All about "cloud computing"
Source: Sui Generis - a New York Law Blog written by Nicole Black, Esq. at http://nylawblog.typepad.com/suigeneris/
Nicole Black explains the basics of “cloud computing” in an article published in the March 14, 2011 issue of the Daily Record.
It is posted on the Internet at:
http://nylawblog.typepad.com/files/dr-3.14.11.pdf
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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 15, 2011
Serving disciplinary charges on an employee in a disciplinary probation period status does not preclude his or her summary termination
Serving disciplinary charges on an employee in a disciplinary probation period status does not preclude his or her summary termination
Matter of Nieves-Diaz v City of New York, 37 AD3d 356
After being served with disciplinary charges while serving a disciplinary probation period, New York City Police Detective Luis Nieves-Diaz was summarily terminated from the Department without being given a pre-termination hearing on those charges.
In response to Nieves-Diaz’s appeal challenging his termination, the Appellate Division said that because Nieves-Diaz was on “dismissal probation,” he was subject to termination for any reason or for no reason, and without explanation, as long as the termination was not made in bad faith or for an impermissible reason.
Nieves-Diaz’s appeal did not allege that his termination was made in bad faith or for an impermissible reason.
Noting that the Department had “broad prerogative” to terminate Nieves-Diaz as a probationary employee, the Appellate Division ruled that the fact that Nieves-Diaz was served with disciplinary charges while in disciplinary probation status did not preclude his summary termination as a probationary employee.
Thus, said the court, the Department was not required to provide Nieves-Diaz with a “pre-termination hearing” regarding the charges that were served on him while he was in probationary status as a “condition precedent” to his dismissal.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/summary-termiination-during.html
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Matter of Nieves-Diaz v City of New York, 37 AD3d 356
After being served with disciplinary charges while serving a disciplinary probation period, New York City Police Detective Luis Nieves-Diaz was summarily terminated from the Department without being given a pre-termination hearing on those charges.
In response to Nieves-Diaz’s appeal challenging his termination, the Appellate Division said that because Nieves-Diaz was on “dismissal probation,” he was subject to termination for any reason or for no reason, and without explanation, as long as the termination was not made in bad faith or for an impermissible reason.
Nieves-Diaz’s appeal did not allege that his termination was made in bad faith or for an impermissible reason.
Noting that the Department had “broad prerogative” to terminate Nieves-Diaz as a probationary employee, the Appellate Division ruled that the fact that Nieves-Diaz was served with disciplinary charges while in disciplinary probation status did not preclude his summary termination as a probationary employee.
Thus, said the court, the Department was not required to provide Nieves-Diaz with a “pre-termination hearing” regarding the charges that were served on him while he was in probationary status as a “condition precedent” to his dismissal.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/summary-termiination-during.html
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March 14, 2011
A public employer may not unilaterally discontinue a past practice but must negotiate any proposed change with the appropriate employee organization
A public employer may not unilaterally discontinue a past practice but must negotiate any proposed change with the appropriate employee organization
Matter of Meegan v Brown, 2011 NY Slip Op 01158, Appellate Division
The City of Buffalo appealed the denial of its Article 75 motion seeking a stay of arbitration to address a grievance filed by Buffalo Police Benevolent Association President Robert P. Meegan, Jr. challenging the City’s refusal to pay certain collective bargaining agreement (CBA) benefits to police officers receiving General Municipal Law §207-c benefits
Affirming the Supreme Court’s dismissal of the City’s motion, the Appellate Division said that although “It is well settled that the benefits provided to a police officer pursuant to General Municipal Law §207-c are exclusive, and a CBA will not be construed as impliedly expanding such benefit.,” there is no prohibition against a CBA providing for enhancements to §207-c benefits provided by law.
As the City of Buffalo conceded, it had been paying CBA benefits to police officers receiving General Municipal Law §207-c benefits for over 40 years. Viewing this as a “past practice” providing for certain “fringe benefits for current employees,” the Appellate Division held that such a past practice cannot be unilaterally modified by the public employer “even where unrelated to any specific contractual provision.” The court explained that a public employer has "a duty to negotiate with the bargaining representative of current employees regarding any change in past practice affecting [such] benefits."
The Appellate Division also observed that the CBA contained a "Maintenance of Benefits" clause.
This clause, said the court, provided that "[a]ll conditions or provisions beneficial to employees now in effect [that] are not specifically provided for in [the CBA] or [that] have not been replaced by provisions of [the CBA] shall remain in effect for the duration of [the CBA], unless mutually agreed otherwise between the City and [petitioner Buffalo Police Benevolent Association]."
Clearly, said the court, the City also had a contractual duty to negotiate a change in any past practice and it lacked the authority to unilaterally discontinue the payment of the benefits at issue to police officers receiving General Municipal Law §207-c benefits.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01158.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. For more information click on http://section207.blogspot.com/
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Matter of Meegan v Brown, 2011 NY Slip Op 01158, Appellate Division
The City of Buffalo appealed the denial of its Article 75 motion seeking a stay of arbitration to address a grievance filed by Buffalo Police Benevolent Association President Robert P. Meegan, Jr. challenging the City’s refusal to pay certain collective bargaining agreement (CBA) benefits to police officers receiving General Municipal Law §207-c benefits
Affirming the Supreme Court’s dismissal of the City’s motion, the Appellate Division said that although “It is well settled that the benefits provided to a police officer pursuant to General Municipal Law §207-c are exclusive, and a CBA will not be construed as impliedly expanding such benefit.,” there is no prohibition against a CBA providing for enhancements to §207-c benefits provided by law.
As the City of Buffalo conceded, it had been paying CBA benefits to police officers receiving General Municipal Law §207-c benefits for over 40 years. Viewing this as a “past practice” providing for certain “fringe benefits for current employees,” the Appellate Division held that such a past practice cannot be unilaterally modified by the public employer “even where unrelated to any specific contractual provision.” The court explained that a public employer has "a duty to negotiate with the bargaining representative of current employees regarding any change in past practice affecting [such] benefits."
The Appellate Division also observed that the CBA contained a "Maintenance of Benefits" clause.
This clause, said the court, provided that "[a]ll conditions or provisions beneficial to employees now in effect [that] are not specifically provided for in [the CBA] or [that] have not been replaced by provisions of [the CBA] shall remain in effect for the duration of [the CBA], unless mutually agreed otherwise between the City and [petitioner Buffalo Police Benevolent Association]."
Clearly, said the court, the City also had a contractual duty to negotiate a change in any past practice and it lacked the authority to unilaterally discontinue the payment of the benefits at issue to police officers receiving General Municipal Law §207-c benefits.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01158.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. For more information click on http://section207.blogspot.com/
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Hearing officer rejects motion to seal disciplinary hearing records but redacts the name of the victim of the employee's misconduct
Hearing officer rejects motion to seal disciplinary hearing records but redacts* the name of the victim of the employee's misconduct
Fire Department v Palleschi, OATH Index #551/11
In this Civil Service Law §75 disciplinary action, an EMT Lieutenant was charged with “bringing the agency into disrepute and showing disrespect to the public.” OATH Administrative Law Judge Joan Salzman said that the Lieutenant admitted the charges “in all material respects” and that the critical issue was her recommendation to as to the appropriate penalty for such misconduct.
Judge Salzman recommended the termination of an EMS lieutenant who admitted that he had posted private and confidential patient information on his Facebook page, "where 460 of his friends could see it for their amusement."
Significantly, Judge Salzman rejected a motion made after the close of the evidence whereby the parties jointly asked to have the Administrative Law Judge “seal the entire record.”
The ALJ explained her reason as follows:
I declined, because this was a public hearing, 48 RCNY §1-49 (Lexis 2009), and there was no reason to seal the entire record. See Mosallem v. Berenson, 76 A.D.3d 345, 348-49 (1st Dep’t 2010) (“Under New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records”; public right to access is not absolute, and confidentiality is the exception, not the rule). However, I did indicate to the parties that I was not going to identify the patient in my decision and directed them to review the transcript and exhibits and to redact her identity (meaning name, address, and phone number) from this record should it be sought for publication or filed in court. Even though that information was on the Internet, I see no reason to republish it.
Fire Department v Palleschi, OATH Index #551/11
In this Civil Service Law §75 disciplinary action, an EMT Lieutenant was charged with “bringing the agency into disrepute and showing disrespect to the public.” OATH Administrative Law Judge Joan Salzman said that the Lieutenant admitted the charges “in all material respects” and that the critical issue was her recommendation to as to the appropriate penalty for such misconduct.
Judge Salzman recommended the termination of an EMS lieutenant who admitted that he had posted private and confidential patient information on his Facebook page, "where 460 of his friends could see it for their amusement."
Significantly, Judge Salzman rejected a motion made after the close of the evidence whereby the parties jointly asked to have the Administrative Law Judge “seal the entire record.”
The ALJ explained her reason as follows:
I declined, because this was a public hearing, 48 RCNY §1-49 (Lexis 2009), and there was no reason to seal the entire record. See Mosallem v. Berenson, 76 A.D.3d 345, 348-49 (1st Dep’t 2010) (“Under New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records”; public right to access is not absolute, and confidentiality is the exception, not the rule). However, I did indicate to the parties that I was not going to identify the patient in my decision and directed them to review the transcript and exhibits and to redact her identity (meaning name, address, and phone number) from this record should it be sought for publication or filed in court. Even though that information was on the Internet, I see no reason to republish it.
* Remove or black out material in a document prior to its publication or release.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-192.pdf
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Complying with all statutory tests critical to sustaining an administrative decision
Complying with all statutory tests critical to sustaining an administrative decision
Gallo v Office of Mental Retardation and Developmental Disabilities, 37 AD3d 984
Albert P. Gallo’s application for employment as a bus driver with the Schenectady County Chapter NYSARC, Inc. (ARC) was rejected by OMRDD after it found that Gallo had been convicted of assault in the second degree in 1988.
OMRDD said that his employment as an ARC driver involved an unreasonable risk to the safety or welfare of consumers served by ARC in view of this conviction. Gallo sued, asking the court to overturn OMRDD’s determination.
Supreme Court found the record “insufficiently developed” and annulled OMRDD’s determination. The court also directed OMRDD to approve ARC's employment of Gallo but denied Gallo counsel fees. The parties cross-appealed, OMRDD from that part of the judgment annulling its determination and directing it to approve Gallo’s employment by ARC and Gallo from the denial of counsel fees.
The Appellate Division said that OMRDD is required by statute to undertake criminal history background checks of employees of voluntary corporations such as Schenectady ARC. It noted that when Gallo’s background check revealed the 1988 assault in the second-degree conviction, OMRDD notified Gallo of its finding. It also advised him “to submit any answering documentation.”
After receiving Gallo’s letter of explanation and letters of reference, OMRDD rejected Gallo’s application, indicating that its decision was “on the grounds that [Gallo was] convicted of a crime or crimes” and that this determination was consistent with the provisions of Correction Law Article 23-A.
The court noted that Correction Law Section 753, which is part of Article 23-A, sets out eight elements that a public agency is to consider in making a determination pursuant to Correction Law Section 752 concerning licensure or employment of any individual with a criminal conviction. In the words of the Appellate Division:
When all eight factors are considered and the positive factors are balanced against the negative factors, the resulting decision is neither arbitrary nor capricious nor does it constitute an abuse of discretion and reviewing courts may not reweigh the factors and substitute their judgment for that of the agency.
In this instance, however, the Appellate Division found that a number of the statutory elements required to be considered were not set out in the “checklist” that OMRDD claimed mirrored the statutory factors and was used in making OMRDD’s determination regarding Gallo’s eligibility for employment by ARC.
Because these factors were apparently not considered, the Appellate Division ruled that OMRDD’s determination was arbitrary. It remitted the matter back to OMRDD for its consideration of “the public policy issue and for a determination of whether a certificate of relief from disabilities or good conduct or the equivalent evidence would benefit this applicant.”
Addressing the issue of the attorney fees claimed by Gallo, the court said it that denial of counsel fees was not premature and OMRDD’s position herein “may ultimately prove to be correct” and, in any event, “it was substantially justified.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/complying-with-all-statutory-tests.html
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Gallo v Office of Mental Retardation and Developmental Disabilities, 37 AD3d 984
Albert P. Gallo’s application for employment as a bus driver with the Schenectady County Chapter NYSARC, Inc. (ARC) was rejected by OMRDD after it found that Gallo had been convicted of assault in the second degree in 1988.
OMRDD said that his employment as an ARC driver involved an unreasonable risk to the safety or welfare of consumers served by ARC in view of this conviction. Gallo sued, asking the court to overturn OMRDD’s determination.
Supreme Court found the record “insufficiently developed” and annulled OMRDD’s determination. The court also directed OMRDD to approve ARC's employment of Gallo but denied Gallo counsel fees. The parties cross-appealed, OMRDD from that part of the judgment annulling its determination and directing it to approve Gallo’s employment by ARC and Gallo from the denial of counsel fees.
The Appellate Division said that OMRDD is required by statute to undertake criminal history background checks of employees of voluntary corporations such as Schenectady ARC. It noted that when Gallo’s background check revealed the 1988 assault in the second-degree conviction, OMRDD notified Gallo of its finding. It also advised him “to submit any answering documentation.”
After receiving Gallo’s letter of explanation and letters of reference, OMRDD rejected Gallo’s application, indicating that its decision was “on the grounds that [Gallo was] convicted of a crime or crimes” and that this determination was consistent with the provisions of Correction Law Article 23-A.
The court noted that Correction Law Section 753, which is part of Article 23-A, sets out eight elements that a public agency is to consider in making a determination pursuant to Correction Law Section 752 concerning licensure or employment of any individual with a criminal conviction. In the words of the Appellate Division:
When all eight factors are considered and the positive factors are balanced against the negative factors, the resulting decision is neither arbitrary nor capricious nor does it constitute an abuse of discretion and reviewing courts may not reweigh the factors and substitute their judgment for that of the agency.
In this instance, however, the Appellate Division found that a number of the statutory elements required to be considered were not set out in the “checklist” that OMRDD claimed mirrored the statutory factors and was used in making OMRDD’s determination regarding Gallo’s eligibility for employment by ARC.
Because these factors were apparently not considered, the Appellate Division ruled that OMRDD’s determination was arbitrary. It remitted the matter back to OMRDD for its consideration of “the public policy issue and for a determination of whether a certificate of relief from disabilities or good conduct or the equivalent evidence would benefit this applicant.”
Addressing the issue of the attorney fees claimed by Gallo, the court said it that denial of counsel fees was not premature and OMRDD’s position herein “may ultimately prove to be correct” and, in any event, “it was substantially justified.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/complying-with-all-statutory-tests.html
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CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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