Firefighter’s training exercise injury not an accident for disability benefit purposes

Firefighter’s training exercise injury not an accident for disability benefit purposes
Matter of Stimpson v Hevesi, 38 AD3d 979

Christopher W. Stimpson, a firefighter employed by the Village of Scarsdale Fire Department in Westchester County, was injured during a training exercise.

His foot became wedged while participating in a simulation rescue, resulting in an injury to his right knee. Stimpson’s application for accidental disability retirement benefits was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law Section 363.

The Appellate Division affirmed the Retirement System’s determination, ruling that an accident within the meaning of the Retirement and Social Security Law is a "'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." In this instance, said the court, the injury Stimpson suffered "was the result of a training program [incident] constituting an ordinary part of [his] job duties and the normal risks arising therefrom."

Accordingly, the court confirmed the System’s ruling and dismissed Stimpson’s petition.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/injury-during-training-exercise-ruled.html

=============================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here: http://section207.blogspot.com/2011/03/v-behaviorurldefaultvml-o.html
=============================

Salary upon appointment

Salary upon appointment
Golanec v Culross, 272 AD2d 471

Rye police officer Jeffrey Golanec claimed that in consideration of his experience as a police officer, he was entitled to be appointed at a higher salary step of the salary grade of his position rather than at the entrance level rate.

The Appellate Division, sustaining a lower court ruling, pointed out that Golanec failed to prove that other police officers with the same or similar training and experience as police officers were appointed at higher starting salary levels.

Had Golanec been able to demonstrate that other police officers having training and experience similar to his were initially appointed at a higher salary, presumably the court would have required the appointing authority to explain why it had appointed him at the entrance level of the pay scale.

Health insurance coverage for domestic partners

Health insurance coverage for domestic partners
Matter of Putnam/Northern Westchester Bd. of Coop. Educ. Servs. v Westchester County Human Rights Commn, 2011 NY Slip Op 01030, Appellate Division, Second Department

A woman employed by a school district that provides its employees with health insurance coverage through a BOCES "Health Benefits Consortium" had lived with a male partner in a romantic relationship for more than 30 years. Never married, she and her partner registered their domestic partnership with Westchester County in 2006

When the Consortium’s Board voted to extend dependent health care benefits to same-sex domestic partners of “member employees,” the employee asked for "Domestic Partner health coverage" for her opposite-sex domestic partner pursuant to the Plan's "Domestic Partner Policy." The Consortium, however, advised the employee that it had denied her request because its “Domestic Partner Policy” only applied to those in a same-sex domestic partner relationship.

The employee filed a complaint with the Westchester County Human Rights Commission alleging that she had been unlawfully discriminated against on the basis of her sexual orientation and her marital status in violation of the Westchester County Human Rights Law §700.03.

Ultimately the Westchester County Human Rights Commission agreed with the employee, finding that the Consortium had violated §700.03 by unlawfully discriminating against the employee on the basis of her sexual orientation and marital status.

The Commission ruled that the employee was entitled to domestic partner health care benefits for her opposite-sex domestic partner to the same extent "as if he were her same-sex domestic partner." It enjoined the Consortium from maintaining its policy of extending health care benefits to same-sex domestic partners and not to opposite-sex domestic partners and awarded the employee $24,178 in “damages.”

The Appellate Division annulled the Commission’s determination.

As to the employee's claim of discrimination on the basis of marital status, the court held that the employee had “failed to meet her burden of demonstrating a prima facie case of discrimination based upon marital status because eligibility for the domestic partner health care benefits for which she applied ‘[does] not turn on the marital status’ of the employee.”

Turning to the employee's allegation that she had been the victim of unlawful discrimination based on her sexual orientation, the court said that the employee had established a prima facie case by demonstrating that “the provision of health care benefits to same-sex domestic partners and denial of such benefits to her and her opposite-sex domestic partner” sets out an inference of discrimination.

Accordingly, the Appellate Division said that the burden shifted to the Consortium to set forth a legitimate, nondiscriminatory reason for its decision to extend domestic partner benefits only to same-sex couples.

The court decided that the Consortium had, in fact, met its burden by demonstrating that the reason for its offering health care benefits only to same-sex domestic partners is that same-sex domestic partners cannot obtain benefits offered by the Board to an employee's spouse because those in a same-sex domestic partner relationship cannot lawfully marry in this State at this time. The decision notes that the Consortium’s “Domestic Partner Policy” stated that it may be rescinded in the event that same-sex marriage becomes legal in the participant's "state of residence."

This, the Appellate Division concluded, set out a legitimate, nondiscriminatory basis for the Consortium's decision to offer dependent health insurance coverage only in situations involving same-sex couples in consideration of the current impediment to same-sex couples marrying in New York State.

In contrast, participating employers in the New York State Health Insurance Plan [NYSHIP], if the participating employer has elected to offer “domestic partner” health insurance coverage to its employees and their dependants, dependent coverage is available to both an employee’s same-sex domestic partner or an employee's opposite-sex domestic partner.

A domestic partnership, for the purposes of eligibility for coverage in NYSHIP, is one in which the participant and the participant’s partner are 18 years of age or older, unmarried and not related in a way that would otherwise bar marriage, living together, involved in a lifetime relationship and financially interdependent. To enroll a domestic partner in NYSHIP the participant must have been in the partnership for at least six months and be able to provide "proof of residency and financial interdependence."

In addition, persons who are party to a same sex marriage, validly entered into in a jurisdiction where same sex marriage is permitted, are eligible for spousal benefits.

NYSHIP also advises that "Under the Internal Revenue Service (IRS) rules, the fair market value of the health insurance benefits is treated as income for tax purposes when a person who is not a qualified dependent under federal IRS rules is covered in NYSHIP."

NYSHIP also notes that the employee’s extra cost for domestic partner coverage "cannot be paid with pre-tax dollars" and suggests that participants consult with his or her tax advisor concerning how enrolling his or her domestic partner will affect his or her personal income tax liability.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01030.htm
.

Guidelines and procedures for appointments pursuant to §§55-b and 55-c of the Civil Service Law

Guidelines and procedures for appointments pursuant to §§55-b and 55-c of the Civil Service Law
Source: New York State Department of Civil Service - Division of Staffing Services

The New York State Department of Civil Service has published Policy Bulletin 11-01, setting out program guidelines and procedures for appointments pursuant to Civil Service Law §55-b [employment of persons with disabilities by the State as an employer] and Civil Service Law §55-c [employment of veterans with disabilities by the State as an employer].*

The text of the Policy Bulletin is posted on the Internet at:
http://www.cs.state.ny.us/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2011-01.htm

A PDF version of the Policy Bulletin, suitable for printing, is posted on the Internet at:
http://www.cs.state.ny.us/ssd/pdf/pb11-01.pdf

* §55-a of the Civil Service Law provides for the employment of persons with disabilities by municipalities as an employer.

Candidate ineligible for appointment from the expired list

Candidate ineligible for appointment from the expired list
Hancock v The City of New York, 272 AD2d 80

New York State Supreme Court Justice Ira Gammerman issued an order directing the New York City Department of Correctional Services to complete [Louis Hancock’s] hiring process and to pay him back pay from July 6, 1989, the date on which the department decided not to appoint Hancock, reduced by actual earnings from other employment.

There were a number of problems with Judge Gammerman’s remedy, however, and the Appellate Division vacated the order.

The eligible list on which Hancock’s name was certified had expired prior to Judge Gammerman’s ruling. The Appellate Division said that Hancock was no longer entitled to be hired as a corrections officer, notwithstanding the fact that he was improperly declared to have been ineligible for the job.

However, the Appellate Division said that Hancock was entitled to some compensation and remanded the case to Judge Gammerman for re-calculation of compensatory damages for the period July 6, 1989 to January 5, 1995, the first day of his trial.

Availability of direct action in the event the employee organizations refuses to process unit member’s grievance to arbitration

Availability of direct action in the event the employee organizations refuses to process unit member’s grievance to arbitration
Burning v Niagara Frontier Transit Metro System and Local 1342, 273 AD2d 830, Motion for leave to appeal denied, 95 NY2d 765

Few collective bargaining agreements allow a unit member to file a demand to arbitrate a grievance. In the absence of such authority, the general rule is that only the employee organization can demand that a grievance be submitted to arbitration.

Suppose the employee organization decides not to appeal a disciplinary or other grievance to arbitration. What, if any, action -- usually referred to as direct action -- can the unit member take in an attempt to challenge or go around the union’s decision?

The Burning case considers the major exception to the general rule barring direct action by a unit member -- the unit member may initiate direct action against the employer if he or she can establish that he or she was denied fair representation by employee organization.

Kenneth L. Burning was terminated from his position with the Niagara Frontier Transportation Authority.

Burning sued in an effort to overturn his dismissal, contending that his union, Local 1342, Amalgamated Transit Union, breached its duty of fair representation when it decided not to demand arbitration challenging his termination by the Authority.

The Appellate Division, however, noted that the mere failure of a union to proceed to arbitration does not establish a breach of the duty of fair representation.

If an employee organization declines to arbitrate a grievance over the objections of its member the individual may take direct action only if he or she can demonstrate that the Union’s conduct was arbitrary, discriminatory or in bad faith.

As Burning did not show that the union’s decision was arbitrary, discriminatory or made in bad faith, the Fourth Department ruled that Supreme Court properly dismissed Burning’s petition challenging his dismissal.

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.

============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================

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)....”

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

If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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

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.

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

If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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

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