Videotape made by witnesses that observed the alleged misconduct of the employee admissible as evidence in his or her disciplinary hearing

Videotape made by witnesses that observed the alleged misconduct of the employee admissible as evidence in his or her disciplinary hearing
Matter of Heisler v Scappaticci, 2011 NY Slip Op 01472, Appellate Division, Second Department

Steven Heisler filed CPLR Article 78 petition challenging the decision of the Town Board of the Town of Harrison, acting in its capacity as the Town’s Board of Police Commissioners, terminating his employment with the Town of Harrison Police.

Abandoning his claim that there was no substantial evidence to support the Board’ determination, Heisler focused on alleged procedural errors in the disciplinary hearing that was held prior to his dismissal.

Heisler contended that the use of “hearing videotaped statements” made by individuals who witnessed the subject incident even though they did not testify at the hearing was improper.

The Appellate Division disagreed, holding that the Board properly admitted the videotapes into evidence as "[h]earsay is admissible in an administrative hearing and, if sufficiently relevant and probative, hearsay alone may constitute substantial evidence"

Citing A.J. & Taylor Rest. v New York State Liq. Auth., 214 AD2d 727, the court said that “… under appropriate circumstances, statements from witnesses absent from the hearing may form the sole basis for an agency's ultimate determination."

Also rejected was Heisler’s argument that the charges set out in the notice of discipline sent to him did not provide him with sufficient notice of the conduct with which he was charged. The Appellate Division said that “the disciplinary charges were ‘reasonably specific, in light of all the relevant circumstances, so as to apprise the party who is the subject of the hearing and to allow such party to prepare an adequate defense,’" citing Matter of Mangini v Christopher, 290 AD2d 740.

The court also sustained the penalty imposed, dismissal, holding that it was not so disproportionate to the offense as to be shocking to one's sense of fairness, the so-called test, Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01472.htm
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Managerial and Confidential Employees – an advisory memorandum

Managerial and Confidential Employees – an advisory memorandum
Source: Lamb & Barnosky, LLP, http://www.lambbarnosky.com/about/ Reproduced with permission. Copyright © 2011

The law firm of Lamb & Barnosky has offered the following hints and observations concerning designating employees as managerial or confidential within the meaning of the Taylor Law [Civil Service Law Article 14]:

"With the New Year upon us, it is a good time to review the composition of your bargaining units to ascertain whether there are any employees who should not be in a union due to their "managerial" and/or "confidential" status.

"As a general proposition, a "managerial" employee sets, or effectively recommends, employer-wide policy; e.g., a Superintendent or an Assistant Superintendent of Schools, a Director of Labor Relations or Operations, and some department heads. In deciding whether to remove the employee from the bargaining unit, the Public Employment Relations Board ("PERB") will look to both the person's actual duties as of the date on which the application is filed, as well as those that are reasonably expected to be performed in the near future.

"Clerical and other personnel who regularly work in a confidential capacity with managerial employees, on confidential matters involving labor relations, will be designated by PERB as "confidential." In the case of a confidential employee, PERB looks to the actual duties that are being performed at the time of the application to see whether they meet the test.

"The procedure for removing an employee from a bargaining unit due to the employee's managerial and/or confidential status is for us to file an application with PERB that provides the affected employee's name and title, whether a contract covers the persons within the job titles which the employer claims are managerial and/or confidential, summarizes his or her relevant duties and a factual statement in support of the application. A copy is sent to the union, which has the right to dispute the application all the way through a formal hearing at PERB. If the employer prevails, the employee may leave the unit during the 7th month before the contract expires or 120 days following the contract's expiration. Removal from the unit has no impact on an employee's underlying civil service status.

"An employer can file only one managerial/confidential application that is processed all the way to completion (i.e., a decision following a hearing) per contract term. As a result, it is usually a good idea to file one omnibus application covering all potentially affected employees rather than several separate ones."

If you have any questions regarding managerial and/or confidential employee status or changes, feel free to contact Lamb & Barnosky, LLP.

Lamb & Barnosky cautions that:

“THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.”
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Negotiating administrative procedures to administer General Municipal Law Sections 207-a and 207-c

Negotiating administrative procedures to administer General Municipal Law Sections 207-a and 207-c
Riverhead v Foote, State Sup. Ct., [Not selected for publication in the Official Reports]

Exposure to the possibility of suffering a line of duty disability is a significant occupational hazard for law enforcement and fire personnel. Sections 207-a and 207-c of the General Municipal Law were adopted to give law enforcement and fire personnel some economic protection should they be disabled in the course of their performance of their official duties.

However, these provisions of law set few guidelines with respect to their administration. Accordingly, contracts negotiated under the Taylor Law are including provisions concerning the implementation and administration of Sections 207-a and 207-c with increasing frequency. Current negotiated provisions typically deal with processing disability claims and the procedure for evaluating disabilities for the purpose of receiving, or continuing to receive, Section 207-a benefits payable to disabled firefighters or 207-c benefits payable to disabled law enforcement personnel.

Courts are now setting out the basic principles to be applied in negotiating such provisions and in resolving disputes arising under such provisions.

The Riverhead case involved the determination of an arbitrator concerning assigning a disabled police officer to light duty. In Riverhead, the basic issue submitted to arbitration concerned a determination as to whether or not Riverhead police lieutenant Frederick Foote, then receiving Section 207-c benefits, could perform light duty.

Section 207-c.3, as does Section 207-a.3, provides for the discontinuation of benefits in the event a disabled individual refuses to accept an appropriate light duty assignment for which he or she is determined to be medically qualified to perform.*

In Foote’s case, the negotiated agreement provided that if Riverhead proposed to terminate the Section 207-c benefits being paid to a police officer and the police officer objected, he or she could submit the issue to arbitration. The agreement authorized the arbitrator to make a de novo determination, but provided that the arbitrator could not amend, modify, nullify, ignore, add to, or subtract from the provisions of the contract procedure.

The question Riverhead and Foote presented to the arbitrator:

Did Riverhead, by a preponderance of the evidence, show that Foote was capable of performing light duty work and [i]f so, or if not, what shall his employment status be?

After considering the evidence presented, the arbitrator concluded that Riverhead failed to provide sufficient evidence to demonstrate that Foote was capable of performing light duty work. But the arbitrator went further, finding that Foote was capable of performing very light duty work with severe restrictions and said the question should be submitted to a third impartial physician, to determine the nature of such very light duty work.

Riverhead filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the award; Foote asked the court to confirm the award.

The arbitrator’s referral of the matter to a third impartial physician for the purpose of determining an appropriate light duty assignment for Foote proved fatal to his award. State Supreme Court Judge Lester E. Gerard decided that:

1. The award was inherently contradictory; and

2. The arbitrator failed to make any determination as to Foote’s ability to perform light duty work as required by the agreement.

Judge Gerard vacated the award, holding that the arbitrator, under the terms of the collective bargaining agreement, was required to make a de novo determination concerning placing Foote in a light duty assignment and that he failed to satisfy this obligation.

While Riverhead deals with the resolution of an appeal from an administrative decision, sometimes a negotiated agreement will go beyond matters concerning the consideration and processing of Section 207-a and Section 207-c claims.

The Plattsburgh case [Plattsburgh v Plattsburgh Police Officers Union, 250 AD2d 327, leave to appeal denied: 93 NY2d 807], illustrates this. In Plattsburgh the issue before the court, and later the arbitrator, involved the nature of the benefit to be provided itself.

The Taylor Law agreement between Plattsburgh and the police officer’s union included language that provided that police officers who retired as a result of a job-related disability were to receive Section 207-a benefits if the disability was incurred in the line of duty.

Section 207-a provides a significantly greater disability payment benefit than that available under Section 207-c. Section 207-a requires the appointing authority to supplement the retired disabled firefighter’s disability retirement benefit so as to provide the individual with the equivalent of full salary until his or her mandatory age of retirement. Further, this Section 207-a supplement is to be periodically adjusted to reflect negotiated salary increases. Section 207-c does not provide any parallel supplementary benefit.

Three disabled police officers retired after suffering service-connected disabilities. They asked Plattsburgh to pay them the difference between their respective disability retirement allowances and their respective full-salary.

Their argument was simple: under the terms of the collective bargaining agreement they were entitled to receive benefits in accordance with Section 207-a rather than Section 207-c.

Plattsburgh refused and the union filed contract violation grievances. When the union demanded that the grievances be submitted to arbitration, Plattsburgh resisted. In an effort to obtain a stay of the arbitration, Plattsburgh argued that the disputed provision:

1. Had been included in the contract by mistake and

2. The benefits to be provided disabled police officers are limited to those set out in Section 207-c.

The Appellate Division held that the mistake issue, as well as the meaning and impact of the provision modifying the statutory Section 207-c benefits as set out in the agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration.

Of greater potential significance, the Appellate Division said that agreements providing for benefits different that those provided by Section 207-c were not statutorily prohibited since they do not affect the benefit the individual would receive from the retirement system.

In other words, in the opinion of the Appellate Division, Third Department, this is not a prohibited subject of collective bargaining, a position that is important when considering Taylor Law preparing and responding to negotiation demands related to Section 207-a and Section 207-c.

As to the validity of the contract provisions in the Plattsburgh agreement, ultimately an arbitrator ruled that the provision was the result of good faith bargaining, rejecting Plattsburgh’s representations that it was included by mistake.

Accordingly, it appears that Plattsburgh police officers retiring for work-connected disabilities during the life of the agreement are entitle to Section 207-a type benefits.

* General Municipal Law Section 207-a applies exclusively to firefighters; Section 207-c exclusively covers law enforcement personnel.

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Procedures to be followed in the event a public entity takes-over of a private enterprise

Procedures to be followed in the event a public entity takes-over of a private enterprise
Auguste v NYC Health and Hospitals Corp., 271 AD2d 215 [Appeals on Constitutional grounds dismissed, 95 NY2d 930, motion for leave to appeal denied, 96 NY2d 704]

Section 45 of the Civil Service Law sets out the rights of the employees of a private sector employer in the event the State or a municipality takes over the private entity. However, sometime special legislation addressing a specific takeover situation is adopted. Section 7390 of the Unconsolidated Law is an example of such special legislation.

Section 7390 was enacted in the early 1970s in response to the New York City Health and Hospital Corporation’s [HHC] decision to take over many of the functions then being performed by a number of voluntary hospitals. This change was expected to have an impact on several thousand workers. In particular, Section 7390(2) gave civil service status to the employees affected by HHC’s reorganization changes under certain conditions.

The Appellate Division in deciding the Auguste case ruled the provisions of Section 7390(2) applied in a takeover situation that occurred some 30 years after the statute was enacted.

Gislaine Auguste, a Senior Medical Laboratory Technologist at Lincoln Hospital, was an employee of New York Medical College [NYMC]. NYMC provided Lincoln with pathology services under an affiliate agreement with HHC. When HHC decided not to renew its affiliation agreement with NYMC in 1997, Auguste found herself without a job.

Arguing that her position at Lincoln was transferred rather than abolished, Auguste sued. Her theory: she had a statutory right under Section 7390(2) to continued employment based on her seniority and her status with NYMC and other affiliate employers. The Appellate Division agreed and directed HHC to reinstate her with back salary.*

Auguste’s basic argument: The 13 new positions were civil service positions with duties similar to those of her former position with NYMC and she had civil service status without having to qualify by examination pursuant to Section 7390(2).

Auguste, who had 32 years of service to her credit at the time she was terminated, apparently was employed by an HHC affiliate when Section 7390 was enacted. Although she was not affected by the administrative changes HHC actually made during the 1970s, this employment presumably gave her a vested right to the benefits granted employees of HHC affiliates by Section 7390 so long as she continued in uninterrupted service with HHC affiliates.

The Appellate Division specifically rejected HHC’s contention that Section 7390 was intended to apply only to the staffing changes resulting from its 1970s reorganization plan.

Citing Butler v New York City Health and Hospitals Corp., 82 AD2d 136, the Appellate Division held Section 7390:

1. Gave civil service status to former employees of a voluntary hospital whose functions were transferred to an HHC affiliate; and

2. Specifically provides that employees of voluntary hospitals providing services that are assumed by HHC shall be transferred to HHC.

The bottom line: the court said that Section 7390, although enacted to address situations arising in the 1970s, was not limited to that specific period but operates to continue affected employees in their employment in similar or corresponding positions as HHC employees, including individuals affected by the non-renewal of the HHC-NYMC affiliation agreement in 1997.

Accordingly, Auguste continued to be protected by Section 7390 when her employment by an HHC affiliate was discontinued through no fault of her own some 30 years later.

* Eleven former Lincoln/NYMC pathology department employees, together with two new employees, were appointed to new HHC positions of Associate Laboratory Microbiologist.
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Tenure by estoppel

Tenure by estoppel
Matter of Ronga v Klein, 2011 NY Slip Op 01408, Appellate Division, First Department

A probationary administrator or teacher may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the administrator’s or teacher’s probationary term, McManus v Hempstead Union Free School District, 87 NY2d 183.

Richard Ronga, appointed as a probationary principal by the New York City Department of Education [DOE], challenged DOE's terminating his employment on the theory that he was denied due process as he was not give the required pre-termination notice and hearing.

Ronga contended that he had attained tenure as a principal by “estoppel” and thus he was entitled to such due process as a matter of law.

Supreme Court dismissed Ronga’s petition, which ruling was unanimously affirmed by the Appellate Division.

In contrast to Ronga’s claim that he acquired tenure by estoppel, the Appellate Division said that the record established that he did not perform the duties of a principal with DOE's knowledge or consent beyond the expiration of his probationary term.

Further, the court noted, prior to the expiration of Ronga’s probationary period DOE notified him that he would not be granted tenure. According to the decision, Ronga and DOE then negotiated and signed a resignation agreement, which Ronga attempted to revoke later that same day.

The Appellate Division concluded that Ronga failed to demonstrate that he acquired tenure by estoppel and, further, failed to sustain his burden of showing that DOE acted in bad faith when it terminated his employment as a probationary principal, “as he provides no support for his claims.”

N.B. Continuation on the payroll for a brief period after the expiration of a probationary period does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612]. The court ruled that as long as the termination of a probationer [in the classified service] is effected within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01408.htm
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Declining to reveal “sensitive family information” held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unless it can be shown that the Board abused its discretion, the Board’s decision will not be disturbed by the courts. The Appellate Division decided that the record supported a finding that Board had not abused its discretion and dismissed Buffalo’s appeal.
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Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination

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

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

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

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

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

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

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

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

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

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

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

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01190.htm
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