While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant’s statutory rights

While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant’s statutory rights
Matter of Gallagher v Board of Educ. for Buffalo City School Dist., 2011 NY Slip Op 01163, Appellate Division, Fourth Department

James F. Gallagher, in his capacity as president of the responsible employee organization, challenged the Buffalo City School District’s abolishing the positions of Director of Emergency Planning for the Buffalo City School District and Stenographic Secretary to the Superintendent and in replacing them with nearly identical civil-service exempt confidential positions.

Contending that the School District had acted in bad faith in abolishing these positions, Gallagher asked Supreme Court to annul the District’s decision abolishing the items.

Supreme Court granted the petition Gallagher’s petition and the Appellate Division sustained the lower court’s ruling.

The Appellate Division rejected the School District’s contention that they were entitled to abolish the position of Director of Emergency Planning because “they are entitled to abolish a position at any time” as being without merit.

While, the court explained, "A public employer may in good faith abolish a civil service position for reasons of economy or efficiency, but a position may not be abolished as a subterfuge to avoid the statutory protection afforded to civil servants," citing Hartman v Erie 1 BOCES Bd. of Educ., 204 AD2d 1037.

The Appellate Division said that in this instance the record showed that the position of Director of Emergency Planning was abolished in favor of a re-created civil-service exempt position entitled Homeland Security Coordinator. Yet, said the court, the School District “presented no evidence justifying the need for that position to be re-created for reasons of economy or efficiency, nor did they justify the need for that position to be classified as civil-service exempt.”

The court said that the primary duty of both the abolished Director position and the "re-created" Director position was the responsibility for emergency preparedness, including the implementation of safety plans and the organization of training programs and the knowledge, skill and ability for both positions appeared identical.

The Appellate Division said that with respect to the Stenographic Secretary position, the record supports a finding that it was abolished in bad faith.

Again, said the court, the School District did not present any evidence justifying the need to replace the Stenographic Secretary position with the newly created Confidential Secretary position for reasons of economy or efficiency, nor did they justify the need for that position to be classified as civil-service exempt.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01163.htm

=========================
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the 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.
=========================
.

Employer’s filing appropriate Workers’ Compensation claims forms defeats “statute of limitation” objection to payment employee’s claim

Employer’s filing appropriate Workers’ Compensation claims forms defeats “statute of limitation” objection to payment employee’s claim
Matter of Kwadzogah v New York City Health & Hosp. Corp, 2011 NY Slip Op 01389, Appellate Division, Third Department

An employer waives the limitations defense by making payments of compensation to a claimant in the form of wages, medical treatment or other compensable expenses that carry a "recognition or acknowledgment of liability under the Workers' Compensation Law"

In this case the Appellate Division found that Innocencia Kwadzogah had sustained a work-related injury on July 29, 2006, but did not lose any time from work at that time and therefore did not file a claim for workers' compensation benefits.

In June 2008, however, Kwadzogah lost time from work as a result of the injury and filed a claim for benefits on July 30, 2008 — one day after the expiration of the limitations period of Workers' Compensation Law §28.

When her employer, the New York City Health and Hospital Corporation opposed the claim, alleging that it was time-barred, a Workers' Compensation Law Judge determined that the employer had waived the limitations defense by making payments of compensation to claimant with an acknowledgment of liability.

Intimately the Workers' Compensation Board affirmed and HHC appealed.

The Appellate Division found that substantial evidence existed in the record* to support the Board's determination that HHC made payments to Kwadzogah “with a recognition of liability and, thus, waived the statute of limitations defense.”

Further, said the court, HHC did not file a notice of controversy, however, which it was required to do within 25 days of the Board's mailing of the notice of indexing if it intended to contest the claim (see Workers' Compensation Law §25[2][b]).

Cited as substantial evidence to support the Board's determination that HHC had waived the statute of limitations defense by:

1. Making payments of compensation to Kwadzogah with an acknowledgment of liability:

2. Filing a C-2 form reporting the injury as a work-related injury, offeredKwadzogah medical treatment; and

3. Filed a C-669 form (notice of carrier's action on a claim for benefits) with the Board in which HHC reported that the "claim [was] not disputed."

In addition, said the Appellate Division, HHC filed a C-11 form (Employer's report of injured employee's change in employment status resulting from injury) reporting to the Workers' Compensation Board that Kwadzogah had lost time beginning in June 2008 and indicating that, for part of that time, it had made payments to Kwadzogah.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01389.htm
.

Federal charges characterized as involving “the failings of New York State government” and highlighting the need for comprehensive reform legislation

Federal charges characterized as involving “the failings of New York State government” and highlighting the need for comprehensive reform legislation
Source: Office of the Governor

U.S. Attorney Preet Bharara has filed a 53-page complaint in the United States District Court, Southern District of New York, United States of America v Carl Kruger, Richard Lipsky, Aaron Malinski, Solomon Kalish, Robert Aquino, David Rosen, William Boyland, Jr. and Michael Turano, alleging violations of 18 USC §§1341, 1343, 1346, 1349, and 1956(a)(1)(B) and (h).

In a press release issued March 10, 2011, concerning the complaint, Governor Cuomo said:

"Today's arrests again spotlight the failings of New York State government and highlight the urgent need for the legislature to pass comprehensive ethics reform - now. During the campaign, I made a commitment that we would either pass real ethics reform with real disclosure and real enforcement or I would form a Moreland Commission on public integrity. New Yorkers deserve a clean and transparent government comprised of officials who work for the people, not for the special interests and certainly not for their own corrupt self-interests. Today, I reaffirm my commitment to clean up Albany and state clearly that either ethics legislation will be passed or I will form a Moreland Commission by the end of this legislative session."

The compliant filed by the U.S. Attorney is available on the Internet at: http://www.scribd.com/doc/50454766/Kruger-Carl-et-al-Complaint
.

Failure to file prehearing statements required by the reviewing agency’s rules held to constitute a “waiver of defenses”

Failure to file prehearing statements required by the reviewing agency’s rules held to constitute a “waiver of defenses”
Matter of Smith v Albany County Sheriff's Dept., 2011 NY Slip Op 01559, Appellate Division, Third Department

Raymond C. Smith, a correction officer with the Albany County Sheriff’s Department, filed for workers' compensation benefits alleging that he suffered depression and anxiety due to harassment at his work place.

Although the Sheriff Department workers' compensation carrier controverted the claim, it failed to file a prehearing conference statement as required by the Rules of the Workers’ Compensation Board [12 NYCRR 300.38 (f) (1)]. As a result, the Workers' Compensation Law Judge held that the employer waived its defenses and, upon review of the medical records submitted by Smith, established the claim for a mental injury caused by work-related stress.*

The Workers' Compensation Board affirmed the Law Judge’s ruling and the insurance carrier appealed.

The Appellate Division, finding that Smith had submitted records sufficient to sustain the conclusion that the stress that caused the injury was greater than that experienced by others working in similar capacities and dismissed the carrier’s appeal.

The court explained that the prehearing conference statement requiring the employer to include, among other things, an offer of proof for each defense raised is designed to "facilitate the just, speedy and efficient disposition of the claimant's right to workers' compensation benefits, including settlement." The Appellate Division decided that providing by rule for a “waiver of defenses” for failing to file the statement is not an unreasonable expansion of the statute.**

* In contrast, Section 2(7) of the Workers’ Compensation Law specifically excludes from compensation "an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer."

** Similarly, 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 [Aures v Buffalo Board of Education 272 AD2d 664].

The Smith decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01559.htm
.

Courts may not revive an expired eligible list

Courts may not revive an expired eligible list
Matter of Leone v City of New York, 2011 NY Slip Op 01701, Appellate Division, First Department

Vincent Leone filed a petition pursuant to CPLR Article 78 seeking to reinstate an expired promotion list for the position of Sergeant in the New York City Police Department. He also asked he court to direct his retroactive promotion to the rank of Sergeant from the “reestablished eligible list.”

The Appellate Division affirmed Supreme Court’s dismissal of Leone’s petition, holding that Leone acknowledged that he may not be promoted from an expired list and the courts do not have the power to extend the life of a civil service list.

Leone had argued that “he was the victim of the Department's "illegal quota" system.” The court, however, said that his claimed “lacks evidentiary support.”

Further, said the Appellate Division, “given, among other things, [Leone’s] extensive disciplinary history,” the appointing authority “had a rational basis for declining to promote him.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01701.htm
.