Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process

Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process
Paul Barrows v John Wiley and Luoluo, US Circuit Court of Appeals, 7th No. 05 C 658, 2007 U.S. App. LEXIS 3792

The U.S. Circuit Court of Appeals ruled that placing a public university employee on unpaid administrative leave and requiring him to use leave credits in order to remain on the payroll did not violate his Fourteenth Amendment rights to due process.

The University of Wisconsin-Madison had employed Paul Barrows in various academic capacities for more than 20 years, most recently as Vice Chancellor for Student Affairs. Barrows annual salary as Vice Chancellor was $191,749.00.

This case arose when Barrows was asked to submit a letter of resignation, which he claimed he did reluctantly. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that “[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time.”

Barrows later asserted that he did not resign from his position, but rather that one of the defendants, Wiley, had fired him.

While on “unpaid administrative leave,” Barrows continued to be paid at the annual rate of pay he received as Vice Chancellor for Student Affairs -- $191,749.00 – by charging his various leave accruals. On June 23, 2005, Barrows was placed in his backup position in the Provost’s Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.

One of the complaints in Barrows’ petition alleged that forcing him to use his leave credits in order to remain on the payroll prior to his reinstatement in his “backup position” without notice or the opportunity to be heard violated his Fourteenth Amendment right to due process.

The Circuit Court affirmed the district court’s ruling that held that Barrows’ Fourteenth Amendment rights had not been violated. It said that:

1. There is no evidence in the record that Barrows requested to be placed in his backup position or challenged the University’s failure to immediately place him in his backup position.

2. Although Barrows asserted in his affidavit that he sought to return to work, this generalized statement is insufficient to establish that he sought his backup position.

3. Barrows failed to assert economic harm flowing from the University’s decision not to immediately place him in his backup position. As noted, while he was on leave Barrows continued to receive compensation at the Vice Chancellor rate of pay of $191,749.00 annually, as opposed to the rate of pay for his backup appointment, $72,881.00.

The court also rejected Barrows’ argument that he suffered an economic harm by being forced to use his leave time in order to remain on the payroll while on “unpaid administrative leave.” Barrows claimed that several University policies allowed employees to receive compensation for the leave credits that he was required to use in order to remain in pay status. In effect, Barrows contended that by forcing him to use this leave time, rather than placing him in the backup position, the University deprived him of the extra compensation he would have received after he left the backup position.

The problem with Barrows’ argument, said the court, is that he failed to present sufficient evidence of an economic harm because he failed to provide an adequate loss calculation.

Holding that Barrows failed to establish either a property interest or an economic harm flowing from the University’s decision not to immediately place Barrows in his backup position, and instead placed him on unpaid administrative leave, requiring him use his leave time in order to receive compensation, it ruled that Barrows’ due process claim failed. Accordingly, the district court properly granted the defendants’ motion for summary judgment.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/placing-individual-on-upaid.html
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Employee’s termination for off-duty misconduct bars unemployment insurance award

Employee’s termination for off-duty misconduct bars unemployment insurance award
Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961

A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper’s actions were in violation of the Division’s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.

The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.

While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.

The Trooper, however, was subsequently acquitted of the driving under the influence charge.

Following his termination the Trooper applied for unemployment insurance benefits. An Administrative Law Judge [ALJ] ruled that the Trooper’s behavior had not risen to the level of disqualifying misconduct.

The decision indicates that the ALJ’s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ’s decision. The Division of State Police appealed.

The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper’s termination was not a result of disqualifying misconduct.

The court’s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved … constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:

Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.

The Division had argued that the Trooper's conduct in, among other things, “getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.” According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."

The court ruled that “Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.”

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/03/discharge-for-misconduct-may-bar.html
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The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch

The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch
Source: Appolicious Inc.

The developer of this application reports that it provides the full text of the 2011 New York Civil Service Law [sic] in an easily readable and searchable format and provides the user with the following:

The full text of the New York State Civil Service Law

The ability to perform a fast full-text search and to search within search results to narrow down matches and create bookmarks .

As to mechanics, the user can navigate through the text of the Civil Service Law by swiping a finger.

No network connection is required and the developer states that it "runs fast and uses little memory."

Additional features include support for Portrait or Landscape mode and allows the text to be rotated to the Landscape mode for a larger font display

For additional information click on:
http://www.appolicious.com/tech/apps/214746-ny-civil-service-law-2011-new-york-statutes-pda-wizard/developer_notes

In an Article 75 action to vacate an arbitration award, the moving party is required to prove its entitlement to the vacating of the arbitrator's award by the court

In an Article 75 action to vacate an arbitration award, the moving party is required to prove its entitlement to the vacating of the arbitrator's award by the court
Matter of New York State Dept. of Correctional Servs. v New York State Correctional Officers & Police Benevolent Assn., 2011 NY Slip Op 30254(U), Sup Ct, Albany County, Judge Joseph C. Teresi [Not selected for publication in the Official Reports]

In this CPLR §7511 action to annul an arbitration award on the grounds that the arbitrator exceeded his powers, Judge Teresi dismissed the Department of Correctional Services’ petition because the Department “failed to demonstrate its entitlement to annulment of the arbitrator's award.”

Judge Teresi explained that "An arbitration award may be vacated under CPLR 7511 (b)(1)(iii) as in excess of the arbitrator's authority only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The Department, said the court, did not cite either a strong public policy or irrationality as the basis for its excess power claim. Here the Department “must demonstrate that "a specific limitation on ... [the arbitrator's] power enumerated in the arbitration clause itself has been violated."

In this challenge to the award made by the arbitrator in a “disciplinary arbitration,” the arbitrator's power was set out in the Collective Bargaining Agreement as to “determinations of guilt or innocence and the appropriateness of proposed penalties, taking into account mitigating and extenuating circumstances.” Further, the “Disciplinary arbitrators shall neither add to, subtract from nor modify the provisions of the agreement... the disciplinary arbitrator may approve, disapprove or take any other appropriate action warranted under the circumstances."

After the hearing, the arbitrator found the employee involved “guilty of negligently causing damage to a State vehicle, the only charge against her.” However, the arbitrator rejected the Department’s proposed penalty and, instead, imposed a "$250.00 fine.”

The arbitrator's guilty finding and fine imposition were not at issue. Rather, the Department complained that arbitrator's decision concerning expungement of material from the employee’s personnel records and retention of jurisdiction over the disciplinary action exceed his authority.

The court said that the CBA does not specifically preclude the arbitrator from taking either action and that the Department did not introduce any evidence that the CBA contains a specific limitation on an arbitrator's continuing jurisdiction to ensure implementation of a penalty.

Judge Teresi said that the fact that the CBA was silence on this issue does not constitute a specific limitation nor did the arbitrator's expungement remedy "add to, subtract from nor modify" the CBA” but, rather, in accord with the CBA, the arbitrator took "other appropriate action warranted under the circumstances."

As the Department failed to demonstrate its entitlement to annulment of the Arbitrator's Award, Judge Teresi denied its petition.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2011/2011_30254.pdf
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PERB ALJ holds the County’s unilateral discontinuing its past practice of reimbursing Medicare Premiums to its retirees an improper practice

PERB ALJ holds the County’s unilateral discontinuing its past practice of reimbursing Medicare Premiums to its retirees an improper practice
In the Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and County of St. Lawrence, Public Employment Relations Board, Case no. U-29935 [Decision made available to NYPPL through the courtesy of Paul S. Bamberger, Esq., Senior Counsel, CSEA Legal Department.]

Civil Service Employees Association, Inc., Local 1000, filed an improper practice charge alleging that St. Lawrence County violated §209-a.1(d) of the Public Employees' Fair Employment Act (The Taylor Law) when it announced to all current employees changes in the County's Medicare Part B reimbursement policy. The County filed an answer denying that its actions violated the Act.

In lieu of a hearing, the parties stipulated the following critical facts:

1. In 1985, the County Board of Legislators passed Resolution No. 361-85 providing that the County would reimburse eligible retirees – i.e., County employees with at least five years of service -- twice each year for their cost of Medicare Part B premiums “for life”.

2. The premiums for Medicare Part B have increased over the years, from 1985 to the present, and the County continually reimbursed Medicare eligible retirees and their spouses for the full cost of the Medicare Part B premiums as they increased.

3. On November 17, 2009, the County Legislature passed Resolution No. 368-2009 amending the Medicare Part B reimbursement policy set forth in Resolution 361-85 whereby the County would not increase the reimbursement of Medicare Part B premiums above the amount of the cost of the premiums as of January 1,2010, regardless of any increases in Medicare Part B premiums after that date.

4. The County discontinued its reimbursement practice with respect to County employees who retire after December 31, 2010.

On this record, said PERB Administrative Law Judge Jean Doerr, “it must be found that a past practice exists, binding the County to continue the reimbursement of the Medicare Part B premium to eligible retirees and their spouses.”

Judge Doerr pointed out that the parties stipulated that the reimbursement policy began in 1985 and continued to the present with the full knowledge of County management and County employees. Accordingly, and consistent with the Board's holding in Matter of Chenango Forks, [40 PERB 3012 (2007)], the ALJ ruled that the payment of Medicare Part B premiums encompasses a mandatory subject of collective bargaining "as it is in the nature of benefits related to health insurance for employees upon retirement, whether or not those employees retire during the life of the agreement."

The ALJ rejected the County’s theory “that because the reimbursements were made as a result of a public act of a municipal board, County employees could not have reasonably expected that the payment of Medicare Part B premiums would continue unchanged,” concluding that its argument in this respect was misplaced.*

Judge Doerr explained that “the nature of the enabling legislation upon which an employer acts is not controlling” as it is the act of the employer in providing the benefit, and not the legislative body at whose direction the employer acts, "which we look to in determining, as here, the existence of an enforceable past practice."

Further, the ALJ noted that the County stipulated “that the 24-year practice was well known to all County employees” and created an “expectation of the continuation of the practice … from its duration with consideration of the specific circumstances under which the practice has existed."

Judge Doerr ruled that the County violated §209-a.1(d) of the Taylor Law when it unilaterally announced to its current employees that it would no longer reimburse retirees and their spouses for the cost of Medicare Part B premiums for those unit employees who retire after December 31, 2010, and that reimbursement would be frozen at January 1, 2010 levels for those unit employees who retire by December 31, 2010.

New York Public Personnel Law earlier posted materials related to the issue of discontinuing the reimbursement of Medicare Premiums, in whole or in part, to retirees at:
http://publicpersonnellaw.blogspot.com/2010/09/school-district-ordered-to-reimburse.html
and at:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html

* The County argued the acts of a public act of a municipal board are subject to repeal and amendment and is therefore recognized as temporary in nature, citing to Collins v. City of Schenectady, 256 AD 389 (3d Dept 1939), and Jewett v. Luau-Nyack Corporation, 31 NY2d 298 (1972).

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Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer

Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer
Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department

This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing.

Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006.

In 2007, Cohen, then a member of the New York State Employees’ Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS.

An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer’s findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller’s decision.

The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state."

Accordingly, said the court, Cohen’s entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service."

"City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[3][a]).

Noting that the State’s Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York.

However, the court vacated the Comptroller's determination and remit the matter for further findings of fact “because the Hearing Officer failed to address [Cohen’s] claim that he was eligible for prior service credits as an ‘officer.’"

Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.*

The Appellate Division said that “the failure to address [Cohen’s] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller’s denial of Cohen’s application was rational.

NYPPL has summarized other cases involving the denial of claims based on a finding that the individual “was not an employee of a public entity” or was “an employee of a non-public entity” at:

http://publicpersonnellaw.blogspot.com/2011/01/individuals-performing-services-for_27.html

and

http://publicpersonnellaw.blogspot.com/2011/02/compensation-paid-to-member-of-public.html

* Unless otherwise provided by law, while not all employees of a public entity are “officers,” “officers” of a public entity are “employees” of that entity.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01109.htm
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Article 78 action held the appropriate vehicle to test a public employer’s administrative determination, or failure to act

Article 78 action held the appropriate vehicle to test a public employer’s administrative determination, or failure to act
Adams v The City of New York, 271 AD2d 341

Typically, challenges to action or inaction by a governmental agency are brought pursuant to Article 78 of the Civil Practice Law and Rules. There appears, however, to be a flurry of breach of contract cases filed against the City of New York in contrast to filing Article 78 petitions.*

For example, in the Adams case the Appellate Division, First Department ruled that while Adams’ complaint was pleaded as an action sounding in breach of contract and sought a court order requiring the City to adjust the salaries of certain of its employees, the relief actually being sought is to compel [the City] to discharge a duty in conformity with its personnel policies and procedures. As this action was in the nature of mandamus, the court held that Adams’ lawsuit was subject to the procedural requirements of Article 78, i.e., a four-month statute of limitations for bringing such actions.

The critical element for bringing a timely Article 78 action is the date on which the administrative determination or action is deemed final.

The court pointed out that in Adams’ case there were two additional factors to consider: whether the action sounds in mandamus [an action seeking to compel the performance of an official act] or in the nature of certiorari [an action seeking to review an administrative decision, i.e., an appeal].

According to the Appellate Division, in order to file an Article 78 action for mandamus relief, it is necessary to make a demand and await a refusal. The limitations period does not commence until the date of the refusal i.e., the Statute of Limitations begins to run from the date of the refusal. In certiorari cases, the Statute of Limitations begins running on the date on which the final administrative determination is made.**

In any event, if the governmental agency being sued wishes to plea the affirmative defense that the plaintiff’s action is untimely, it must plea and prove that the Article 78 action was not commenced until after the Statute of Limitations had expired.

Commenting that here the City failed to prove the date when agency action was final, the Appellate Division held that the finality necessary to commence the limitations period has not been established and thus Adams’ petition remains viable. The Appellate Division, after converting the case into an Article 78 proceeding, remanded it to Supreme Court for its determination as to whether or not it was a timely Article 78 action.

* It may be that the breach of contract actions may have been filed in an effort to avoid the relatively short Statute of Limitations applicable in bringing an Article 78 action.

** In addition to mandamus and certiorari, Article 78 is the modern version of two other ancient writs: the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].

Authority of the arbitrator

Authority of the arbitrator
Kimball v Pine Plains CSD, 272 AD2d 332

Kimball involves two common proceedings brought pursuant to Article 75 of the Civil Practice Law and Rules [CPLR]: one to confirm an arbitrator’s award; the other to vacate the award. State Supreme Court Judge John R. LaCava had confirmed the award.

Affirming Judge LaCava’s ruling, the Appellate Division said that [a]n arbitration award may not be vacated unless it is irrational, violates a strong public policy, or clearly exceeds a limitation imposed on the arbitrator as set forth in CPLR 7511(b) or if the arbitrator exceeds his or her authority.

When does the arbitrator exceed his or her authority? When, said the Second Department, the arbitrator gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties. Here, said the court, the determinations made by the arbitrator were within his power and not irrational. Accordingly, the award was properly confirmed.

Requirements for defeating a motion for summary judgment

Requirements for defeating a motion for summary judgment
Mason v MTA - New York City Transit Authority, #05-4349-CV, US Circuit Court of Appeals, 2nd Circuit

Samuel Mason sued the Transit Authority alleging unlawful discrimination on the basis of age and race. When a federal district court judge granted the Authority’s motion for summary judgment dismissing his complaint, Mason appealed.

The Circuit Court of Appeals said that summary judgment is appropriate only when there are no material issues of fact to resolve and the moving party is able to demonstrate that it is entitled to judgment as a matter of law.

In contrast, Mason, as the party opposing summary judgment, judgment “may not rest upon mere allegation or denials of his pleading.” He “must set forth specific facts showing that there is a genuine issue for trial.”

The court said that assuming, but not deciding, Mason established a prima facie case of discrimination on the basis of age or race, it agreed with the district court that Mason failed to present credible evidence that the MTA’s proffered justifications for not promoting him – mediocre work performance and a relative lack of qualifications – constituted a pretext for discrimination.

According to the decision, Mason offered only conclusory allegations in support of his claim. Thus, said the court, Mason failed to carry his burden to “produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [Authority] were false, and that more likely than not [unlawful discrimination] was the real reason for the [employment action].”

Since he failed to do so, the Circuit Court said that the district court was correct in granting MTA’s motion for summary judgment.

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/requirements-for-defeating-motion-for.html

Comptroller may select between conflicting medical opinions and his decision will be sustained if supported by substantial evidence in the record

Comptroller may select between conflicting medical opinions and his decision will be sustained if supported by substantial evidence in the record
Matter of Micalizzi v DiNapoli, 2011 NY Slip Op 00772, Appellate Division, Third Department

A police officer alleged that he harassed at work after he had publicly supported several fellow officers facing disciplinary action and further accused department officials of misconduct.

Following “a verbal and near-physical confrontation with a coworker” the officer took a medical leave of absence from work and eventually resigned from his position. He then filed an application for performance of duty disability and accidental disability retirement benefits with the New York State Employees’ Retirement System, asserting that the confrontation and related harassment had inflicted disabling psychological and related physical ailments.

His applications were disapproved and the officer requested a hearing. The Hearing Officer found that, among other things, the alleged psychological disability was not caused by the harassment and did not permanently incapacitate the individual from the performance of his law enforcement duties.

The Comptroller adopted the Hearing Officer’s findings and conclusions and denied the member’s applications and the individual appealed.

The Appellate Division said that “In order to obtain either accidental or performance of duty disability retirement benefits, ‘petitioner bore the burden of demonstrating that he was incapacitated from the performance of duty as the natural and proximate result of an accident or disability sustained in service.’"

In this instance, said the court, the individual’s treating psychologist and doctor, as well as an independent psychologist, opined that he suffered from a psychological disability that arose out of the workplace harassment and permanently disabled him from performing the duties of a police officer.

However, the psychiatrist who examined the former officer on behalf of the New York State and Local Police and Fire Retirement System, while agreeing that the individual “suffered from a disability,” concluded that the disability would have arisen absent the alleged harassment and that factors outside of the individual’s duties as a police officer,” namely disciplinary proceedings resulting from his alleged improper recording of conversations with his coworkers, exacerbated it.

The System’s psychiatrist also indicated that the individual “could potentially resume work as a police officer if properly medicated and that a finding of permanency was not warranted based upon the medical evidence presented.”

The Appellate Division, confirming the Comptroller’s decision, said that the Comptroller was free to credit the System’s psychiatrist’s rational and fact-based opinion over other evidence in the record and that his determination was supported by substantial evidence.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00772.htm

Are employees required to file a written answer to Section 75 disciplinary charges?

Are employees required to file a written answer to Section 75 disciplinary charges?
A NYPPL analysis

Section 75.2 provides that the appointing officer must allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing.*

From time to time a NYPPL reader will ask “If an individual does not file an answer to Section 75 charges and specifications that have been served on the individual, may his or her silence be deemed an admission permitting the appointing authority to impose the proposed disciplinary penalty without holding a disciplinary hearing?”

A close reading of Section 75 suggests that an employer’s deeming an employee’s failure to file an answer to Section 75 disciplinary charges an admission of the employee’s guilt would not survive judicial review.

Section 75 does not require that the employee submit an answer to disciplinary charges in contrast to its mandate that the appointing authority allow the individual at least eight days to file an answer to the disciplinary charges.

Accordingly, it appears that the accused individual may remain silent and appear at the hearing without having submitted any answer to the charges without jeopardizing his or her right to administrative due process.

Furthermore, Section 75.2, in pertinent part, places “the burden of proving incompetency, and, or misconduct shall be upon the person alleging the same.” In other words, the failure of an employee to offer an explanation or a defense does not absolve the employer of its obligation to prove the charges of incompetency, and, or misconduct served on an employee in an administrative hearing before imposing disciplinary sanctions.

It is well-settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold a hearing in absentia rather then to merely proceed to impose a penalty on the individual simply because of his or her failure to appear at the hearing as scheduled [see Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 613]. Further, the charging party must prove its case by presenting substantial evidence of the employee’s guilt in the course of the hearing.

Given the fact that the courts require employers to conduct a hearing if an employee fails to appear at the disciplinary hearing, it seems unlikely that the courts would approve imposing a penalty on an individual without holding a hearing simply because he or she failed to “answer” the charges.

Moreover, Section 75 does not require an employee to ask for a hearing -- it is to be provided as a matter of right. Section 75 also requires that a transcript of the hearing be provided to the employee free of charge.

N.B. In contrast, Section 3020-a(2) of the Education Law, the statutory equivalent of Section 75 for teachers and school administrators, requires the individual request a hearing within 10 days after being served disciplinary charges [see Education Law Section 3020-a(2), subdivisions (c) and (d)]. The individual’s unexcused failure to request such a hearing permits the appointing authority to impose the proposed penalty without holding a disciplinary hearing.

Most alternative disciplinary procedures negotiated pursuant to the Taylor Law follow the Section 3020-a model. Typically, if the employee fails to file a timely “disciplinary grievance,” the collective bargaining agreement usually authorizes the appointing authority to impose the penalty proposed in the “notice of discipline” served on the individual without further action on its part and without referring the matter to arbitration.

* Section 75.2, in pertinent part, provides: “A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing.”

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

A NYPPL analysis

What is the status of the State’s Division of Military and Naval Affairs’ [DMNA] positions staffed by civilian employees? This was the question recently posed by a reader. In the opinion of the editor, such positions are in the competitive class of the classified service unless placed in a different jurisdictional class by law, rule or regulation.

Positions in the public service of the State are in either the civil service or the military service. Positions in the civil service are in either the classified service or the unclassified service; and positions in the classified service are automatically in the competitive class except where the statute provides otherwise or they have been placed in a different jurisdictional class by a rule or regulation adopted by the responsible civil service commission.

Has this issue -- what is the status of DMNA’S civilian employees -- ever been considered by a court? There is one decision in the files of Plain English Legal Publications addressing this question, at least peripherally -- Division of Military and Naval Affairs v PERB, 103 AD2d 876. This action tested a PERB decision holding that the Taylor Law applied to DMNA’s civilian employees.*

First, the Appellate Division, Third Department, rejected DMNA’s long-standing view that personnel employed by DMNA are in the military service and not in the civil service of the State by holding that DMNA’s view on this matter is not dispositive of the issue.

The court observed that DMNA’s personnel consists of a number of different classes of individuals including persons in the organized militia; persons on the state reserve list; persons on the state retired list; ... and all military (including air), naval and civilian personnel who may be serving or employed therein.**

Although DMNA argued that its civilian employees were not covered by the Taylor Law, contending that Section 201(7)(a) of the Civil Service Law specifically excludes persons holding positions by appointment or employment in the organized militia of the state, PERB decided that civilian employees in DMNA were not members of the organized militia and thus the Taylor Law did, in fact, apply to them.

Accordingly, such personnel could organize for the purposes of negotiating the terms and conditions of there employment with their employer. The Appellate Division agreed, sustaining PERB’s decision. The court said that PERB ruling was not irrational and therefore should not be disturbed.

Accordingly, as DMNA’s civilian employees are not in the military service, they must be employed in the civil service of the State.

The court explained:

1. DMNA is a division of the Executive Department, a public employer

2. Public employees are persons holding positions by appointment or employment in the service of a public employer.

3. Civilian employees fall within this definition and must be so considered.

4. Only individuals in the military service of the State, in contrast to all DMNA employees, are excluded from the provisions of the Taylor Law.

As the Taylor Law only applies to individuals holding positions in the public service, DMNA’s civilian employees must be in the public service and as they are not in the military service, such persons must be employed in positions in the civil service of the State.

* The minimum qualifications for employment as a civilian employees of DMNA may require the individual to be a member of the Organized Militia or some other military service or hold a particular military rank.

** The State’s organized militia consists of the New York Army National Guard; the New York Air National Guard; the Inactive National Guard; the New York Naval Militia; the New York Guard ... and such additional forces as may be created by the governor.

Establishing an employee organization

Establishing an employee organization
Declaratory ruling, 32 PERB 6601

Thinking of starting your own employee organization for the purpose of collective bargaining with a public employer? Then your next question should be: What does it take to be considered an employee organization for the purposes of the Taylor Law.

This was the question underlying the New York State Public Employees Association’s [NYSPEA] petition seeking a determination by PERB that it was an employee organization within the meaning of the Public Employees’ Fair Employment Act -- Article 14 of the Civil Service Law.

PERB Administrative Law Judge Philip L. Maier ruled that NYSPEA was such an employee organization, having met the following standards:

1. NYSPEA had adopted a constitution and by-laws indicating that it was organized and exists to improve the terms and conditions of employment only of employees in the public sector and was not affiliated with any other employee organization.

2. NYSPEA’s officers were to be elected from among its members and NYSPEA dues and agency fees were the property of the association and negotiations were to be conducted by its members.

3. NYSPEA established negotiating committees staffed by its members and had adopted a contract ratification procedure.

As NYSPEA satisfied these minimal requirements, its petition was granted.

Exception to the exclusion of a “pre-reporting for work accident” for the purposes of receiving workers’ compensation benefits

Exception to the exclusion of a “pre-reporting for work accident” for the purposes of receiving workers’ compensation benefits
Matter of O'Neil v City of Albany Police Dept., 2011 NY Slip Op 00759, Appellate Division, Third Department

In general, accidents that occur outside of work hours and in public areas away from the workplace are not compensable. However, there is an exception to this general rule when the individual suffers an injury near the work site and the injury was the result of “an incident and risk of employment.” The O’Neil case illustrates the application of this exception to the general rule.

Theresa A. O’Neil, a City of Albany police officer, was expected to be present at roll call each morning at 8:15 A.M. to receive her duty assignment for the day. About 15 minutes before roll call O’Neil suffered an injury when she was in her private vehicle that was parked on a public street in the course of her reaching for a bag containing both personal and work-related items that was in her car.

The “work-related items” included O’Neil’s police radio, handcuffs and Penal Law books, all of which she needed to perform her duties as a police officer.

The “personal items” included O’Neil’s cans of soda, her lunch, spare clothing and “a variety of other personal items.”

O’Neil admitted that she was not required to bring her work-related equipment home and could have left these things in a locker at work. However, she said that she “elected to keep them in her car while off-duty so she would always know where they were.” She also conceded that she was not considered to be "on duty" until the moment she entered the police station.”

The Workers’ Compensation Board ruled that O’Neil had not sustain the underlying injury as the result of “an incident or risk of her employment” and dismissed her application for workers’ compensation benefits.

The Appellate Division agreed.

In this instance, said the court, O’Neil’s injury did not fall within an exception to the general rule that the accident or injury must have occurred while the individual was "on the job.

Although there is a so-called "gray area" exception that might be relevant when the accident or injury occurred near the work site, the Appellate Division pointed out that the test of compensability becomes "whether the accident happened as an incident and risk of employment," citing Matter of Husted v Seneca Steel Serv., 41 NY2d 140.

In this instance, said the court, O'Neil's accident did not fall within the "gray area" exception to the general rule.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00759.htm
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