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
======================
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.
=======================
.
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.
.
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.
.
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.
=========================
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.
=========================
.
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.
=========================
.
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 .
.
.
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 .
.
.
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
Subscribe to:
Posts (Atom)
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press.
Email: nyppl@nycap.rr.com.