ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

February 25, 2011

Declining to reveal “sensitive family information” held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty

Declining to reveal “sensitive family information” held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty
Department of Sanitation v Anonymous, OATH Index #181/11

An employee admitted she was absent without leave for almost one year.

In mitigation, the employee testified regarding personal and health problems and said that she did not request leave because she would have to reveal sensitive information about her family, and was afraid it would not be kept confidential.

OATH Administrative Law Judge Faye Lewis found that although leave would have been granted had the employee properly requested it, Anonymous could be disciplined for taking absence without leave.

In consideration of extraordinary mitigating circumstances, however, ALJ Lewis recommended a sixty-day suspension without pay, which recommendation the appointing authority adopted.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-181.pdf
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Agency's failing to appear at an administrative hearing may have adverse consequences

Failing to appear at an administrative hearing may have adverse consequences
Aures v Buffalo Board of Education, 272 AD2d 664

The Aures decision demonstrates the problem that could result if a party fails to appear at an administrative hearing as scheduled -- the hearing officer may hold the hearing in absentia and the determination will be binding on the parties.

Although it had not participated in the administrative hearing, the Buffalo Board of Education [Buffalo] attempted to overturn a determination by an Unemployment Insurance Administrative Law Judge [ALJ] holding that Karen M. Aures was eligible for unemployment insurance benefits.

Aures, one of number of temporary teachers employed during academic 1996-1997, had applied for unemployment insurance benefits at the end of the school year. The local office of the Division of Unemployment Insurance found that Aures had received reasonable assurances of continued employment for the next academic year and disapproved her application for benefits. Aures appealed.

The key to a teacher’s eligibility for unemployment insurance between school years depends on his or her receiving a reasonable assurance of reemployment for the next school year within the meaning of Section 590(10) of the Labor Law.

An administrative hearing was scheduled but Buffalo failed to appear at the hearing. The Administrative Law Judge [ALJ] elected to proceed to hold the hearing notwithstanding Buffalo’s absence. The bottom line: the ALJ overruled the initial determination, holding Aures was eligible to receive benefits.

When Buffalo learned of the decision, it asked the ALJ to reopen the case. The ALJ denied Buffalo’s motion and the Unemployment Insurance Appeals Board [Board] affirmed the ALJ’s ruling. Buffalo subsequently asked the Board to reconsider its decision concerning Buffalo’s motion to reopen the matter. The Board agreed to do so, but ultimately decided to adhere to its previous ruling that sustained the ALJ’s determination denying Buffalo’s request to reopen the hearing. Buffalo appealed.

Why didn’t had Buffalo appear at the hearing before the ALJ? According to the court, Buffalo’s excuse for its not appearing at the hearing as scheduled: the unavailability of certain key witnesses.

The Appellate Division was not impressed by this argument. Noting that the key witnesses in question were under Buffalo’s control, the court said that “[h]aving elected to assign such witnesses to their regular duties rather than directing them to attend the scheduled hearings, [Buffalo] cannot now be heard to complain.”

The court affirmed the Board’s rejection of Buffalo’s motion to reopen the matter, explaining that the decision to grant an application to reopen lies within the discretion of the Board.

Unless it can be shown that the Board abused its discretion, the Board’s decision will not be disturbed by the courts. The Appellate Division decided that the record supported a finding that Board had not abused its discretion and dismissed Buffalo’s appeal.
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February 24, 2011

Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination

Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination
Matter of Mathis v New York State Dept. of Correctional Servs., 2011 NY Slip Op 01190, Appellate Division, Fourth Department

Probationary correction officer Demar Mathis filed an Article 78 petition challenging his termination from his employment for “failure to complete his probationary period in a satisfactory manner.”

Supreme Court granted Mathis’ petition, annulled the appointing authority's determination and reinstated him to in his former position with back pay. Although Supreme Court thereafter granted the Correction Department’s motion to reargue its opposition to Mathis’ petition, it ultimately adhered to its prior decision.

The Department appealed and the Appellate Division overturned Supreme Court’s ruling.

First, the Appellate Division said that it agreed with the Department’s argument that at the time of his termination, Mathis was a probationary employee who could be terminated for “almost any reason or for no reason at all," citing Matter of Swinton v Safir, 93 NY2d 758.

It then noted that although Mathis’ probationary term was to expire on October 29, 2007, it was extended by 92 days in accordance with the provisions set out in 4 NYCRR 4.5(g) in the event a probationer is absent during his or her probationary period.*

The Appellate Division said that Supreme Court erred when it concluded that Mathis was no longer a probationary employee on the date he was terminated because Supreme Court calculated the extension required by 4 NYCRR 4.5(g) using calendar days rather than workdays.

In the words of the Appellate Division, “Where, as here, a probationary term is extended pursuant to 4 NYCRR 4.5 (g), the extension is "one workday for every workday" the employee has missed.”

The Appellate Division than opined that "As a probationary employee, [Mathis] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason." Mathis, said the court, made no such showing here and that the record indicated that he had excessive absenteeism, disobeyed a direct order to return to work and continued to have absenteeism problems after being counseled about his absenteeism.

The court agreed with the Department that "[c]hronic absenteeism is a sufficient basis for terminating a probationary employee" as is the refusal to comply with a direct order.”

* 4 NYCRR 4.5(g), in pertinent part, provides that with respect to absence during probationary term, Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. … Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01190.htm
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Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights

Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

In Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave.

The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.

The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.

The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave." 29 CFR 825.220(b).

Mr. Bosland Comments: The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights. The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).

From the decision, it does not appear that the employer argued the point. Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference. For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.

Unfortunately, it is not clear from the Terwilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports. If the duration of approved leave is unknown weekly status reports would appear to be reasonable.

The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment. I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances. Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.
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Are appointment promises that are not met binding on the appointment authority?

Are appointment promises that are not met binding on the appointment authority?
Carson v NYC Dept. of Sanitation, 271 AD2d 380

The Carson decision demonstrates the general rule that promises made by a public employee to an applicant or to another worker are not binding on the appointing authority unless the individual is authorized to make such commitments on behalf of the appointing authority.

Calvin Carson was terminated from his position with the New York City Department of Sanitation [DOS]. When his request to be reinstated to his former position was denied, he sued, claiming breach of contract. The basis for his breach of contract action: Carson alleged that a DOS employee had promised him that he would be reinstated to his former position upon his completion of a drug treatment program.

Citing Granada Building, Inc v City of Kingston, 58 NY2d 705, the Appellate Division dismissed Carson’s appeal. The court said that even if Carson had been promised reinstatement by the DOS employee, the promise was unauthorized and DOS was not bound by it.

On a procedural point, the court noted that although Carson had sued for breach of contract, Supreme Court Judge Beverly Cohen had correctly converted Carson’s complaint into an Article 78 proceeding to annul DOS’s determination to terminate Carson from his position. Why? Because, the court explained, Carson’s original petition effectively sought [his] reinstatement to his former position as a DOS employee, and [DOS] had the statutory and regulatory authority to issue a final and binding determination with respect to this employment. Such decisions by the appointing authority are tested via an Article 78 procedure action rather suing for breach of contract.

Carson also contended that the doctrine of promissory estoppel supported his demand for reinstatement. The Appellate Division rejected this theory, commenting that there was no merit in applying the doctrine in Carson’s case, particularly in light of [his] prior execution and violation of a final termination agreement, which agreement was concealed from the DOS employee alleged to have promised Carson’s reinstatement.

The same basic rationale was applied in Schwartz v Crosson, 165 AD2D 14, a case decided by the Appellate Division, Third Department.

Michael Schwartz was promised a certain salary upon appointment to public service only to learn that he would be paid at a lower rate once he reported for duty.

The Appellate Division said that the doctrine of estoppel was not applicable even though Schwartz had relied upon the information given to him concerning his salary upon appointment to his detriment. The decision notes that it is well settled that estoppel is generally not available against the State when it acts in a governmental capacity.

The Court also said that although an exception to the general rule exists in “unusual factual situations” to prevent injustice, it did not believe that Schwartz’s situation fell within such an exception.

Significantly, the Carson ruling notes that the possibility of one public employee misinforming another public employee concerning personnel matters, while unfortunate, is not so “highly unusual” that the general rule against estoppel should be ignored.
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The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration

The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration
Town of Newburgh v CSEA, 272 AD2d 405

Although an arbitrator sustained the Newburgh’s dismissal of an employee who was found guilty of testing positive for marijuana, this did not end the matter.

The employee’s union, the Civil Service Employee’s Association [CSEA], filed a second grievance alleging that the Town had violated the collective bargaining agreement because it had suspended the individual for more than 30 days without pay prior to the arbitrator’s determination. CSEA demanded that the second grievance be submitted to arbitration.

In effect, CSEA argued that because the final resolution of the charges occurred upon the issuance of the disciplinary arbitration award, the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.

The Town, contending that considering a second grievance necessarily presents a risk of inconsistent awards, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order staying the arbitration. State Supreme Court Peter C. Patsalos to grant the Town’s petition to stay the arbitration; the Appellate Division, Second Department, reversed.

The Appellate Division pointed out that the arbitrator in the disciplinary action apparently did not directly address the question of whether, pursuant to the parties’ collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.

The Appellate Division rejected the Town’s argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.

Accordingly, the court said that under these circumstances the correct rule to apply is that which holds that it is for a successive arbitrator to decide any res judicata [an already decided issue] or collateral estoppel effect is to be given to a prior arbitration award.

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The Discipline Book
, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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February 23, 2011

Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement

Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement
Matter of Laird v Village of Pelham Manor, 2011 NY Slip Op 01278, Appellate Division, Second Department

The PBA and the Village of Pelham Manor entered into a collective bargaining agreement that included a procedure to be followied by an police officers seeking disability and other benefits available to him or to her pursuant to General Municipal Law §207-c.

The CBA’s procedure provided for the filing of an application for benefits, a determination to be made on the application submitted, and the review of the determination if the applicant was unhappy with the decision including appealing the denial of such benefits in the event the police officer’s application for §207-c benefits was rejected because the “applicant failed to comply with the agreed-upon procedures.”

The Village denied the application for §207-c benefits filed by police officer Christopher Laird after determining that he did not file his application for such benefits within the time limit permitted for filing such claims set out in the CBA.

Laird appealed the determination and he was given an opportunity to demonstrate that he had credible reasons for failing to file the application within the agreed-upon period. His appeal was denied and ultimately the Village Board of Trustees affirmed the initial finding that Laird’s application seeking §207-c benefits was untimely.

The Appellate Division sustained the Village Board’s decision, ruling that the Board’s determination was “rationally based.”

The court said that the appropriate application forms were available to Laird upon request and found that other police officers following the procedure set out in the collective bargaining agreement had been granted “disability status” after filing a timely application for §207-c benefits.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01278.htm

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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 providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic handbook.

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Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle

Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Taxi & Limousine Commission v Alvarez, OATH Index # 924/11

OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.

Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).

The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”

As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:

Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:

• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;

• Operated the vehicle inattentively, including failure to exercise defensive driving skills;

Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-924.pdf
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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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February 22, 2011

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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February 21, 2011

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).

February 19, 2011

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February 18, 2011

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
.

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

February 17, 2011

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.”

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

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.

February 16, 2011

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
.

Preparing witnesses for an administrative hearing or a trial

Preparing witnesses for an administrative hearing or a trial
Health & Hospital Corp. [Queens Hospital Center] v Toval, OATH Index #500/11

It is good practice to prepare each witness for an administrative hearing or a trial separately.
A recent case adjudicated by an OATH Administrative Law Judge highlights potential pitfalls of preparing multiple witnesses for trial together.

In this case a witness admitted that she had difficulty remembering what happened on the night of the charged incident and that her testimony were based in part on a conversation she had with another witness while the pair were being prepared for trial on the previous day. It was unclear what portions of the witness' testimony was based upon her independent recollection and what aspects were based on information provided by the other witness.

Administrative Law Judge Miller found that the joint trial preparation undermined the reliability of both witnesses.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-500.pdf

Public employee not always entitled to a name-clearing hearing

Public employee not always entitled to a name-clearing hearing
Brown v Simmons, 478 F.3d 922

The lesson in Brown v Simmons is that a public employee is not entitled to a name-clearing hearing to rebut statements of a defamatory nature except when he or she has been terminated by the employer.*

Jim Brown, a teacher, sued James Simmons, the superintendent of the Conway (Arkansas) Public School District, alleging that Simmons infringed Brown’s procedural due process rights by denying him a name-clearing hearing. Brown contended that he was entitled to a name-clearing hearing because he was stigmatized by defamatory statements made by other school officials. In the words of the Circuit Court of Appeals, “Brown filed a “stigma plus” claim.”

The district court dismissed Brown’s complaint, finding that he failed to “state a claim upon which relief can be granted.” The Circuit court affirmed the district court’s ruling.

It noted that defaming a governmental employee’s reputation, good name, honor, or integrity in connection with terminating the employee, without giving the employee a name-clearing hearing, is a deprivation of the employee’s constitutionally protected liberty interest.

To state a “stigma plus” claim, the employee must allege:

(1) an official made a defamatory statement that resulted in a stigma;

(2) the defamatory statement occurred during the course of terminating the employee;

(3) the defamatory statement was made public; and

(4) an alteration or extinguishment of a right or legal status.

In response to Simmons’ motion to dismiss Brown’s cause of action, Brown alleged he had been transferred and lost pay. The district court, however, said that “even if accepted, [Brown’s claims] are insufficient to trigger the protection of the due process clause.”

The court, quoting from Hughes v. Whitmer, 714 F.2d 1407, said:

“the constitution does not require the government to give to its stigmatized employee a hearing if the public employee remains a public employee” and “the internal transfer of an employee, unless [the transfer] constitutes such a change of status as to be regarded essentially as a loss of employment, does not . . . give rise to a liberty interest meriting protection under the due process clause.

The Simmons decision appears consistent with the law in New York – dismissal is the triggering event entitling an individual to a name-clearing hearing.

As the New York State Court of Appeals held in Matter of Stanziale, 55 NY2d 735, -- where the basis for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name.

In Matter of Murphy v City of New York, 2006 NY Slip Op 10135, decided December 28, 2006, Appellate Division, First Department, Index 109352/05, the court ruled that Murphy was entitled to a name clearing hearing following his “coerced retirement.” The Retirement System conceded that there had been dissemination of a report prepared by Retirement System that contained inaccuracies and was stigmatizing. Regardless whether Murphy resigned or was fired, the court said that he has satisfied the requirement of loss of employment that is necessary to demand a name-clearing hearing.**

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/no-right-to-name-clearing-hearing.html

* The “New York Rule” in such situations is discussed in Ortiz v Ward, 546 NYS2d 624. In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. New York courts have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a "name-clearing hearing" was not required because of such intra-agency communications.

** See also of Johnston v Kelly, 35 AD3d 297, where the court said “the sole purpose of a name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material in the personnel file is false."

Leave of absence from former position upon appointment from an open-competitive eligible list not required

Leave of absence from former position upon appointment from an open-competitive eligible list not required
Bethel v McKechnie, Ct. of Appeals, 95 NY2d 7

Is an appointing authority required to hold open a permanent employee’s position until the individual has completed his or her probationary period in a position to which he or she has been appointed from an open-competitive eligible list?

In Bethel the Court of Appeals ruled that a public employee who accepts an appointment to a position from an open competitive examination effectively resigned from his or her former position.

Earlene Bethel applied for, and was granted, a leave of absence from her permanent position as Contract Specialist II with New York City’s Community Development Agency [CDA] to accept a provisional appointment as a Staff Analyst with CDA. New York City’s Human Resources Administration [HRA] approved the provisional appointment with CDA, and, presumably her leave of absence from her permanent position.

In April 1995, the list for Staff Analyst was certified to HRA and Bethel was permanently appointed to the title, subject to her satisfactory completion of a one-year probationary period. After starting her probationary period, HRA told Bethel that her leave from her Contract Specialist position was canceled. Bethel did not challenged HRA’s action at that time.

Bethel was terminated before completing her probationary period for allegedly committing several acts of insubordination. When CDA refused to reinstate Bethel to her former position of Contract Specialist, she sued, claiming that she could not be terminated except after notice and hearing in accordance with Section 75 of the Civil Service Law because she held a permanent appointment as a Contract Specialist. The critical issue to be resolved:

Was Bethel promoted to the Staff Analyst position as that term is used in the Civil Service Law?

Section 63(1) of the Civil Service Law provides that when probationary service is required upon an employee’s promotion, the position formerly held by the individual promoted shall be held for him and shall not be filled, except on a temporary basis, pending completion of his or her probationary term.*

The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation. Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63(1) provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.**

Although the Court of Appeals noted that the term promotion is not explicitly defined in the Civil Service Law, the law clearly distinguishes between open competitive examinations and promotional examinations.

While Bethel received a higher salary in the new position, the court decided that she was not promoted within the meaning of the Civil Service Law because under Section 52.9 of the Civil Service Law, an increase in salary will be deemed a promotion only if the employee receives compensation beyond the limit fixed for the grade in which such office or position is classified.***

The Court said that agencies are not (1) required to keep open a prior permanent position for a probationary employee who has been neither promoted nor transferred and (2) Bethel was not entitled to a hearing prior to the cancellation of her leave of absence from her former position.

Concluding that Bethel was not promoted within the meaning of the Civil Service Law, the Court of Appeals ruled that Bethel effectively resigned her permanent position upon her accepting a permanent appointment as a Staff Analyst.

* Although a temporary appointment [see subdivisions 1 and 2 or Civil Service Law Section 64] or a contingent permanent appointment [see Civil Service Law Section 64.4] may be made to the resulting vacancy in such situations, a provisional appointment cannot be made to such a vacancy as the position “is not wholly vacant” [see Civil Service Law Section 65].

** Engoren, a caseworker, was appointed Probation Officer Trainee [POT] after passing an open competitive examination rather than a promotion examination. As there was no evidence existed that the open competitive examination was conducted in lieu of or simultaneously with a promotional examination, or that Engoren’s service as a Caseworker qualified her for a promotion as a POT, the court decided that she failed to prove that she had been promoted when appointed as a POT.

*** The Court of Appeals also noted that “Except as provided in [Civil Service Law] section fifty-one,” vacancies in positions in the competitive class are typically to be filled “by promotion from among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion, as determined by the state civil service department or municipal commission…”

Employer's failure to explain selection decision to rebut eligible's claim of denial promotion negates summary dismissal of employee's petition

Employer's failure to explain selection decision to rebut eligible's claim of denial promotion negates summary dismissal of employee's petition
Baker v Elmira, 271 AD2d 906

What may individual who believes that he or she has been passed-over for appointment to a position in the competitive class for political reasons do in such a situation? James A. Baker, Sr., decided that he would sue the City of Elmira when he was not selected for promotion to fire lieutenant for what he alleged were partisan political reasons.

Baker, an Elmira firefighter since 1974, took and passed the promotion test for fire lieutenant. The first four firefighters on the list were promoted before the list expired; Baker was fifth on the list.

Prior to the expiration of the list Fire Chief Donald Harrison told the Elmira city manager W. Gregg LaMar that there would soon be additional vacancies as result of retirement. Commenting that Baker was next on the list, he recommended three appointments: Baker, Eugene Ottaviani and Patrick Shaw. All had identical examination and seniority scores. Ottaviani was promoted.

Baker sued, submitting affidavits indicating that he was not being promoted because of his political affiliation. Although a State Supreme Court judge summarily dismissed Baker’s complaint, the Appellate Division reversed. Quoting from McManus v Grippen, 244 AD2d 632, the court said “it was incumbent upon [the defendant] to come forward with admissible evidence showing that plaintiff [‘s] political affiliations and activities did not play a substantial part in its decision.”

While Elmira made a prima facie showing of the propriety of the promotion, it provided no explanation as to why LaMar chose one eligible over the other candidates, since they were all equally qualified. This, said the court, meant that summarily dismissing the case was improper.

February 15, 2011

Employee’s failure to provide an adequate urine sample attributed to employer’s failure to comply federal procedures rather than employee misconduct

Employee’s failure to provide an adequate urine sample attributed to employer’s failure to comply federal procedures rather than employee misconduct
Dept. of Sanitation v Anonymous, OATH Index No. 765/11

OATH Administrative Law Judge Kevin Casey dismissed a charge alleging that a sanitation worker had refused to submit to a random drug test. The worker, who became ill during the testing procedure and was later diagnosed with a medical condition, was unable to provide a sufficient urine sample, despite repeated attempts.

ALJ Casey found the department failed to provide the worker with forty ounces of water to drink over a period of three hours, as required by federal regulation. Hence, the employee's failure to produce sufficient urine for testing was not misconduct.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-765.pdf

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

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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
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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.

February 14, 2011

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
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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.

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