Settling a disciplinary action by agreeing to disciplinary probation
Matter of Campbell v State of New York, 37 AD3d 993
The New York State Office of Mental Health [OMH] filed disciplinary charges against Monica A. Campbell. Instead of proceeding with a disciplinary hearing, Campbell and her union, New York State Correctional Officers and Police Benevolent Association [PBA] “settled” the matter by agreeing to have Campbell serve a “one-year disciplinary probationary period.”
The settlement agreement provided that:
Should Ms. Campbell commit any actions or omissions during this one-year period “which rise to the level of misconduct and/or incompetence” she will be terminated from [s]tate service without recourse to Article 8 [of the collective bargaining agreement].
The disciplinary grievance procedure set out in Article 8 provided for arbitration as the final step in a disciplinary action.
Ultimately OMH determined that Campbell was guilty misconduct while in “disciplinary probationary status” and terminated her employment. PBA appealed her termination and demanded arbitration. OMH refused to submit its decision to terminate Campbell to arbitration, contending that arbitration was not available under the terms of the disciplinary settlement agreement. PBA filed a petition pursuant to CPLR Section 7503 seeking a court order compelling arbitration.
Supreme Court found that the disciplinary settlement agreement did not exclude arbitration of the question of whether Campbell was guilty of misconduct and ordered arbitration. OMH appealed.
As the Appellate Division’s decision notes, it is well settled that a right to arbitration, like contract rights generally, may be waived or abandoned. The issue here, said the court, was whether the disciplinary settlement agreement entered into by the parties constituted a waiver of PBA’s right to submit Campbell’s dismissal to arbitration.
According to the record, the settlement agreement initially made Campbell a probationary employee for one year. This language, however, was amended at the request of PBA’s attorney and the phrase “disciplinary evaluation period” [DEP] was substituted in its place in order to “avoid impairment of Campbell's seniority and layoff rights.”
Noting that paragraph 9 of the PBA’s petition seeking to compel arbitration itself confirm that the parties understood that the DEP would be a probationary period, the Appellate Division said that “This clear meaning and understanding of the parties is in complete harmony with the meaning and use of DEPs in similar reported cases,” citing Matter of Miller v Coughlin, 59 NY2d 490, 493; and Matter of McGough v State of New York, 243 AD2d 983, 983-984 [1997], lv denied 91 NY2d 807, among others.
The court said the disciplinary settlement agreement specified the party that would determine whether there was subsequent misconduct by Campbell, – i.e., OMH. Accordingly, said the Appellate Division, Campbell’s sole remedy was to challenge OMH’s determination that resulted in her termination pursuant to CPLR Article 78.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/disciplinary-probation.html
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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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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
March 03, 2011
Analyzing out-of-title work grievances determinations
Analyzing out-of-title work grievances determinations
Steen v Governor’s Office of Employee Relations, 271 AD2d 738
Resolving out-of-title work disputes is not something courts typically do.
As the Appellate Division, citing Cove v Sise, 71 NY2d 910, noted in deciding the Steen case: “it is well settled that [a]dministrative determinations concerning position classifications are ... subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis."
But, said the court, where, as here, the record lacks any rational basis upon which to conclude that petitioners are not doing out-of-title work courts will intervene.
In Steen v GOER, the Appellate Division overturned a determination by the Governor’s Office of Employee Relations because it found that in this instance the comparison of petitioners’ duties with the duties of a Treatment Team Leader is inapposite -- i.e., it was neither appropriate nor pertinent to do so.
Why? Because, said the court, [a]n employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work. The Appellate Division pointed to Collins v GOER, and Kuppinger v GOER, 203 AD2d 664, as support for its ruling.
Nancy Steen had filed a grievance claiming that she and a number of co-workers were being required to perform out-of-title duties and asked that their positions be reclassified and reallocated to higher-grade positions in recognition of their assignments. After the grievance was denied at all steps of the grievance procedure, she sued.
Steen contended that she and her co-grievants were appointed to positions of Recreation Workers, SG-14, Recreation Therapists, SG-14 or Senior Recreation Therapists, (Filed Mar. 29, 2000.) SG-17 by Pilgrim State Hospital. Following Pilgrim’s instituting a new program known as the Buffalo Model, Steen contended that she and the other employees were given an in-house designation of Treatment Plan Coordinators and were assigned a specific number of patients. Steen’s basic claim: the creation of the in-house title Treatment Plan Coordinators was a subterfuge allowing Pilgrim to assign out-of-title work to them and that their new duties were consistent with the duties of a Treatment Team Leader, SG 25.
According to the Appellate Division, as Treatment Plan Coordinators, each petitioner was responsible for transcribing information from the patient’s chart to a treatment plan worksheet and also interviewing each patient and entering the information from the interview in the second section of the worksheet.
Thereafter, the treatment team met and developed the treatment plan. Steen and her co-workers were then required to conduct a review with respect to each patient after 90 days to evaluate the progress of each patient with respect to the goals and objectives in the plan devised from the worksheets.
The court’s conclusion: [t]he focus of the review should have been whether the duties are appropriate to petitioners’ titles.
Noting that the reviewing officer recognized that the duties at issue are not contained verbatim in the classification standard but concluded they were a logical extension of the responsibility of professional or para-professional members of the treatment team, the court annulled GOER’s ruling denying Steen’s grievance.
Finding that there was no support for the reviewing officer’s conclusion in the record, the Appellate Division decided that the determination did not have a rational basis.
Further, the court specifically commented that a review of a patient’s entire chart containing information from each discipline represented by the team and the interview of the patient is simply not a logical extension of petitioners’ responsibilities to fill out forms and reports concerning patients in their recreational programs.
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Steen v Governor’s Office of Employee Relations, 271 AD2d 738
Resolving out-of-title work disputes is not something courts typically do.
As the Appellate Division, citing Cove v Sise, 71 NY2d 910, noted in deciding the Steen case: “it is well settled that [a]dministrative determinations concerning position classifications are ... subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis."
But, said the court, where, as here, the record lacks any rational basis upon which to conclude that petitioners are not doing out-of-title work courts will intervene.
In Steen v GOER, the Appellate Division overturned a determination by the Governor’s Office of Employee Relations because it found that in this instance the comparison of petitioners’ duties with the duties of a Treatment Team Leader is inapposite -- i.e., it was neither appropriate nor pertinent to do so.
Why? Because, said the court, [a]n employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work. The Appellate Division pointed to Collins v GOER, and Kuppinger v GOER, 203 AD2d 664, as support for its ruling.
Nancy Steen had filed a grievance claiming that she and a number of co-workers were being required to perform out-of-title duties and asked that their positions be reclassified and reallocated to higher-grade positions in recognition of their assignments. After the grievance was denied at all steps of the grievance procedure, she sued.
Steen contended that she and her co-grievants were appointed to positions of Recreation Workers, SG-14, Recreation Therapists, SG-14 or Senior Recreation Therapists, (Filed Mar. 29, 2000.) SG-17 by Pilgrim State Hospital. Following Pilgrim’s instituting a new program known as the Buffalo Model, Steen contended that she and the other employees were given an in-house designation of Treatment Plan Coordinators and were assigned a specific number of patients. Steen’s basic claim: the creation of the in-house title Treatment Plan Coordinators was a subterfuge allowing Pilgrim to assign out-of-title work to them and that their new duties were consistent with the duties of a Treatment Team Leader, SG 25.
According to the Appellate Division, as Treatment Plan Coordinators, each petitioner was responsible for transcribing information from the patient’s chart to a treatment plan worksheet and also interviewing each patient and entering the information from the interview in the second section of the worksheet.
Thereafter, the treatment team met and developed the treatment plan. Steen and her co-workers were then required to conduct a review with respect to each patient after 90 days to evaluate the progress of each patient with respect to the goals and objectives in the plan devised from the worksheets.
The court’s conclusion: [t]he focus of the review should have been whether the duties are appropriate to petitioners’ titles.
Noting that the reviewing officer recognized that the duties at issue are not contained verbatim in the classification standard but concluded they were a logical extension of the responsibility of professional or para-professional members of the treatment team, the court annulled GOER’s ruling denying Steen’s grievance.
Finding that there was no support for the reviewing officer’s conclusion in the record, the Appellate Division decided that the determination did not have a rational basis.
Further, the court specifically commented that a review of a patient’s entire chart containing information from each discipline represented by the team and the interview of the patient is simply not a logical extension of petitioners’ responsibilities to fill out forms and reports concerning patients in their recreational programs.
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March 02, 2011
Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority
Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority
Source: Office of the Governor
On March 2, 2011, Governor Andrew M. Cuomo announced that he will be submitting a program bill that would expedite and expand ongoing plans to implement a statewide, objective teacher evaluation system, based on both performance and seniority, for school districts to use when making employment decisions.
The Governor noted that both the State Senate and the State Assembly have acknowledged that the New York State must move forward on improving performance in the classroom as well as improving teacher evaluations. The real question, said the Governor, is what is the alternative to "last in, first out," the current statutory standard used in layoff situations involving personnel in both the classified service and the unclassified service.
The Governor said that the current so-called "last in, first out" policy “lacks objectivity by maintaining teachers simply based on years of service without factoring in classroom effectiveness, performance, or need.”
"It is time to move beyond the so-called 'last in, first out' system of relying exclusively on seniority," Governor Cuomo said. "However, we need a legitimate evaluation system to rely upon. This will help make a statewide evaluation system ready and allow us to replace 'last in, first out.'"
According to the Governor, his proposed program bill would "accelerate the new standards to cover all grades and subjects for the 2011-2012 school year." In addition, the Governor said that his bill would set clear standards and enhanced transparency requirements, including the posting of guidelines on all school districts' Web sites. Parameters of the new teacher evaluation system include a new rating system including "highly effective," "effective," "developing," or "ineffective."
The Governor’s announcement also states that the evaluations will also play a significant role in a wide array of employment decisions, including professional development, tenure determinations, selection for leadership opportunities, and termination. Teachers and principals with a pattern of ineffective teaching or performance could be charged with incompetence and considered for termination through an expedited hearing process.
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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the current relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
=========================
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Source: Office of the Governor
On March 2, 2011, Governor Andrew M. Cuomo announced that he will be submitting a program bill that would expedite and expand ongoing plans to implement a statewide, objective teacher evaluation system, based on both performance and seniority, for school districts to use when making employment decisions.
The Governor noted that both the State Senate and the State Assembly have acknowledged that the New York State must move forward on improving performance in the classroom as well as improving teacher evaluations. The real question, said the Governor, is what is the alternative to "last in, first out," the current statutory standard used in layoff situations involving personnel in both the classified service and the unclassified service.
The Governor said that the current so-called "last in, first out" policy “lacks objectivity by maintaining teachers simply based on years of service without factoring in classroom effectiveness, performance, or need.”
"It is time to move beyond the so-called 'last in, first out' system of relying exclusively on seniority," Governor Cuomo said. "However, we need a legitimate evaluation system to rely upon. This will help make a statewide evaluation system ready and allow us to replace 'last in, first out.'"
According to the Governor, his proposed program bill would "accelerate the new standards to cover all grades and subjects for the 2011-2012 school year." In addition, the Governor said that his bill would set clear standards and enhanced transparency requirements, including the posting of guidelines on all school districts' Web sites. Parameters of the new teacher evaluation system include a new rating system including "highly effective," "effective," "developing," or "ineffective."
The Governor’s announcement also states that the evaluations will also play a significant role in a wide array of employment decisions, including professional development, tenure determinations, selection for leadership opportunities, and termination. Teachers and principals with a pattern of ineffective teaching or performance could be charged with incompetence and considered for termination through an expedited hearing process.
=========================
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the current relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
=========================
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Unfunded Mandate Relief [revised summary]
Unfunded Mandate Relief [revised summary]
Sources: NYSBA Municipal Law Section, Special Committee on Mandate Relief; Office of the Governor
On February 28, 2011 the New York State Bar Association’s Municipal Law Section’s Special Committee on Mandate Relief sent its comments* concerning the need for relief of certain mandates imposed on political subdivisions of the State, i.e., counties, cities, towns, villages and school districts, to the Governor’s Office.
The Governor’s Office reports that on March 2, 2011 Governor Cuomo accepted a preliminary report issued by the Mandate Relief Redesign Team** on ways to curb the proliferation of unfunded and underfunded mandates.
The Special Committee said that:
“Municipal officials have long been managing mandates handed down by the state government, whether the mandate is funded, under-funded or unfunded.1 As there is no uniformly accepted definition of what constitutes an “unfunded mandate,” there is no recognized, comprehensive inventory of the unfunded mandates that are placed on municipalities. Nevertheless, there are a number of laws and regulations that are universally recognized as such due to their prevalence and associated costs on municipal affairs.
“Some require that certain services or programs be offered to the public by the municipality for the benefit of the public at large. Others establish procedural or administrative parameters within which a municipality must operate, but do not provide any identifiable benefit to the municipality or the public at large. Often, this latter mandate category is designed to promote a legislatively determined public policy of the state, benefiting a narrow class of individuals, at the cost of the municipality. It is from this latter category of mandate that the need for fiscal relief is greatest”.
Noting that its comments “are not intended to question the validity or wisdom of the various public policies underlying mandates; rather, these comments are intended to identify those mandates that have the greatest impact on municipal expenses and to highlight the inequity of having municipalities bear the financial burden of carrying out these policies.”
The Special Committee addressed the following issues:
Disability Benefits for Law Enforcement and Firefighters (GML §§ 207-c; 207-a)
Public Pensions
Triborough Amendment to the Taylor Law [Civil Service Law § 209-a.1(e)]
The Mandate Relief Redesign Team details findings in three key areas.
First, its report addresses reform and redesign the current system to stop the proliferation of unfunded mandates by:
1. Prohibiting New Unfunded Mandates: Permanently fix the problem of unfunded mandates by advancing a state law and eventual constitutional amendment prohibiting any new state mandate (with very limited exceptions) on local governments or school districts unless the state fully funds the mandate or the local entity votes to comply with the mandate;
2. Requiring Independent Cost Analysis of Mandates: Strengthen the currently ineffective fiscal impact statement process by requiring legislative fiscal committees to determine the need for and prepare such statements. This would involve codifying Executive Order 17's fiscal impact statement methodology and local government consultation requirements and making the reports available to the public; and
3. Enforcing Limits on Unfunded Mandates: Using existing resources, establish an Office of Mandate Reform to act as a clearinghouse that will work with local governments and state agencies to address unfunded mandates.
Second, its report addresses cost-drivers to provide meaningful mandate relief by:
1. Creating a Pension Tier 6: A new Tier will help municipalities and school districts address rapidly escalating pension costs; and
2. Avoiding the Wicks Requirement by Removing Barriers to Project Labor Agreements: In order to reduce the costs that localities and schools face due to Wicks, ease the burdens associated with project labor agreements (PLA) by eliminating the study requirement and developing regionally-negotiated PLA templates that together can reduce the costs of public works projects by 15 percent or more.
Third, its report addresses the current unsustainable burden of state mandates by:
1. Giving Local Governments Greater Flexibility to Administer Existing Mandates: The State Administrative Procedure Act (“SAPA”) §204-a should be streamlined and expanded to allow localities to propose alternatives to current regulations and to request waivers of regulations; and
2. Conducting a Comprehensive Review of All State Mandates: Conduct a full agency review and accounting of state and regulatory mandates that burden school districts and local governments.
* A complimentary copy of the Special Committee’s report is available from NYPPL. E-mail your request to publications@nycap.rr.com
** The Mandate Relief Redesign Team report is posted at: http://governor.ny.gov/assets/documents/finalmandate.pdf .
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.
Sources: NYSBA Municipal Law Section, Special Committee on Mandate Relief; Office of the Governor
On February 28, 2011 the New York State Bar Association’s Municipal Law Section’s Special Committee on Mandate Relief sent its comments* concerning the need for relief of certain mandates imposed on political subdivisions of the State, i.e., counties, cities, towns, villages and school districts, to the Governor’s Office.
The Governor’s Office reports that on March 2, 2011 Governor Cuomo accepted a preliminary report issued by the Mandate Relief Redesign Team** on ways to curb the proliferation of unfunded and underfunded mandates.
The Special Committee said that:
“Municipal officials have long been managing mandates handed down by the state government, whether the mandate is funded, under-funded or unfunded.1 As there is no uniformly accepted definition of what constitutes an “unfunded mandate,” there is no recognized, comprehensive inventory of the unfunded mandates that are placed on municipalities. Nevertheless, there are a number of laws and regulations that are universally recognized as such due to their prevalence and associated costs on municipal affairs.
“Some require that certain services or programs be offered to the public by the municipality for the benefit of the public at large. Others establish procedural or administrative parameters within which a municipality must operate, but do not provide any identifiable benefit to the municipality or the public at large. Often, this latter mandate category is designed to promote a legislatively determined public policy of the state, benefiting a narrow class of individuals, at the cost of the municipality. It is from this latter category of mandate that the need for fiscal relief is greatest”.
Noting that its comments “are not intended to question the validity or wisdom of the various public policies underlying mandates; rather, these comments are intended to identify those mandates that have the greatest impact on municipal expenses and to highlight the inequity of having municipalities bear the financial burden of carrying out these policies.”
The Special Committee addressed the following issues:
Disability Benefits for Law Enforcement and Firefighters (GML §§ 207-c; 207-a)
Public Pensions
Wicks Law (Gen. Mun. Law 101)
Prevailing Wage (Labor Law § 220)Triborough Amendment to the Taylor Law [Civil Service Law § 209-a.1(e)]
The Mandate Relief Redesign Team details findings in three key areas.
First, its report addresses reform and redesign the current system to stop the proliferation of unfunded mandates by:
1. Prohibiting New Unfunded Mandates: Permanently fix the problem of unfunded mandates by advancing a state law and eventual constitutional amendment prohibiting any new state mandate (with very limited exceptions) on local governments or school districts unless the state fully funds the mandate or the local entity votes to comply with the mandate;
2. Requiring Independent Cost Analysis of Mandates: Strengthen the currently ineffective fiscal impact statement process by requiring legislative fiscal committees to determine the need for and prepare such statements. This would involve codifying Executive Order 17's fiscal impact statement methodology and local government consultation requirements and making the reports available to the public; and
3. Enforcing Limits on Unfunded Mandates: Using existing resources, establish an Office of Mandate Reform to act as a clearinghouse that will work with local governments and state agencies to address unfunded mandates.
Second, its report addresses cost-drivers to provide meaningful mandate relief by:
1. Creating a Pension Tier 6: A new Tier will help municipalities and school districts address rapidly escalating pension costs; and
2. Avoiding the Wicks Requirement by Removing Barriers to Project Labor Agreements: In order to reduce the costs that localities and schools face due to Wicks, ease the burdens associated with project labor agreements (PLA) by eliminating the study requirement and developing regionally-negotiated PLA templates that together can reduce the costs of public works projects by 15 percent or more.
Third, its report addresses the current unsustainable burden of state mandates by:
1. Giving Local Governments Greater Flexibility to Administer Existing Mandates: The State Administrative Procedure Act (“SAPA”) §204-a should be streamlined and expanded to allow localities to propose alternatives to current regulations and to request waivers of regulations; and
2. Conducting a Comprehensive Review of All State Mandates: Conduct a full agency review and accounting of state and regulatory mandates that burden school districts and local governments.
* A complimentary copy of the Special Committee’s report is available from NYPPL. E-mail your request to publications@nycap.rr.com
** The Mandate Relief Redesign Team report is posted at: http://governor.ny.gov/assets/documents/finalmandate.pdf .
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Hearing officer recommends termination of Emergency Medical Technician who made a false report after responding to a 911 call
Hearing officer recommends termination of Emergency Medical Technician who made a false report after responding to a 911 call
NYC Fire Department v Prosper, OATH Index #192/11
OATH Administrative Law Judge John Spooner found that an emergency medical technician failed to follow protocol and made false reports when he responded to a 911 call from an elderly man who reported difficulty breathing.
The EMT and his partner arrived at the patient's apartment and argued with the patient about which hospital to go to. The patient, however, refused treatment and the EMTs returned to the ambulance.
Rather than calling a supervisor for help, as required, the EMTs reported “10-90” or unfounded, to the dispatcher.
Believing that there had been no contact with the patient, the dispatcher sent firefighters to gain entry to the apartment. In the meantime, the patient came downstairs and told the EMTs that he was taking a bus to the hospital. The EMT gave firefighters no information about the patient and they entered the empty apartment by breaking the door lock
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2885.pdf
NYC Fire Department v Prosper, OATH Index #192/11
OATH Administrative Law Judge John Spooner found that an emergency medical technician failed to follow protocol and made false reports when he responded to a 911 call from an elderly man who reported difficulty breathing.
The EMT and his partner arrived at the patient's apartment and argued with the patient about which hospital to go to. The patient, however, refused treatment and the EMTs returned to the ambulance.
Rather than calling a supervisor for help, as required, the EMTs reported “10-90” or unfounded, to the dispatcher.
Believing that there had been no contact with the patient, the dispatcher sent firefighters to gain entry to the apartment. In the meantime, the patient came downstairs and told the EMTs that he was taking a bus to the hospital. The EMT gave firefighters no information about the patient and they entered the empty apartment by breaking the door lock
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2885.pdf
Employer held liable under the Uniformed Services Employment and Reemployment Rights Act for adverse action taken against an individual by supervisor
Employer held liable under the Uniformed Services Employment and Reemployment Rights Act for adverse action taken against an individual by supervisor
Vincent E. Staub, Petitioner v. Proctor Hospital , USSC, No. 09-400, [March 1, 2011]
While employed by Proctor Hospital, Vincent Staub served as a member of the United States Army Reserve. As such, he was required to attend drills one weekend per month and to train full time for two to three weeks a year.
Both Janice Mulally, Staub's immediate supervisor, and Michael Korenchuk, Mulally's supervisor, were hostile to Staub's military obligations. Mulally scheduled Staub for additional shifts without notice so that he would " 'pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.’"
Mulally also informed Staub's co-worker, Leslie Sweborg, that Staub's "military duty had been a strain on th[e] department," and asked Sweborg to help her "get rid of him". Korenchuk referred to Staub's military obligations as "a b[u]nch of smoking and joking and [a] waste of taxpayers['] money”' "He was also aware that Mulally was "out to get" Staub.
The Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate [adverse] employment action, then the employer is liable under USERRA [Uniformed Services Employment and Reemployment Rights Act of 1994].”
.
Vincent E. Staub, Petitioner v. Proctor Hospital , USSC, No. 09-400, [March 1, 2011]
While employed by Proctor Hospital, Vincent Staub served as a member of the United States Army Reserve. As such, he was required to attend drills one weekend per month and to train full time for two to three weeks a year.
Both Janice Mulally, Staub's immediate supervisor, and Michael Korenchuk, Mulally's supervisor, were hostile to Staub's military obligations. Mulally scheduled Staub for additional shifts without notice so that he would " 'pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.’"
Mulally also informed Staub's co-worker, Leslie Sweborg, that Staub's "military duty had been a strain on th[e] department," and asked Sweborg to help her "get rid of him". Korenchuk referred to Staub's military obligations as "a b[u]nch of smoking and joking and [a] waste of taxpayers['] money”' "He was also aware that Mulally was "out to get" Staub.
The Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate [adverse] employment action, then the employer is liable under USERRA [Uniformed Services Employment and Reemployment Rights Act of 1994].”
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Removal from the payroll
Removal from the payroll
Kahn v SUNY Health Science Center, 271 AD2d 656
The employer tells the employee that he or she is off the payroll. The employee sues, seeking a court order barring this action pending the trial challenging his or her termination on the ground that he or she would suffer irreparable harm if the injunction were not issued because:
(1) If he or she were removed from the payroll he or she would have no one to support him;
(2) He or she he would be unable to live in the New York metropolitan area; and
(3) He or she would be unable to prosecute the lawsuit challenging the termination.
These were the claims made by Mahmood Khan when the State University of New York Health Science told him it was removing him from his faculty position with the university. Although a State Supreme Court judge issued granted the injunction, the Appellate Division, reversed the lower court and vacated the order.
The standards for granting a preliminary injunction are such situations are clear. The party seeking the order must show that:
(1) He or she is likely to succeed on the merits;
(2) He or she would suffer irreparable injury if the provisional relief is withheld; and
(3) A balancing of the equities weighing in favor of the moving party.
The Appellate Division, assuming that Kahn had indeed made an adequate showing of merit and that the equities balance in his favor, said that he failed to establish irreparable injury, the third element he was required to demonstrate. According to the court, Khan’s contentions were wholly speculative and conclusory, and, therefore, are insufficient to satisfy the burden of demonstrating irreparable injury.
Kahn also argued that if he were to be out of work for an extended period, he would have to return to Australia and would never be able to obtain United States citizenship. As he had not raised this argument before the Supreme Court, the Appellate Division said he was precluded from raising it in the appeal because absent matters that may be judicially noticed, new facts may not be injected at the appellate level.
.
Kahn v SUNY Health Science Center, 271 AD2d 656
The employer tells the employee that he or she is off the payroll. The employee sues, seeking a court order barring this action pending the trial challenging his or her termination on the ground that he or she would suffer irreparable harm if the injunction were not issued because:
(1) If he or she were removed from the payroll he or she would have no one to support him;
(2) He or she he would be unable to live in the New York metropolitan area; and
(3) He or she would be unable to prosecute the lawsuit challenging the termination.
These were the claims made by Mahmood Khan when the State University of New York Health Science told him it was removing him from his faculty position with the university. Although a State Supreme Court judge issued granted the injunction, the Appellate Division, reversed the lower court and vacated the order.
The standards for granting a preliminary injunction are such situations are clear. The party seeking the order must show that:
(1) He or she is likely to succeed on the merits;
(2) He or she would suffer irreparable injury if the provisional relief is withheld; and
(3) A balancing of the equities weighing in favor of the moving party.
The Appellate Division, assuming that Kahn had indeed made an adequate showing of merit and that the equities balance in his favor, said that he failed to establish irreparable injury, the third element he was required to demonstrate. According to the court, Khan’s contentions were wholly speculative and conclusory, and, therefore, are insufficient to satisfy the burden of demonstrating irreparable injury.
Kahn also argued that if he were to be out of work for an extended period, he would have to return to Australia and would never be able to obtain United States citizenship. As he had not raised this argument before the Supreme Court, the Appellate Division said he was precluded from raising it in the appeal because absent matters that may be judicially noticed, new facts may not be injected at the appellate level.
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March 01, 2011
Governor Cuomo to propose school superintendent salary cap
Governor Cuomo to propose school superintendent salary cap
Source: Office of the Governor
On February 28, 2011, Governor Andrew M. Cuomo announced that he will submit a program bill to cap the salaries of school superintendents across the state. The cap would be based upon student enrollment and if approved would save a combined $15 million.
The cap would impose salary limits as follows:
if 250 or fewer pupils, $125,000
if 251 to 750 pupils, $135,000
if 751 to 1,500 pupils, $145,000
if 1,501 to 3,000 pupils, $155,000
if 3,001to 6,500 pupils, $165,000
if 6,501 or more pupils, $175,000
The cap will apply only to school superintendents and will be applied prospectively as contracts expire. Local communities will have the ability to vote on overriding the salary cap, limited only to specific contracts. These votes will be held during normal school budget votes.
According to the Governor’s Office, currently, 223, or 33 percent of school district superintendents earn more than $175,000.
There is already a salary cap in place for BOCES district superintendents. The BOCES cap sets a single flat salary level ($166,572).
The Governor's press release is posted on the Internet at:
http://governor.ny.gov/press/salarycap
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Source: Office of the Governor
On February 28, 2011, Governor Andrew M. Cuomo announced that he will submit a program bill to cap the salaries of school superintendents across the state. The cap would be based upon student enrollment and if approved would save a combined $15 million.
The cap would impose salary limits as follows:
if 250 or fewer pupils, $125,000
if 251 to 750 pupils, $135,000
if 751 to 1,500 pupils, $145,000
if 1,501 to 3,000 pupils, $155,000
if 3,001to 6,500 pupils, $165,000
if 6,501 or more pupils, $175,000
The cap will apply only to school superintendents and will be applied prospectively as contracts expire. Local communities will have the ability to vote on overriding the salary cap, limited only to specific contracts. These votes will be held during normal school budget votes.
According to the Governor’s Office, currently, 223, or 33 percent of school district superintendents earn more than $175,000.
There is already a salary cap in place for BOCES district superintendents. The BOCES cap sets a single flat salary level ($166,572).
The Governor's press release is posted on the Internet at:
http://governor.ny.gov/press/salarycap
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Denial of tenure – election of an alternate procedure challenging the board's decision
Denial of tenure – election of an alternate procedure challenging the board's decision
Spadone and Lackawanna CSD, Decision of the Comm. of Education, 14,337
The Commissioner of Education dismissed the appeal filed by Anne G. Spadone challenging the Lackawanna City School Board’s action denying her tenure. Spadone had also filed a contract grievance and an Article 78 protesting the board’s failure to grant her tenure.
Spadone had been appointed as a business teacher subject to a two-year probationary period.* The superintendent recommended that the school board grant Spadone tenure at the end of her probationary period.
The resolution to grant Spadone tenure was considered by the school board. The vote: three votes for tenure, two votes against tenure, one abstention. One board member was absent from the meeting. Accordingly, a majority of the board had not approved the resolution.**
The superintendent wrote a letter to Spadone advising her of the board’s action but noted that vote was advisory within the meaning of Section 3031(b) of the Education Law and that the board would take final action at its July 22 meeting. Spadone, however, fared no better at the July meeting: three board members voted to grant her tenure; three voted to deny her tenure; one board member abstained.
Spadone contended that the votes of at least four board members are necessary to take any action and that [the board] could not ‘override’ the superintendent’s recommendation with fewer than four votes. The board, on the other hand, claimed that an affirmative vote of the majority of the board was necessary to grant tenure.
Spadone also argued that (1) she had attained tenure by estoppel and (2) board failed to meet the deadlines set out in Section 3031 of the Education Law. The board contended Spadone had not been continued in service beyond her probationary period and thus did not attain tenure by estoppel. As to it satisfying the time requirements of Section 3031, the board claimed any such failure on its part was harmless error.
The Commissioner first addressed the technical issue of his jurisdiction to consider Spadone’s appeal. He concluded that he did not have jurisdiction because Spadone had commenced a grievance challenging her being denied tenure. Spadone, said the Commissioner, had elected her remedy and it would be contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy.
Having said this, the Commissioner commented that even if Spadone’s appeal were not dismissed on jurisdictional grounds, it would have been dismissed on the merits. Why? Because, the Commissioner explained, a board of education has broad discretion in granting or denying tenure and need not accept the recommendation of the superintendent to grant tenure.
Section 2509(2)’s clear language states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure. The Commissioner said that Spadone had not advanced any compelling argument that supported her theory that a majority voting against tenure was required to deny her tenure in the district.
The Commissioner agreed with the board that considering the relevant facts in this case, its failure to fully comply with the 30-day notice requirements set out in Section 3031 was harmless error and, in any event, reinstatement is not the proper remedy for a violation of Section 3031.
* As Spadone had held tenure as a teacher prior to her appointment by Lackawanna, she was given two-year rather than a three-year probationary period in accordance with Section 2509(1) of the Education Law.
** As New York State School Board General Counsel, Jay Worona, observed, “Under New York State law, a quorum is a simple majority of [more than half] the total number of board members, not merely those present. Mr. Worona provides the following example: “If a board has five members and three are present at a meeting, all three would have to vote in favor of a resolution for it to pass, a 2 to 1 vote would not be sufficient.”
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Spadone and Lackawanna CSD, Decision of the Comm. of Education, 14,337
The Commissioner of Education dismissed the appeal filed by Anne G. Spadone challenging the Lackawanna City School Board’s action denying her tenure. Spadone had also filed a contract grievance and an Article 78 protesting the board’s failure to grant her tenure.
Spadone had been appointed as a business teacher subject to a two-year probationary period.* The superintendent recommended that the school board grant Spadone tenure at the end of her probationary period.
The resolution to grant Spadone tenure was considered by the school board. The vote: three votes for tenure, two votes against tenure, one abstention. One board member was absent from the meeting. Accordingly, a majority of the board had not approved the resolution.**
The superintendent wrote a letter to Spadone advising her of the board’s action but noted that vote was advisory within the meaning of Section 3031(b) of the Education Law and that the board would take final action at its July 22 meeting. Spadone, however, fared no better at the July meeting: three board members voted to grant her tenure; three voted to deny her tenure; one board member abstained.
Spadone contended that the votes of at least four board members are necessary to take any action and that [the board] could not ‘override’ the superintendent’s recommendation with fewer than four votes. The board, on the other hand, claimed that an affirmative vote of the majority of the board was necessary to grant tenure.
Spadone also argued that (1) she had attained tenure by estoppel and (2) board failed to meet the deadlines set out in Section 3031 of the Education Law. The board contended Spadone had not been continued in service beyond her probationary period and thus did not attain tenure by estoppel. As to it satisfying the time requirements of Section 3031, the board claimed any such failure on its part was harmless error.
The Commissioner first addressed the technical issue of his jurisdiction to consider Spadone’s appeal. He concluded that he did not have jurisdiction because Spadone had commenced a grievance challenging her being denied tenure. Spadone, said the Commissioner, had elected her remedy and it would be contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy.
Having said this, the Commissioner commented that even if Spadone’s appeal were not dismissed on jurisdictional grounds, it would have been dismissed on the merits. Why? Because, the Commissioner explained, a board of education has broad discretion in granting or denying tenure and need not accept the recommendation of the superintendent to grant tenure.
Section 2509(2)’s clear language states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure. The Commissioner said that Spadone had not advanced any compelling argument that supported her theory that a majority voting against tenure was required to deny her tenure in the district.
The Commissioner agreed with the board that considering the relevant facts in this case, its failure to fully comply with the 30-day notice requirements set out in Section 3031 was harmless error and, in any event, reinstatement is not the proper remedy for a violation of Section 3031.
* As Spadone had held tenure as a teacher prior to her appointment by Lackawanna, she was given two-year rather than a three-year probationary period in accordance with Section 2509(1) of the Education Law.
** As New York State School Board General Counsel, Jay Worona, observed, “Under New York State law, a quorum is a simple majority of [more than half] the total number of board members, not merely those present. Mr. Worona provides the following example: “If a board has five members and three are present at a meeting, all three would have to vote in favor of a resolution for it to pass, a 2 to 1 vote would not be sufficient.”
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Compelling reason for absence does not excuse misconduct
Compelling reason for absence does not excuse misconduct
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Matter of Rivers v. Commissioner of Labor, ___A.D3d___(3d Dept. Oct. 7, 2010), is a tough unemployment decision. The law is settled that an employee who is terminated for misconduct is not eligible for unemployment. The law is also settled that being absent without leave is misconduct. What if it was for one day to visit your son who just returned from Iraq? That is still misconduct. As the court stated:
An unauthorized absence from work has been held to constitute misconduct, which can disqualify a claimant from receiving unemployment insurance benefits (see Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009]; Matter of Britter [Commissioner of [*2]Labor], 54 AD3d 461 [2008]). Inasmuch as claimant admitted that he had requested leave and been denied, however compelling his reason for the request, we are constrained to find that the Board's decision is supported by substantial evidence (see Matter of Roe [Commissioner of Labor], 62 AD3d at 1106).
Mitchell H. Rubinstein
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Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Matter of Rivers v. Commissioner of Labor, ___A.D3d___(3d Dept. Oct. 7, 2010), is a tough unemployment decision. The law is settled that an employee who is terminated for misconduct is not eligible for unemployment. The law is also settled that being absent without leave is misconduct. What if it was for one day to visit your son who just returned from Iraq? That is still misconduct. As the court stated:
An unauthorized absence from work has been held to constitute misconduct, which can disqualify a claimant from receiving unemployment insurance benefits (see Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009]; Matter of Britter [Commissioner of [*2]Labor], 54 AD3d 461 [2008]). Inasmuch as claimant admitted that he had requested leave and been denied, however compelling his reason for the request, we are constrained to find that the Board's decision is supported by substantial evidence (see Matter of Roe [Commissioner of Labor], 62 AD3d at 1106).
Mitchell H. Rubinstein
.
February 28, 2011
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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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.”
.
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.
=======================
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.
========================
.
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.
=======================
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.
.
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.
.
February 25, 2011
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
.
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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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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