Disciplinary penalty ruled too severe remanded to appointing authority for imposition of a lesser penalty

Disciplinary penalty ruled too severe remanded to appointing authority for imposition of a lesser penalty
Rapkiewicz v Middle Country School District; 273 AD2d 392, Motion for leave to appeal denied, 95 NY2d 765
Tiano v Middle Country School District, App. Div., Second Dept., 273 AD2d 396, Motion for leave to appeal denied, 95 NY2d 766

The Pell doctrine, typically used to test the reasonableness of a disciplinary penalty, basically states that a disciplinary penalty imposed by a public employer will be sustained unless it is found to be disproportionate to the offense [Pell v Board of Education, 34 NY2d, 222].

In the Rapkiewicz and Tiano appeals, the application of the Pell doctrine resulted in the Appellate Division remanding both cases to the Middle Country School District for the imposition of a less severe penalty. The penalty that had been earlier imposed by the district: dismissal.

In 1998 Adam Rapkiewicz and Frank Tiano, then employed as custodians by the district, were found guilty of disciplinary charges that the court described as misconduct, while serious, was an isolated event.... The Appellate Division concluded that mitigating circumstances required it to vacate their respective terminations.

The mitigating factors: Rapkiewicz had received outstanding ratings during his seven years of service with the district, while Tiano had over 10 years of satisfactory service with the district -- and both were found guilty of an isolated event of misconduct.

Although the court held that the findings that both were guilty of misconduct was supported by substantial evidence in the record, it ruled that under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one’s sense of fairness.

However, the Appellate Division only annulled the penalty imposed by the district and directed it to impose a less harsh penalty -- its order provided no other relief such as the awarding of back pay and benefits.

Typically, back pay and benefits are awarded when the court finds that the underlying disciplinary action was in some way defective such as the hearing officer lacking jurisdiction or a failure of administrative due process.

Here, however, the decision indicates that the disciplinary procedure was conducted properly; the only objection voiced by the court was the severity of the penalty imposed.

The fact that Appellate Division decided against directing the district to reinstate Rapkiewicz and Tiano to their former positions suggests that the court would not require the district to provide for an award of back salary in fashioning a penalty less severe than termination.

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Statute of limitations to serve Civil Service Law Section 75 disciplinary charges extended where charges would constitute a crime

Statute of limitations to serve Civil Service Law Section 75 disciplinary charges extended where charges would constitute a crime
Mieles v Safir, 272 AD2d 199

The Mieles case provides an example of the application of the exception to statute of limitations set out in Section 75.4 of the Civil Service Law. Section 75.4 provides that the relevant statute of limitations for bringing disciplinary action does not apply where the incompetency or misconduct alleged would, if proved in a court of appropriate jurisdiction, constitute a crime.

Manuel Mieles, a New York City police officer, was dismissed from his position after being found guilty of having used false pretenses to trick the owner of a broken-down vehicle into giving him the title to the vehicle. Mieles then moved the vehicle from the street and sold it to a salvage company.

The department charge Mieles with unauthorized exercise of his official functions, in violation of Section 104-01, page 3, paragraph 4 of the Police Department Patrol Guide’s prohibition against conduct prejudicial to good order, efficiency or discipline of the department.

Mieles appealed his termination. One of the grounds he contended supported vacating the disciplinary action was that the charges filed against him were untimely as they were barred by the 18-month Statute of Limitations in Civil Service Law Section 75(4). The Appellate Division, First Department dismissed Mieles’ appeal.

The court said that [t]here is no merit to [Mieles’] argument that the charges filed against him were barred by Section 75.4’s 18-month Statute of Limitations. As the court explained, “the misconduct charged also constituted the crime of official misconduct under Section 195.00[1] of the Penal Law. Accordingly, Mieles was charged with, and found guilty of, acts of misconduct that were expressly excluded from the time bar of Section 75(4)....”

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If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations

If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations
Matter of Funke v Eastern Suffolk BOCES, 2011 NY Slip Op 00144, Appellate Division, Third Department

Sandra R. Funke, a former teacher's assistant for special needs students, sustained a work-related injury to her neck, back and shoulder. She was awarded workers' compensation benefits and returned to work. Subsequently she amended her claim to include consequential posttraumatic stress disorder and was awarded appropriate benefits.

She retired March 2009, but continued to work sporadically for the employer as a substitute teacher's assistant. The Workers' Compensation Board ultimately denied her application for postretirement benefits. While the Board said that Funke’s retirement was involuntary — that is, causally related to her disability — it then concluded that her subsequent loss of earnings was due to unrelated factors not caused by her disability.

The Appellate Division disagreed with the Board’s action.

First the court said that it has "long held that a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."

As the Board credited Funke’s testimony that she retired due to pain caused by her disability, that testimony provides substantial evidence to support the Board's initial finding that "claimant's retirement was causally related as she was not able to continue working in the same capacity for the employer" — i.e., that her retirement was involuntary.”

That being the case, said the Appellate Division, "an inference arises that . . . earning capacity is reduced by the disability and claimant is [therefore] entitled to compensation until the inference is removed from the case." Further, noted the court, once "the withdrawal [is] found to be involuntary, . . . it become[s] inherently inconsistent to hold that a claimant is obligated to search for work within medical limitations."

However, notes the decision, the failure to seek additional work does not defeat the inference that arises upon a finding of involuntary retirement or constitute proof that something other than the disability is the cause of a claimant's reduced earnings, referring to Burns v Town of Colonie, 66 AD3d at 1070, among other decisions.

Reversing the Board’s ruling, the Appellate Division remitted the matter to the Workers’ Compensation Board “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00144.htm

Dismissal for excessive absence found an appropriate disciplinary penalty

Dismissal for excessive absence found an appropriate disciplinary penalty
McKinnon v North Bellmore UFSD, 273 AD2d 240

According the Appellate Division, Second Department, dismissing an employee who is guilty of excessive absence is consistent with the Pell standard (Pell v Board of Education, 34 NY2d 222).

The North Bellmore Union Free School district dismissed Hugh McKinnon, a teacher, after he had been found guilty of charges of (1) failing to comply with the district has established call-in procedure to report his absences and (2) incompetence based on his excessive absences.

Finding that there was substantial evidence in the record to support the findings that McKinnon was guilty of the charges filed against him, the court said that it did not find that imposing a penalty of dismissal so disproportionate to McKinnon’s misconduct as to be shocking to one’s sense of fairness and dismissed his appeal.

Significantly, the court held that the charge of incompetence based on McKinnon’s excessive absences was supported by substantial evidence in the record notwithstanding the fact that the validity of the reasons for his absences was not contested by the district.

Apparently the court decided that the district’s failure to challenge the reasons tendered by McKinnon to excuse his excessive absences did not have any adverse impact on the probative value of such evidence for the purposes of finding him guilty of such charges nor did this form any basis for mitigating the penalty imposed by the district.

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Exhaustion of administrative remedies a condition precedent to seeking judicial relief

Exhaustion of administrative remedies a condition precedent to seeking judicial relief
Dobrin v NYC PBA, Inc., Supreme Court, New York County, [Not selected for publication in the Official Reports]

It is clear that courts, as a general rule, will not consider lawsuits filed by public employees protesting some administrative determination unless the individual has exhausted his or her administrative remedies.*

The major exception to this rule: any attempt to exhaust the available administrative remedy would constitute an exercise in futility. Typically, the courts apply this exception when it is decided that the administrative decision is a foregone conclusion.

As the Dobrin case demonstrates, the same general rule applies in lawsuits filed by an individual against his or her union.

Dobrin, a New York City police officer, apparently had sexual intercourse with a woman in the backseat of his car. The woman later filed a complaint alleging that Dobrin had raped her.

A Grand Jury declined to indict Dobrin. Dobrin, however, was also served with administrative disciplinary charges by the New York City Police Department, found guilty and dismissed from his position.*

Dobrin was a member of the New York City Patrolmen’s Benevolent Association [PBA] at the time the disciplinary hearing was held.

Dobrin complained that although the PBA was supposed to provide legal counsel to its members in such situation, it failed to do so in his case. This, he argued, constituted a breach of contract because PBA failed to supply an attorney to represent him in defending him in the disciplinary action.

Although Dobrin alleged that the PBA wrongfully, negligently, and improperly denied him counsel, State Supreme Court Justice Ira Gammerman pointed out that before Dobrin could bring such a claim, he was required to exhaust the administrative remedies available to him.

As Dobrin had not made any attempt to utilize the appeal procedures available to him under the Constitution and By-Laws of the PBA and the New York City Collective Bargaining Law, Judge Gammerman dismissed his petition.

In the words of the court, [a]lthough, [Dobrin] was allegedly denied representation, he elected not to utilize the available [PBA] appeal procedures. Instead, he brought this action. His failure to exhaust the administrative remedies available to him mandates dismissal of his complaint.

Judge Gammerman commented that the PBA’s By-Laws set out a procedure for a member to appeal a decision by the PBA denying or curtailing a request for legal assistance. In addition, said the court, the City’s Collective Bargaining Law established a Board of Collective Bargaining and gives the Board exclusive jurisdiction to prevent and remedy improper public employer and public employee organization practices.

* The courts will reject a law suit if the party filing the action failed to exhaust his or her administrative remedies and such an effort would not constitute "an exercise in futility" such as its finding that the administrative decision would be "a foregone conclusion."

** See Dobrin v. Safir, 272 A.D.2d 134, in which the Appellate Division sustained Dobrin’s termination.

Compensation paid to a member of public retirement system by a private entity not credited in determining the member's Final Average Salary

Compensation paid to a member of public retirement system by a private entity not credited in determining the member's Final Average Salary
Matter of Andrews v New York State Teachers' Retirement Sys., 2011 NY Slip Op 00132, Appellate Division, Third Department

Donald Andrews joined the New York State Teachers’ Retirement System [NYSTRS] in 1967. He retired in 2005 while serving as Superintendent of Schools for the Wallkill Central School District.

Andrews had also “separately served on a part-time basis” from 1986 until 2005 as the chairperson of the Mid Hudson Athletic League (MHAL). MHAL is voluntary athletic association of public and private schools and is not a participating employer in NYSTRS although it operates under a Cooperative Services Agreement of the Ulster Board of Cooperative Educational Services (BOCES). The BOCES is a participating employer in NYSTRS.

When he filed his retirement application, Andrews sought to include the compensation he earned while working for MHAL included in determining his "final average salary" for the purposes of determining his retirement allowance. NYSTRS, however, determined that the compensation Andrews had earned as MHAL's chairperson could not be included in determining his final average salary.

Andrews then filed an Article 78 petition challenged NYSTRS’ decision. Supreme Court dismissed the petition, sustaining NYSTRS’ decision and Andrews appealed.

Essentially Andrews contended that his status and services as a MHAL's chairperson should have been deemed to have been performed as a BOCES employee.

The Appellate Division said that “rather than merely looking to the titles used during an employment relationship,” it must look to the actual conduct of the parties to determine if an employer-employee relationship existed.

The court found that there was a rational basis NYSTRS determining that Andrews was not a part-time employee of BOCES during the relevant period for the following reasons:

1. MHAL's association with BOCES was as a separate entity with its own constitution, bylaws and regulations.

2. BOCES did not certify that Andrews was a BOCES employee to NYSTRS during the period he served as MHAL's chairperson, although though it was required to so certify all its NYSTRS member- employees pursuant to Education Law §520(4).

3. Andrews was employed as a school superintendent while he served as MHAL's chairperson and BOCES's rules for Cooperative Services Agreements provide that "[a] person may not be employed by both a BOCES and a school district for the same contract period."

4. Andrews’ employment contracts with Wallkill Central School District provided that while it would pay him for his work as chairperson of MHAL, MHAL would ultimately bear the responsibility of reimbursing the school district for those wages.

Consequently, said the Appellate Division, NYSTRS’ determination that Andrews was employed by MHAL was not irrational, despite the evidence to the contrary that he presented.

In Jensen-Dooling v New York State Teachers' Retirement System, 68 AD3d 1264, and in Blais v New York State Teachers' Retirement System, 68 AD3d 1266, the Appellate Division ruled that individuals must be employed by a public employer to claim member service credit in a New York State public retirement system.

Both of these actions involved the same basic issue: the denial of member service credit in the New York State Teachers’ Retirement System claimed by Jensen-Dooling and by Blais based on their employment by an entity named “Project Lead The Way”, a private, not-for-profit corporation performing services for school districts pursuant to contracts.*

In a similar type of situation, the Appellate Division held that an individual employed by a private entity and paid with funds provided by the City of New York is not “paid by the City” for the purpose of membership in the New York City Employees Retirement System [Matter of Ivan v New York City Dept. of Health & Mental Hygiene, 63 AD3d 572].

The court explained that Richard Ivan worked for a private corporation under contract with New York City Department. of Health & Mental Hygiene. Although Ivan was paid with funds provided by the City, he was not "paid for by the city" as that term is defined in the Administrative Code of City of NY §13-101[3][a].**

* The Jensen-Dooling and Blais decisions are summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2009/12/individual-must-be-employed-by-public.html

** The Ivan decision is summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2010/03/individual-employed-by-private-entity.html

The text of the Andrews decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00132.htm

Statute of limitations not stayed when pursuing another remedy

Statute of limitations not stayed when pursuing another remedy
Levine v Board of Education, 272 AD2d 328

Sometimes an individual will file a grievance in accordance with the grievance procedure set out in a collective bargaining agreement rather than immediately initiate a lawsuit on the assumption that he or she can file the lawsuit later.

The Levine case is another example of the difficulties an individual may encounter if he or she does not take the steps necessary to protect his or her right to litigate the issue.

The New York City Board of Education terminated Martin Levine from his position as laboratory specialist. When he later attempted to challenge his dismissal by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules, he found that he was time barred.

Levine’s problem: he had filed a contract grievance disputing his termination under the assumption that filing a grievance would stop the running of the Statute of Limitations for the purposes of his filing an Article 78 petition until the conclusion of the grievance procedure and the arbitrator issued a final determination.

Levine’s assumption proved to be incorrect, as the Appellate Division quickly pointed out.

Affirming the dismissal of his petition by State Supreme Court William J. Garry as untimely, the Appellate Division set out the following factors as basic to individual litigating an issue initially submitted for adjudication under a grievance procedure:

1. An Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding.

2. Where, as in Levin’s case, a review of an administrative decision is sought, the determination, for the purposes of bringing a timely Article 78, becomes final and binding on the date that the termination of individual’s employment becomes effective.

3. The invocation of an administrative grievance procedure in accordance with a Taylor Law agreement does not stop the running of the Statute of Limitations.

Levine could probably have avoided this problem by filing an Article 78 petition within the four-month Statute of Limitations period even though a final determination on his grievance had not yet been made.

Standing to appeal an arbitrator's determination

Standing to appeal an arbitrator's determination
Delgado v NYC Board of Education, 272 AD2d 207, Leave to appeal denied, 95 NY2d 768

The basic issue in the Delgado case concerns the right of an individual to bring a lawsuit involving the same issue[s] considered by an arbitrator in resolving a grievance filed in accordance with procedures negotiated under the Taylor Law.

John Delgado, an employee of the Board of Education Office of School Food and Nutritional Services, was terminated from his position. His grievance protesting his dismissal was denied by an arbitrator.

In an effort to vacate or modify an arbitration decision rejecting his grievance challenging his termination of his employment Delgado filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the arbitrator’s award.

The Board of Education opposed Delgado’s motion. The Appellate Division affirmed a lower court ruling summarily dismissing Delgado’s petition.

The court’s rationale: Delgado lacks standing to bring the instant petition since he was represented by the union at the arbitration.

Significantly, the Appellate Division said that although the issue of standing was first raised by the Board of Education in its appeal, it presented a question of law -- did the court have jurisdiction to adjudicate Delgado’s petition -- that could not have been avoided had it been raised before the lower court. Accordingly, it was proper to raise, and the court to consider, the question of jurisdiction at the appellate level.

In other words, if Delgado did not have standing to bring the Article 75 action, the courts may not consider his petition in the first instance and that issue -- jurisdiction -- may be raised by a party at any stage of the proceeding.

Clearly, had the union filed an Article 75 petition challenging the arbitrator’s determination, it would have found to have standing.

It is generally held that unless the Taylor Law agreement includes an uncommon provision -- allowing an employee himself or herself to demand arbitration of his or her grievance independent of the union -- the right to demand that a grievance be submitted to arbitration is vested exclusively in the employee organization.*

Accordingly, as a general rule, only the union has to right to challenge an adverse determination by the arbitrator by filing an Article 75 petition seeking to vacate or modify the award.

* Such a limitation is tempered, however, and the individual is typically permitted go forward with the arbitration in the event he or she can demonstrate that the union failed in “its duty of fair representation.”

The timeliness of the filing of an appointee’s Oath of Office critical to his or her continuation in the position

The timeliness of the filing of an appointee’s Oath of Office critical to his or her continuation in the position
Matter of Scro v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 30182(U), Sup Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]

Anthony Scro filed an Article 78 proceeding seeking to annul the decision of Jordan-Elbridge Central School District Board of Education terminating his employment as “Treasurer” of the School District as a result of his alleged failure to file his Oath of Office in timely fashion.*

The Board moved to dismiss Scro’s petition, contending that its action was consistent with law in that Scro had failed to file his Oath of Office within the time period permitted by Public Officers Law §30.1.h and thus he had been removed from his position “ by operation of law.”

Public Officers Law §30.1.h, in pertinent part, provides that a public office “shall be vacant upon” … the appointee’s “refusal or neglect to file his official oath or undertaking, if one is required … within thirty days after notice of his appointment, or within thirty days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within thirty days after notice to him in pursuance of law, that such renewal undertaking is required.”

According to the decision, Scro was initially appointed to the statutory office of School District Treasurer, effective October 31, 2007. He was thereafter reappointed at the beginning of the following three fiscal years at the School Board’s annual reorganization meetings in July, each such reappointment being to a new twelve month term as Treasurer.

Scro was last appointed to that position by the Board to serve a one-year term effective July 1, 2010 and had signed his Oath of Office on August 9, 2010.

The Board alleged that Scro’s term began on July 1, 2010 and the Board had reappointed him on July 7, 2010. Accordingly, said the Board, the latest possible date for Scro to file his Oath of Office within the time period permitted by §30.1.h was Friday, August 6, 2010.

Observing that “The requirement for the taking and filing of an Oath of Office is not an obscure requirement, but instead is fundamental and of significant import …” Judge Greewood said that the requirement is not waivable and is strictly construed and that had Scro failed to file his Oath of Office within the requisite thirty days as required by §30.1.h, the appointment would be vitiated and the office would be deemed vacant.

In this instance, said the court, the timeliness of Scro’s execution of his Oath of Office is critical. Was it filed “within thirty days after notice of his appointment, or within thirty days after the commencement of such term...”, as required by statute?

Judge Greenwood said that “There is no question that [Scro’s] term commenced on July 1, 2010 and the appointment did not take place until the School Board’s reorganizational meeting of July 7, 2010” nor was there any question that Scro had not executed his Oath of Office within thirty days of either of those dates.

However, observed Judge Greenwood, §2121(5) of the Education Law provides that it is the duty of the school district clerk to “give notice immediately to every person elected or appointed to the office of his election or appointment; and also to report to the town clerk of the town in which the school house of his district is situated, the names and post-office addresses of such officers, under a penalty of five dollars for neglect in each instance.”

As the Legislature specifically required notice to an officer and not simply action of the Board.
Judge Greenwood said that Jeanette Brock, the School District Clerk, was obligated to discharge her statutory duty under the Education Law "by providing notice to each officer of his [or her] appointment and this constituted a condition precedent to the officers’ execution of the Oath."

Finding that Brock had advised all officers required to sign the Oath of Office form “within three to four business days of the reorganization meeting”, and viewed in the light most favorable to the Board, Brock provided the Scro with notice on either July 12 or July 13, and that Scro had signed his Oath of Office on August 9, Judge Greenwood ruled that Scro had timely executed his Oath of Office and thus he may not be removed during the term of his employment except through petition to the Commissioner of Education.

Holding that the Board’s action in terminating Scro’s employment violated his statutory rights, Judge Greenwood declared the Board’s action “null and void and ultra vires”** and ordered Scro’s immediately reinstatement to his office as District Treasurer “with all back pay and associated benefits he would have been entitled to had the improper termination not occurred.”

* N.B. The failure to file a timely oath cannot be cured by subsequently filing the required oath [Opinion of the Attorney General, 86-41, Informal].

** Ultra vires -- beyond the power of the body so acting.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2011/2011_30182.pdf

Accidental disability retirement - determining proximate cause

Accidental disability retirement - determining proximate cause
Sepanara v NYS Employees’ Retirement System, 272 AD2d 830

City of Johnstown police officer Michael C. Sepanara, claiming that he was permanently disabled as a result of a line-of-duty injury, filled applications for accidental and performance of duty disability retirement benefits.

According to the facts set out in the Appellate Division’s decision, Sepanara was on duty when he stumbled and fell on a broken piece of asphalt in an eroding parking lot, allegedly sustaining neck, wrist and back injuries. Sepanara testified at the hearing held by the Retirement System and he and the System elected to rely upon medical records presented at the hearing.

The Retirement System conceded that Sepanara was disabled -- but concluded that neither his slipping or falling in the parking lot was the cause of his disability. Essentially the System decided that Sepanara’s disability was the sole result of a preexisting degenerative back condition. The Comptroller agreed and denied Sepanara’s applications for disability retirement benefits. Sepanara sued, seeking to overturn the Comptroller’s determination.

The Appellate Division affirmed the Comptroller’s ruling, holding that Sepanara failed to sustain his burden of proving that his permanent disability was the natural and proximate result of the April 1995 accident.

The court pointed out that the relevant medical records indicated that Sepanara began experiencing neck and shoulder pain in the 1980s and was diagnosed with degenerative cervical abnormalities and arthritis in his neck as early as 1988.

In addition, the System’s medical experts, after examining Sepanara and reviewing his medical history, concluded that his chronic degenerative disc disease and arthritis of the cervical spine were the sole cause of [his] disability and that these conditions were completely unrelated to the April 1995 accident nor were they aggravated by that accident.

While there was medical evidence that could support a finding that Sepanara’s April 1995 accident was the proximate cause of his disability, it was within the Comptroller’s authority to evaluate the conflicting medical opinions and to resolve the dispute by according greater weight to the considered opinions offered by [the System’s] experts than to those offered by the other experts.

Using the word “should” in a policy memorandum’s means it is not mandatory

Using the word “should” in a policy memorandum’s means it is not mandatory
Port Wash. Teachers' Ass'n v. Board of Educ. of the Port Wash. Union Free Sch. Dist., No. 06-0708-CV 67, (USCA, 2d Cir.)

The superintendent of the Port Washington Union Free School District, Dr. Geoffrey N. Gordon, issued a policy memorandum advising members of the school district’s staff of the actions they should take in the event they learn that a student is pregnant.

The teachers' union sued, but a federal district court judge, Judge Thomas C. Platt, dismissed the petition. Judge Platt held that the action could not be maintained because there was (1) “a lack of standing,” (2) the claims were not ripe, and (3) the complaint failed to state a viable claim.

The Circuit Court of Appeals affirmed Judge Platt’s ruling.

Dr. Gordon’s “Policy Memorandum” setting out the District’s policy stated that that a student's communications to one of them that a student is pregnant “is not a communication protected by a legal privilege, but rather may trigger legal reporting obligations.”

The policy indicated that a staff member who becomes aware of a student pregnancy should report it immediately to the school social worker. The policy also addressed the action that staff members should take in cases where statutory rape or incest was suspected. It also stated that the parents of the student should be advised of the pregnancy by school personnel if the student refused to do so.

The court said that the union offer little more than conclusory statements to support its assertion that social workers risk civil liability and their professional license by complying with the Policy Memorandum or that staff members were in jeopardy of disciplinary action if they did not comply with the policy.

In affirming the dismissal of the complaint by the district court judge, the Circuit Court said that “Because the plaintiffs have not established that civil liability or professional discipline is actual or imminent, the theoretical possibility that either might occur in the future does not amount to injury in fact.”

In addition, the court noted that the Policy “repeatedly uses the word ‘should’ in setting forth the notification procedures, thus easily supporting the understanding that adherence to them was not mandatory, by law or otherwise.”

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/notification-of-pregnancy-to-parents-of.html

Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other

Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other
Matter of Uddin v NYC/Human Resources Admin., 2011 NY Slip Op 00695, Appellate Division, Second Department

§76 of the Civil Service Law provides that an aggrieved employee may appeal a §75 administrative disciplinary determination by either:

1. Filing an application to the state or municipal commission having jurisdiction within twenty days after service of the written notice of the disciplinary determination; or

2. By filing a petition in accordance with the provisions of Article 78 of the Civil Practice Law and Rules [CPLR].

New York City Human Resources Administration sustained the disciplinary determination and the recommended penalty issued by an administrative law judge that found Jamal Uddin guilty of misconduct.

Uddin then filed a petition pursuant to CPLR Article 78 with Supreme Court, Kings County. The court, however, granted Human Resources’ motion to dismiss the petition, and dismissed the proceeding.

The Appellate Division sustained the lower court’s decision, noting that Uddin sought judicial review of a §75 disciplinary determination after seeking a review pursuant to Civil Service Law §76 before the New York City Civil Service Commission [NYCCSC], said he was barred from commencing the underlying CPLR Article 78 proceeding.*

The court then commented that “To the extent that this proceeding may also be considered a challenge to the determination of the NYCCSC,” Uddin failed to demonstrate that the NYCCSC's determination falls within a recognized exception to the statutory prohibition on judicial review of such by virtue of its being unconstitutional, violative of state law, or in excess of the NYCCSC's authority.

Accordingly, the Appellate Division ruled that judicial review of the NYCCSC's determination was precluded.

* §76.3, in pertinent part, provides that “The decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00695.htm

Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals

Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals
Meagher v Safir, 272 AD2d 114

One of the issues in the Justin Meagher’s appeal from the disciplinary penalty imposed upon him by the New York City Commissioner of Police was that his punishment was the forfeiture of ten days of vacation while the penalty imposed on another officer involved in the same event was the loss of five days of vacation.*

Both officers, who were partners, were found guilty of using excessive force in making a particular arrest.

The Appellate Division held that the record provides no basis for imposing different penalties on the two police officers involved in this incident. Rather, said the court, the record indicated that appointing authority’s designee, the First Deputy Commissioner, improperly cited [Meagher’s] election to pursue an administrative trial as justification for the higher penalty.

The Appellate Division, concluding that the penalty imposed on Meagher was disproportionate to the offense. Rather than remand the case to the department for the imposition of a new penalty, the Appellate Division elected to exercise its discretion and changed the penalty to be imposed on Meagher to the loss of five days vacation.**

* In addition, the record indicates that the department discontinued its scholarship support for Meagher’s law school tuition as a result of his being found guilty of misconduct.

** Apparently, however, the court did not reinstate the Department’s scholarship support of Meagher’s law school tuition.

Taylor Law considerations concerning General Municipal Law Section 207-a/207-c

Taylor Law considerations concerning General Municipal Law Section 207-a/207-c
Barnes v Council 82, [David Monroe], Court of Appeals, 94 NY2d 719
Watertown v Watertown PBA, Court of Appeals, 95 NY2d 73
Local 2562, IAFF, AFL-CIO, v Cohoes, Court of Appeals, 94 NY2d 686

The Court of Appeals has handed down three rulings concerning issues involving collective bargaining under the Taylor Law as they relate to negotiating procedures to implement and administer General Municipal Law Sections 207-a and 207-c with respect to the approval, and continuation of, benefits pursuant to these provisions.

In the Watertown P.B.A. case, the Court considered the negotiability of Section 207-c issues under the Taylor Law. In Barnes, the court addressed matters concerning procedures dealing with reporting for light or full duty assignments in accordance with a negotiated procedure. In Cohoes, one of the significant issues concerned due process requirements.

The Watertown PBA case

Referring to its determination in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, the Court of Appeals said that the employer’s authority under Section 207-c to make initial determinations in these matters is not a mandatory subject of collective bargaining.

Is a demand to negotiate procedures for the administration of the provisions of Section 207-c following the initial determination by the employer a mandatory subject of collective bargaining for the purposes of the Taylor Law? Yes, such demands were mandatory subjects of collective bargaining, said the court, noting the strong and sweeping presumption in favor of mandatory bargaining.

The case arose when the Watertown Police Benevolent Association [PBA] proposed that the parties bargain about the procedures to be followed if an officer wishes to contest the city’s initial Section 207-c determination in contrast to bargaining the City’ s right to make the initial determination. PBA wanted to have disagreements with the City’s initial determination to final and binding arbitration pursuant PERB’s Voluntary Disputes Resolution Procedure.

When the City refused to negotiate the demand, PBA filed an unfair labor practice charge with PERB. PERB ruled that since Section 207-c provides no procedural framework for resolving disputes, and because eligibility determinations [under Section 207-c] clearly affect terms and conditions of employment, “a demand for a dispute resolution procedure ending in arbitration ... is mandatorily negotiable.”

The Court of Appeals agreed, concluding that “the arbitration sought by ... the PBA is not a matter which the Legislature has circumscribed from the State’s strong and sweeping policy of bargaining with regard to terms and conditions of employment.”

Citing Public Sector Labor and Employment Law [Lefkowitz, Osterman & Townley, published by the New York State Bar Association,], the Court of Appeals observed that “... bargaining is mandatory even for a subject treated by statute unless the statute clearly preempt[s] the entire subject matter or the demand to bargain diminish[es] or merely restate[s] the statutory benefits.” Unless, said the court, there is clear evidence that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining.

In addition to making the initial determination, Section 207-c gives the employer the exclusive right to appoint a physician to examine a sick or injured officer, to prescribe and provide medical or surgical treatment if indicated, and to issue an initial back-to-work order if the physician concludes that the officer is capable of performing regular or light duty. Accordingly, these areas are not are not mandatorily negotiable.

Nor is bargaining required with respect to an employer’s ability to issue an initial order that a police officer assume a light duty position or to ordering a disabled officer to submit to surgery or requiring the employee to sign a medical confidentiality waiver form concerning the officer’s medical condition related to his or her ability to perform the duties of the position as a condition of his or her receiving, or continuing to receive, Section 207-c benefits.

As to the nonmandatory negotiating subjects of collective bargaining identified by the court, it may be significant that the decision does not characterize them as prohibited subjects of negotiations. Accordingly, it would appear that these issues are permissive subjects of collective bargaining.


The Barnes Case

The Barnes case starts where Watertown stops. While Watertown concerns a negotiating demand, in Barnes the parties had already agreed to a Section 207-c Procedure. The issue before the court concerned the processing of disputes arising under the procedure -- specifically arbitrating the employer’s order directing an individual on Section 207-c leave to report for a light or full duty assignment.

There was no question that such a dispute could be arbitrated said the Court of Appeals, pointing to its recent ruling in Board of Education of Watertown City School District (93 NY2d 132).

In Watertown School District, the court ruled that arbitration is an available procedure for resolving personnel disputes in the public sector if the party demanding arbitration is able to satisfy two tests:

1. The claim was lawfully fit for arbitration, i.e., there was no public policy, statutory or constitutional restriction placing arbitration off-limits; and

2. The parties must have agreed to refer the particular subject matter of the dispute to arbitration.

While here arbitration ultimately would have available to David Monroe to resolve the dispute, the Court of Appeals decided that there was no short cut to the arbitrator: under the facts of this case, Monroe had to comply with the requirements set out in the Article XI of the Section 207-c Procedure agreed upon by the County and Council 82.

The court found that although the parties had agreed to arbitrate disputes concerning directing an individual to report for light duty, Monroe’s demand for arbitration was premature because he failed to comply with the administrative procedures to be followed in resolving such disputes.

The case arose after Schenectady County Sheriff William W. Barnes, relying on the County’s medical expert’s conclusion that David Monroe, a corrections officer on Section 207-c leave, could perform light duty work, directed him to report for light duty. Monroe objected to the directive, as did his union, Council 82, contending that Monroe’s personal physician had said he was unfit to perform light duty.

The County said that “the proper route for Mr. Monroe [to challenge its decision] is to file a step 3 grievance ... within ten days of [Monroe’s] receipt of the order to light duty, citing Article XI of its Section 207-c procedure.”

The Section 207-c Procedure was established pursuant to a Memorandum of Agreement between the County and Council 82 and provided for submitting an adverse step 3 grievance determination by the County to arbitration.

Instead of filing a step 3 grievance, pursuant to Article XI, Council 82 demanded arbitration in accordance with Article VI (B) (2) of the procedure, contending that the question of whether or not Monroe is fit for a light duty assignment should be determined by the arbitrator because, in contrast to the County’s physician’s finding, Monroe’s personal physician had determined that he was not fit for light duty. The County, on the other hand, argued that the issue had to be first submitted as a step 3 grievance. The County won a court order staying arbitration.

The Court of Appeals affirmed the lower court’s granting of the stay, pointing out that Monroe had failed to satisfy the second test it had set out in Watertown School District. Why? Because, said the court, there was no agreement to submit the dispute in question directly to arbitration and Monroe did not satisfy the conditions precedent under the 207-c procedure that would have allowed the issue to ultimately be submitted to arbitration.

Two provisions of the Procedure were involved. Article VI, Section (B)(2) of the procedure provided that where this is a conflict in medical opinions concerning the light duty assignment, ... the duty or duties in dispute cannot be assigned until such dispute is resolved. Such dispute over said duties shall be submitted directly to arbitration...

The second provision, relied upon by the County was Article XI. The County argued that Article VI (B) (2) applied only in instances of medical disagreements arise as to the ability of the individual to perform the specific work assignments upon the employee’s reporting for light duty.

In contrast, where the individual raises an objection to an order to report for light duty based on the individual’s claim that he or she is physically unable to return to duty regardless of the nature of the assignment, his or her objection must be processed in accordance with Article XI as a Step 3 grievance regarding such decision.

Essentially the County argued that Article VI(B)(2) applies in situations where there is no dispute as to the individual’s ability to perform light duty -- only the particular light duty proposed -- while Article XI applies where the employee’s physician states that the individual is unable to perform any light duty whatsoever.

Agreeing with Schenectady County’s argument, the Court of Appeals said that because the basic issue concerned a conflict of medical opinions as to Monroe’s ability to perform any light duty, the issue was to be resolved in accordance with Article XI of the procedure. As Monroe had not filed a Step 3 grievance, he did not satisfy a condition precedent for any arbitration under the terms of the Collective Bargaining Agreement. Accordingly, the Court of Appeals affirmed the stay of arbitration.


The Cohoes case

The physician for the City of Cohoes found that five of six firefighters on Section 207-a leave were qualified to perform light duty while the remaining firefighter was qualified to return to full duty.

Although given written orders to report for full duty or to perform light duty assignments, the six did not report as directed. The union objected to the report-for-duty orders on the ground that the members may not be ordered back to work without specification of the proposed duties and an opportunity to challenge the proposed return to work order at a due process hearing. In response, Cohoes discontinued their Section 207-a benefits.*

In addition to suing, the firefighters, through filed grievances under their collective bargaining agreement and ultimately demanded arbitration of their grievances before the State Public Employment Relations Board. The City obtained a stay of arbitration.

As to the firefighters’ claim that they were entitled to an evidentiary hearing on their medical ability to perform light duty assignments before an order to return could be issued, the Court of Appeals said that although an administrative hearing may ultimately be required before Section 207-a payments are terminated, recipients are not entitled to a hearing prior to the issuance of a report for light duty order. They become entitled to such a hearing only if they submit a contrary opinion from their personal physician.

In the words of the court, due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts.

As to the demand for arbitration, the Court of Appeals decided that the City was not required to arbitrate its orders to report for light duty assignments. Its rationale: as the collective bargaining agreement is entirely silent concerning the contractual rights provided to regular duty firefighters being available to firefighters on Section 207-a leave, the lack of an express provision in the negotiated agreement making it applicable to firefighters in 207-a leave status is fatal to any claim of a contractual right to arbitrate these claim.

Citing Chalachan v City of Binghamton, 55 NY2d 989, the court commented that apart from contractual entitlements, “[t]he collective bargaining agreement should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. Any additional benefits must be expressly provided for in the agreement.”

* In the course of litigating this case, the Appellate Division held that if an individual submitted medical documentation of their continued total disability, his or her Section 207-a benefits may not be discontinued prior to the employer’s holding a hearing (Matter of City of Cohoes, 258 AD2d 24). The Court of Appeals affirmed this aspect of the Appellate Division’s decision.

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

For additional information see General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar laws at: http://section207.blogspot.com/

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

If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval

If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval
Matter of Mendez v New York City Dept. of Educ., 2011 NY Slip Op 50067(U), Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]

Mildred Mendez challenged the New York City Department of Education's ("DOE") denial of her request to withdraw her letter of resignation and asked the court to issue an order compelling the DOE to accept her withdrawal, to reinstate her as a teacher, and to provide back pay.

Supreme Court Judge Jane S. Solomon granted Mendez’s motion in its entirety.

The issue presented, said the court, is whether the New York City Department of Education [DOE] acted in accordance with the Education Law and its own governing rules (as authorized pursuant to Education Law §2590-g). In the words of Judge Solomon was DOE “authorized to treat with Mendez as a resigned teacher under the circumstances presented.”

The court said that if DOE never accepted a resignation from Mendez, or if she validly withdrew her resignation, the DOE, as a matter of law, was not authorized to treat her as a resigned teacher and she must be reinstated.

Significantly, said Judge Solomon, NYC Chancellor's Regulation 205(29) states, “in mandatory language,” that a teacher’s request to withdraw his or her resignation "shall be granted" subject to the Chancellor's approval.

According to the decision, DOE told Mendez that "Based on the resignation letter submitted to our Human Resources Office on June 24, 2008, you are no longer a reassigned employee.” The court noted that DOE’s letter did not note that an “administrative determination” had been made by the Chancellor regarding her withdrawal of her resignation.

In this instance the court found that the Chancellor took no action. In other words, the Chancellor did not determine that her withdrawal request should be dishonored within the meaning of Chancellor's Regulation 205.

Judge Solomon, granting Mendez’s petition, ordered DOE to reinstate “Mendez to her teaching position, with back pay and all other economic benefits of employment from August 28, 2008.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50067.htm

Completed school district audits

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

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

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

Beekmantown Central School District,

Clarkstown Central School District,

Geneva City School District,

Homer Central School District,

Riverhead Central School District and

Taconic Hills Central School District.

Arbitrating health insurance claims

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice Murphy’s conclusion:

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

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

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

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

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

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

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

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

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

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

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

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

Successor union’s liability

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

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

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

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

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

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

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

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

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

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

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

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

4. The importance of the federal policies at stake.

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

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

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

NYPPL trivia -

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* County Law §650

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

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

Selecting from among conflicting medical opinions

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

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

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

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

Testing for illegal drugs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

** See Labor Law §527.

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

Designating a disciplinary hearing officer

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

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

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

Pieczonka appealed, contending that his termination was unlawful because:

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

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

3. The penalty imposed was excessive.

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

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

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

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

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

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

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

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

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