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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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
February 17, 2011
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.
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.
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
.
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
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."
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…”
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.
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
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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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.
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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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.
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.
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.
Burning v Niagara Frontier Transit Metro System and Local 1342, 273 AD2d 830, Motion for leave to appeal denied, 95 NY2d 765
Few collective bargaining agreements allow a unit member to file a demand to arbitrate a grievance. In the absence of such authority, the general rule is that only the employee organization can demand that a grievance be submitted to arbitration.
Suppose the employee organization decides not to appeal a disciplinary or other grievance to arbitration. What, if any, action -- usually referred to as direct action -- can the unit member take in an attempt to challenge or go around the union’s decision?
The Burning case considers the major exception to the general rule barring direct action by a unit member -- the unit member may initiate direct action against the employer if he or she can establish that he or she was denied fair representation by employee organization.
Kenneth L. Burning was terminated from his position with the Niagara Frontier Transportation Authority.
Burning sued in an effort to overturn his dismissal, contending that his union, Local 1342, Amalgamated Transit Union, breached its duty of fair representation when it decided not to demand arbitration challenging his termination by the Authority.
The Appellate Division, however, noted that the mere failure of a union to proceed to arbitration does not establish a breach of the duty of fair representation.
If an employee organization declines to arbitrate a grievance over the objections of its member the individual may take direct action only if he or she can demonstrate that the Union’s conduct was arbitrary, discriminatory or in bad faith.
As Burning did not show that the union’s decision was arbitrary, discriminatory or made in bad faith, the Fourth Department ruled that Supreme Court properly dismissed Burning’s petition challenging his dismissal.
Disciplinary penalty ruled too severe remanded to appointing authority for imposition of a lesser penalty
Disciplinary penalty ruled too severe remanded to appointing authority for imposition of a lesser penalty
Rapkiewicz v Middle Country School District; 273 AD2d 392, Motion for leave to appeal denied, 95 NY2d 765
Tiano v Middle Country School District, App. Div., Second Dept., 273 AD2d 396, Motion for leave to appeal denied, 95 NY2d 766
The Pell doctrine, typically used to test the reasonableness of a disciplinary penalty, basically states that a disciplinary penalty imposed by a public employer will be sustained unless it is found to be disproportionate to the offense [Pell v Board of Education, 34 NY2d, 222].
In the Rapkiewicz and Tiano appeals, the application of the Pell doctrine resulted in the Appellate Division remanding both cases to the Middle Country School District for the imposition of a less severe penalty. The penalty that had been earlier imposed by the district: dismissal.
In 1998 Adam Rapkiewicz and Frank Tiano, then employed as custodians by the district, were found guilty of disciplinary charges that the court described as misconduct, while serious, was an isolated event.... The Appellate Division concluded that mitigating circumstances required it to vacate their respective terminations.
The mitigating factors: Rapkiewicz had received outstanding ratings during his seven years of service with the district, while Tiano had over 10 years of satisfactory service with the district -- and both were found guilty of an isolated event of misconduct.
Although the court held that the findings that both were guilty of misconduct was supported by substantial evidence in the record, it ruled that under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one’s sense of fairness.
However, the Appellate Division only annulled the penalty imposed by the district and directed it to impose a less harsh penalty -- its order provided no other relief such as the awarding of back pay and benefits.
Typically, back pay and benefits are awarded when the court finds that the underlying disciplinary action was in some way defective such as the hearing officer lacking jurisdiction or a failure of administrative due process.
Here, however, the decision indicates that the disciplinary procedure was conducted properly; the only objection voiced by the court was the severity of the penalty imposed.
The fact that Appellate Division decided against directing the district to reinstate Rapkiewicz and Tiano to their former positions suggests that the court would not require the district to provide for an award of back salary in fashioning a penalty less severe than termination.
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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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Rapkiewicz v Middle Country School District; 273 AD2d 392, Motion for leave to appeal denied, 95 NY2d 765
Tiano v Middle Country School District, App. Div., Second Dept., 273 AD2d 396, Motion for leave to appeal denied, 95 NY2d 766
The Pell doctrine, typically used to test the reasonableness of a disciplinary penalty, basically states that a disciplinary penalty imposed by a public employer will be sustained unless it is found to be disproportionate to the offense [Pell v Board of Education, 34 NY2d, 222].
In the Rapkiewicz and Tiano appeals, the application of the Pell doctrine resulted in the Appellate Division remanding both cases to the Middle Country School District for the imposition of a less severe penalty. The penalty that had been earlier imposed by the district: dismissal.
In 1998 Adam Rapkiewicz and Frank Tiano, then employed as custodians by the district, were found guilty of disciplinary charges that the court described as misconduct, while serious, was an isolated event.... The Appellate Division concluded that mitigating circumstances required it to vacate their respective terminations.
The mitigating factors: Rapkiewicz had received outstanding ratings during his seven years of service with the district, while Tiano had over 10 years of satisfactory service with the district -- and both were found guilty of an isolated event of misconduct.
Although the court held that the findings that both were guilty of misconduct was supported by substantial evidence in the record, it ruled that under all of the circumstances, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one’s sense of fairness.
However, the Appellate Division only annulled the penalty imposed by the district and directed it to impose a less harsh penalty -- its order provided no other relief such as the awarding of back pay and benefits.
Typically, back pay and benefits are awarded when the court finds that the underlying disciplinary action was in some way defective such as the hearing officer lacking jurisdiction or a failure of administrative due process.
Here, however, the decision indicates that the disciplinary procedure was conducted properly; the only objection voiced by the court was the severity of the penalty imposed.
The fact that Appellate Division decided against directing the district to reinstate Rapkiewicz and Tiano to their former positions suggests that the court would not require the district to provide for an award of back salary in fashioning a penalty less severe than termination.
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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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February 11, 2011
Statute of limitations to serve Civil Service Law Section 75 disciplinary charges extended where charges would constitute a crime
Statute of limitations to serve Civil Service Law Section 75 disciplinary charges extended where charges would constitute a crime
Mieles v Safir, 272 AD2d 199
The Mieles case provides an example of the application of the exception to statute of limitations set out in Section 75.4 of the Civil Service Law. Section 75.4 provides that the relevant statute of limitations for bringing disciplinary action does not apply where the incompetency or misconduct alleged would, if proved in a court of appropriate jurisdiction, constitute a crime.
Manuel Mieles, a New York City police officer, was dismissed from his position after being found guilty of having used false pretenses to trick the owner of a broken-down vehicle into giving him the title to the vehicle. Mieles then moved the vehicle from the street and sold it to a salvage company.
The department charge Mieles with unauthorized exercise of his official functions, in violation of Section 104-01, page 3, paragraph 4 of the Police Department Patrol Guide’s prohibition against conduct prejudicial to good order, efficiency or discipline of the department.
Mieles appealed his termination. One of the grounds he contended supported vacating the disciplinary action was that the charges filed against him were untimely as they were barred by the 18-month Statute of Limitations in Civil Service Law Section 75(4). The Appellate Division, First Department dismissed Mieles’ appeal.
The court said that [t]here is no merit to [Mieles’] argument that the charges filed against him were barred by Section 75.4’s 18-month Statute of Limitations. As the court explained, “the misconduct charged also constituted the crime of official misconduct under Section 195.00[1] of the Penal Law. Accordingly, Mieles was charged with, and found guilty of, acts of misconduct that were expressly excluded from the time bar of Section 75(4)....”
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Mieles v Safir, 272 AD2d 199
The Mieles case provides an example of the application of the exception to statute of limitations set out in Section 75.4 of the Civil Service Law. Section 75.4 provides that the relevant statute of limitations for bringing disciplinary action does not apply where the incompetency or misconduct alleged would, if proved in a court of appropriate jurisdiction, constitute a crime.
Manuel Mieles, a New York City police officer, was dismissed from his position after being found guilty of having used false pretenses to trick the owner of a broken-down vehicle into giving him the title to the vehicle. Mieles then moved the vehicle from the street and sold it to a salvage company.
The department charge Mieles with unauthorized exercise of his official functions, in violation of Section 104-01, page 3, paragraph 4 of the Police Department Patrol Guide’s prohibition against conduct prejudicial to good order, efficiency or discipline of the department.
Mieles appealed his termination. One of the grounds he contended supported vacating the disciplinary action was that the charges filed against him were untimely as they were barred by the 18-month Statute of Limitations in Civil Service Law Section 75(4). The Appellate Division, First Department dismissed Mieles’ appeal.
The court said that [t]here is no merit to [Mieles’] argument that the charges filed against him were barred by Section 75.4’s 18-month Statute of Limitations. As the court explained, “the misconduct charged also constituted the crime of official misconduct under Section 195.00[1] of the Penal Law. Accordingly, Mieles was charged with, and found guilty of, acts of misconduct that were expressly excluded from the time bar of Section 75(4)....”
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If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations
If the WCB determines the individual involuntarily withdraw from the workforce, it cannot require a claimant to seek work within medical limitations
Matter of Funke v Eastern Suffolk BOCES, 2011 NY Slip Op 00144, Appellate Division, Third Department
Sandra R. Funke, a former teacher's assistant for special needs students, sustained a work-related injury to her neck, back and shoulder. She was awarded workers' compensation benefits and returned to work. Subsequently she amended her claim to include consequential posttraumatic stress disorder and was awarded appropriate benefits.
She retired March 2009, but continued to work sporadically for the employer as a substitute teacher's assistant. The Workers' Compensation Board ultimately denied her application for postretirement benefits. While the Board said that Funke’s retirement was involuntary — that is, causally related to her disability — it then concluded that her subsequent loss of earnings was due to unrelated factors not caused by her disability.
The Appellate Division disagreed with the Board’s action.
First the court said that it has "long held that a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."
As the Board credited Funke’s testimony that she retired due to pain caused by her disability, that testimony provides substantial evidence to support the Board's initial finding that "claimant's retirement was causally related as she was not able to continue working in the same capacity for the employer" — i.e., that her retirement was involuntary.”
That being the case, said the Appellate Division, "an inference arises that . . . earning capacity is reduced by the disability and claimant is [therefore] entitled to compensation until the inference is removed from the case." Further, noted the court, once "the withdrawal [is] found to be involuntary, . . . it become[s] inherently inconsistent to hold that a claimant is obligated to search for work within medical limitations."
However, notes the decision, the failure to seek additional work does not defeat the inference that arises upon a finding of involuntary retirement or constitute proof that something other than the disability is the cause of a claimant's reduced earnings, referring to Burns v Town of Colonie, 66 AD3d at 1070, among other decisions.
Reversing the Board’s ruling, the Appellate Division remitted the matter to the Workers’ Compensation Board “for further proceedings not inconsistent with this Court's decision.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00144.htm
Matter of Funke v Eastern Suffolk BOCES, 2011 NY Slip Op 00144, Appellate Division, Third Department
Sandra R. Funke, a former teacher's assistant for special needs students, sustained a work-related injury to her neck, back and shoulder. She was awarded workers' compensation benefits and returned to work. Subsequently she amended her claim to include consequential posttraumatic stress disorder and was awarded appropriate benefits.
She retired March 2009, but continued to work sporadically for the employer as a substitute teacher's assistant. The Workers' Compensation Board ultimately denied her application for postretirement benefits. While the Board said that Funke’s retirement was involuntary — that is, causally related to her disability — it then concluded that her subsequent loss of earnings was due to unrelated factors not caused by her disability.
The Appellate Division disagreed with the Board’s action.
First the court said that it has "long held that a retirement is an involuntary withdrawal if the claimant's disability caused or contributed to the decision to retire."
As the Board credited Funke’s testimony that she retired due to pain caused by her disability, that testimony provides substantial evidence to support the Board's initial finding that "claimant's retirement was causally related as she was not able to continue working in the same capacity for the employer" — i.e., that her retirement was involuntary.”
That being the case, said the Appellate Division, "an inference arises that . . . earning capacity is reduced by the disability and claimant is [therefore] entitled to compensation until the inference is removed from the case." Further, noted the court, once "the withdrawal [is] found to be involuntary, . . . it become[s] inherently inconsistent to hold that a claimant is obligated to search for work within medical limitations."
However, notes the decision, the failure to seek additional work does not defeat the inference that arises upon a finding of involuntary retirement or constitute proof that something other than the disability is the cause of a claimant's reduced earnings, referring to Burns v Town of Colonie, 66 AD3d at 1070, among other decisions.
Reversing the Board’s ruling, the Appellate Division remitted the matter to the Workers’ Compensation Board “for further proceedings not inconsistent with this Court's decision.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00144.htm
Dismissal for excessive absence found an appropriate disciplinary penalty
Dismissal for excessive absence found an appropriate disciplinary penalty
McKinnon v North Bellmore UFSD, 273 AD2d 240
According the Appellate Division, Second Department, dismissing an employee who is guilty of excessive absence is consistent with the Pell standard (Pell v Board of Education, 34 NY2d 222).
The North Bellmore Union Free School district dismissed Hugh McKinnon, a teacher, after he had been found guilty of charges of (1) failing to comply with the district has established call-in procedure to report his absences and (2) incompetence based on his excessive absences.
Finding that there was substantial evidence in the record to support the findings that McKinnon was guilty of the charges filed against him, the court said that it did not find that imposing a penalty of dismissal so disproportionate to McKinnon’s misconduct as to be shocking to one’s sense of fairness and dismissed his appeal.
Significantly, the court held that the charge of incompetence based on McKinnon’s excessive absences was supported by substantial evidence in the record notwithstanding the fact that the validity of the reasons for his absences was not contested by the district.
Apparently the court decided that the district’s failure to challenge the reasons tendered by McKinnon to excuse his excessive absences did not have any adverse impact on the probative value of such evidence for the purposes of finding him guilty of such charges nor did this form any basis for mitigating the penalty imposed by the district.
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McKinnon v North Bellmore UFSD, 273 AD2d 240
According the Appellate Division, Second Department, dismissing an employee who is guilty of excessive absence is consistent with the Pell standard (Pell v Board of Education, 34 NY2d 222).
The North Bellmore Union Free School district dismissed Hugh McKinnon, a teacher, after he had been found guilty of charges of (1) failing to comply with the district has established call-in procedure to report his absences and (2) incompetence based on his excessive absences.
Finding that there was substantial evidence in the record to support the findings that McKinnon was guilty of the charges filed against him, the court said that it did not find that imposing a penalty of dismissal so disproportionate to McKinnon’s misconduct as to be shocking to one’s sense of fairness and dismissed his appeal.
Significantly, the court held that the charge of incompetence based on McKinnon’s excessive absences was supported by substantial evidence in the record notwithstanding the fact that the validity of the reasons for his absences was not contested by the district.
Apparently the court decided that the district’s failure to challenge the reasons tendered by McKinnon to excuse his excessive absences did not have any adverse impact on the probative value of such evidence for the purposes of finding him guilty of such charges nor did this form any basis for mitigating the penalty imposed by the district.
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Exhaustion of administrative remedies a condition precedent to seeking judicial relief
Exhaustion of administrative remedies a condition precedent to seeking judicial relief
Dobrin v NYC PBA, Inc., Supreme Court, New York County, [Not selected for publication in the Official Reports]
It is clear that courts, as a general rule, will not consider lawsuits filed by public employees protesting some administrative determination unless the individual has exhausted his or her administrative remedies.*
The major exception to this rule: any attempt to exhaust the available administrative remedy would constitute an exercise in futility. Typically, the courts apply this exception when it is decided that the administrative decision is a foregone conclusion.
As the Dobrin case demonstrates, the same general rule applies in lawsuits filed by an individual against his or her union.
Dobrin, a New York City police officer, apparently had sexual intercourse with a woman in the backseat of his car. The woman later filed a complaint alleging that Dobrin had raped her.
A Grand Jury declined to indict Dobrin. Dobrin, however, was also served with administrative disciplinary charges by the New York City Police Department, found guilty and dismissed from his position.*
Dobrin was a member of the New York City Patrolmen’s Benevolent Association [PBA] at the time the disciplinary hearing was held.
Dobrin complained that although the PBA was supposed to provide legal counsel to its members in such situation, it failed to do so in his case. This, he argued, constituted a breach of contract because PBA failed to supply an attorney to represent him in defending him in the disciplinary action.
Although Dobrin alleged that the PBA wrongfully, negligently, and improperly denied him counsel, State Supreme Court Justice Ira Gammerman pointed out that before Dobrin could bring such a claim, he was required to exhaust the administrative remedies available to him.
As Dobrin had not made any attempt to utilize the appeal procedures available to him under the Constitution and By-Laws of the PBA and the New York City Collective Bargaining Law, Judge Gammerman dismissed his petition.
In the words of the court, [a]lthough, [Dobrin] was allegedly denied representation, he elected not to utilize the available [PBA] appeal procedures. Instead, he brought this action. His failure to exhaust the administrative remedies available to him mandates dismissal of his complaint.
Judge Gammerman commented that the PBA’s By-Laws set out a procedure for a member to appeal a decision by the PBA denying or curtailing a request for legal assistance. In addition, said the court, the City’s Collective Bargaining Law established a Board of Collective Bargaining and gives the Board exclusive jurisdiction to prevent and remedy improper public employer and public employee organization practices.
* The courts will reject a law suit if the party filing the action failed to exhaust his or her administrative remedies and such an effort would not constitute "an exercise in futility" such as its finding that the administrative decision would be "a foregone conclusion."
** See Dobrin v. Safir, 272 A.D.2d 134, in which the Appellate Division sustained Dobrin’s termination.
Dobrin v NYC PBA, Inc., Supreme Court, New York County, [Not selected for publication in the Official Reports]
It is clear that courts, as a general rule, will not consider lawsuits filed by public employees protesting some administrative determination unless the individual has exhausted his or her administrative remedies.*
The major exception to this rule: any attempt to exhaust the available administrative remedy would constitute an exercise in futility. Typically, the courts apply this exception when it is decided that the administrative decision is a foregone conclusion.
As the Dobrin case demonstrates, the same general rule applies in lawsuits filed by an individual against his or her union.
Dobrin, a New York City police officer, apparently had sexual intercourse with a woman in the backseat of his car. The woman later filed a complaint alleging that Dobrin had raped her.
A Grand Jury declined to indict Dobrin. Dobrin, however, was also served with administrative disciplinary charges by the New York City Police Department, found guilty and dismissed from his position.*
Dobrin was a member of the New York City Patrolmen’s Benevolent Association [PBA] at the time the disciplinary hearing was held.
Dobrin complained that although the PBA was supposed to provide legal counsel to its members in such situation, it failed to do so in his case. This, he argued, constituted a breach of contract because PBA failed to supply an attorney to represent him in defending him in the disciplinary action.
Although Dobrin alleged that the PBA wrongfully, negligently, and improperly denied him counsel, State Supreme Court Justice Ira Gammerman pointed out that before Dobrin could bring such a claim, he was required to exhaust the administrative remedies available to him.
As Dobrin had not made any attempt to utilize the appeal procedures available to him under the Constitution and By-Laws of the PBA and the New York City Collective Bargaining Law, Judge Gammerman dismissed his petition.
In the words of the court, [a]lthough, [Dobrin] was allegedly denied representation, he elected not to utilize the available [PBA] appeal procedures. Instead, he brought this action. His failure to exhaust the administrative remedies available to him mandates dismissal of his complaint.
Judge Gammerman commented that the PBA’s By-Laws set out a procedure for a member to appeal a decision by the PBA denying or curtailing a request for legal assistance. In addition, said the court, the City’s Collective Bargaining Law established a Board of Collective Bargaining and gives the Board exclusive jurisdiction to prevent and remedy improper public employer and public employee organization practices.
* The courts will reject a law suit if the party filing the action failed to exhaust his or her administrative remedies and such an effort would not constitute "an exercise in futility" such as its finding that the administrative decision would be "a foregone conclusion."
** See Dobrin v. Safir, 272 A.D.2d 134, in which the Appellate Division sustained Dobrin’s termination.
February 10, 2011
Compensation paid to a member of public retirement system by a private entity not credited in determining the member's Final Average Salary
Compensation paid to a member of public retirement system by a private entity not credited in determining the member's Final Average Salary
Matter of Andrews v New York State Teachers' Retirement Sys., 2011 NY Slip Op 00132, Appellate Division, Third Department
Donald Andrews joined the New York State Teachers’ Retirement System [NYSTRS] in 1967. He retired in 2005 while serving as Superintendent of Schools for the Wallkill Central School District.
Andrews had also “separately served on a part-time basis” from 1986 until 2005 as the chairperson of the Mid Hudson Athletic League (MHAL). MHAL is voluntary athletic association of public and private schools and is not a participating employer in NYSTRS although it operates under a Cooperative Services Agreement of the Ulster Board of Cooperative Educational Services (BOCES). The BOCES is a participating employer in NYSTRS.
When he filed his retirement application, Andrews sought to include the compensation he earned while working for MHAL included in determining his "final average salary" for the purposes of determining his retirement allowance. NYSTRS, however, determined that the compensation Andrews had earned as MHAL's chairperson could not be included in determining his final average salary.
Andrews then filed an Article 78 petition challenged NYSTRS’ decision. Supreme Court dismissed the petition, sustaining NYSTRS’ decision and Andrews appealed.
Essentially Andrews contended that his status and services as a MHAL's chairperson should have been deemed to have been performed as a BOCES employee.
The Appellate Division said that “rather than merely looking to the titles used during an employment relationship,” it must look to the actual conduct of the parties to determine if an employer-employee relationship existed.
The court found that there was a rational basis NYSTRS determining that Andrews was not a part-time employee of BOCES during the relevant period for the following reasons:
1. MHAL's association with BOCES was as a separate entity with its own constitution, bylaws and regulations.
2. BOCES did not certify that Andrews was a BOCES employee to NYSTRS during the period he served as MHAL's chairperson, although though it was required to so certify all its NYSTRS member- employees pursuant to Education Law §520(4).
3. Andrews was employed as a school superintendent while he served as MHAL's chairperson and BOCES's rules for Cooperative Services Agreements provide that "[a] person may not be employed by both a BOCES and a school district for the same contract period."
4. Andrews’ employment contracts with Wallkill Central School District provided that while it would pay him for his work as chairperson of MHAL, MHAL would ultimately bear the responsibility of reimbursing the school district for those wages.
Consequently, said the Appellate Division, NYSTRS’ determination that Andrews was employed by MHAL was not irrational, despite the evidence to the contrary that he presented.
In Jensen-Dooling v New York State Teachers' Retirement System, 68 AD3d 1264, and in Blais v New York State Teachers' Retirement System, 68 AD3d 1266, the Appellate Division ruled that individuals must be employed by a public employer to claim member service credit in a New York State public retirement system.
Both of these actions involved the same basic issue: the denial of member service credit in the New York State Teachers’ Retirement System claimed by Jensen-Dooling and by Blais based on their employment by an entity named “Project Lead The Way”, a private, not-for-profit corporation performing services for school districts pursuant to contracts.*
In a similar type of situation, the Appellate Division held that an individual employed by a private entity and paid with funds provided by the City of New York is not “paid by the City” for the purpose of membership in the New York City Employees Retirement System [Matter of Ivan v New York City Dept. of Health & Mental Hygiene, 63 AD3d 572].
The court explained that Richard Ivan worked for a private corporation under contract with New York City Department. of Health & Mental Hygiene. Although Ivan was paid with funds provided by the City, he was not "paid for by the city" as that term is defined in the Administrative Code of City of NY §13-101[3][a].**
* The Jensen-Dooling and Blais decisions are summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2009/12/individual-must-be-employed-by-public.html
** The Ivan decision is summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2010/03/individual-employed-by-private-entity.html
The text of the Andrews decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00132.htm
Matter of Andrews v New York State Teachers' Retirement Sys., 2011 NY Slip Op 00132, Appellate Division, Third Department
Donald Andrews joined the New York State Teachers’ Retirement System [NYSTRS] in 1967. He retired in 2005 while serving as Superintendent of Schools for the Wallkill Central School District.
Andrews had also “separately served on a part-time basis” from 1986 until 2005 as the chairperson of the Mid Hudson Athletic League (MHAL). MHAL is voluntary athletic association of public and private schools and is not a participating employer in NYSTRS although it operates under a Cooperative Services Agreement of the Ulster Board of Cooperative Educational Services (BOCES). The BOCES is a participating employer in NYSTRS.
When he filed his retirement application, Andrews sought to include the compensation he earned while working for MHAL included in determining his "final average salary" for the purposes of determining his retirement allowance. NYSTRS, however, determined that the compensation Andrews had earned as MHAL's chairperson could not be included in determining his final average salary.
Andrews then filed an Article 78 petition challenged NYSTRS’ decision. Supreme Court dismissed the petition, sustaining NYSTRS’ decision and Andrews appealed.
Essentially Andrews contended that his status and services as a MHAL's chairperson should have been deemed to have been performed as a BOCES employee.
The Appellate Division said that “rather than merely looking to the titles used during an employment relationship,” it must look to the actual conduct of the parties to determine if an employer-employee relationship existed.
The court found that there was a rational basis NYSTRS determining that Andrews was not a part-time employee of BOCES during the relevant period for the following reasons:
1. MHAL's association with BOCES was as a separate entity with its own constitution, bylaws and regulations.
2. BOCES did not certify that Andrews was a BOCES employee to NYSTRS during the period he served as MHAL's chairperson, although though it was required to so certify all its NYSTRS member- employees pursuant to Education Law §520(4).
3. Andrews was employed as a school superintendent while he served as MHAL's chairperson and BOCES's rules for Cooperative Services Agreements provide that "[a] person may not be employed by both a BOCES and a school district for the same contract period."
4. Andrews’ employment contracts with Wallkill Central School District provided that while it would pay him for his work as chairperson of MHAL, MHAL would ultimately bear the responsibility of reimbursing the school district for those wages.
Consequently, said the Appellate Division, NYSTRS’ determination that Andrews was employed by MHAL was not irrational, despite the evidence to the contrary that he presented.
In Jensen-Dooling v New York State Teachers' Retirement System, 68 AD3d 1264, and in Blais v New York State Teachers' Retirement System, 68 AD3d 1266, the Appellate Division ruled that individuals must be employed by a public employer to claim member service credit in a New York State public retirement system.
Both of these actions involved the same basic issue: the denial of member service credit in the New York State Teachers’ Retirement System claimed by Jensen-Dooling and by Blais based on their employment by an entity named “Project Lead The Way”, a private, not-for-profit corporation performing services for school districts pursuant to contracts.*
In a similar type of situation, the Appellate Division held that an individual employed by a private entity and paid with funds provided by the City of New York is not “paid by the City” for the purpose of membership in the New York City Employees Retirement System [Matter of Ivan v New York City Dept. of Health & Mental Hygiene, 63 AD3d 572].
The court explained that Richard Ivan worked for a private corporation under contract with New York City Department. of Health & Mental Hygiene. Although Ivan was paid with funds provided by the City, he was not "paid for by the city" as that term is defined in the Administrative Code of City of NY §13-101[3][a].**
* The Jensen-Dooling and Blais decisions are summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2009/12/individual-must-be-employed-by-public.html
** The Ivan decision is summarized by NYPPL at: http://publicpersonnellaw.blogspot.com/2010/03/individual-employed-by-private-entity.html
The text of the Andrews decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00132.htm
Statute of limitations not stayed when pursuing another remedy
Statute of limitations not stayed when pursuing another remedy
Levine v Board of Education, 272 AD2d 328
Sometimes an individual will file a grievance in accordance with the grievance procedure set out in a collective bargaining agreement rather than immediately initiate a lawsuit on the assumption that he or she can file the lawsuit later.
The Levine case is another example of the difficulties an individual may encounter if he or she does not take the steps necessary to protect his or her right to litigate the issue.
The New York City Board of Education terminated Martin Levine from his position as laboratory specialist. When he later attempted to challenge his dismissal by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules, he found that he was time barred.
Levine’s problem: he had filed a contract grievance disputing his termination under the assumption that filing a grievance would stop the running of the Statute of Limitations for the purposes of his filing an Article 78 petition until the conclusion of the grievance procedure and the arbitrator issued a final determination.
Levine’s assumption proved to be incorrect, as the Appellate Division quickly pointed out.
Affirming the dismissal of his petition by State Supreme Court William J. Garry as untimely, the Appellate Division set out the following factors as basic to individual litigating an issue initially submitted for adjudication under a grievance procedure:
1. An Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding.
2. Where, as in Levin’s case, a review of an administrative decision is sought, the determination, for the purposes of bringing a timely Article 78, becomes final and binding on the date that the termination of individual’s employment becomes effective.
3. The invocation of an administrative grievance procedure in accordance with a Taylor Law agreement does not stop the running of the Statute of Limitations.
Levine could probably have avoided this problem by filing an Article 78 petition within the four-month Statute of Limitations period even though a final determination on his grievance had not yet been made.
Levine v Board of Education, 272 AD2d 328
Sometimes an individual will file a grievance in accordance with the grievance procedure set out in a collective bargaining agreement rather than immediately initiate a lawsuit on the assumption that he or she can file the lawsuit later.
The Levine case is another example of the difficulties an individual may encounter if he or she does not take the steps necessary to protect his or her right to litigate the issue.
The New York City Board of Education terminated Martin Levine from his position as laboratory specialist. When he later attempted to challenge his dismissal by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules, he found that he was time barred.
Levine’s problem: he had filed a contract grievance disputing his termination under the assumption that filing a grievance would stop the running of the Statute of Limitations for the purposes of his filing an Article 78 petition until the conclusion of the grievance procedure and the arbitrator issued a final determination.
Levine’s assumption proved to be incorrect, as the Appellate Division quickly pointed out.
Affirming the dismissal of his petition by State Supreme Court William J. Garry as untimely, the Appellate Division set out the following factors as basic to individual litigating an issue initially submitted for adjudication under a grievance procedure:
1. An Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding.
2. Where, as in Levin’s case, a review of an administrative decision is sought, the determination, for the purposes of bringing a timely Article 78, becomes final and binding on the date that the termination of individual’s employment becomes effective.
3. The invocation of an administrative grievance procedure in accordance with a Taylor Law agreement does not stop the running of the Statute of Limitations.
Levine could probably have avoided this problem by filing an Article 78 petition within the four-month Statute of Limitations period even though a final determination on his grievance had not yet been made.
Standing to appeal an arbitrator's determination
Standing to appeal an arbitrator's determination
Delgado v NYC Board of Education, 272 AD2d 207, Leave to appeal denied, 95 NY2d 768
The basic issue in the Delgado case concerns the right of an individual to bring a lawsuit involving the same issue[s] considered by an arbitrator in resolving a grievance filed in accordance with procedures negotiated under the Taylor Law.
John Delgado, an employee of the Board of Education Office of School Food and Nutritional Services, was terminated from his position. His grievance protesting his dismissal was denied by an arbitrator.
In an effort to vacate or modify an arbitration decision rejecting his grievance challenging his termination of his employment Delgado filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the arbitrator’s award.
The Board of Education opposed Delgado’s motion. The Appellate Division affirmed a lower court ruling summarily dismissing Delgado’s petition.
The court’s rationale: Delgado lacks standing to bring the instant petition since he was represented by the union at the arbitration.
Significantly, the Appellate Division said that although the issue of standing was first raised by the Board of Education in its appeal, it presented a question of law -- did the court have jurisdiction to adjudicate Delgado’s petition -- that could not have been avoided had it been raised before the lower court. Accordingly, it was proper to raise, and the court to consider, the question of jurisdiction at the appellate level.
In other words, if Delgado did not have standing to bring the Article 75 action, the courts may not consider his petition in the first instance and that issue -- jurisdiction -- may be raised by a party at any stage of the proceeding.
Clearly, had the union filed an Article 75 petition challenging the arbitrator’s determination, it would have found to have standing.
It is generally held that unless the Taylor Law agreement includes an uncommon provision -- allowing an employee himself or herself to demand arbitration of his or her grievance independent of the union -- the right to demand that a grievance be submitted to arbitration is vested exclusively in the employee organization.*
Accordingly, as a general rule, only the union has to right to challenge an adverse determination by the arbitrator by filing an Article 75 petition seeking to vacate or modify the award.
* Such a limitation is tempered, however, and the individual is typically permitted go forward with the arbitration in the event he or she can demonstrate that the union failed in “its duty of fair representation.”
Delgado v NYC Board of Education, 272 AD2d 207, Leave to appeal denied, 95 NY2d 768
The basic issue in the Delgado case concerns the right of an individual to bring a lawsuit involving the same issue[s] considered by an arbitrator in resolving a grievance filed in accordance with procedures negotiated under the Taylor Law.
John Delgado, an employee of the Board of Education Office of School Food and Nutritional Services, was terminated from his position. His grievance protesting his dismissal was denied by an arbitrator.
In an effort to vacate or modify an arbitration decision rejecting his grievance challenging his termination of his employment Delgado filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the arbitrator’s award.
The Board of Education opposed Delgado’s motion. The Appellate Division affirmed a lower court ruling summarily dismissing Delgado’s petition.
The court’s rationale: Delgado lacks standing to bring the instant petition since he was represented by the union at the arbitration.
Significantly, the Appellate Division said that although the issue of standing was first raised by the Board of Education in its appeal, it presented a question of law -- did the court have jurisdiction to adjudicate Delgado’s petition -- that could not have been avoided had it been raised before the lower court. Accordingly, it was proper to raise, and the court to consider, the question of jurisdiction at the appellate level.
In other words, if Delgado did not have standing to bring the Article 75 action, the courts may not consider his petition in the first instance and that issue -- jurisdiction -- may be raised by a party at any stage of the proceeding.
Clearly, had the union filed an Article 75 petition challenging the arbitrator’s determination, it would have found to have standing.
It is generally held that unless the Taylor Law agreement includes an uncommon provision -- allowing an employee himself or herself to demand arbitration of his or her grievance independent of the union -- the right to demand that a grievance be submitted to arbitration is vested exclusively in the employee organization.*
Accordingly, as a general rule, only the union has to right to challenge an adverse determination by the arbitrator by filing an Article 75 petition seeking to vacate or modify the award.
* Such a limitation is tempered, however, and the individual is typically permitted go forward with the arbitration in the event he or she can demonstrate that the union failed in “its duty of fair representation.”
February 09, 2011
The timeliness of the filing of an appointee’s Oath of Office critical to his or her continuation in the position
The timeliness of the filing of an appointee’s Oath of Office critical to his or her continuation in the position
Matter of Scro v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 30182(U), Sup Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]
Anthony Scro filed an Article 78 proceeding seeking to annul the decision of Jordan-Elbridge Central School District Board of Education terminating his employment as “Treasurer” of the School District as a result of his alleged failure to file his Oath of Office in timely fashion.*
The Board moved to dismiss Scro’s petition, contending that its action was consistent with law in that Scro had failed to file his Oath of Office within the time period permitted by Public Officers Law §30.1.h and thus he had been removed from his position “ by operation of law.”
Public Officers Law §30.1.h, in pertinent part, provides that a public office “shall be vacant upon” … the appointee’s “refusal or neglect to file his official oath or undertaking, if one is required … within thirty days after notice of his appointment, or within thirty days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within thirty days after notice to him in pursuance of law, that such renewal undertaking is required.”
According to the decision, Scro was initially appointed to the statutory office of School District Treasurer, effective October 31, 2007. He was thereafter reappointed at the beginning of the following three fiscal years at the School Board’s annual reorganization meetings in July, each such reappointment being to a new twelve month term as Treasurer.
Scro was last appointed to that position by the Board to serve a one-year term effective July 1, 2010 and had signed his Oath of Office on August 9, 2010.
The Board alleged that Scro’s term began on July 1, 2010 and the Board had reappointed him on July 7, 2010. Accordingly, said the Board, the latest possible date for Scro to file his Oath of Office within the time period permitted by §30.1.h was Friday, August 6, 2010.
Observing that “The requirement for the taking and filing of an Oath of Office is not an obscure requirement, but instead is fundamental and of significant import …” Judge Greewood said that the requirement is not waivable and is strictly construed and that had Scro failed to file his Oath of Office within the requisite thirty days as required by §30.1.h, the appointment would be vitiated and the office would be deemed vacant.
In this instance, said the court, the timeliness of Scro’s execution of his Oath of Office is critical. Was it filed “within thirty days after notice of his appointment, or within thirty days after the commencement of such term...”, as required by statute?
Judge Greenwood said that “There is no question that [Scro’s] term commenced on July 1, 2010 and the appointment did not take place until the School Board’s reorganizational meeting of July 7, 2010” nor was there any question that Scro had not executed his Oath of Office within thirty days of either of those dates.
However, observed Judge Greenwood, §2121(5) of the Education Law provides that it is the duty of the school district clerk to “give notice immediately to every person elected or appointed to the office of his election or appointment; and also to report to the town clerk of the town in which the school house of his district is situated, the names and post-office addresses of such officers, under a penalty of five dollars for neglect in each instance.”
As the Legislature specifically required notice to an officer and not simply action of the Board.
Judge Greenwood said that Jeanette Brock, the School District Clerk, was obligated to discharge her statutory duty under the Education Law "by providing notice to each officer of his [or her] appointment and this constituted a condition precedent to the officers’ execution of the Oath."
Finding that Brock had advised all officers required to sign the Oath of Office form “within three to four business days of the reorganization meeting”, and viewed in the light most favorable to the Board, Brock provided the Scro with notice on either July 12 or July 13, and that Scro had signed his Oath of Office on August 9, Judge Greenwood ruled that Scro had timely executed his Oath of Office and thus he may not be removed during the term of his employment except through petition to the Commissioner of Education.
Holding that the Board’s action in terminating Scro’s employment violated his statutory rights, Judge Greenwood declared the Board’s action “null and void and ultra vires”** and ordered Scro’s immediately reinstatement to his office as District Treasurer “with all back pay and associated benefits he would have been entitled to had the improper termination not occurred.”
* N.B. The failure to file a timely oath cannot be cured by subsequently filing the required oath [Opinion of the Attorney General, 86-41, Informal].
** Ultra vires -- beyond the power of the body so acting.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2011/2011_30182.pdf
Matter of Scro v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 30182(U), Sup Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]
Anthony Scro filed an Article 78 proceeding seeking to annul the decision of Jordan-Elbridge Central School District Board of Education terminating his employment as “Treasurer” of the School District as a result of his alleged failure to file his Oath of Office in timely fashion.*
The Board moved to dismiss Scro’s petition, contending that its action was consistent with law in that Scro had failed to file his Oath of Office within the time period permitted by Public Officers Law §30.1.h and thus he had been removed from his position “ by operation of law.”
Public Officers Law §30.1.h, in pertinent part, provides that a public office “shall be vacant upon” … the appointee’s “refusal or neglect to file his official oath or undertaking, if one is required … within thirty days after notice of his appointment, or within thirty days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within thirty days after notice to him in pursuance of law, that such renewal undertaking is required.”
According to the decision, Scro was initially appointed to the statutory office of School District Treasurer, effective October 31, 2007. He was thereafter reappointed at the beginning of the following three fiscal years at the School Board’s annual reorganization meetings in July, each such reappointment being to a new twelve month term as Treasurer.
Scro was last appointed to that position by the Board to serve a one-year term effective July 1, 2010 and had signed his Oath of Office on August 9, 2010.
The Board alleged that Scro’s term began on July 1, 2010 and the Board had reappointed him on July 7, 2010. Accordingly, said the Board, the latest possible date for Scro to file his Oath of Office within the time period permitted by §30.1.h was Friday, August 6, 2010.
Observing that “The requirement for the taking and filing of an Oath of Office is not an obscure requirement, but instead is fundamental and of significant import …” Judge Greewood said that the requirement is not waivable and is strictly construed and that had Scro failed to file his Oath of Office within the requisite thirty days as required by §30.1.h, the appointment would be vitiated and the office would be deemed vacant.
In this instance, said the court, the timeliness of Scro’s execution of his Oath of Office is critical. Was it filed “within thirty days after notice of his appointment, or within thirty days after the commencement of such term...”, as required by statute?
Judge Greenwood said that “There is no question that [Scro’s] term commenced on July 1, 2010 and the appointment did not take place until the School Board’s reorganizational meeting of July 7, 2010” nor was there any question that Scro had not executed his Oath of Office within thirty days of either of those dates.
However, observed Judge Greenwood, §2121(5) of the Education Law provides that it is the duty of the school district clerk to “give notice immediately to every person elected or appointed to the office of his election or appointment; and also to report to the town clerk of the town in which the school house of his district is situated, the names and post-office addresses of such officers, under a penalty of five dollars for neglect in each instance.”
As the Legislature specifically required notice to an officer and not simply action of the Board.
Judge Greenwood said that Jeanette Brock, the School District Clerk, was obligated to discharge her statutory duty under the Education Law "by providing notice to each officer of his [or her] appointment and this constituted a condition precedent to the officers’ execution of the Oath."
Finding that Brock had advised all officers required to sign the Oath of Office form “within three to four business days of the reorganization meeting”, and viewed in the light most favorable to the Board, Brock provided the Scro with notice on either July 12 or July 13, and that Scro had signed his Oath of Office on August 9, Judge Greenwood ruled that Scro had timely executed his Oath of Office and thus he may not be removed during the term of his employment except through petition to the Commissioner of Education.
Holding that the Board’s action in terminating Scro’s employment violated his statutory rights, Judge Greenwood declared the Board’s action “null and void and ultra vires”** and ordered Scro’s immediately reinstatement to his office as District Treasurer “with all back pay and associated benefits he would have been entitled to had the improper termination not occurred.”
* N.B. The failure to file a timely oath cannot be cured by subsequently filing the required oath [Opinion of the Attorney General, 86-41, Informal].
** Ultra vires -- beyond the power of the body so acting.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2011/2011_30182.pdf
Accidental disability retirement - determining proximate cause
Accidental disability retirement - determining proximate cause
Sepanara v NYS Employees’ Retirement System, 272 AD2d 830
City of Johnstown police officer Michael C. Sepanara, claiming that he was permanently disabled as a result of a line-of-duty injury, filled applications for accidental and performance of duty disability retirement benefits.
According to the facts set out in the Appellate Division’s decision, Sepanara was on duty when he stumbled and fell on a broken piece of asphalt in an eroding parking lot, allegedly sustaining neck, wrist and back injuries. Sepanara testified at the hearing held by the Retirement System and he and the System elected to rely upon medical records presented at the hearing.
The Retirement System conceded that Sepanara was disabled -- but concluded that neither his slipping or falling in the parking lot was the cause of his disability. Essentially the System decided that Sepanara’s disability was the sole result of a preexisting degenerative back condition. The Comptroller agreed and denied Sepanara’s applications for disability retirement benefits. Sepanara sued, seeking to overturn the Comptroller’s determination.
The Appellate Division affirmed the Comptroller’s ruling, holding that Sepanara failed to sustain his burden of proving that his permanent disability was the natural and proximate result of the April 1995 accident.
The court pointed out that the relevant medical records indicated that Sepanara began experiencing neck and shoulder pain in the 1980s and was diagnosed with degenerative cervical abnormalities and arthritis in his neck as early as 1988.
In addition, the System’s medical experts, after examining Sepanara and reviewing his medical history, concluded that his chronic degenerative disc disease and arthritis of the cervical spine were the sole cause of [his] disability and that these conditions were completely unrelated to the April 1995 accident nor were they aggravated by that accident.
While there was medical evidence that could support a finding that Sepanara’s April 1995 accident was the proximate cause of his disability, it was within the Comptroller’s authority to evaluate the conflicting medical opinions and to resolve the dispute by according greater weight to the considered opinions offered by [the System’s] experts than to those offered by the other experts.
Sepanara v NYS Employees’ Retirement System, 272 AD2d 830
City of Johnstown police officer Michael C. Sepanara, claiming that he was permanently disabled as a result of a line-of-duty injury, filled applications for accidental and performance of duty disability retirement benefits.
According to the facts set out in the Appellate Division’s decision, Sepanara was on duty when he stumbled and fell on a broken piece of asphalt in an eroding parking lot, allegedly sustaining neck, wrist and back injuries. Sepanara testified at the hearing held by the Retirement System and he and the System elected to rely upon medical records presented at the hearing.
The Retirement System conceded that Sepanara was disabled -- but concluded that neither his slipping or falling in the parking lot was the cause of his disability. Essentially the System decided that Sepanara’s disability was the sole result of a preexisting degenerative back condition. The Comptroller agreed and denied Sepanara’s applications for disability retirement benefits. Sepanara sued, seeking to overturn the Comptroller’s determination.
The Appellate Division affirmed the Comptroller’s ruling, holding that Sepanara failed to sustain his burden of proving that his permanent disability was the natural and proximate result of the April 1995 accident.
The court pointed out that the relevant medical records indicated that Sepanara began experiencing neck and shoulder pain in the 1980s and was diagnosed with degenerative cervical abnormalities and arthritis in his neck as early as 1988.
In addition, the System’s medical experts, after examining Sepanara and reviewing his medical history, concluded that his chronic degenerative disc disease and arthritis of the cervical spine were the sole cause of [his] disability and that these conditions were completely unrelated to the April 1995 accident nor were they aggravated by that accident.
While there was medical evidence that could support a finding that Sepanara’s April 1995 accident was the proximate cause of his disability, it was within the Comptroller’s authority to evaluate the conflicting medical opinions and to resolve the dispute by according greater weight to the considered opinions offered by [the System’s] experts than to those offered by the other experts.
Using the word “should” in a policy memorandum’s means it is not mandatory
Using the word “should” in a policy memorandum’s means it is not mandatory
Port Wash. Teachers' Ass'n v. Board of Educ. of the Port Wash. Union Free Sch. Dist., No. 06-0708-CV 67, (USCA, 2d Cir.)
The superintendent of the Port Washington Union Free School District, Dr. Geoffrey N. Gordon, issued a policy memorandum advising members of the school district’s staff of the actions they should take in the event they learn that a student is pregnant.
The teachers' union sued, but a federal district court judge, Judge Thomas C. Platt, dismissed the petition. Judge Platt held that the action could not be maintained because there was (1) “a lack of standing,” (2) the claims were not ripe, and (3) the complaint failed to state a viable claim.
The Circuit Court of Appeals affirmed Judge Platt’s ruling.
Dr. Gordon’s “Policy Memorandum” setting out the District’s policy stated that that a student's communications to one of them that a student is pregnant “is not a communication protected by a legal privilege, but rather may trigger legal reporting obligations.”
The policy indicated that a staff member who becomes aware of a student pregnancy should report it immediately to the school social worker. The policy also addressed the action that staff members should take in cases where statutory rape or incest was suspected. It also stated that the parents of the student should be advised of the pregnancy by school personnel if the student refused to do so.
The court said that the union offer little more than conclusory statements to support its assertion that social workers risk civil liability and their professional license by complying with the Policy Memorandum or that staff members were in jeopardy of disciplinary action if they did not comply with the policy.
In affirming the dismissal of the complaint by the district court judge, the Circuit Court said that “Because the plaintiffs have not established that civil liability or professional discipline is actual or imminent, the theoretical possibility that either might occur in the future does not amount to injury in fact.”
In addition, the court noted that the Policy “repeatedly uses the word ‘should’ in setting forth the notification procedures, thus easily supporting the understanding that adherence to them was not mandatory, by law or otherwise.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/notification-of-pregnancy-to-parents-of.html
Port Wash. Teachers' Ass'n v. Board of Educ. of the Port Wash. Union Free Sch. Dist., No. 06-0708-CV 67, (USCA, 2d Cir.)
The superintendent of the Port Washington Union Free School District, Dr. Geoffrey N. Gordon, issued a policy memorandum advising members of the school district’s staff of the actions they should take in the event they learn that a student is pregnant.
The teachers' union sued, but a federal district court judge, Judge Thomas C. Platt, dismissed the petition. Judge Platt held that the action could not be maintained because there was (1) “a lack of standing,” (2) the claims were not ripe, and (3) the complaint failed to state a viable claim.
The Circuit Court of Appeals affirmed Judge Platt’s ruling.
Dr. Gordon’s “Policy Memorandum” setting out the District’s policy stated that that a student's communications to one of them that a student is pregnant “is not a communication protected by a legal privilege, but rather may trigger legal reporting obligations.”
The policy indicated that a staff member who becomes aware of a student pregnancy should report it immediately to the school social worker. The policy also addressed the action that staff members should take in cases where statutory rape or incest was suspected. It also stated that the parents of the student should be advised of the pregnancy by school personnel if the student refused to do so.
The court said that the union offer little more than conclusory statements to support its assertion that social workers risk civil liability and their professional license by complying with the Policy Memorandum or that staff members were in jeopardy of disciplinary action if they did not comply with the policy.
In affirming the dismissal of the complaint by the district court judge, the Circuit Court said that “Because the plaintiffs have not established that civil liability or professional discipline is actual or imminent, the theoretical possibility that either might occur in the future does not amount to injury in fact.”
In addition, the court noted that the Policy “repeatedly uses the word ‘should’ in setting forth the notification procedures, thus easily supporting the understanding that adherence to them was not mandatory, by law or otherwise.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/notification-of-pregnancy-to-parents-of.html
February 08, 2011
Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other
Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other
Matter of Uddin v NYC/Human Resources Admin., 2011 NY Slip Op 00695, Appellate Division, Second Department
§76 of the Civil Service Law provides that an aggrieved employee may appeal a §75 administrative disciplinary determination by either:
1. Filing an application to the state or municipal commission having jurisdiction within twenty days after service of the written notice of the disciplinary determination; or
2. By filing a petition in accordance with the provisions of Article 78 of the Civil Practice Law and Rules [CPLR].
New York City Human Resources Administration sustained the disciplinary determination and the recommended penalty issued by an administrative law judge that found Jamal Uddin guilty of misconduct.
Uddin then filed a petition pursuant to CPLR Article 78 with Supreme Court, Kings County. The court, however, granted Human Resources’ motion to dismiss the petition, and dismissed the proceeding.
The Appellate Division sustained the lower court’s decision, noting that Uddin sought judicial review of a §75 disciplinary determination after seeking a review pursuant to Civil Service Law §76 before the New York City Civil Service Commission [NYCCSC], said he was barred from commencing the underlying CPLR Article 78 proceeding.*
The court then commented that “To the extent that this proceeding may also be considered a challenge to the determination of the NYCCSC,” Uddin failed to demonstrate that the NYCCSC's determination falls within a recognized exception to the statutory prohibition on judicial review of such by virtue of its being unconstitutional, violative of state law, or in excess of the NYCCSC's authority.
Accordingly, the Appellate Division ruled that judicial review of the NYCCSC's determination was precluded.
* §76.3, in pertinent part, provides that “The decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00695.htm
Matter of Uddin v NYC/Human Resources Admin., 2011 NY Slip Op 00695, Appellate Division, Second Department
§76 of the Civil Service Law provides that an aggrieved employee may appeal a §75 administrative disciplinary determination by either:
1. Filing an application to the state or municipal commission having jurisdiction within twenty days after service of the written notice of the disciplinary determination; or
2. By filing a petition in accordance with the provisions of Article 78 of the Civil Practice Law and Rules [CPLR].
New York City Human Resources Administration sustained the disciplinary determination and the recommended penalty issued by an administrative law judge that found Jamal Uddin guilty of misconduct.
Uddin then filed a petition pursuant to CPLR Article 78 with Supreme Court, Kings County. The court, however, granted Human Resources’ motion to dismiss the petition, and dismissed the proceeding.
The Appellate Division sustained the lower court’s decision, noting that Uddin sought judicial review of a §75 disciplinary determination after seeking a review pursuant to Civil Service Law §76 before the New York City Civil Service Commission [NYCCSC], said he was barred from commencing the underlying CPLR Article 78 proceeding.*
The court then commented that “To the extent that this proceeding may also be considered a challenge to the determination of the NYCCSC,” Uddin failed to demonstrate that the NYCCSC's determination falls within a recognized exception to the statutory prohibition on judicial review of such by virtue of its being unconstitutional, violative of state law, or in excess of the NYCCSC's authority.
Accordingly, the Appellate Division ruled that judicial review of the NYCCSC's determination was precluded.
* §76.3, in pertinent part, provides that “The decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00695.htm
Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals
Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals
Meagher v Safir, 272 AD2d 114
One of the issues in the Justin Meagher’s appeal from the disciplinary penalty imposed upon him by the New York City Commissioner of Police was that his punishment was the forfeiture of ten days of vacation while the penalty imposed on another officer involved in the same event was the loss of five days of vacation.*
Both officers, who were partners, were found guilty of using excessive force in making a particular arrest.
The Appellate Division held that the record provides no basis for imposing different penalties on the two police officers involved in this incident. Rather, said the court, the record indicated that appointing authority’s designee, the First Deputy Commissioner, improperly cited [Meagher’s] election to pursue an administrative trial as justification for the higher penalty.
The Appellate Division, concluding that the penalty imposed on Meagher was disproportionate to the offense. Rather than remand the case to the department for the imposition of a new penalty, the Appellate Division elected to exercise its discretion and changed the penalty to be imposed on Meagher to the loss of five days vacation.**
* In addition, the record indicates that the department discontinued its scholarship support for Meagher’s law school tuition as a result of his being found guilty of misconduct.
** Apparently, however, the court did not reinstate the Department’s scholarship support of Meagher’s law school tuition.
Meagher v Safir, 272 AD2d 114
One of the issues in the Justin Meagher’s appeal from the disciplinary penalty imposed upon him by the New York City Commissioner of Police was that his punishment was the forfeiture of ten days of vacation while the penalty imposed on another officer involved in the same event was the loss of five days of vacation.*
Both officers, who were partners, were found guilty of using excessive force in making a particular arrest.
The Appellate Division held that the record provides no basis for imposing different penalties on the two police officers involved in this incident. Rather, said the court, the record indicated that appointing authority’s designee, the First Deputy Commissioner, improperly cited [Meagher’s] election to pursue an administrative trial as justification for the higher penalty.
The Appellate Division, concluding that the penalty imposed on Meagher was disproportionate to the offense. Rather than remand the case to the department for the imposition of a new penalty, the Appellate Division elected to exercise its discretion and changed the penalty to be imposed on Meagher to the loss of five days vacation.**
* In addition, the record indicates that the department discontinued its scholarship support for Meagher’s law school tuition as a result of his being found guilty of misconduct.
** Apparently, however, the court did not reinstate the Department’s scholarship support of Meagher’s law school tuition.
Taylor Law considerations concerning General Municipal Law Section 207-a/207-c
Taylor Law considerations concerning General Municipal Law Section 207-a/207-c
Barnes v Council 82, [David Monroe], Court of Appeals, 94 NY2d 719
Watertown v Watertown PBA, Court of Appeals, 95 NY2d 73
Local 2562, IAFF, AFL-CIO, v Cohoes, Court of Appeals, 94 NY2d 686
The Court of Appeals has handed down three rulings concerning issues involving collective bargaining under the Taylor Law as they relate to negotiating procedures to implement and administer General Municipal Law Sections 207-a and 207-c with respect to the approval, and continuation of, benefits pursuant to these provisions.
In the Watertown P.B.A. case, the Court considered the negotiability of Section 207-c issues under the Taylor Law. In Barnes, the court addressed matters concerning procedures dealing with reporting for light or full duty assignments in accordance with a negotiated procedure. In Cohoes, one of the significant issues concerned due process requirements.
The Watertown PBA case
Referring to its determination in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, the Court of Appeals said that the employer’s authority under Section 207-c to make initial determinations in these matters is not a mandatory subject of collective bargaining.
Is a demand to negotiate procedures for the administration of the provisions of Section 207-c following the initial determination by the employer a mandatory subject of collective bargaining for the purposes of the Taylor Law? Yes, such demands were mandatory subjects of collective bargaining, said the court, noting the strong and sweeping presumption in favor of mandatory bargaining.
The case arose when the Watertown Police Benevolent Association [PBA] proposed that the parties bargain about the procedures to be followed if an officer wishes to contest the city’s initial Section 207-c determination in contrast to bargaining the City’ s right to make the initial determination. PBA wanted to have disagreements with the City’s initial determination to final and binding arbitration pursuant PERB’s Voluntary Disputes Resolution Procedure.
When the City refused to negotiate the demand, PBA filed an unfair labor practice charge with PERB. PERB ruled that since Section 207-c provides no procedural framework for resolving disputes, and because eligibility determinations [under Section 207-c] clearly affect terms and conditions of employment, “a demand for a dispute resolution procedure ending in arbitration ... is mandatorily negotiable.”
The Court of Appeals agreed, concluding that “the arbitration sought by ... the PBA is not a matter which the Legislature has circumscribed from the State’s strong and sweeping policy of bargaining with regard to terms and conditions of employment.”
Citing Public Sector Labor and Employment Law [Lefkowitz, Osterman & Townley, published by the New York State Bar Association,], the Court of Appeals observed that “... bargaining is mandatory even for a subject treated by statute unless the statute clearly preempt[s] the entire subject matter or the demand to bargain diminish[es] or merely restate[s] the statutory benefits.” Unless, said the court, there is clear evidence that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining.
In addition to making the initial determination, Section 207-c gives the employer the exclusive right to appoint a physician to examine a sick or injured officer, to prescribe and provide medical or surgical treatment if indicated, and to issue an initial back-to-work order if the physician concludes that the officer is capable of performing regular or light duty. Accordingly, these areas are not are not mandatorily negotiable.
Nor is bargaining required with respect to an employer’s ability to issue an initial order that a police officer assume a light duty position or to ordering a disabled officer to submit to surgery or requiring the employee to sign a medical confidentiality waiver form concerning the officer’s medical condition related to his or her ability to perform the duties of the position as a condition of his or her receiving, or continuing to receive, Section 207-c benefits.
As to the nonmandatory negotiating subjects of collective bargaining identified by the court, it may be significant that the decision does not characterize them as prohibited subjects of negotiations. Accordingly, it would appear that these issues are permissive subjects of collective bargaining.
The Barnes Case
The Barnes case starts where Watertown stops. While Watertown concerns a negotiating demand, in Barnes the parties had already agreed to a Section 207-c Procedure. The issue before the court concerned the processing of disputes arising under the procedure -- specifically arbitrating the employer’s order directing an individual on Section 207-c leave to report for a light or full duty assignment.
There was no question that such a dispute could be arbitrated said the Court of Appeals, pointing to its recent ruling in Board of Education of Watertown City School District (93 NY2d 132).
In Watertown School District, the court ruled that arbitration is an available procedure for resolving personnel disputes in the public sector if the party demanding arbitration is able to satisfy two tests:
1. The claim was lawfully fit for arbitration, i.e., there was no public policy, statutory or constitutional restriction placing arbitration off-limits; and
2. The parties must have agreed to refer the particular subject matter of the dispute to arbitration.
While here arbitration ultimately would have available to David Monroe to resolve the dispute, the Court of Appeals decided that there was no short cut to the arbitrator: under the facts of this case, Monroe had to comply with the requirements set out in the Article XI of the Section 207-c Procedure agreed upon by the County and Council 82.
The court found that although the parties had agreed to arbitrate disputes concerning directing an individual to report for light duty, Monroe’s demand for arbitration was premature because he failed to comply with the administrative procedures to be followed in resolving such disputes.
The case arose after Schenectady County Sheriff William W. Barnes, relying on the County’s medical expert’s conclusion that David Monroe, a corrections officer on Section 207-c leave, could perform light duty work, directed him to report for light duty. Monroe objected to the directive, as did his union, Council 82, contending that Monroe’s personal physician had said he was unfit to perform light duty.
The County said that “the proper route for Mr. Monroe [to challenge its decision] is to file a step 3 grievance ... within ten days of [Monroe’s] receipt of the order to light duty, citing Article XI of its Section 207-c procedure.”
The Section 207-c Procedure was established pursuant to a Memorandum of Agreement between the County and Council 82 and provided for submitting an adverse step 3 grievance determination by the County to arbitration.
Instead of filing a step 3 grievance, pursuant to Article XI, Council 82 demanded arbitration in accordance with Article VI (B) (2) of the procedure, contending that the question of whether or not Monroe is fit for a light duty assignment should be determined by the arbitrator because, in contrast to the County’s physician’s finding, Monroe’s personal physician had determined that he was not fit for light duty. The County, on the other hand, argued that the issue had to be first submitted as a step 3 grievance. The County won a court order staying arbitration.
The Court of Appeals affirmed the lower court’s granting of the stay, pointing out that Monroe had failed to satisfy the second test it had set out in Watertown School District. Why? Because, said the court, there was no agreement to submit the dispute in question directly to arbitration and Monroe did not satisfy the conditions precedent under the 207-c procedure that would have allowed the issue to ultimately be submitted to arbitration.
Two provisions of the Procedure were involved. Article VI, Section (B)(2) of the procedure provided that where this is a conflict in medical opinions concerning the light duty assignment, ... the duty or duties in dispute cannot be assigned until such dispute is resolved. Such dispute over said duties shall be submitted directly to arbitration...
The second provision, relied upon by the County was Article XI. The County argued that Article VI (B) (2) applied only in instances of medical disagreements arise as to the ability of the individual to perform the specific work assignments upon the employee’s reporting for light duty.
In contrast, where the individual raises an objection to an order to report for light duty based on the individual’s claim that he or she is physically unable to return to duty regardless of the nature of the assignment, his or her objection must be processed in accordance with Article XI as a Step 3 grievance regarding such decision.
Essentially the County argued that Article VI(B)(2) applies in situations where there is no dispute as to the individual’s ability to perform light duty -- only the particular light duty proposed -- while Article XI applies where the employee’s physician states that the individual is unable to perform any light duty whatsoever.
Agreeing with Schenectady County’s argument, the Court of Appeals said that because the basic issue concerned a conflict of medical opinions as to Monroe’s ability to perform any light duty, the issue was to be resolved in accordance with Article XI of the procedure. As Monroe had not filed a Step 3 grievance, he did not satisfy a condition precedent for any arbitration under the terms of the Collective Bargaining Agreement. Accordingly, the Court of Appeals affirmed the stay of arbitration.
The Cohoes case
The physician for the City of Cohoes found that five of six firefighters on Section 207-a leave were qualified to perform light duty while the remaining firefighter was qualified to return to full duty.
Although given written orders to report for full duty or to perform light duty assignments, the six did not report as directed. The union objected to the report-for-duty orders on the ground that the members may not be ordered back to work without specification of the proposed duties and an opportunity to challenge the proposed return to work order at a due process hearing. In response, Cohoes discontinued their Section 207-a benefits.*
In addition to suing, the firefighters, through filed grievances under their collective bargaining agreement and ultimately demanded arbitration of their grievances before the State Public Employment Relations Board. The City obtained a stay of arbitration.
As to the firefighters’ claim that they were entitled to an evidentiary hearing on their medical ability to perform light duty assignments before an order to return could be issued, the Court of Appeals said that although an administrative hearing may ultimately be required before Section 207-a payments are terminated, recipients are not entitled to a hearing prior to the issuance of a report for light duty order. They become entitled to such a hearing only if they submit a contrary opinion from their personal physician.
In the words of the court, due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts.
As to the demand for arbitration, the Court of Appeals decided that the City was not required to arbitrate its orders to report for light duty assignments. Its rationale: as the collective bargaining agreement is entirely silent concerning the contractual rights provided to regular duty firefighters being available to firefighters on Section 207-a leave, the lack of an express provision in the negotiated agreement making it applicable to firefighters in 207-a leave status is fatal to any claim of a contractual right to arbitrate these claim.
Citing Chalachan v City of Binghamton, 55 NY2d 989, the court commented that apart from contractual entitlements, “[t]he collective bargaining agreement should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. Any additional benefits must be expressly provided for in the agreement.”
* In the course of litigating this case, the Appellate Division held that if an individual submitted medical documentation of their continued total disability, his or her Section 207-a benefits may not be discontinued prior to the employer’s holding a hearing (Matter of City of Cohoes, 258 AD2d 24). The Court of Appeals affirmed this aspect of the Appellate Division’s decision.
=====================
For additional information see General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar laws at: http://section207.blogspot.com/
========================
Barnes v Council 82, [David Monroe], Court of Appeals, 94 NY2d 719
Watertown v Watertown PBA, Court of Appeals, 95 NY2d 73
Local 2562, IAFF, AFL-CIO, v Cohoes, Court of Appeals, 94 NY2d 686
The Court of Appeals has handed down three rulings concerning issues involving collective bargaining under the Taylor Law as they relate to negotiating procedures to implement and administer General Municipal Law Sections 207-a and 207-c with respect to the approval, and continuation of, benefits pursuant to these provisions.
In the Watertown P.B.A. case, the Court considered the negotiability of Section 207-c issues under the Taylor Law. In Barnes, the court addressed matters concerning procedures dealing with reporting for light or full duty assignments in accordance with a negotiated procedure. In Cohoes, one of the significant issues concerned due process requirements.
The Watertown PBA case
Referring to its determination in Schenectady Police Benevolent Association v Public Employment Relations Board, 85 NY2d 480, the Court of Appeals said that the employer’s authority under Section 207-c to make initial determinations in these matters is not a mandatory subject of collective bargaining.
Is a demand to negotiate procedures for the administration of the provisions of Section 207-c following the initial determination by the employer a mandatory subject of collective bargaining for the purposes of the Taylor Law? Yes, such demands were mandatory subjects of collective bargaining, said the court, noting the strong and sweeping presumption in favor of mandatory bargaining.
The case arose when the Watertown Police Benevolent Association [PBA] proposed that the parties bargain about the procedures to be followed if an officer wishes to contest the city’s initial Section 207-c determination in contrast to bargaining the City’ s right to make the initial determination. PBA wanted to have disagreements with the City’s initial determination to final and binding arbitration pursuant PERB’s Voluntary Disputes Resolution Procedure.
When the City refused to negotiate the demand, PBA filed an unfair labor practice charge with PERB. PERB ruled that since Section 207-c provides no procedural framework for resolving disputes, and because eligibility determinations [under Section 207-c] clearly affect terms and conditions of employment, “a demand for a dispute resolution procedure ending in arbitration ... is mandatorily negotiable.”
The Court of Appeals agreed, concluding that “the arbitration sought by ... the PBA is not a matter which the Legislature has circumscribed from the State’s strong and sweeping policy of bargaining with regard to terms and conditions of employment.”
Citing Public Sector Labor and Employment Law [Lefkowitz, Osterman & Townley, published by the New York State Bar Association,], the Court of Appeals observed that “... bargaining is mandatory even for a subject treated by statute unless the statute clearly preempt[s] the entire subject matter or the demand to bargain diminish[es] or merely restate[s] the statutory benefits.” Unless, said the court, there is clear evidence that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining.
In addition to making the initial determination, Section 207-c gives the employer the exclusive right to appoint a physician to examine a sick or injured officer, to prescribe and provide medical or surgical treatment if indicated, and to issue an initial back-to-work order if the physician concludes that the officer is capable of performing regular or light duty. Accordingly, these areas are not are not mandatorily negotiable.
Nor is bargaining required with respect to an employer’s ability to issue an initial order that a police officer assume a light duty position or to ordering a disabled officer to submit to surgery or requiring the employee to sign a medical confidentiality waiver form concerning the officer’s medical condition related to his or her ability to perform the duties of the position as a condition of his or her receiving, or continuing to receive, Section 207-c benefits.
As to the nonmandatory negotiating subjects of collective bargaining identified by the court, it may be significant that the decision does not characterize them as prohibited subjects of negotiations. Accordingly, it would appear that these issues are permissive subjects of collective bargaining.
The Barnes Case
The Barnes case starts where Watertown stops. While Watertown concerns a negotiating demand, in Barnes the parties had already agreed to a Section 207-c Procedure. The issue before the court concerned the processing of disputes arising under the procedure -- specifically arbitrating the employer’s order directing an individual on Section 207-c leave to report for a light or full duty assignment.
There was no question that such a dispute could be arbitrated said the Court of Appeals, pointing to its recent ruling in Board of Education of Watertown City School District (93 NY2d 132).
In Watertown School District, the court ruled that arbitration is an available procedure for resolving personnel disputes in the public sector if the party demanding arbitration is able to satisfy two tests:
1. The claim was lawfully fit for arbitration, i.e., there was no public policy, statutory or constitutional restriction placing arbitration off-limits; and
2. The parties must have agreed to refer the particular subject matter of the dispute to arbitration.
While here arbitration ultimately would have available to David Monroe to resolve the dispute, the Court of Appeals decided that there was no short cut to the arbitrator: under the facts of this case, Monroe had to comply with the requirements set out in the Article XI of the Section 207-c Procedure agreed upon by the County and Council 82.
The court found that although the parties had agreed to arbitrate disputes concerning directing an individual to report for light duty, Monroe’s demand for arbitration was premature because he failed to comply with the administrative procedures to be followed in resolving such disputes.
The case arose after Schenectady County Sheriff William W. Barnes, relying on the County’s medical expert’s conclusion that David Monroe, a corrections officer on Section 207-c leave, could perform light duty work, directed him to report for light duty. Monroe objected to the directive, as did his union, Council 82, contending that Monroe’s personal physician had said he was unfit to perform light duty.
The County said that “the proper route for Mr. Monroe [to challenge its decision] is to file a step 3 grievance ... within ten days of [Monroe’s] receipt of the order to light duty, citing Article XI of its Section 207-c procedure.”
The Section 207-c Procedure was established pursuant to a Memorandum of Agreement between the County and Council 82 and provided for submitting an adverse step 3 grievance determination by the County to arbitration.
Instead of filing a step 3 grievance, pursuant to Article XI, Council 82 demanded arbitration in accordance with Article VI (B) (2) of the procedure, contending that the question of whether or not Monroe is fit for a light duty assignment should be determined by the arbitrator because, in contrast to the County’s physician’s finding, Monroe’s personal physician had determined that he was not fit for light duty. The County, on the other hand, argued that the issue had to be first submitted as a step 3 grievance. The County won a court order staying arbitration.
The Court of Appeals affirmed the lower court’s granting of the stay, pointing out that Monroe had failed to satisfy the second test it had set out in Watertown School District. Why? Because, said the court, there was no agreement to submit the dispute in question directly to arbitration and Monroe did not satisfy the conditions precedent under the 207-c procedure that would have allowed the issue to ultimately be submitted to arbitration.
Two provisions of the Procedure were involved. Article VI, Section (B)(2) of the procedure provided that where this is a conflict in medical opinions concerning the light duty assignment, ... the duty or duties in dispute cannot be assigned until such dispute is resolved. Such dispute over said duties shall be submitted directly to arbitration...
The second provision, relied upon by the County was Article XI. The County argued that Article VI (B) (2) applied only in instances of medical disagreements arise as to the ability of the individual to perform the specific work assignments upon the employee’s reporting for light duty.
In contrast, where the individual raises an objection to an order to report for light duty based on the individual’s claim that he or she is physically unable to return to duty regardless of the nature of the assignment, his or her objection must be processed in accordance with Article XI as a Step 3 grievance regarding such decision.
Essentially the County argued that Article VI(B)(2) applies in situations where there is no dispute as to the individual’s ability to perform light duty -- only the particular light duty proposed -- while Article XI applies where the employee’s physician states that the individual is unable to perform any light duty whatsoever.
Agreeing with Schenectady County’s argument, the Court of Appeals said that because the basic issue concerned a conflict of medical opinions as to Monroe’s ability to perform any light duty, the issue was to be resolved in accordance with Article XI of the procedure. As Monroe had not filed a Step 3 grievance, he did not satisfy a condition precedent for any arbitration under the terms of the Collective Bargaining Agreement. Accordingly, the Court of Appeals affirmed the stay of arbitration.
The Cohoes case
The physician for the City of Cohoes found that five of six firefighters on Section 207-a leave were qualified to perform light duty while the remaining firefighter was qualified to return to full duty.
Although given written orders to report for full duty or to perform light duty assignments, the six did not report as directed. The union objected to the report-for-duty orders on the ground that the members may not be ordered back to work without specification of the proposed duties and an opportunity to challenge the proposed return to work order at a due process hearing. In response, Cohoes discontinued their Section 207-a benefits.*
In addition to suing, the firefighters, through filed grievances under their collective bargaining agreement and ultimately demanded arbitration of their grievances before the State Public Employment Relations Board. The City obtained a stay of arbitration.
As to the firefighters’ claim that they were entitled to an evidentiary hearing on their medical ability to perform light duty assignments before an order to return could be issued, the Court of Appeals said that although an administrative hearing may ultimately be required before Section 207-a payments are terminated, recipients are not entitled to a hearing prior to the issuance of a report for light duty order. They become entitled to such a hearing only if they submit a contrary opinion from their personal physician.
In the words of the court, due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts.
As to the demand for arbitration, the Court of Appeals decided that the City was not required to arbitrate its orders to report for light duty assignments. Its rationale: as the collective bargaining agreement is entirely silent concerning the contractual rights provided to regular duty firefighters being available to firefighters on Section 207-a leave, the lack of an express provision in the negotiated agreement making it applicable to firefighters in 207-a leave status is fatal to any claim of a contractual right to arbitrate these claim.
Citing Chalachan v City of Binghamton, 55 NY2d 989, the court commented that apart from contractual entitlements, “[t]he collective bargaining agreement should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. Any additional benefits must be expressly provided for in the agreement.”
* In the course of litigating this case, the Appellate Division held that if an individual submitted medical documentation of their continued total disability, his or her Section 207-a benefits may not be discontinued prior to the employer’s holding a hearing (Matter of City of Cohoes, 258 AD2d 24). The Court of Appeals affirmed this aspect of the Appellate Division’s decision.
=====================
For additional information see General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar laws at: http://section207.blogspot.com/
========================
February 07, 2011
If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval
If an educator employed by the NYC BOE asks to withdraws his or her resignation, the request shall be granted subject to the Chancellors approval
Matter of Mendez v New York City Dept. of Educ., 2011 NY Slip Op 50067(U), Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]
Mildred Mendez challenged the New York City Department of Education's ("DOE") denial of her request to withdraw her letter of resignation and asked the court to issue an order compelling the DOE to accept her withdrawal, to reinstate her as a teacher, and to provide back pay.
Supreme Court Judge Jane S. Solomon granted Mendez’s motion in its entirety.
The issue presented, said the court, is whether the New York City Department of Education [DOE] acted in accordance with the Education Law and its own governing rules (as authorized pursuant to Education Law §2590-g). In the words of Judge Solomon was DOE “authorized to treat with Mendez as a resigned teacher under the circumstances presented.”
The court said that if DOE never accepted a resignation from Mendez, or if she validly withdrew her resignation, the DOE, as a matter of law, was not authorized to treat her as a resigned teacher and she must be reinstated.
Significantly, said Judge Solomon, NYC Chancellor's Regulation 205(29) states, “in mandatory language,” that a teacher’s request to withdraw his or her resignation "shall be granted" subject to the Chancellor's approval.
According to the decision, DOE told Mendez that "Based on the resignation letter submitted to our Human Resources Office on June 24, 2008, you are no longer a reassigned employee.” The court noted that DOE’s letter did not note that an “administrative determination” had been made by the Chancellor regarding her withdrawal of her resignation.
In this instance the court found that the Chancellor took no action. In other words, the Chancellor did not determine that her withdrawal request should be dishonored within the meaning of Chancellor's Regulation 205.
Judge Solomon, granting Mendez’s petition, ordered DOE to reinstate “Mendez to her teaching position, with back pay and all other economic benefits of employment from August 28, 2008.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50067.htm
Matter of Mendez v New York City Dept. of Educ., 2011 NY Slip Op 50067(U), Supreme Court, New York County, Judge Jane S. Solomon [Not selected for publication in the Official Reports]
Mildred Mendez challenged the New York City Department of Education's ("DOE") denial of her request to withdraw her letter of resignation and asked the court to issue an order compelling the DOE to accept her withdrawal, to reinstate her as a teacher, and to provide back pay.
Supreme Court Judge Jane S. Solomon granted Mendez’s motion in its entirety.
The issue presented, said the court, is whether the New York City Department of Education [DOE] acted in accordance with the Education Law and its own governing rules (as authorized pursuant to Education Law §2590-g). In the words of Judge Solomon was DOE “authorized to treat with Mendez as a resigned teacher under the circumstances presented.”
The court said that if DOE never accepted a resignation from Mendez, or if she validly withdrew her resignation, the DOE, as a matter of law, was not authorized to treat her as a resigned teacher and she must be reinstated.
Significantly, said Judge Solomon, NYC Chancellor's Regulation 205(29) states, “in mandatory language,” that a teacher’s request to withdraw his or her resignation "shall be granted" subject to the Chancellor's approval.
According to the decision, DOE told Mendez that "Based on the resignation letter submitted to our Human Resources Office on June 24, 2008, you are no longer a reassigned employee.” The court noted that DOE’s letter did not note that an “administrative determination” had been made by the Chancellor regarding her withdrawal of her resignation.
In this instance the court found that the Chancellor took no action. In other words, the Chancellor did not determine that her withdrawal request should be dishonored within the meaning of Chancellor's Regulation 205.
Judge Solomon, granting Mendez’s petition, ordered DOE to reinstate “Mendez to her teaching position, with back pay and all other economic benefits of employment from August 28, 2008.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50067.htm
Completed school district audits
Completed school district audits
Source: The Office of the State Comptroller
New York State Comptroller Thomas P. DiNapoli announced his office has completed audits of the school districts listed below.
Click on the school name to access the Comptroller's audit report.
Beekmantown Central School District,
Clarkstown Central School District,
Geneva City School District,
Homer Central School District,
Riverhead Central School District and
Taconic Hills Central School District.
Source: The Office of the State Comptroller
New York State Comptroller Thomas P. DiNapoli announced his office has completed audits of the school districts listed below.
Click on the school name to access the Comptroller's audit report.
Beekmantown Central School District,
Clarkstown Central School District,
Geneva City School District,
Homer Central School District,
Riverhead Central School District and
Taconic Hills Central School District.
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