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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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
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].”
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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.
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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
.
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.
========================
.
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
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Matter of Ronga v Klein, 2011 NY Slip Op 01408, Appellate Division, First Department
A probationary administrator or teacher may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the administrator’s or teacher’s probationary term, McManus v Hempstead Union Free School District, 87 NY2d 183.
Richard Ronga, appointed as a probationary principal by the New York City Department of Education [DOE], challenged DOE's terminating his employment on the theory that he was denied due process as he was not give the required pre-termination notice and hearing.
Ronga contended that he had attained tenure as a principal by “estoppel” and thus he was entitled to such due process as a matter of law.
Supreme Court dismissed Ronga’s petition, which ruling was unanimously affirmed by the Appellate Division.
In contrast to Ronga’s claim that he acquired tenure by estoppel, the Appellate Division said that the record established that he did not perform the duties of a principal with DOE's knowledge or consent beyond the expiration of his probationary term.
Further, the court noted, prior to the expiration of Ronga’s probationary period DOE notified him that he would not be granted tenure. According to the decision, Ronga and DOE then negotiated and signed a resignation agreement, which Ronga attempted to revoke later that same day.
The Appellate Division concluded that Ronga failed to demonstrate that he acquired tenure by estoppel and, further, failed to sustain his burden of showing that DOE acted in bad faith when it terminated his employment as a probationary principal, “as he provides no support for his claims.”
N.B. Continuation on the payroll for a brief period after the expiration of a probationary period does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612]. The court ruled that as long as the termination of a probationer [in the classified service] is effected within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01408.htm
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Declining to reveal “sensitive family information” held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty
Declining to reveal “sensitive family information” held mitigating circumstances sufficient to justify recommending a less severe disciplinary penalty
Department of Sanitation v Anonymous, OATH Index #181/11
An employee admitted she was absent without leave for almost one year.
In mitigation, the employee testified regarding personal and health problems and said that she did not request leave because she would have to reveal sensitive information about her family, and was afraid it would not be kept confidential.
OATH Administrative Law Judge Faye Lewis found that although leave would have been granted had the employee properly requested it, Anonymous could be disciplined for taking absence without leave.
In consideration of extraordinary mitigating circumstances, however, ALJ Lewis recommended a sixty-day suspension without pay, which recommendation the appointing authority adopted.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-181.pdf
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Department of Sanitation v Anonymous, OATH Index #181/11
An employee admitted she was absent without leave for almost one year.
In mitigation, the employee testified regarding personal and health problems and said that she did not request leave because she would have to reveal sensitive information about her family, and was afraid it would not be kept confidential.
OATH Administrative Law Judge Faye Lewis found that although leave would have been granted had the employee properly requested it, Anonymous could be disciplined for taking absence without leave.
In consideration of extraordinary mitigating circumstances, however, ALJ Lewis recommended a sixty-day suspension without pay, which recommendation the appointing authority adopted.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-181.pdf
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Agency's failing to appear at an administrative hearing may have adverse consequences
Failing to appear at an administrative hearing may have adverse consequences
Aures v Buffalo Board of Education, 272 AD2d 664
The Aures decision demonstrates the problem that could result if a party fails to appear at an administrative hearing as scheduled -- the hearing officer may hold the hearing in absentia and the determination will be binding on the parties.
Although it had not participated in the administrative hearing, the Buffalo Board of Education [Buffalo] attempted to overturn a determination by an Unemployment Insurance Administrative Law Judge [ALJ] holding that Karen M. Aures was eligible for unemployment insurance benefits.
Aures, one of number of temporary teachers employed during academic 1996-1997, had applied for unemployment insurance benefits at the end of the school year. The local office of the Division of Unemployment Insurance found that Aures had received reasonable assurances of continued employment for the next academic year and disapproved her application for benefits. Aures appealed.
The key to a teacher’s eligibility for unemployment insurance between school years depends on his or her receiving a reasonable assurance of reemployment for the next school year within the meaning of Section 590(10) of the Labor Law.
An administrative hearing was scheduled but Buffalo failed to appear at the hearing. The Administrative Law Judge [ALJ] elected to proceed to hold the hearing notwithstanding Buffalo’s absence. The bottom line: the ALJ overruled the initial determination, holding Aures was eligible to receive benefits.
When Buffalo learned of the decision, it asked the ALJ to reopen the case. The ALJ denied Buffalo’s motion and the Unemployment Insurance Appeals Board [Board] affirmed the ALJ’s ruling. Buffalo subsequently asked the Board to reconsider its decision concerning Buffalo’s motion to reopen the matter. The Board agreed to do so, but ultimately decided to adhere to its previous ruling that sustained the ALJ’s determination denying Buffalo’s request to reopen the hearing. Buffalo appealed.
Why didn’t had Buffalo appear at the hearing before the ALJ? According to the court, Buffalo’s excuse for its not appearing at the hearing as scheduled: the unavailability of certain key witnesses.
The Appellate Division was not impressed by this argument. Noting that the key witnesses in question were under Buffalo’s control, the court said that “[h]aving elected to assign such witnesses to their regular duties rather than directing them to attend the scheduled hearings, [Buffalo] cannot now be heard to complain.”
The court affirmed the Board’s rejection of Buffalo’s motion to reopen the matter, explaining that the decision to grant an application to reopen lies within the discretion of the Board.
Unless it can be shown that the Board abused its discretion, the Board’s decision will not be disturbed by the courts. The Appellate Division decided that the record supported a finding that Board had not abused its discretion and dismissed Buffalo’s appeal.
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Aures v Buffalo Board of Education, 272 AD2d 664
The Aures decision demonstrates the problem that could result if a party fails to appear at an administrative hearing as scheduled -- the hearing officer may hold the hearing in absentia and the determination will be binding on the parties.
Although it had not participated in the administrative hearing, the Buffalo Board of Education [Buffalo] attempted to overturn a determination by an Unemployment Insurance Administrative Law Judge [ALJ] holding that Karen M. Aures was eligible for unemployment insurance benefits.
Aures, one of number of temporary teachers employed during academic 1996-1997, had applied for unemployment insurance benefits at the end of the school year. The local office of the Division of Unemployment Insurance found that Aures had received reasonable assurances of continued employment for the next academic year and disapproved her application for benefits. Aures appealed.
The key to a teacher’s eligibility for unemployment insurance between school years depends on his or her receiving a reasonable assurance of reemployment for the next school year within the meaning of Section 590(10) of the Labor Law.
An administrative hearing was scheduled but Buffalo failed to appear at the hearing. The Administrative Law Judge [ALJ] elected to proceed to hold the hearing notwithstanding Buffalo’s absence. The bottom line: the ALJ overruled the initial determination, holding Aures was eligible to receive benefits.
When Buffalo learned of the decision, it asked the ALJ to reopen the case. The ALJ denied Buffalo’s motion and the Unemployment Insurance Appeals Board [Board] affirmed the ALJ’s ruling. Buffalo subsequently asked the Board to reconsider its decision concerning Buffalo’s motion to reopen the matter. The Board agreed to do so, but ultimately decided to adhere to its previous ruling that sustained the ALJ’s determination denying Buffalo’s request to reopen the hearing. Buffalo appealed.
Why didn’t had Buffalo appear at the hearing before the ALJ? According to the court, Buffalo’s excuse for its not appearing at the hearing as scheduled: the unavailability of certain key witnesses.
The Appellate Division was not impressed by this argument. Noting that the key witnesses in question were under Buffalo’s control, the court said that “[h]aving elected to assign such witnesses to their regular duties rather than directing them to attend the scheduled hearings, [Buffalo] cannot now be heard to complain.”
The court affirmed the Board’s rejection of Buffalo’s motion to reopen the matter, explaining that the decision to grant an application to reopen lies within the discretion of the Board.
Unless it can be shown that the Board abused its discretion, the Board’s decision will not be disturbed by the courts. The Appellate Division decided that the record supported a finding that Board had not abused its discretion and dismissed Buffalo’s appeal.
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February 24, 2011
Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination
Probationary employee challenging his or her termination must show bad faith or an improper or impermissible reason underlies the termination
Matter of Mathis v New York State Dept. of Correctional Servs., 2011 NY Slip Op 01190, Appellate Division, Fourth Department
Probationary correction officer Demar Mathis filed an Article 78 petition challenging his termination from his employment for “failure to complete his probationary period in a satisfactory manner.”
Supreme Court granted Mathis’ petition, annulled the appointing authority's determination and reinstated him to in his former position with back pay. Although Supreme Court thereafter granted the Correction Department’s motion to reargue its opposition to Mathis’ petition, it ultimately adhered to its prior decision.
The Department appealed and the Appellate Division overturned Supreme Court’s ruling.
First, the Appellate Division said that it agreed with the Department’s argument that at the time of his termination, Mathis was a probationary employee who could be terminated for “almost any reason or for no reason at all," citing Matter of Swinton v Safir, 93 NY2d 758.
It then noted that although Mathis’ probationary term was to expire on October 29, 2007, it was extended by 92 days in accordance with the provisions set out in 4 NYCRR 4.5(g) in the event a probationer is absent during his or her probationary period.*
The Appellate Division said that Supreme Court erred when it concluded that Mathis was no longer a probationary employee on the date he was terminated because Supreme Court calculated the extension required by 4 NYCRR 4.5(g) using calendar days rather than workdays.
In the words of the Appellate Division, “Where, as here, a probationary term is extended pursuant to 4 NYCRR 4.5 (g), the extension is "one workday for every workday" the employee has missed.”
The Appellate Division than opined that "As a probationary employee, [Mathis] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason." Mathis, said the court, made no such showing here and that the record indicated that he had excessive absenteeism, disobeyed a direct order to return to work and continued to have absenteeism problems after being counseled about his absenteeism.
The court agreed with the Department that "[c]hronic absenteeism is a sufficient basis for terminating a probationary employee" as is the refusal to comply with a direct order.”
* 4 NYCRR 4.5(g), in pertinent part, provides that with respect to absence during probationary term, Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. … Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01190.htm
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Matter of Mathis v New York State Dept. of Correctional Servs., 2011 NY Slip Op 01190, Appellate Division, Fourth Department
Probationary correction officer Demar Mathis filed an Article 78 petition challenging his termination from his employment for “failure to complete his probationary period in a satisfactory manner.”
Supreme Court granted Mathis’ petition, annulled the appointing authority's determination and reinstated him to in his former position with back pay. Although Supreme Court thereafter granted the Correction Department’s motion to reargue its opposition to Mathis’ petition, it ultimately adhered to its prior decision.
The Department appealed and the Appellate Division overturned Supreme Court’s ruling.
First, the Appellate Division said that it agreed with the Department’s argument that at the time of his termination, Mathis was a probationary employee who could be terminated for “almost any reason or for no reason at all," citing Matter of Swinton v Safir, 93 NY2d 758.
It then noted that although Mathis’ probationary term was to expire on October 29, 2007, it was extended by 92 days in accordance with the provisions set out in 4 NYCRR 4.5(g) in the event a probationer is absent during his or her probationary period.*
The Appellate Division said that Supreme Court erred when it concluded that Mathis was no longer a probationary employee on the date he was terminated because Supreme Court calculated the extension required by 4 NYCRR 4.5(g) using calendar days rather than workdays.
In the words of the Appellate Division, “Where, as here, a probationary term is extended pursuant to 4 NYCRR 4.5 (g), the extension is "one workday for every workday" the employee has missed.”
The Appellate Division than opined that "As a probationary employee, [Mathis] had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason." Mathis, said the court, made no such showing here and that the record indicated that he had excessive absenteeism, disobeyed a direct order to return to work and continued to have absenteeism problems after being counseled about his absenteeism.
The court agreed with the Department that "[c]hronic absenteeism is a sufficient basis for terminating a probationary employee" as is the refusal to comply with a direct order.”
* 4 NYCRR 4.5(g), in pertinent part, provides that with respect to absence during probationary term, Any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary term, or aggregating up to 20 workdays if the probationary term or maximum term exceeds 26 weeks, may, in the discretion of the appointing authority, be considered as time served in the probationary term. … Any such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term. The minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his absence which, pursuant to this subdivision, are not counted as time served in the probationary term.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01190.htm
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Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights
Supervisor's weekly calls to employee on FMLA leave to ask when he or she would return to work interfers with employee's FMLA rights
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
In Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave.
The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.
The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.
The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave." 29 CFR 825.220(b).
Mr. Bosland Comments: The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights. The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).
From the decision, it does not appear that the employer argued the point. Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference. For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.
Unfortunately, it is not clear from the Terwilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports. If the duration of approved leave is unknown weekly status reports would appear to be reasonable.
The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment. I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances. Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.
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Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
In Terwilliger v. Howard Memorial Hospital, No. 09-CV-4055 (W.D. Ark. Jan. 27, 2011), the Court found that weekly calls by the employee's immediate supervisor during the employee's approved, post-back surgery FMLA leave to determine when the employee would return to work interfered with the employee's FMLA rights by discouraging or "chilling" the use of FMLA leave.
The employee claimed that, as a result of the calls, she felt pressured to return to work rather than remain on FMLA leave.
The employer argued that, because the employee did not in fact return to work earlier, the employee failed to establish her FMLA interference claim.
The Court disagreed with the employer, noting that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave." 29 CFR 825.220(b).
Mr. Bosland Comments: The decision correctly posits that "interference" includes discouraging an employee from exercising FMLA rights. The decision is curious in that it fails to address the employer's right to require an employee on FMLA leave to report periodically on the employee's status and intent to return to work, as permitted by 29 CFR 825.311(a).
From the decision, it does not appear that the employer argued the point. Of course, it is possible that an employer may abuse the right to require periodic status reports resulting in illegal interference. For example, if the employee was provided a certification that stated unequivocally that an employee needed a set period of leave and would return on a date certain, an employer that nevertheless requested periodic status reports on a daily or weekly basis may be found to have crossed the line into impermissible interference.
Unfortunately, it is not clear from the Terwilliger decision why weekly status reports in that case interfered with the employee's FMLA rights. The decision simply fails to detail why it was unreasonable for the supervisor to require weekly status reports. If the duration of approved leave is unknown weekly status reports would appear to be reasonable.
The decision appears to be a product of the inferences favoring the nonmoving party (the employee) faced with the employer's motion for summary judgment. I do not believe it stands for the proposition that weekly status reports are a per se violation of the FMLA no matter what the factual circumstances. Rather, because periodic status reports are specifically permitted by the FMLA, there will be some situations - particularly where the duration of the employee's FMLA absence is unknown - where weekly status reports do not interfere with an employee's FMLA rights.
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Are appointment promises that are not met binding on the appointment authority?
Are appointment promises that are not met binding on the appointment authority?
Carson v NYC Dept. of Sanitation, 271 AD2d 380
The Carson decision demonstrates the general rule that promises made by a public employee to an applicant or to another worker are not binding on the appointing authority unless the individual is authorized to make such commitments on behalf of the appointing authority.
Calvin Carson was terminated from his position with the New York City Department of Sanitation [DOS]. When his request to be reinstated to his former position was denied, he sued, claiming breach of contract. The basis for his breach of contract action: Carson alleged that a DOS employee had promised him that he would be reinstated to his former position upon his completion of a drug treatment program.
Citing Granada Building, Inc v City of Kingston, 58 NY2d 705, the Appellate Division dismissed Carson’s appeal. The court said that even if Carson had been promised reinstatement by the DOS employee, the promise was unauthorized and DOS was not bound by it.
On a procedural point, the court noted that although Carson had sued for breach of contract, Supreme Court Judge Beverly Cohen had correctly converted Carson’s complaint into an Article 78 proceeding to annul DOS’s determination to terminate Carson from his position. Why? Because, the court explained, Carson’s original petition effectively sought [his] reinstatement to his former position as a DOS employee, and [DOS] had the statutory and regulatory authority to issue a final and binding determination with respect to this employment. Such decisions by the appointing authority are tested via an Article 78 procedure action rather suing for breach of contract.
Carson also contended that the doctrine of promissory estoppel supported his demand for reinstatement. The Appellate Division rejected this theory, commenting that there was no merit in applying the doctrine in Carson’s case, particularly in light of [his] prior execution and violation of a final termination agreement, which agreement was concealed from the DOS employee alleged to have promised Carson’s reinstatement.
The same basic rationale was applied in Schwartz v Crosson, 165 AD2D 14, a case decided by the Appellate Division, Third Department.
Michael Schwartz was promised a certain salary upon appointment to public service only to learn that he would be paid at a lower rate once he reported for duty.
The Appellate Division said that the doctrine of estoppel was not applicable even though Schwartz had relied upon the information given to him concerning his salary upon appointment to his detriment. The decision notes that it is well settled that estoppel is generally not available against the State when it acts in a governmental capacity.
The Court also said that although an exception to the general rule exists in “unusual factual situations” to prevent injustice, it did not believe that Schwartz’s situation fell within such an exception.
Significantly, the Carson ruling notes that the possibility of one public employee misinforming another public employee concerning personnel matters, while unfortunate, is not so “highly unusual” that the general rule against estoppel should be ignored.
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Carson v NYC Dept. of Sanitation, 271 AD2d 380
The Carson decision demonstrates the general rule that promises made by a public employee to an applicant or to another worker are not binding on the appointing authority unless the individual is authorized to make such commitments on behalf of the appointing authority.
Calvin Carson was terminated from his position with the New York City Department of Sanitation [DOS]. When his request to be reinstated to his former position was denied, he sued, claiming breach of contract. The basis for his breach of contract action: Carson alleged that a DOS employee had promised him that he would be reinstated to his former position upon his completion of a drug treatment program.
Citing Granada Building, Inc v City of Kingston, 58 NY2d 705, the Appellate Division dismissed Carson’s appeal. The court said that even if Carson had been promised reinstatement by the DOS employee, the promise was unauthorized and DOS was not bound by it.
On a procedural point, the court noted that although Carson had sued for breach of contract, Supreme Court Judge Beverly Cohen had correctly converted Carson’s complaint into an Article 78 proceeding to annul DOS’s determination to terminate Carson from his position. Why? Because, the court explained, Carson’s original petition effectively sought [his] reinstatement to his former position as a DOS employee, and [DOS] had the statutory and regulatory authority to issue a final and binding determination with respect to this employment. Such decisions by the appointing authority are tested via an Article 78 procedure action rather suing for breach of contract.
Carson also contended that the doctrine of promissory estoppel supported his demand for reinstatement. The Appellate Division rejected this theory, commenting that there was no merit in applying the doctrine in Carson’s case, particularly in light of [his] prior execution and violation of a final termination agreement, which agreement was concealed from the DOS employee alleged to have promised Carson’s reinstatement.
The same basic rationale was applied in Schwartz v Crosson, 165 AD2D 14, a case decided by the Appellate Division, Third Department.
Michael Schwartz was promised a certain salary upon appointment to public service only to learn that he would be paid at a lower rate once he reported for duty.
The Appellate Division said that the doctrine of estoppel was not applicable even though Schwartz had relied upon the information given to him concerning his salary upon appointment to his detriment. The decision notes that it is well settled that estoppel is generally not available against the State when it acts in a governmental capacity.
The Court also said that although an exception to the general rule exists in “unusual factual situations” to prevent injustice, it did not believe that Schwartz’s situation fell within such an exception.
Significantly, the Carson ruling notes that the possibility of one public employee misinforming another public employee concerning personnel matters, while unfortunate, is not so “highly unusual” that the general rule against estoppel should be ignored.
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The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration
The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration
Town of Newburgh v CSEA, 272 AD2d 405
Although an arbitrator sustained the Newburgh’s dismissal of an employee who was found guilty of testing positive for marijuana, this did not end the matter.
The employee’s union, the Civil Service Employee’s Association [CSEA], filed a second grievance alleging that the Town had violated the collective bargaining agreement because it had suspended the individual for more than 30 days without pay prior to the arbitrator’s determination. CSEA demanded that the second grievance be submitted to arbitration.
In effect, CSEA argued that because the final resolution of the charges occurred upon the issuance of the disciplinary arbitration award, the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.
The Town, contending that considering a second grievance necessarily presents a risk of inconsistent awards, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order staying the arbitration. State Supreme Court Peter C. Patsalos to grant the Town’s petition to stay the arbitration; the Appellate Division, Second Department, reversed.
The Appellate Division pointed out that the arbitrator in the disciplinary action apparently did not directly address the question of whether, pursuant to the parties’ collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.
The Appellate Division rejected the Town’s argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.
Accordingly, the court said that under these circumstances the correct rule to apply is that which holds that it is for a successive arbitrator to decide any res judicata [an already decided issue] or collateral estoppel effect is to be given to a prior arbitration award.
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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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Town of Newburgh v CSEA, 272 AD2d 405
Although an arbitrator sustained the Newburgh’s dismissal of an employee who was found guilty of testing positive for marijuana, this did not end the matter.
The employee’s union, the Civil Service Employee’s Association [CSEA], filed a second grievance alleging that the Town had violated the collective bargaining agreement because it had suspended the individual for more than 30 days without pay prior to the arbitrator’s determination. CSEA demanded that the second grievance be submitted to arbitration.
In effect, CSEA argued that because the final resolution of the charges occurred upon the issuance of the disciplinary arbitration award, the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.
The Town, contending that considering a second grievance necessarily presents a risk of inconsistent awards, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order staying the arbitration. State Supreme Court Peter C. Patsalos to grant the Town’s petition to stay the arbitration; the Appellate Division, Second Department, reversed.
The Appellate Division pointed out that the arbitrator in the disciplinary action apparently did not directly address the question of whether, pursuant to the parties’ collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.
The Appellate Division rejected the Town’s argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.
Accordingly, the court said that under these circumstances the correct rule to apply is that which holds that it is for a successive arbitrator to decide any res judicata [an already decided issue] or collateral estoppel effect is to be given to a prior arbitration award.
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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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February 23, 2011
Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement
Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement
Matter of Laird v Village of Pelham Manor, 2011 NY Slip Op 01278, Appellate Division, Second Department
The PBA and the Village of Pelham Manor entered into a collective bargaining agreement that included a procedure to be followied by an police officers seeking disability and other benefits available to him or to her pursuant to General Municipal Law §207-c.
The CBA’s procedure provided for the filing of an application for benefits, a determination to be made on the application submitted, and the review of the determination if the applicant was unhappy with the decision including appealing the denial of such benefits in the event the police officer’s application for §207-c benefits was rejected because the “applicant failed to comply with the agreed-upon procedures.”
The Village denied the application for §207-c benefits filed by police officer Christopher Laird after determining that he did not file his application for such benefits within the time limit permitted for filing such claims set out in the CBA.
Laird appealed the determination and he was given an opportunity to demonstrate that he had credible reasons for failing to file the application within the agreed-upon period. His appeal was denied and ultimately the Village Board of Trustees affirmed the initial finding that Laird’s application seeking §207-c benefits was untimely.
The Appellate Division sustained the Village Board’s decision, ruling that the Board’s determination was “rationally based.”
The court said that the appropriate application forms were available to Laird upon request and found that other police officers following the procedure set out in the collective bargaining agreement had been granted “disability status” after filing a timely application for §207-c benefits.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01278.htm
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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic handbook.
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Matter of Laird v Village of Pelham Manor, 2011 NY Slip Op 01278, Appellate Division, Second Department
The PBA and the Village of Pelham Manor entered into a collective bargaining agreement that included a procedure to be followied by an police officers seeking disability and other benefits available to him or to her pursuant to General Municipal Law §207-c.
The CBA’s procedure provided for the filing of an application for benefits, a determination to be made on the application submitted, and the review of the determination if the applicant was unhappy with the decision including appealing the denial of such benefits in the event the police officer’s application for §207-c benefits was rejected because the “applicant failed to comply with the agreed-upon procedures.”
The Village denied the application for §207-c benefits filed by police officer Christopher Laird after determining that he did not file his application for such benefits within the time limit permitted for filing such claims set out in the CBA.
Laird appealed the determination and he was given an opportunity to demonstrate that he had credible reasons for failing to file the application within the agreed-upon period. His appeal was denied and ultimately the Village Board of Trustees affirmed the initial finding that Laird’s application seeking §207-c benefits was untimely.
The Appellate Division sustained the Village Board’s decision, ruling that the Board’s determination was “rationally based.”
The court said that the appropriate application forms were available to Laird upon request and found that other police officers following the procedure set out in the collective bargaining agreement had been granted “disability status” after filing a timely application for §207-c benefits.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01278.htm
=======================
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic handbook.
========================
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Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Taxi & Limousine Commission v Alvarez, OATH Index # 924/11
OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.
Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).
The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”
As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:
Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:
• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;
• Operated the vehicle inattentively, including failure to exercise defensive driving skills;
Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-924.pdf
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Taxi & Limousine Commission v Alvarez, OATH Index # 924/11
OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.
Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).
The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”
As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:
Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:
• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;
• Operated the vehicle inattentively, including failure to exercise defensive driving skills;
Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-924.pdf
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Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process
Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process
Paul Barrows v John Wiley and Luoluo, US Circuit Court of Appeals, 7th No. 05 C 658, 2007 U.S. App. LEXIS 3792
The U.S. Circuit Court of Appeals ruled that placing a public university employee on unpaid administrative leave and requiring him to use leave credits in order to remain on the payroll did not violate his Fourteenth Amendment rights to due process.
The University of Wisconsin-Madison had employed Paul Barrows in various academic capacities for more than 20 years, most recently as Vice Chancellor for Student Affairs. Barrows annual salary as Vice Chancellor was $191,749.00.
This case arose when Barrows was asked to submit a letter of resignation, which he claimed he did reluctantly. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that “[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time.”
Barrows later asserted that he did not resign from his position, but rather that one of the defendants, Wiley, had fired him.
While on “unpaid administrative leave,” Barrows continued to be paid at the annual rate of pay he received as Vice Chancellor for Student Affairs -- $191,749.00 – by charging his various leave accruals. On June 23, 2005, Barrows was placed in his backup position in the Provost’s Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.
One of the complaints in Barrows’ petition alleged that forcing him to use his leave credits in order to remain on the payroll prior to his reinstatement in his “backup position” without notice or the opportunity to be heard violated his Fourteenth Amendment right to due process.
The Circuit Court affirmed the district court’s ruling that held that Barrows’ Fourteenth Amendment rights had not been violated. It said that:
1. There is no evidence in the record that Barrows requested to be placed in his backup position or challenged the University’s failure to immediately place him in his backup position.
2. Although Barrows asserted in his affidavit that he sought to return to work, this generalized statement is insufficient to establish that he sought his backup position.
3. Barrows failed to assert economic harm flowing from the University’s decision not to immediately place him in his backup position. As noted, while he was on leave Barrows continued to receive compensation at the Vice Chancellor rate of pay of $191,749.00 annually, as opposed to the rate of pay for his backup appointment, $72,881.00.
The court also rejected Barrows’ argument that he suffered an economic harm by being forced to use his leave time in order to remain on the payroll while on “unpaid administrative leave.” Barrows claimed that several University policies allowed employees to receive compensation for the leave credits that he was required to use in order to remain in pay status. In effect, Barrows contended that by forcing him to use this leave time, rather than placing him in the backup position, the University deprived him of the extra compensation he would have received after he left the backup position.
The problem with Barrows’ argument, said the court, is that he failed to present sufficient evidence of an economic harm because he failed to provide an adequate loss calculation.
Holding that Barrows failed to establish either a property interest or an economic harm flowing from the University’s decision not to immediately place Barrows in his backup position, and instead placed him on unpaid administrative leave, requiring him use his leave time in order to receive compensation, it ruled that Barrows’ due process claim failed. Accordingly, the district court properly granted the defendants’ motion for summary judgment.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/placing-individual-on-upaid.html
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Paul Barrows v John Wiley and Luoluo, US Circuit Court of Appeals, 7th No. 05 C 658, 2007 U.S. App. LEXIS 3792
The U.S. Circuit Court of Appeals ruled that placing a public university employee on unpaid administrative leave and requiring him to use leave credits in order to remain on the payroll did not violate his Fourteenth Amendment rights to due process.
The University of Wisconsin-Madison had employed Paul Barrows in various academic capacities for more than 20 years, most recently as Vice Chancellor for Student Affairs. Barrows annual salary as Vice Chancellor was $191,749.00.
This case arose when Barrows was asked to submit a letter of resignation, which he claimed he did reluctantly. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that “[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time.”
Barrows later asserted that he did not resign from his position, but rather that one of the defendants, Wiley, had fired him.
While on “unpaid administrative leave,” Barrows continued to be paid at the annual rate of pay he received as Vice Chancellor for Student Affairs -- $191,749.00 – by charging his various leave accruals. On June 23, 2005, Barrows was placed in his backup position in the Provost’s Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.
One of the complaints in Barrows’ petition alleged that forcing him to use his leave credits in order to remain on the payroll prior to his reinstatement in his “backup position” without notice or the opportunity to be heard violated his Fourteenth Amendment right to due process.
The Circuit Court affirmed the district court’s ruling that held that Barrows’ Fourteenth Amendment rights had not been violated. It said that:
1. There is no evidence in the record that Barrows requested to be placed in his backup position or challenged the University’s failure to immediately place him in his backup position.
2. Although Barrows asserted in his affidavit that he sought to return to work, this generalized statement is insufficient to establish that he sought his backup position.
3. Barrows failed to assert economic harm flowing from the University’s decision not to immediately place him in his backup position. As noted, while he was on leave Barrows continued to receive compensation at the Vice Chancellor rate of pay of $191,749.00 annually, as opposed to the rate of pay for his backup appointment, $72,881.00.
The court also rejected Barrows’ argument that he suffered an economic harm by being forced to use his leave time in order to remain on the payroll while on “unpaid administrative leave.” Barrows claimed that several University policies allowed employees to receive compensation for the leave credits that he was required to use in order to remain in pay status. In effect, Barrows contended that by forcing him to use this leave time, rather than placing him in the backup position, the University deprived him of the extra compensation he would have received after he left the backup position.
The problem with Barrows’ argument, said the court, is that he failed to present sufficient evidence of an economic harm because he failed to provide an adequate loss calculation.
Holding that Barrows failed to establish either a property interest or an economic harm flowing from the University’s decision not to immediately place Barrows in his backup position, and instead placed him on unpaid administrative leave, requiring him use his leave time in order to receive compensation, it ruled that Barrows’ due process claim failed. Accordingly, the district court properly granted the defendants’ motion for summary judgment.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/placing-individual-on-upaid.html
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Employee’s termination for off-duty misconduct bars unemployment insurance award
Employee’s termination for off-duty misconduct bars unemployment insurance award
Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961
A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper’s actions were in violation of the Division’s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.
The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.
While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.
The decision indicates that the ALJ’s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ’s decision. The Division of State Police appealed.
The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper’s termination was not a result of disqualifying misconduct.
The court’s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved … constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:
Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.
The Division had argued that the Trooper's conduct in, among other things, “getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.” According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."
The court ruled that “Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/discharge-for-misconduct-may-bar.html
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Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961
A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper’s actions were in violation of the Division’s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.
The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.
While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.
The Trooper, however, was subsequently acquitted of the driving under the influence charge.
Following his termination the Trooper applied for unemployment insurance benefits. An Administrative Law Judge [ALJ] ruled that the Trooper’s behavior had not risen to the level of disqualifying misconduct.The decision indicates that the ALJ’s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ’s decision. The Division of State Police appealed.
The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper’s termination was not a result of disqualifying misconduct.
The court’s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved … constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:
Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.
The Division had argued that the Trooper's conduct in, among other things, “getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.” According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."
The court ruled that “Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/discharge-for-misconduct-may-bar.html
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February 22, 2011
The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch
The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch
Source: Appolicious Inc.
The developer of this application reports that it provides the full text of the 2011 New York Civil Service Law [sic] in an easily readable and searchable format and provides the user with the following:
The full text of the New York State Civil Service Law
The ability to perform a fast full-text search and to search within search results to narrow down matches and create bookmarks .
As to mechanics, the user can navigate through the text of the Civil Service Law by swiping a finger.
No network connection is required and the developer states that it "runs fast and uses little memory."
Additional features include support for Portrait or Landscape mode and allows the text to be rotated to the Landscape mode for a larger font display
For additional information click on:
http://www.appolicious.com/tech/apps/214746-ny-civil-service-law-2011-new-york-statutes-pda-wizard/developer_notes
Source: Appolicious Inc.
The developer of this application reports that it provides the full text of the 2011 New York Civil Service Law [sic] in an easily readable and searchable format and provides the user with the following:
The full text of the New York State Civil Service Law
The ability to perform a fast full-text search and to search within search results to narrow down matches and create bookmarks .
As to mechanics, the user can navigate through the text of the Civil Service Law by swiping a finger.
No network connection is required and the developer states that it "runs fast and uses little memory."
Additional features include support for Portrait or Landscape mode and allows the text to be rotated to the Landscape mode for a larger font display
For additional information click on:
http://www.appolicious.com/tech/apps/214746-ny-civil-service-law-2011-new-york-statutes-pda-wizard/developer_notes
In an Article 75 action to vacate an arbitration award, the moving party is required to prove its entitlement to the vacating of the arbitrator's award by the court
In an Article 75 action to vacate an arbitration award, the moving party is required to prove its entitlement to the vacating of the arbitrator's award by the court
Matter of New York State Dept. of Correctional Servs. v New York State Correctional Officers & Police Benevolent Assn., 2011 NY Slip Op 30254(U), Sup Ct, Albany County, Judge Joseph C. Teresi [Not selected for publication in the Official Reports]
In this CPLR §7511 action to annul an arbitration award on the grounds that the arbitrator exceeded his powers, Judge Teresi dismissed the Department of Correctional Services’ petition because the Department “failed to demonstrate its entitlement to annulment of the arbitrator's award.”
Judge Teresi explained that "An arbitration award may be vacated under CPLR 7511 (b)(1)(iii) as in excess of the arbitrator's authority only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
The Department, said the court, did not cite either a strong public policy or irrationality as the basis for its excess power claim. Here the Department “must demonstrate that "a specific limitation on ... [the arbitrator's] power enumerated in the arbitration clause itself has been violated."
In this challenge to the award made by the arbitrator in a “disciplinary arbitration,” the arbitrator's power was set out in the Collective Bargaining Agreement as to “determinations of guilt or innocence and the appropriateness of proposed penalties, taking into account mitigating and extenuating circumstances.” Further, the “Disciplinary arbitrators shall neither add to, subtract from nor modify the provisions of the agreement... the disciplinary arbitrator may approve, disapprove or take any other appropriate action warranted under the circumstances."
After the hearing, the arbitrator found the employee involved “guilty of negligently causing damage to a State vehicle, the only charge against her.” However, the arbitrator rejected the Department’s proposed penalty and, instead, imposed a "$250.00 fine.”
The arbitrator's guilty finding and fine imposition were not at issue. Rather, the Department complained that arbitrator's decision concerning expungement of material from the employee’s personnel records and retention of jurisdiction over the disciplinary action exceed his authority.
The court said that the CBA does not specifically preclude the arbitrator from taking either action and that the Department did not introduce any evidence that the CBA contains a specific limitation on an arbitrator's continuing jurisdiction to ensure implementation of a penalty.
Judge Teresi said that the fact that the CBA was silence on this issue does not constitute a specific limitation nor did the arbitrator's expungement remedy "add to, subtract from nor modify" the CBA” but, rather, in accord with the CBA, the arbitrator took "other appropriate action warranted under the circumstances."
As the Department failed to demonstrate its entitlement to annulment of the Arbitrator's Award, Judge Teresi denied its petition.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2011/2011_30254.pdf
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Matter of New York State Dept. of Correctional Servs. v New York State Correctional Officers & Police Benevolent Assn., 2011 NY Slip Op 30254(U), Sup Ct, Albany County, Judge Joseph C. Teresi [Not selected for publication in the Official Reports]
In this CPLR §7511 action to annul an arbitration award on the grounds that the arbitrator exceeded his powers, Judge Teresi dismissed the Department of Correctional Services’ petition because the Department “failed to demonstrate its entitlement to annulment of the arbitrator's award.”
Judge Teresi explained that "An arbitration award may be vacated under CPLR 7511 (b)(1)(iii) as in excess of the arbitrator's authority only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
The Department, said the court, did not cite either a strong public policy or irrationality as the basis for its excess power claim. Here the Department “must demonstrate that "a specific limitation on ... [the arbitrator's] power enumerated in the arbitration clause itself has been violated."
In this challenge to the award made by the arbitrator in a “disciplinary arbitration,” the arbitrator's power was set out in the Collective Bargaining Agreement as to “determinations of guilt or innocence and the appropriateness of proposed penalties, taking into account mitigating and extenuating circumstances.” Further, the “Disciplinary arbitrators shall neither add to, subtract from nor modify the provisions of the agreement... the disciplinary arbitrator may approve, disapprove or take any other appropriate action warranted under the circumstances."
After the hearing, the arbitrator found the employee involved “guilty of negligently causing damage to a State vehicle, the only charge against her.” However, the arbitrator rejected the Department’s proposed penalty and, instead, imposed a "$250.00 fine.”
The arbitrator's guilty finding and fine imposition were not at issue. Rather, the Department complained that arbitrator's decision concerning expungement of material from the employee’s personnel records and retention of jurisdiction over the disciplinary action exceed his authority.
The court said that the CBA does not specifically preclude the arbitrator from taking either action and that the Department did not introduce any evidence that the CBA contains a specific limitation on an arbitrator's continuing jurisdiction to ensure implementation of a penalty.
Judge Teresi said that the fact that the CBA was silence on this issue does not constitute a specific limitation nor did the arbitrator's expungement remedy "add to, subtract from nor modify" the CBA” but, rather, in accord with the CBA, the arbitrator took "other appropriate action warranted under the circumstances."
As the Department failed to demonstrate its entitlement to annulment of the Arbitrator's Award, Judge Teresi denied its petition.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2011/2011_30254.pdf
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February 21, 2011
PERB ALJ holds the County’s unilateral discontinuing its past practice of reimbursing Medicare Premiums to its retirees an improper practice
PERB ALJ holds the County’s unilateral discontinuing its past practice of reimbursing Medicare Premiums to its retirees an improper practice
In the Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and County of St. Lawrence, Public Employment Relations Board, Case no. U-29935 [Decision made available to NYPPL through the courtesy of Paul S. Bamberger, Esq., Senior Counsel, CSEA Legal Department.]
Civil Service Employees Association, Inc., Local 1000, filed an improper practice charge alleging that St. Lawrence County violated §209-a.1(d) of the Public Employees' Fair Employment Act (The Taylor Law) when it announced to all current employees changes in the County's Medicare Part B reimbursement policy. The County filed an answer denying that its actions violated the Act.
In lieu of a hearing, the parties stipulated the following critical facts:
1. In 1985, the County Board of Legislators passed Resolution No. 361-85 providing that the County would reimburse eligible retirees – i.e., County employees with at least five years of service -- twice each year for their cost of Medicare Part B premiums “for life”.
2. The premiums for Medicare Part B have increased over the years, from 1985 to the present, and the County continually reimbursed Medicare eligible retirees and their spouses for the full cost of the Medicare Part B premiums as they increased.
3. On November 17, 2009, the County Legislature passed Resolution No. 368-2009 amending the Medicare Part B reimbursement policy set forth in Resolution 361-85 whereby the County would not increase the reimbursement of Medicare Part B premiums above the amount of the cost of the premiums as of January 1,2010, regardless of any increases in Medicare Part B premiums after that date.
4. The County discontinued its reimbursement practice with respect to County employees who retire after December 31, 2010.
On this record, said PERB Administrative Law Judge Jean Doerr, “it must be found that a past practice exists, binding the County to continue the reimbursement of the Medicare Part B premium to eligible retirees and their spouses.”
Judge Doerr pointed out that the parties stipulated that the reimbursement policy began in 1985 and continued to the present with the full knowledge of County management and County employees. Accordingly, and consistent with the Board's holding in Matter of Chenango Forks, [40 PERB 3012 (2007)], the ALJ ruled that the payment of Medicare Part B premiums encompasses a mandatory subject of collective bargaining "as it is in the nature of benefits related to health insurance for employees upon retirement, whether or not those employees retire during the life of the agreement."
The ALJ rejected the County’s theory “that because the reimbursements were made as a result of a public act of a municipal board, County employees could not have reasonably expected that the payment of Medicare Part B premiums would continue unchanged,” concluding that its argument in this respect was misplaced.*
Judge Doerr explained that “the nature of the enabling legislation upon which an employer acts is not controlling” as it is the act of the employer in providing the benefit, and not the legislative body at whose direction the employer acts, "which we look to in determining, as here, the existence of an enforceable past practice."
Further, the ALJ noted that the County stipulated “that the 24-year practice was well known to all County employees” and created an “expectation of the continuation of the practice … from its duration with consideration of the specific circumstances under which the practice has existed."
Judge Doerr ruled that the County violated §209-a.1(d) of the Taylor Law when it unilaterally announced to its current employees that it would no longer reimburse retirees and their spouses for the cost of Medicare Part B premiums for those unit employees who retire after December 31, 2010, and that reimbursement would be frozen at January 1, 2010 levels for those unit employees who retire by December 31, 2010.
New York Public Personnel Law earlier posted materials related to the issue of discontinuing the reimbursement of Medicare Premiums, in whole or in part, to retirees at:
http://publicpersonnellaw.blogspot.com/2010/09/school-district-ordered-to-reimburse.html
and at:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
* The County argued the acts of a public act of a municipal board are subject to repeal and amendment and is therefore recognized as temporary in nature, citing to Collins v. City of Schenectady, 256 AD 389 (3d Dept 1939), and Jewett v. Luau-Nyack Corporation, 31 NY2d 298 (1972).
In the Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and County of St. Lawrence, Public Employment Relations Board, Case no. U-29935 [Decision made available to NYPPL through the courtesy of Paul S. Bamberger, Esq., Senior Counsel, CSEA Legal Department.]
Civil Service Employees Association, Inc., Local 1000, filed an improper practice charge alleging that St. Lawrence County violated §209-a.1(d) of the Public Employees' Fair Employment Act (The Taylor Law) when it announced to all current employees changes in the County's Medicare Part B reimbursement policy. The County filed an answer denying that its actions violated the Act.
In lieu of a hearing, the parties stipulated the following critical facts:
1. In 1985, the County Board of Legislators passed Resolution No. 361-85 providing that the County would reimburse eligible retirees – i.e., County employees with at least five years of service -- twice each year for their cost of Medicare Part B premiums “for life”.
2. The premiums for Medicare Part B have increased over the years, from 1985 to the present, and the County continually reimbursed Medicare eligible retirees and their spouses for the full cost of the Medicare Part B premiums as they increased.
3. On November 17, 2009, the County Legislature passed Resolution No. 368-2009 amending the Medicare Part B reimbursement policy set forth in Resolution 361-85 whereby the County would not increase the reimbursement of Medicare Part B premiums above the amount of the cost of the premiums as of January 1,2010, regardless of any increases in Medicare Part B premiums after that date.
4. The County discontinued its reimbursement practice with respect to County employees who retire after December 31, 2010.
On this record, said PERB Administrative Law Judge Jean Doerr, “it must be found that a past practice exists, binding the County to continue the reimbursement of the Medicare Part B premium to eligible retirees and their spouses.”
Judge Doerr pointed out that the parties stipulated that the reimbursement policy began in 1985 and continued to the present with the full knowledge of County management and County employees. Accordingly, and consistent with the Board's holding in Matter of Chenango Forks, [40 PERB 3012 (2007)], the ALJ ruled that the payment of Medicare Part B premiums encompasses a mandatory subject of collective bargaining "as it is in the nature of benefits related to health insurance for employees upon retirement, whether or not those employees retire during the life of the agreement."
The ALJ rejected the County’s theory “that because the reimbursements were made as a result of a public act of a municipal board, County employees could not have reasonably expected that the payment of Medicare Part B premiums would continue unchanged,” concluding that its argument in this respect was misplaced.*
Judge Doerr explained that “the nature of the enabling legislation upon which an employer acts is not controlling” as it is the act of the employer in providing the benefit, and not the legislative body at whose direction the employer acts, "which we look to in determining, as here, the existence of an enforceable past practice."
Further, the ALJ noted that the County stipulated “that the 24-year practice was well known to all County employees” and created an “expectation of the continuation of the practice … from its duration with consideration of the specific circumstances under which the practice has existed."
Judge Doerr ruled that the County violated §209-a.1(d) of the Taylor Law when it unilaterally announced to its current employees that it would no longer reimburse retirees and their spouses for the cost of Medicare Part B premiums for those unit employees who retire after December 31, 2010, and that reimbursement would be frozen at January 1, 2010 levels for those unit employees who retire by December 31, 2010.
New York Public Personnel Law earlier posted materials related to the issue of discontinuing the reimbursement of Medicare Premiums, in whole or in part, to retirees at:
http://publicpersonnellaw.blogspot.com/2010/09/school-district-ordered-to-reimburse.html
and at:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
* The County argued the acts of a public act of a municipal board are subject to repeal and amendment and is therefore recognized as temporary in nature, citing to Collins v. City of Schenectady, 256 AD 389 (3d Dept 1939), and Jewett v. Luau-Nyack Corporation, 31 NY2d 298 (1972).
February 19, 2011
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February 18, 2011
Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer
Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer
Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department
This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing.
Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006.
In 2007, Cohen, then a member of the New York State Employees’ Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS.
An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer’s findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller’s decision.
The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state."
Accordingly, said the court, Cohen’s entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service."
"City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[3][a]).
Noting that the State’s Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York.
However, the court vacated the Comptroller's determination and remit the matter for further findings of fact “because the Hearing Officer failed to address [Cohen’s] claim that he was eligible for prior service credits as an ‘officer.’"
Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.*
The Appellate Division said that “the failure to address [Cohen’s] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller’s denial of Cohen’s application was rational.
NYPPL has summarized other cases involving the denial of claims based on a finding that the individual “was not an employee of a public entity” or was “an employee of a non-public entity” at:
http://publicpersonnellaw.blogspot.com/2011/01/individuals-performing-services-for_27.html
and
http://publicpersonnellaw.blogspot.com/2011/02/compensation-paid-to-member-of-public.html
* Unless otherwise provided by law, while not all employees of a public entity are “officers,” “officers” of a public entity are “employees” of that entity.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01109.htm
.
Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department
This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing.
Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006.
In 2007, Cohen, then a member of the New York State Employees’ Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS.
An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer’s findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller’s decision.
The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state."
Accordingly, said the court, Cohen’s entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service."
"City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[3][a]).
Noting that the State’s Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York.
However, the court vacated the Comptroller's determination and remit the matter for further findings of fact “because the Hearing Officer failed to address [Cohen’s] claim that he was eligible for prior service credits as an ‘officer.’"
Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.*
The Appellate Division said that “the failure to address [Cohen’s] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller’s denial of Cohen’s application was rational.
NYPPL has summarized other cases involving the denial of claims based on a finding that the individual “was not an employee of a public entity” or was “an employee of a non-public entity” at:
http://publicpersonnellaw.blogspot.com/2011/01/individuals-performing-services-for_27.html
and
http://publicpersonnellaw.blogspot.com/2011/02/compensation-paid-to-member-of-public.html
* Unless otherwise provided by law, while not all employees of a public entity are “officers,” “officers” of a public entity are “employees” of that entity.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01109.htm
.
Article 78 action held the appropriate vehicle to test a public employer’s administrative determination, or failure to act
Article 78 action held the appropriate vehicle to test a public employer’s administrative determination, or failure to act
Adams v The City of New York, 271 AD2d 341
Typically, challenges to action or inaction by a governmental agency are brought pursuant to Article 78 of the Civil Practice Law and Rules. There appears, however, to be a flurry of breach of contract cases filed against the City of New York in contrast to filing Article 78 petitions.*
For example, in the Adams case the Appellate Division, First Department ruled that while Adams’ complaint was pleaded as an action sounding in breach of contract and sought a court order requiring the City to adjust the salaries of certain of its employees, the relief actually being sought is to compel [the City] to discharge a duty in conformity with its personnel policies and procedures. As this action was in the nature of mandamus, the court held that Adams’ lawsuit was subject to the procedural requirements of Article 78, i.e., a four-month statute of limitations for bringing such actions.
The critical element for bringing a timely Article 78 action is the date on which the administrative determination or action is deemed final.
The court pointed out that in Adams’ case there were two additional factors to consider: whether the action sounds in mandamus [an action seeking to compel the performance of an official act] or in the nature of certiorari [an action seeking to review an administrative decision, i.e., an appeal].
According to the Appellate Division, in order to file an Article 78 action for mandamus relief, it is necessary to make a demand and await a refusal. The limitations period does not commence until the date of the refusal i.e., the Statute of Limitations begins to run from the date of the refusal. In certiorari cases, the Statute of Limitations begins running on the date on which the final administrative determination is made.**
In any event, if the governmental agency being sued wishes to plea the affirmative defense that the plaintiff’s action is untimely, it must plea and prove that the Article 78 action was not commenced until after the Statute of Limitations had expired.
Commenting that here the City failed to prove the date when agency action was final, the Appellate Division held that the finality necessary to commence the limitations period has not been established and thus Adams’ petition remains viable. The Appellate Division, after converting the case into an Article 78 proceeding, remanded it to Supreme Court for its determination as to whether or not it was a timely Article 78 action.
* It may be that the breach of contract actions may have been filed in an effort to avoid the relatively short Statute of Limitations applicable in bringing an Article 78 action.
** In addition to mandamus and certiorari, Article 78 is the modern version of two other ancient writs: the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].
Adams v The City of New York, 271 AD2d 341
Typically, challenges to action or inaction by a governmental agency are brought pursuant to Article 78 of the Civil Practice Law and Rules. There appears, however, to be a flurry of breach of contract cases filed against the City of New York in contrast to filing Article 78 petitions.*
For example, in the Adams case the Appellate Division, First Department ruled that while Adams’ complaint was pleaded as an action sounding in breach of contract and sought a court order requiring the City to adjust the salaries of certain of its employees, the relief actually being sought is to compel [the City] to discharge a duty in conformity with its personnel policies and procedures. As this action was in the nature of mandamus, the court held that Adams’ lawsuit was subject to the procedural requirements of Article 78, i.e., a four-month statute of limitations for bringing such actions.
The critical element for bringing a timely Article 78 action is the date on which the administrative determination or action is deemed final.
The court pointed out that in Adams’ case there were two additional factors to consider: whether the action sounds in mandamus [an action seeking to compel the performance of an official act] or in the nature of certiorari [an action seeking to review an administrative decision, i.e., an appeal].
According to the Appellate Division, in order to file an Article 78 action for mandamus relief, it is necessary to make a demand and await a refusal. The limitations period does not commence until the date of the refusal i.e., the Statute of Limitations begins to run from the date of the refusal. In certiorari cases, the Statute of Limitations begins running on the date on which the final administrative determination is made.**
In any event, if the governmental agency being sued wishes to plea the affirmative defense that the plaintiff’s action is untimely, it must plea and prove that the Article 78 action was not commenced until after the Statute of Limitations had expired.
Commenting that here the City failed to prove the date when agency action was final, the Appellate Division held that the finality necessary to commence the limitations period has not been established and thus Adams’ petition remains viable. The Appellate Division, after converting the case into an Article 78 proceeding, remanded it to Supreme Court for its determination as to whether or not it was a timely Article 78 action.
* It may be that the breach of contract actions may have been filed in an effort to avoid the relatively short Statute of Limitations applicable in bringing an Article 78 action.
** In addition to mandamus and certiorari, Article 78 is the modern version of two other ancient writs: the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].
Authority of the arbitrator
Authority of the arbitrator
Kimball v Pine Plains CSD, 272 AD2d 332
Kimball involves two common proceedings brought pursuant to Article 75 of the Civil Practice Law and Rules [CPLR]: one to confirm an arbitrator’s award; the other to vacate the award. State Supreme Court Judge John R. LaCava had confirmed the award.
Affirming Judge LaCava’s ruling, the Appellate Division said that [a]n arbitration award may not be vacated unless it is irrational, violates a strong public policy, or clearly exceeds a limitation imposed on the arbitrator as set forth in CPLR 7511(b) or if the arbitrator exceeds his or her authority.
When does the arbitrator exceed his or her authority? When, said the Second Department, the arbitrator gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties. Here, said the court, the determinations made by the arbitrator were within his power and not irrational. Accordingly, the award was properly confirmed.
Kimball v Pine Plains CSD, 272 AD2d 332
Kimball involves two common proceedings brought pursuant to Article 75 of the Civil Practice Law and Rules [CPLR]: one to confirm an arbitrator’s award; the other to vacate the award. State Supreme Court Judge John R. LaCava had confirmed the award.
Affirming Judge LaCava’s ruling, the Appellate Division said that [a]n arbitration award may not be vacated unless it is irrational, violates a strong public policy, or clearly exceeds a limitation imposed on the arbitrator as set forth in CPLR 7511(b) or if the arbitrator exceeds his or her authority.
When does the arbitrator exceed his or her authority? When, said the Second Department, the arbitrator gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties. Here, said the court, the determinations made by the arbitrator were within his power and not irrational. Accordingly, the award was properly confirmed.
Requirements for defeating a motion for summary judgment
Requirements for defeating a motion for summary judgment
Mason v MTA - New York City Transit Authority, #05-4349-CV, US Circuit Court of Appeals, 2nd Circuit
Samuel Mason sued the Transit Authority alleging unlawful discrimination on the basis of age and race. When a federal district court judge granted the Authority’s motion for summary judgment dismissing his complaint, Mason appealed.
The Circuit Court of Appeals said that summary judgment is appropriate only when there are no material issues of fact to resolve and the moving party is able to demonstrate that it is entitled to judgment as a matter of law.
In contrast, Mason, as the party opposing summary judgment, judgment “may not rest upon mere allegation or denials of his pleading.” He “must set forth specific facts showing that there is a genuine issue for trial.”
The court said that assuming, but not deciding, Mason established a prima facie case of discrimination on the basis of age or race, it agreed with the district court that Mason failed to present credible evidence that the MTA’s proffered justifications for not promoting him – mediocre work performance and a relative lack of qualifications – constituted a pretext for discrimination.
According to the decision, Mason offered only conclusory allegations in support of his claim. Thus, said the court, Mason failed to carry his burden to “produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [Authority] were false, and that more likely than not [unlawful discrimination] was the real reason for the [employment action].”
Since he failed to do so, the Circuit Court said that the district court was correct in granting MTA’s motion for summary judgment.
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/requirements-for-defeating-motion-for.html
Mason v MTA - New York City Transit Authority, #05-4349-CV, US Circuit Court of Appeals, 2nd Circuit
Samuel Mason sued the Transit Authority alleging unlawful discrimination on the basis of age and race. When a federal district court judge granted the Authority’s motion for summary judgment dismissing his complaint, Mason appealed.
The Circuit Court of Appeals said that summary judgment is appropriate only when there are no material issues of fact to resolve and the moving party is able to demonstrate that it is entitled to judgment as a matter of law.
In contrast, Mason, as the party opposing summary judgment, judgment “may not rest upon mere allegation or denials of his pleading.” He “must set forth specific facts showing that there is a genuine issue for trial.”
The court said that assuming, but not deciding, Mason established a prima facie case of discrimination on the basis of age or race, it agreed with the district court that Mason failed to present credible evidence that the MTA’s proffered justifications for not promoting him – mediocre work performance and a relative lack of qualifications – constituted a pretext for discrimination.
According to the decision, Mason offered only conclusory allegations in support of his claim. Thus, said the court, Mason failed to carry his burden to “produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [Authority] were false, and that more likely than not [unlawful discrimination] was the real reason for the [employment action].”
Since he failed to do so, the Circuit Court said that the district court was correct in granting MTA’s motion for summary judgment.
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/requirements-for-defeating-motion-for.html
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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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