chancellor’s staff prepared a report and submitted it to the Board of Regents in this matter with a “recommendation” that RGACS’ charter not be renewed beyond the 2010-2011 school year, this submission was not required by law and is without consequence to the chartering process.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16194.htm
Appeal of Ross Global Academy Charter School regarding the nonrenewal of its charter. Decisions of the Commissioner of Education, Decision #16,194
The New York City Chancellor of Education, as a charter entity pursuant to Education Law §2851(3)(a), entered into a proposed charter agreement with Ross Global Academy Charter School [RGACS] for the operation of a charter school for five years. The proposed charter agreement was submitted to the New York State Board of Regents, which approved and issued it in January 2006.
In 2010, RGACS submitted an application to the Chancellor for the renewal of its charter for an additional five years, but was advised by the Chancellor’s staff in December 2010 that its charter would not be renewed by the Chancellor beyond the end of the 2010-2011 school year.
RGACS appealed, contending that the Chancellor and his staff [1] failed to follow appropriate policies and procedures in making the nonrenewal decision; [2] that it was treated differently than other allegedly “similarly situated” charter school; and [3] that its charter should be renewed.
The Commissioner dismissed RGACS’ appeal “for lack of jurisdiction.” The Commissioner said that Education Law §2852(6) provides that, “[n]otwithstanding any provision of law to the contrary,” the denial of an application for a charter school by a charter entity “is final and shall not be reviewable in any court or by any administrative body.”
The Commissioner explained that as the appeal submitted by RGACS is an administrative proceeding that challenges the denial of an application for a charter school, he lacks jurisdiction to consider it “Because the legislature has proscribed administrative review….”
The Commissioner rejected RGACS’ argument that Education Law §2852(6) is not applicable because it applies only to the denial of an initial charter application and not, as here, to an application for the renewal of an existing charter school, noting that “Education Law §2851(4) provides, in pertinent part, that “[c]harters may be renewed, upon application, for a term of up to five years in accordance with the provisions of this article for the issuance of such charters pursuant to section twenty-eight hundred fifty-two of this article”
As to RGACS’ claim that the Regents was the ultimate authority with respect to ruling on its application for renewal, the Commissioner said that “it is the charter entity (in this case, the Chancellor) that has the ultimate authority to deny an application for a charter school’s renewal.”* The Commissioner said that the Board of Regents "does not have the ability" to reject or veto a “recommendation” of another charter entity or modify a proposed charter submitted by such entity, citing Bd. of Educ. of the Roosevelt UFSD., et al. v. Bd. of Trustees of the State University of New York, et al., 282 AD2d 166).
* The Commissioner noted that although the Chancellor’s staff prepared a report and submitted it to the Board of Regents in this matter with a “recommendation” that RGACS’ charter not be renewed beyond the 2010-2011 school year, this submission was not required by law and is without consequence to the chartering process.
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16194.htm
Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity
Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity
Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347
Efforts by state employees to challenge alleged violations of federal civil rights and other laws have be rejected by federal courts under the doctrine of Eleventh Amendment Immunity. In the Lambert case, a federal district court dismissed claims alleging that the State’s Office of Mental Health [OMH] violated the Family Medical Leave Act on the basis of Eleventh Amendment Immunity.
Patricia Lambert had requested leave pursuant to the Family and Medical Leave Act of 1993 [FMLA], 29 USC Section 2601 on December 16, 1994. She provided medical documentation in support of her request.
While her FMLA request was pending, she used sick leave, personal time, and vacation time to cover her absences from work. OMH, Lambert claimed, (1) found her to be her eligible for FMLA benefits on February 1995 but (2) terminated her in March 1995.
The court never reached the merits of Lambert’s allegations, holding that [s]ince Lambert’s FMLA claim against the Office of Mental Health is predicated on a request for leave involving her own health condition (in contrast, for example, to a request for leave for the birth of a child), it is barred by the Eleventh Amendment.
The court cited Hale v Mann, 219 F.3d 61, 67, decided by the U.S. Court of Appeals, Second Circuit, as authority for its determination.
In Hale the Circuit Court said that FMLA’s abrogation of states’ sovereign immunity to suits regarding employees’ own health conditions exceeded Congress’s power under the Fourteenth Amendment.
Judge Gleeson also commented that Lambert’s FMLA claim against the individual defendants was inappropriate, noting a decision by the Eleventh Circuit holding that individual state officers are not employers within the meaning of the FMLA [Wascura v Carver, 169 F.3d 683].
Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347
Efforts by state employees to challenge alleged violations of federal civil rights and other laws have be rejected by federal courts under the doctrine of Eleventh Amendment Immunity. In the Lambert case, a federal district court dismissed claims alleging that the State’s Office of Mental Health [OMH] violated the Family Medical Leave Act on the basis of Eleventh Amendment Immunity.
Patricia Lambert had requested leave pursuant to the Family and Medical Leave Act of 1993 [FMLA], 29 USC Section 2601 on December 16, 1994. She provided medical documentation in support of her request.
While her FMLA request was pending, she used sick leave, personal time, and vacation time to cover her absences from work. OMH, Lambert claimed, (1) found her to be her eligible for FMLA benefits on February 1995 but (2) terminated her in March 1995.
The court never reached the merits of Lambert’s allegations, holding that [s]ince Lambert’s FMLA claim against the Office of Mental Health is predicated on a request for leave involving her own health condition (in contrast, for example, to a request for leave for the birth of a child), it is barred by the Eleventh Amendment.
The court cited Hale v Mann, 219 F.3d 61, 67, decided by the U.S. Court of Appeals, Second Circuit, as authority for its determination.
In Hale the Circuit Court said that FMLA’s abrogation of states’ sovereign immunity to suits regarding employees’ own health conditions exceeded Congress’s power under the Fourteenth Amendment.
Judge Gleeson also commented that Lambert’s FMLA claim against the individual defendants was inappropriate, noting a decision by the Eleventh Circuit holding that individual state officers are not employers within the meaning of the FMLA [Wascura v Carver, 169 F.3d 683].
Limiting the selection of arbitrators
Limiting the selection of arbitrators
Suffolk County PBA v Suffolk County, 273 AD2d 222
Suffolk County adopted a resolution [Resolution 377-1998] barring arbitrators who have served in labor disputes involving Nassau County within the preceding three years to serve in disputes under collective bargaining agreements voluntarily submitted to arbitration or in binding arbitration.
Suffolk County PBA challenged the resolution, contending that it violated both the terms of a collective bargaining agreement [CBA] between it and the county and the Taylor Law. State Supreme Court Judge Jack J. Cannavo, agreed and ruled that the resolution was invalid.
The county appealed and the Appellate Division overturned the lower court’s decision. The Appellate Division held that the CBA and the Suffolk County Administrative Code, which was substantially equivalent to the Taylor Law, both contained binding arbitration provisions permitting Suffolk County to select arbitrators at its own discretion.
Pointing out that the county could exercise its discretion in selecting arbitrators, the Appellate Division declared that the PBA lacks standing to assert that the resolution is arbitrary or capricious, or that the Suffolk County Legislature did not possess the authority to determine how Suffolk County should select its arbitrators.
The court also commented that in contrast to the PBA’s contention, the resolution did not prohibit an arbitrator from making comparisons between Nassau and Suffolk County to determine arbitration issues.
Suffolk County PBA v Suffolk County, 273 AD2d 222
Suffolk County adopted a resolution [Resolution 377-1998] barring arbitrators who have served in labor disputes involving Nassau County within the preceding three years to serve in disputes under collective bargaining agreements voluntarily submitted to arbitration or in binding arbitration.
Suffolk County PBA challenged the resolution, contending that it violated both the terms of a collective bargaining agreement [CBA] between it and the county and the Taylor Law. State Supreme Court Judge Jack J. Cannavo, agreed and ruled that the resolution was invalid.
The county appealed and the Appellate Division overturned the lower court’s decision. The Appellate Division held that the CBA and the Suffolk County Administrative Code, which was substantially equivalent to the Taylor Law, both contained binding arbitration provisions permitting Suffolk County to select arbitrators at its own discretion.
Pointing out that the county could exercise its discretion in selecting arbitrators, the Appellate Division declared that the PBA lacks standing to assert that the resolution is arbitrary or capricious, or that the Suffolk County Legislature did not possess the authority to determine how Suffolk County should select its arbitrators.
The court also commented that in contrast to the PBA’s contention, the resolution did not prohibit an arbitrator from making comparisons between Nassau and Suffolk County to determine arbitration issues.
January 31, 2011
State Comptroller DiNapoli proposes legislation providing for the forfeiture of pension benefits of members guilty of “Abuse of Public Trust”
State Comptroller DiNapoli proposes legislation providing for the forfeiture of pension benefits of members guilty of “Abuse of Public Trust”
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli has proposed the introduction of legislation providing for the forfeiture of pension benefits* if certain members of the System are found guilty of committing a felony related to the performance of their official duties.
DiNapoli’s bill also imposes a penalty up to twice the amount a public official benefited from the commission of a crime committed in the course of his or her performace [or presumably, an ommission] of his or her public duty.
DiNapoli, noting State Constitution’s prohibitions against any diminishment of retirement benefits for current public officials and public servants, indicated that the pension forfeiture provisions in the proposed bill would apply only to indiviuals becoming members of the Retirement System after the measure's effective date.
The proposed bill is posted on the Internet at:
http://osc.state.ny.us/press/releases/jan11/forfeiture.pdf.
As to the issue of a public officer or employee forfeiting retirement benefits under certain conditions, in Castro v Safir, 291 A.D.2d 212** the basic issue concerned the fallout of New York City police officer Antonio Castro's dismissal prior to the effective date of his retirement. If he was so lawfully dismissed, any pension benefits to which he would otherwise be entitled would be forfeited pursuant to Section 13-173.1 of the New York City Administrative Code.***
Section 13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.
Castro was terminated from his position following a "second arrest." As a result he became ineligible for the ordinary disability retirement benefits for which he had applied. He sued, contending that the Department had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had previously found Castro eligible for ordinary disability retirement.
According to the decision, Castro was terminated after he had applied for ordinary disability retirement but before he was actually retired for disability.
The Appellate Division ruled that Castro had forfeited his pension benefits as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.
This conclusion by the Appellate Division appears to parallel the Court of Appeals holding in its Waldeck and Barbaro rulings wherein the Court of Appeals said that Section 13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits. [Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.]
Waldeck and Barbaro challenged the forfeiture of their respective retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them.
Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this mean that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!
The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory authority, and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."
According to the decision, there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.
* If enacted into law, this presumably could result in the forfeiture of the pension portion of the individual's retirement allowance but that portion of the individual's retirement allowance attributed to his or her "employee contributions" would be refunded.
** See, also, Cipolla v. Kelly 26 A.D.3d 171, wherein the court held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [the individual’s] termination was in bad faith.”
*** As a police officer, Castro was a "public officer." He was also a public employee, as although not all public employees are public officers, all public officers are public employees.
Source: Office of the State Comptroller
State Comptroller Thomas P. DiNapoli has proposed the introduction of legislation providing for the forfeiture of pension benefits* if certain members of the System are found guilty of committing a felony related to the performance of their official duties.
DiNapoli’s bill also imposes a penalty up to twice the amount a public official benefited from the commission of a crime committed in the course of his or her performace [or presumably, an ommission] of his or her public duty.
DiNapoli, noting State Constitution’s prohibitions against any diminishment of retirement benefits for current public officials and public servants, indicated that the pension forfeiture provisions in the proposed bill would apply only to indiviuals becoming members of the Retirement System after the measure's effective date.
The proposed bill is posted on the Internet at:
http://osc.state.ny.us/press/releases/jan11/forfeiture.pdf.
As to the issue of a public officer or employee forfeiting retirement benefits under certain conditions, in Castro v Safir, 291 A.D.2d 212** the basic issue concerned the fallout of New York City police officer Antonio Castro's dismissal prior to the effective date of his retirement. If he was so lawfully dismissed, any pension benefits to which he would otherwise be entitled would be forfeited pursuant to Section 13-173.1 of the New York City Administrative Code.***
Section 13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.
Castro was terminated from his position following a "second arrest." As a result he became ineligible for the ordinary disability retirement benefits for which he had applied. He sued, contending that the Department had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had previously found Castro eligible for ordinary disability retirement.
According to the decision, Castro was terminated after he had applied for ordinary disability retirement but before he was actually retired for disability.
The Appellate Division ruled that Castro had forfeited his pension benefits as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.
This conclusion by the Appellate Division appears to parallel the Court of Appeals holding in its Waldeck and Barbaro rulings wherein the Court of Appeals said that Section 13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits. [Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.]
Waldeck and Barbaro challenged the forfeiture of their respective retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them.
Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this mean that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!
The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory authority, and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."
According to the decision, there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.
* If enacted into law, this presumably could result in the forfeiture of the pension portion of the individual's retirement allowance but that portion of the individual's retirement allowance attributed to his or her "employee contributions" would be refunded.
** See, also, Cipolla v. Kelly 26 A.D.3d 171, wherein the court held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [the individual’s] termination was in bad faith.”
*** As a police officer, Castro was a "public officer." He was also a public employee, as although not all public employees are public officers, all public officers are public employees.
Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing
Employee’s termination after hearing held in absentia annulled for failure to prove the employee was notified of the time and place of the hearing
Matter of Toolasprashad v Kelly, 2011 NY Slip Op 00419, Appellate Division, First Department
The Toolasprashad decision demonstrates that evidence that the accused individual was properly served with the notice a scheduled disciplinary hearing may become a critical element in the proceeding.
Rudranu Toolasprashad was terminated from his position following a disciplinary hearing that was held notwithstanding his failing to appear at the designated time and place.
Toolasprashad filed a petition seeking to annul his dismissal, which Supreme Court granted “to the extent of remanding the matter to respondents for a full hearing on proper notice to [Toolasprashad].” The Appellate Division affirmed the Supreme Court’s decision.
The Appellate Division noted that the hearing officer found that Toolasprashad failed to appear for the hearing was without good cause, this finding was based on the Department representation that had made “diligent efforts to serve [Toolasprashad] with the charges against him and to notify him of the hearing and that [Toolasprashad] had not provided proper contact information in Peru, where he was on leave.”
While this may have otherwise been sufficient, the court said that the record indicated that “the sole evidence of [the Department’s] attempted service in Lima was counsel's hearsay representations.”
Accordingly, the Appellate Division ruled that the hearing officer’s determination that Toolasprashad’s failure to appear “was without good cause” lacked the requisite proof, citing People ex rel. Griffin v Walters, 83 AD2d 618.
Although the Department argued that “the technical rules of evidence need not be complied with in disciplinary proceedings before administrative bodies,” the court said that the deficiency in the proof of the Department’s efforts to effect service in Lima “goes beyond the lack of technical compliance.”
The court also called attention to the Rules of City of New York Police Department (38 RCNY) §15-03 which, in pertinent part, required that "[s]ervice of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent" and that "[a]ppropriate proof of service shall be required."
Thus, concluded the Appellate Division, the Department failed to comply with its own stated obligation to provide Toolasprashad with the required notice of the time and place of the disciplinary hearing. Accordingly, said the court, the hearing officer’s decision to go forward with the disciplinary hearing in Toolasprashad's absence was arbitrary and capricious.
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.
Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted." Unlike the issue in Toolasprashad, i.e., was the accused employee properly served, in Mari the Appellate Division pointed out that “[Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The Toolasprashad decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00419.htm
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Matter of Toolasprashad v Kelly, 2011 NY Slip Op 00419, Appellate Division, First Department
The Toolasprashad decision demonstrates that evidence that the accused individual was properly served with the notice a scheduled disciplinary hearing may become a critical element in the proceeding.
Rudranu Toolasprashad was terminated from his position following a disciplinary hearing that was held notwithstanding his failing to appear at the designated time and place.
Toolasprashad filed a petition seeking to annul his dismissal, which Supreme Court granted “to the extent of remanding the matter to respondents for a full hearing on proper notice to [Toolasprashad].” The Appellate Division affirmed the Supreme Court’s decision.
The Appellate Division noted that the hearing officer found that Toolasprashad failed to appear for the hearing was without good cause, this finding was based on the Department representation that had made “diligent efforts to serve [Toolasprashad] with the charges against him and to notify him of the hearing and that [Toolasprashad] had not provided proper contact information in Peru, where he was on leave.”
While this may have otherwise been sufficient, the court said that the record indicated that “the sole evidence of [the Department’s] attempted service in Lima was counsel's hearsay representations.”
Accordingly, the Appellate Division ruled that the hearing officer’s determination that Toolasprashad’s failure to appear “was without good cause” lacked the requisite proof, citing People ex rel. Griffin v Walters, 83 AD2d 618.
Although the Department argued that “the technical rules of evidence need not be complied with in disciplinary proceedings before administrative bodies,” the court said that the deficiency in the proof of the Department’s efforts to effect service in Lima “goes beyond the lack of technical compliance.”
The court also called attention to the Rules of City of New York Police Department (38 RCNY) §15-03 which, in pertinent part, required that "[s]ervice of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent" and that "[a]ppropriate proof of service shall be required."
Thus, concluded the Appellate Division, the Department failed to comply with its own stated obligation to provide Toolasprashad with the required notice of the time and place of the disciplinary hearing. Accordingly, said the court, the hearing officer’s decision to go forward with the disciplinary hearing in Toolasprashad's absence was arbitrary and capricious.
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.
Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted." Unlike the issue in Toolasprashad, i.e., was the accused employee properly served, in Mari the Appellate Division pointed out that “[Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The Toolasprashad decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00419.htm
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Constitutionally protected speech
Constitutionally protected speech
Bradley v. James USCA, 8th Circuit, 2007 U.S. App. Lexis 4781
In the course of an official investigation of an incident involving students in possession of firearms, Arch Bradley, a police captain, alleged that his chief of police chief, Larry James, was intoxicated while on duty at the time of the incident. As a result, Bradley was terminated from his position.*
Bradley sued, claiming that his speech was protected by the First Amendment and thus his termination was unconstitutional.
The Circuit Court disagreed; holding that Bradley’s statement concerning Chief James’ alleged intoxication was made in the context of his official duties – in the course of an official investigation of a law enforcement incident -- and therefore not constitutionally protected.
The legal issue, said the court, is essentially “did the employee speak as a citizen on a matter of public concern?” If the answer to the question is no, the employee does not have a First Amendment cause of action as a result of his or her employer’s taking adverse personnel action against the employee because of the speech.
Here, said the court, Bradley’s speech was made “pursuant to [his] official responsibilities.” As a police officer, Bradley had an official responsibility to cooperate with the investigation incident. His allegation that Chief James was intoxicated when the student incident occurred was made at no other time than during the subsequent investigation of that event. Thus, ruled the Circuit Court, Bradley’s speech was uttered in the course of his performing his official and professional duties. Accordingly, it was not constitutionally protected speech for the purposes of his First Amendment claim.
The Circuit Court affirmed the federal district court’s dismissal of Bradley’s complaint.
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/protected-speech.html
* Bradley was sent a letter that included the following statements: “Your inaction on February 6th and your unsubstantiated comments about Chief James are both terminable offenses.” The letter offered Bradley the opportunity to retire or be terminated. Bradley did not respond. Bradley was then sent a letter dismissing him from his position for “deliberate or gross neglect of duty” during the incident. Bradley’s allegation that Chief James was intoxicated at the time of the incident was not mentioned in the letter.
Bradley v. James USCA, 8th Circuit, 2007 U.S. App. Lexis 4781
In the course of an official investigation of an incident involving students in possession of firearms, Arch Bradley, a police captain, alleged that his chief of police chief, Larry James, was intoxicated while on duty at the time of the incident. As a result, Bradley was terminated from his position.*
Bradley sued, claiming that his speech was protected by the First Amendment and thus his termination was unconstitutional.
The Circuit Court disagreed; holding that Bradley’s statement concerning Chief James’ alleged intoxication was made in the context of his official duties – in the course of an official investigation of a law enforcement incident -- and therefore not constitutionally protected.
The legal issue, said the court, is essentially “did the employee speak as a citizen on a matter of public concern?” If the answer to the question is no, the employee does not have a First Amendment cause of action as a result of his or her employer’s taking adverse personnel action against the employee because of the speech.
Here, said the court, Bradley’s speech was made “pursuant to [his] official responsibilities.” As a police officer, Bradley had an official responsibility to cooperate with the investigation incident. His allegation that Chief James was intoxicated when the student incident occurred was made at no other time than during the subsequent investigation of that event. Thus, ruled the Circuit Court, Bradley’s speech was uttered in the course of his performing his official and professional duties. Accordingly, it was not constitutionally protected speech for the purposes of his First Amendment claim.
The Circuit Court affirmed the federal district court’s dismissal of Bradley’s complaint.
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/protected-speech.html
* Bradley was sent a letter that included the following statements: “Your inaction on February 6th and your unsubstantiated comments about Chief James are both terminable offenses.” The letter offered Bradley the opportunity to retire or be terminated. Bradley did not respond. Bradley was then sent a letter dismissing him from his position for “deliberate or gross neglect of duty” during the incident. Bradley’s allegation that Chief James was intoxicated at the time of the incident was not mentioned in the letter.
January 28, 2011
California’s Supreme Court confirms longstanding California rule concerning employee layoffs
California’s Supreme Court confirms longstanding California rule concerning employee layoffs
IAFF, Local 188 vs. Public Employment Relations Board [City of Richmond (Real Party in Interest),] California Supreme Court No. S172377
Source: Meyers Nave PLC. -- The Public Blog, posted at http://www.publiclawnews.com/public_law_news/2011/01/ -- Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved
"On Monday, January 24, 2011, the California Supreme Court issued an opinion regarding an employer's duty to bargain under the Meyers-Milias-Brown Act ("MMBA") in connection with layoffs. The opinion was authored by Acting Chief Justice Kennard, with a concurring and dissenting opinion filed by Justice Baxter.
"The Bottom Line: The Supreme Court simply affirmed a longstanding rule - that there is no duty to bargain over an employer's decision to layoff, but there is a duty to bargain over the implementation and effects of the decision. This has been the ongoing advice of labor attorneys for years. There is no new law in this decision that should cause public employers to change their practices.
"Discussion: Since approximately 1974, it has been the rule in California that public employers need not negotiate with labor unions about the decision to initiate layoffs. However, public employers must negotiate concerning the effects or impacts of the layoffs. The City of Richmond observed this advice in connection with firefighter layoffs, and the Fire Union claimed that the failure to negotiate constituted an unfair practice under the MMBA.
"This case affirms the rule. The Court expressly states: "We now reaffirm this rule. Under the MMBA, a local public entity that is faced with a decline in revenues or other financial adversity may unilaterally decide to lay off some of its employees to reduce its labor costs. In this situation, a public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." (Op. at 19.)
"One additional aspect of the opinion is to define the criteria for permitting review of a decision by the [California] Public Employment Relations Board ("PERB"). The Court agreed with the court of appeal that when PERB refuses to issue a complaint under the MMBA, a superior court may review the decision by mandamus. The review is limited to determining "whether PERB's decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction."
"Justice Baxter dissented from this portion of the opinion.
"For more information about this case or other labor and employment matters, contact Art Hartinger at 800.464.3559."
IAFF, Local 188 vs. Public Employment Relations Board [City of Richmond (Real Party in Interest),] California Supreme Court No. S172377
Source: Meyers Nave PLC. -- The Public Blog, posted at http://www.publiclawnews.com/public_law_news/2011/01/ -- Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved
"On Monday, January 24, 2011, the California Supreme Court issued an opinion regarding an employer's duty to bargain under the Meyers-Milias-Brown Act ("MMBA") in connection with layoffs. The opinion was authored by Acting Chief Justice Kennard, with a concurring and dissenting opinion filed by Justice Baxter.
"The Bottom Line: The Supreme Court simply affirmed a longstanding rule - that there is no duty to bargain over an employer's decision to layoff, but there is a duty to bargain over the implementation and effects of the decision. This has been the ongoing advice of labor attorneys for years. There is no new law in this decision that should cause public employers to change their practices.
"Discussion: Since approximately 1974, it has been the rule in California that public employers need not negotiate with labor unions about the decision to initiate layoffs. However, public employers must negotiate concerning the effects or impacts of the layoffs. The City of Richmond observed this advice in connection with firefighter layoffs, and the Fire Union claimed that the failure to negotiate constituted an unfair practice under the MMBA.
"This case affirms the rule. The Court expressly states: "We now reaffirm this rule. Under the MMBA, a local public entity that is faced with a decline in revenues or other financial adversity may unilaterally decide to lay off some of its employees to reduce its labor costs. In this situation, a public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." (Op. at 19.)
"One additional aspect of the opinion is to define the criteria for permitting review of a decision by the [California] Public Employment Relations Board ("PERB"). The Court agreed with the court of appeal that when PERB refuses to issue a complaint under the MMBA, a superior court may review the decision by mandamus. The review is limited to determining "whether PERB's decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction."
"Justice Baxter dissented from this portion of the opinion.
"For more information about this case or other labor and employment matters, contact Art Hartinger at 800.464.3559."
The Doctrine of Nullification claimed as authority to obviated recent federal health care legislation
The Doctrine of Nullification claimed as authority to obviated recent federal health care legislation
State lawmakers in Alabama, Idaho, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas and Wyoming are considering adopting legislation to avoid the federal government’s efforts to “overhaul health care” pursuant to the so-called Doctrine of Nullification.
The Doctrine, attributed to President Thomas Jefferson among others, purports to give States the ultimate authority insofar as the implementation of acts of Congress is concerned and is typically linked to the 10th Amendment of the United States Constitution. The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
A book printed by the U.S. Government Printing Office, The Constitution of the United States of America [Analysis and Interpretations, 1964], and prepared by the Legislative Reference Service of the Library of Congress, states that “The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted” with respect to the division of power between the federal government and the States.
As to the Doctrine of Nullification,* the United States Supreme Court, in the context of a 14th Amendment school desegregation case,** rejected the concept, stating that "Although ‘the responsibility for public education is primarily the concern of the States ..., such responsibilities ... must be exercised consistently with federal constitutional requirements as they apply to state actions.’ Consequently, ‘a Governor who asserts a power to nullify a federal court order’ implementing that ruling is subject to judicial restraint, for otherwise ‘the fiat of a State Governor and not the Constitution ... would be the supreme law of the land..."
* See The Constitution of the United States of America, U.S.G.P.O., Page 1035, Footnote 2.
** Cooper v Aaron, 358 US 1, 18-19, [1958].
State lawmakers in Alabama, Idaho, Kansas, Maine, Missouri, Montana, Oregon, Nebraska, Texas and Wyoming are considering adopting legislation to avoid the federal government’s efforts to “overhaul health care” pursuant to the so-called Doctrine of Nullification.
The Doctrine, attributed to President Thomas Jefferson among others, purports to give States the ultimate authority insofar as the implementation of acts of Congress is concerned and is typically linked to the 10th Amendment of the United States Constitution. The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
A book printed by the U.S. Government Printing Office, The Constitution of the United States of America [Analysis and Interpretations, 1964], and prepared by the Legislative Reference Service of the Library of Congress, states that “The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted” with respect to the division of power between the federal government and the States.
As to the Doctrine of Nullification,* the United States Supreme Court, in the context of a 14th Amendment school desegregation case,** rejected the concept, stating that "Although ‘the responsibility for public education is primarily the concern of the States ..., such responsibilities ... must be exercised consistently with federal constitutional requirements as they apply to state actions.’ Consequently, ‘a Governor who asserts a power to nullify a federal court order’ implementing that ruling is subject to judicial restraint, for otherwise ‘the fiat of a State Governor and not the Constitution ... would be the supreme law of the land..."
* See The Constitution of the United States of America, U.S.G.P.O., Page 1035, Footnote 2.
** Cooper v Aaron, 358 US 1, 18-19, [1958].
Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago
Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago
Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773.
Reversing the Appellate Court, the Illinois Supreme Court essentially equated the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code to “domicile.”* The court, noting that “until just a few days ago, the governing law on this question had been settled in this State for going on 150 years,” citing Smith v. People ex rel.Frisbie , 44 Ill.16 (1867), sustained the decision of Chicago's Board of Elections that Rahm Emanuel was eligible to run for the office of Mayor of the City of Chicago.
The Supreme Court explained that “in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.”
* NYPPL earlier suggested that “Essentially the [Illinois Supreme Court] will decide if the term “residence” as used in §3.1-10-5(a) of [Chicago's] Municipal Code means “domicile” or something other than "domicile” [see http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html ]
The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs
Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773.
Reversing the Appellate Court, the Illinois Supreme Court essentially equated the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code to “domicile.”* The court, noting that “until just a few days ago, the governing law on this question had been settled in this State for going on 150 years,” citing Smith v. People ex rel.Frisbie , 44 Ill.16 (1867), sustained the decision of Chicago's Board of Elections that Rahm Emanuel was eligible to run for the office of Mayor of the City of Chicago.
The Supreme Court explained that “in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.”
* NYPPL earlier suggested that “Essentially the [Illinois Supreme Court] will decide if the term “residence” as used in §3.1-10-5(a) of [Chicago's] Municipal Code means “domicile” or something other than "domicile” [see http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html ]
The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs
January 27, 2011
Extending the probationary period
Extending the probationary period
Subway-Surface Supervisors Assn. v New York City Tr. Auth., 2010 NY Slip Op 52339(U), Supreme Court, New York County, Judge Saliann Scarpulla, [Not selected for publication in the Official Reports.]
Subway-Surface Supervisors Association brought an action seeking to have the court void “stipulations of settlement” between the Association and the Authority.
The Association and the Authority had to increase the one-year probationary term for certain employees upon their promotion to a Supervisor position to a two-year probationary period. Shortly before the expiration of their two-year probationary periods, these Supervisors entered into a settlement agreement with the Transit Authority after the Authority had determined that had taken “excessive sick leave during their two-year probationary period.”
As probationary employees, the Supervisors were not entitled to a disciplinary hearing concerning the sick leave violations and each agreed to serve a two year disciplinary probation during which any violation of time and leave would result in dismissal.
The Association argued that the Supervisors already served the maximum amount of probation and further extension was not permitted under Title 55 of the Rules of the City of New York, Section 5.2.8.* In addition, the Association claimed that the Transit Authority failed to get “written authorization to extend the probationary period from the Commissioner of Citywide Administrative Services.” Finally, the Association contended that even if the extension was permitted, its length was “impermissible.”
The Authority, on the other hand, claimed that it had found that Supervisors had unsatisfactory attendance or excessive absenteeism and although these problems were. serious enough to justify their termination, it decided to give them a last chance to salvage their promotions. This, said the Authority, resulted the Supervisors agreeing to a last chance settlement that would allow them to keep their promotions by agreeing to a two-year disciplinary probation.
During that two-year disciplinary probation, any further time and leave violations would result in their dismissal should the arbitrator find that they had committed such further violations.
Supreme Court found that the Stipulations were not “an extension of any probationary period” but constituted a separate probation imposed for disciplinary purposes, freely entered into by the Supervisors.
* The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974]. For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_52339.htm
Subway-Surface Supervisors Assn. v New York City Tr. Auth., 2010 NY Slip Op 52339(U), Supreme Court, New York County, Judge Saliann Scarpulla, [Not selected for publication in the Official Reports.]
Subway-Surface Supervisors Association brought an action seeking to have the court void “stipulations of settlement” between the Association and the Authority.
The Association and the Authority had to increase the one-year probationary term for certain employees upon their promotion to a Supervisor position to a two-year probationary period. Shortly before the expiration of their two-year probationary periods, these Supervisors entered into a settlement agreement with the Transit Authority after the Authority had determined that had taken “excessive sick leave during their two-year probationary period.”
As probationary employees, the Supervisors were not entitled to a disciplinary hearing concerning the sick leave violations and each agreed to serve a two year disciplinary probation during which any violation of time and leave would result in dismissal.
The Association argued that the Supervisors already served the maximum amount of probation and further extension was not permitted under Title 55 of the Rules of the City of New York, Section 5.2.8.* In addition, the Association claimed that the Transit Authority failed to get “written authorization to extend the probationary period from the Commissioner of Citywide Administrative Services.” Finally, the Association contended that even if the extension was permitted, its length was “impermissible.”
The Authority, on the other hand, claimed that it had found that Supervisors had unsatisfactory attendance or excessive absenteeism and although these problems were. serious enough to justify their termination, it decided to give them a last chance to salvage their promotions. This, said the Authority, resulted the Supervisors agreeing to a last chance settlement that would allow them to keep their promotions by agreeing to a two-year disciplinary probation.
During that two-year disciplinary probation, any further time and leave violations would result in their dismissal should the arbitrator find that they had committed such further violations.
Supreme Court found that the Stipulations were not “an extension of any probationary period” but constituted a separate probation imposed for disciplinary purposes, freely entered into by the Supervisors.
* The general rule with respect to extensions of the probationary period for employees in the Classified Service is that in the event a probationary employee is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974]. For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that with respect to employees of the State as an employer, “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_52339.htm
Negligent hiring and retention of an employee
Negligent hiring and retention of an employee
Anonymous v Dobbs Ferry UFSD, 290 AD2d 464
In the Dobbs Ferry case, New York State Supreme Court Justice Donovan considered a number of important issues, including allegations that the district, and its school superintendent and a middle school principal [“the district”], were guilty of negligent hiring and retention of Steven Nowicki as a teacher.
The decision, which considered various motions to dismiss the action and to amend the complaint preliminary to a trial on the merits, reports that the parents of one of Nowicki’s students invited Nowicki to a New Year’s Eve party. Nowicki, it was alleged, became intoxicated at the party and, at the suggestion of the parents, spent the night at their home rather than risk driving to his own home. The complaint charged that Nowicki later that night sexually assaulted his student, and the student’s younger brother, in their bedroom.
The district asked the court to dismiss the complaint, contending that they cannot be held liable for an incident that occurred outside the school’s premises at a private function for a number of reasons, including:
1. A school’s duty toward its pupils extends only as far as physical custody and control over the pupils and that duty ceases once the pupils have passed out of the school’s orbit of authority.
2. Because of a superseding factor -- the parents invited Nowicki into their home -- any negligent hiring would not be the proximate cause of the alleged injuries.
3. The criminal acts allegedly committed by Nowicki were outside the scope of his employment, and therefore cannot be attributed to the district or its superintendent or principal under the doctrine of respondeat superior.
In response to the district’s motion to dismiss the action on the theory that the school has no duty to supervise a student once he or she has left the custody and control of the school, the court ruled that the location of the incident was irrelevant and declined to grant the district’s motion.
The district appealed. The Appellate Division ruled that Supreme Court improperly denied the district’s cross motion for summary judgment dismissing the complaint with respect to it.
The Appellate Division said that the district had made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any nexus between Nowicki's employment at the district and his alleged sexual molestation of the infant plaintiffs was severed by time, distance, and the intervening independent actions of their parents, citing Cardona v Cruz, 271 AD2d 221; K. I. v New York City Bd. of Educ., 256 AD2d 189; McDonald v Cook, 252 AD2d 302; and Lemp v Lewis, 226 AD2d 907, in support of its ruling.
Anonymous v Dobbs Ferry UFSD, 290 AD2d 464
In the Dobbs Ferry case, New York State Supreme Court Justice Donovan considered a number of important issues, including allegations that the district, and its school superintendent and a middle school principal [“the district”], were guilty of negligent hiring and retention of Steven Nowicki as a teacher.
The decision, which considered various motions to dismiss the action and to amend the complaint preliminary to a trial on the merits, reports that the parents of one of Nowicki’s students invited Nowicki to a New Year’s Eve party. Nowicki, it was alleged, became intoxicated at the party and, at the suggestion of the parents, spent the night at their home rather than risk driving to his own home. The complaint charged that Nowicki later that night sexually assaulted his student, and the student’s younger brother, in their bedroom.
The district asked the court to dismiss the complaint, contending that they cannot be held liable for an incident that occurred outside the school’s premises at a private function for a number of reasons, including:
1. A school’s duty toward its pupils extends only as far as physical custody and control over the pupils and that duty ceases once the pupils have passed out of the school’s orbit of authority.
2. Because of a superseding factor -- the parents invited Nowicki into their home -- any negligent hiring would not be the proximate cause of the alleged injuries.
3. The criminal acts allegedly committed by Nowicki were outside the scope of his employment, and therefore cannot be attributed to the district or its superintendent or principal under the doctrine of respondeat superior.
In response to the district’s motion to dismiss the action on the theory that the school has no duty to supervise a student once he or she has left the custody and control of the school, the court ruled that the location of the incident was irrelevant and declined to grant the district’s motion.
The district appealed. The Appellate Division ruled that Supreme Court improperly denied the district’s cross motion for summary judgment dismissing the complaint with respect to it.
The Appellate Division said that the district had made a prima facie showing of its entitlement to judgment as a matter of law by establishing that any nexus between Nowicki's employment at the district and his alleged sexual molestation of the infant plaintiffs was severed by time, distance, and the intervening independent actions of their parents, citing Cardona v Cruz, 271 AD2d 221; K. I. v New York City Bd. of Educ., 256 AD2d 189; McDonald v Cook, 252 AD2d 302; and Lemp v Lewis, 226 AD2d 907, in support of its ruling.
Individuals performing services for a public employer may be designated "non-employees" by statute
Individuals performing services for a public employer may be designated "non-employees" by statute
Levitt v NYC Office of Collective Bargaining, 273 AD2d 104
For the purposes of collective bargaining Article 14 of the Civil Service Law -- the Taylor Law -- applies to all individuals in the services of a public employer except judges, individuals in the military service and public employees designated managerial or confidential.*
The point made clear by the Levitt decision -- individuals who might otherwise satisfy the criteria for public employment, and thus otherwise covered by the Taylor Law, may be denied such status by statute.
Kenneth Levitt challenged a ruling by New York City’s Office of Collective Bargaining [OCB] declaring that four hearing examiners employed by the city’s Parking Violations Bureau [PVB] were ineligible for inclusion in a collective bargaining unit representing city employees.
OCB’s rationale: Section 236(2)(d) of the Vehicle and Traffic Law provides that [s]uch hearing examiners shall not be considered employees of the city in which the administrative tribunal has been established.**
The Appellate Division, First Department, agreed, ruling that [g]iven this clear statutory language, the PVB hearing officers cannot be considered City employees entitled to collectively bargain pursuant to the Taylor Law even though, as OCB found following a hearing, in all other respects these hearing officers meet the criteria for public employment.
Does Levitt have any recourse? Perhaps. As the court pointed out, this was an issue for the Legislature, not the courts, to address.
* Certain individuals have been declared managerial or confidential within the meaning of the Taylor Law by statute.
** Civil Service Law Sections 210 - Prohibition against strikes - and Section 211 - Injunctive relief to prohibit a strike - specifically apply to judges, military personnel and managerial or confidential employees within the meaning of the Taylor Law. Presumably these provisions would not apply to Section 236(2)(d) hearing examiners as the incumbents of such positions are not employees of the jurisdiction in which they serve.
Levitt v NYC Office of Collective Bargaining, 273 AD2d 104
For the purposes of collective bargaining Article 14 of the Civil Service Law -- the Taylor Law -- applies to all individuals in the services of a public employer except judges, individuals in the military service and public employees designated managerial or confidential.*
The point made clear by the Levitt decision -- individuals who might otherwise satisfy the criteria for public employment, and thus otherwise covered by the Taylor Law, may be denied such status by statute.
Kenneth Levitt challenged a ruling by New York City’s Office of Collective Bargaining [OCB] declaring that four hearing examiners employed by the city’s Parking Violations Bureau [PVB] were ineligible for inclusion in a collective bargaining unit representing city employees.
OCB’s rationale: Section 236(2)(d) of the Vehicle and Traffic Law provides that [s]uch hearing examiners shall not be considered employees of the city in which the administrative tribunal has been established.**
The Appellate Division, First Department, agreed, ruling that [g]iven this clear statutory language, the PVB hearing officers cannot be considered City employees entitled to collectively bargain pursuant to the Taylor Law even though, as OCB found following a hearing, in all other respects these hearing officers meet the criteria for public employment.
Does Levitt have any recourse? Perhaps. As the court pointed out, this was an issue for the Legislature, not the courts, to address.
* Certain individuals have been declared managerial or confidential within the meaning of the Taylor Law by statute.
** Civil Service Law Sections 210 - Prohibition against strikes - and Section 211 - Injunctive relief to prohibit a strike - specifically apply to judges, military personnel and managerial or confidential employees within the meaning of the Taylor Law. Presumably these provisions would not apply to Section 236(2)(d) hearing examiners as the incumbents of such positions are not employees of the jurisdiction in which they serve.
Ability to perform “light duty” defeats accidental disability retirement claim
Ability to perform “light duty” defeats accidental disability retirement claim
Matter of Roache v Hevesi, 38 AD3d 1036
Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.
Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.
Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.
The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.
The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."
Matter of Roache v Hevesi, 38 AD3d 1036
Jerome J. Roache, a police officer, suffered a fracture of his left knee in an accident. He later returned to work in various restricted-duty positions, the most recent of which was as a property clerk.
Claiming that he could not fully perform the duties of a police officer, he filed an application for accidental disability retirement benefits with the New York State Employees’ Retirement System.
Finding that Roache was not permanently incapacitated because he was able to perform “his restricted duty assignment” satisfactorily for more than three years prior to his applying for accidental disability retirement, the Retirement System rejected his application for benefits.
The Appellate Division sustained the System’s determination, holding that there was substantial evidence in the record to support the System’s finding that Roach could perform his restricted duty work satisfactorily and thus he was not permanently disabled.
The court dismissed Roache’s appeal, noting that the medical records that Roache had submitted in support of his application contained an opinion from an orthopedic surgeon that he was "able to do light duty."
January 26, 2011
The legal distinction between domicile and residence
The legal distinction between domicile and residence
Maksym v Board of Election Commissioners, appeal from 2010 COEL 020, #1-1-0033
Rahm Emanuel’s claim that he is eligible to run for the office of Mayor for the City of Chicago will be considered by the Illinois State Supreme Court shortly. Essentially the case will decide if the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code means “domicile” or something other than "domicile."
In the words of the Appellate Court of Illinois, First Division:
As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster’s Third New International Dictionary 1931 (1993).
This suggests that Webster's Third may have created some confusion insofar as the traditional legal distinctions between “domicile” and “residence” are concerned.
Perhaps the provisions set out in Illinois Title 86: Revenue, Chapter I: Department of Revenue, Part 100 Income Tax, Section 100.3020 Resident (IITA Section 301) may be illuminating in this regard.
Section 100.3020 Resident (IITA Section 301) states that the term "resident" means an individual who is in Illinois for other than a temporary or transitory purpose during the taxable year or who is domiciled in Illinois but is absent from Illinois for a temporary or transitory purpose during the taxable year. The Title also states that “If an individual is domiciled in Illinois, he remains a resident unless he is outside Illinois for other than temporary or transitory purposes.”
The term “domicile,” states the statute, “has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, the place to which he intends to return whenever he is absent. It is the place in which an individual has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home.
Examples provided by the Illinois Department of Revenue distinguishing between residence and domicile include the following:
1. Another definition of "domicile" consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.
2. An individual can at any one time have but one domicile. If an individual has acquired a domicile at one place, he retains that domicile until he acquires another elsewhere.
3. Thus, if an individual, who has acquired a domicile in California, for example, comes to Illinois for a rest or vacation or on business or for some other purpose, but intends either to return to California or to go elsewhere as soon as his purpose in Illinois is achieved, he retains his domicile in California and does not acquire a domicile in Illinois. Likewise, an individual who is domiciled in Illinois and who leaves the state retains his Illinois domicile as long as he has the definite intention of returning to Illinois.
4. On the other hand, an individual, domiciled in California, who comes to Illinois with the intention of remaining indefinitely and with no fixed intention of returning to California loses his California domicile and acquires an Illinois domicile the moment he enters the state. Similarly, an individual domiciled in Illinois loses his Illinois domicile: 1) by locating elsewhere with the intention of establishing the new location as his domicile, and 2) by abandoning any intention of returning to Illinois.”
A similar issue was considered by New York State's Court of Appeals in Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385.*
In Longwood the court said that:
On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law §3202 (4) (a), and the outcome turns on where the children "resided" within the meaning of the statute.
Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as "residence," and therefore conclude that the Springs Union Free School District—the children's last permanent residence—is responsible for their instructional costs. "
The court explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."
An early decision by the Illinois State Supreme Court is expected.
The Maksym decision by the Illinois Appellate Court is posted on the Internet at:
http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/January/1110033.pdf
* The Longwood decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2004/2004_00962.htm
Maksym v Board of Election Commissioners, appeal from 2010 COEL 020, #1-1-0033
Rahm Emanuel’s claim that he is eligible to run for the office of Mayor for the City of Chicago will be considered by the Illinois State Supreme Court shortly. Essentially the case will decide if the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code means “domicile” or something other than "domicile."
In the words of the Appellate Court of Illinois, First Division:
As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster’s Third New International Dictionary 1931 (1993).
This suggests that Webster's Third may have created some confusion insofar as the traditional legal distinctions between “domicile” and “residence” are concerned.
Perhaps the provisions set out in Illinois Title 86: Revenue, Chapter I: Department of Revenue, Part 100 Income Tax, Section 100.3020 Resident (IITA Section 301) may be illuminating in this regard.
Section 100.3020 Resident (IITA Section 301) states that the term "resident" means an individual who is in Illinois for other than a temporary or transitory purpose during the taxable year or who is domiciled in Illinois but is absent from Illinois for a temporary or transitory purpose during the taxable year. The Title also states that “If an individual is domiciled in Illinois, he remains a resident unless he is outside Illinois for other than temporary or transitory purposes.”
The term “domicile,” states the statute, “has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, the place to which he intends to return whenever he is absent. It is the place in which an individual has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home.
Examples provided by the Illinois Department of Revenue distinguishing between residence and domicile include the following:
1. Another definition of "domicile" consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.
2. An individual can at any one time have but one domicile. If an individual has acquired a domicile at one place, he retains that domicile until he acquires another elsewhere.
3. Thus, if an individual, who has acquired a domicile in California, for example, comes to Illinois for a rest or vacation or on business or for some other purpose, but intends either to return to California or to go elsewhere as soon as his purpose in Illinois is achieved, he retains his domicile in California and does not acquire a domicile in Illinois. Likewise, an individual who is domiciled in Illinois and who leaves the state retains his Illinois domicile as long as he has the definite intention of returning to Illinois.
4. On the other hand, an individual, domiciled in California, who comes to Illinois with the intention of remaining indefinitely and with no fixed intention of returning to California loses his California domicile and acquires an Illinois domicile the moment he enters the state. Similarly, an individual domiciled in Illinois loses his Illinois domicile: 1) by locating elsewhere with the intention of establishing the new location as his domicile, and 2) by abandoning any intention of returning to Illinois.”
A similar issue was considered by New York State's Court of Appeals in Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385.*
In Longwood the court said that:
On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law §3202 (4) (a), and the outcome turns on where the children "resided" within the meaning of the statute.
Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as "residence," and therefore conclude that the Springs Union Free School District—the children's last permanent residence—is responsible for their instructional costs. "
The court explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."
An early decision by the Illinois State Supreme Court is expected.
The Maksym decision by the Illinois Appellate Court is posted on the Internet at:
http://www.state.il.us/court/Opinions/AppellateCourt/2011/1stDistrict/January/1110033.pdf
* The Longwood decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2004/2004_00962.htm
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