ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

March 17, 2011

Consolidating positions in the public service

Consolidating positions in the public service
Informal opinions of the Attorney General, Informal Opinion 93-2
Opinions of the Commissioner of Education, Opinion 9994

In view of the discussions focusing attaining economies in the public service, the following views of the Attorney General and the Commissioner of Education may be of interest with respect to suggestions involving the consolidation of certain positions in the public service,

The Attorney General has concluded that Section 58.1-c of the Civil Service Law requires municipalities to maintain separate offices of police commissioner and of police chief and thus the City of Schenectady could not combine the positions of police commissioner and chief of police nor abolish the position of chief of police [Informal Opinions of the Attorney General 93-2].

Although the Commissioner of Education earlier ruled that each school must have a principal of its own [Opinions of the Commissioner of Education #9994], which is reflected in 8 NYCRR 100.2(a), whereby “The board of education of each school district shall employ and assign to each school under its supervision a full-time principal holding the appropriate certification as required pursuant to section 80.4(b) of this Title,” the Commissioner may approve modifications in the management of such schools “Upon the submission of evidence that there are circumstances which do not justify the assignment of a principal to a particular school, or that another mode of building administration would be more effective….”
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March 16, 2011

Agency’s failure to respond to requests for information does not toll the Statute of Limitations for filing a timely petition

Agency’s failure to respond to requests for information does not toll the Statute of Limitations for filing a timely petition
Troeller v Klein, 2011 NY Slip Op 01874, Appellate Division, First Department

Robert J. Troeller sued the New York City Department of Education [DOE] claiming a breach a stipulation of settlement between the Union and DOE.

Troeller contended that the agreement between the parties was "quite different" from the way DOE was interpreting it. However as the petition to deem the notice timely was brought more than one year after the accrual of the cause of action and his petition was dismissed by the court.

One of the arguments advanced by Troeller: DOE should be estopped from asserting a “late notice of claim” defense because DOE did not respond to his requests for certain information. The Appellate Division said that this argument “is unavailing.”

The court explained that "An estoppel cannot be founded upon [a defendant school district’s] failure to communicate with [a plaintiff] in response to . . . bills”, citing Amsterdam Wrecking & Salvage Co. v Greater Amsterdam School Dist., 83 AD2d 654, affd 56 NY2d 828. “A fortiori*,” the court continued, “an estoppel cannot be founded on [DOE’s] delay in responding to [Troeller’s] requests for information."

* Latin: For or with even stronger reason.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01874.htm
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Competing union interests

Competing union interests
Buffalo CSD v Local 264, 270 AD2d 814

Suppose an arbitration award in favor of an employee in one collective bargaining unit adversely affects an employee of the same employer in another collective bargaining unit. What can the second employee’s union do about the award?

This was the issue considered by the Appellate Division, Fourth Department, in the Buffalo City School District case. Its conclusion: In this instance, nothing!

The two unions involved, AFSCME Local 264 [Local 264] and the Professional, Clerical and Technical Employees Association [PCTEA], represented different negotiating units of individuals employed by the Buffalo City School District.

The PCTEA collective bargaining agreement included a provision that gave its unit members preference in selection for promotion. Here the first and second ranking eligibles on a promotion list were Local 264 unit members; third on the list was a PCTEA unit member.

The Board promoted the first eligible on the list, a member of the unit represented by Local 264, to the vacancy. Its action, of course, was consistent with the exercise of its discretion within the meaning of Section 61 of the Civil Service Law -- the so-called rule of three.

PCTEA, however, filed a contract grievance, claiming Buffalo had violated the collective bargaining agreement when it appointed the Local 264 unit member and ultimately the matter went to arbitration. The arbitrator sustained PCTEA position, ruling that the Board, by appointing a Local 264 unit member to the vacancy had:

1. Violated its collective bargaining agreement with PCTEA;

2. Violated a past practice; and

3. Failed to comply with the ruling of the Court of Appeals in Professional, Clerical and Technical Employees Association v Buffalo Board of Education, 90 NY2d 364.

In PCTEA v Buffalo, the Court of Appeals held that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain members on an eligible list where a probationary period precedes their permanent appointment.*

In contrast to the situation in Buffalo v Local 264, in the earlier case, PCTEA v Buffalo, the highest-scoring candidate on the promotion eligible list for the position, as well as the next four individuals on the promotion list, were all PCTEA unit members.

The arbitrator directed the Board to promote the PCTEA member, who was ranked third on the list, to the position with back pay, which, of course, meant that the Local 264 member would be terminated from the position.

The Board brought an Article 75 action in an effort to vacate the award.

Local 264 tried to intervene in the litigation on behalf of its member, but the Appellate Division said that it did not have any standing to do so. The Appellate Division also reversed the lower court’s ruling vacating the award.

Why didn’t Local 264 have standing? Because, the Appellate Division explained, [a]lthough the rights of the employees represented by Local 264 are adversely affected by the arbitration award, Local 264 was not a party to the collective bargaining agreement at issue or the arbitration.

Despite the award’s adverse impact on a member of Local 264 and the contractual preference favoring PCTEA members for selection for promotion, the court said that no strong public policy was violated justifying the vacating of the award.

Further, said the court, the fact that Local 264 members were first and second on the promotion list did not change the result, rejecting the Board’s argument that the arbitration award violated the merit and fitness mandate set out in Article V, Section 6 of the State Constitution.

While the member of Local 264 who was first on the promotion list was actually selected for the appointment, the court said that Article V, Section 6, does not require that the top candidate be selected. The negotiated agreement, however, mandated that the PCTEA member highest on the list, and otherwise reachable for appointment, be selected for the appointment.

Since Section 61 of the Civil Service Law permits the selection of one of the top three candidates from the eligible list, the award does not automatically bar members of Local 264 from promotional positions for which a member of PCTEA might be considered because a PCTEA member may not be one of the top three candidates.

The court’s rationale for upholding such a provision contained in a collective bargaining agreement:

The promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law. Accordingly, in the absence of a prohibition in statutory or decisional law, or countervailing public policy, provisions which relate to the use of preferences in the promotion of unit members based on examination scores concern a term or condition of employment and thus are a proper subject for collective bargaining and subsequent resolution of disputes through contract arbitration procedures.

* Randall comments: The decision states that the appointment of the PCTEA unit member does not become a permanent appointment until the expiration of a 60-day probationary period. Thus, said the court, the Board has the opportunity to assess other character traits that may have been unmeasurable by the competitive examination.

I believe that it is more accurate to characterize such an employee’s status as permanent subject to the satisfactory completion of a probationary period as all such probationary appointments are permanent appointments or, under certain circumstances, a contingent permanent appointment.

As an example, most probationary periods are set with a minimum and a maximum period of probation. Courts have held that a probationary employee in the competitive class who is to be dismissed before completing his or her minimum period of probation is entitled to notice and hearing within the meaning of Section 75 of the Civil Service Law. Essentially individuals holding permanent appointment in the competitive class, certain employees in the non-competitive class, veterans who served in time of war and exempt volunteer firefighters are covered by Section 75.

A probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to completing his or her maximum period of probation for the position. If the employee is retained after completing the maximum period of probation, he or she has acquired tenure in the position for the purposes of Section 75.

Another example: for the purpose determining seniority in layoffs pursuant to Sections 80 and 80-a of the Civil Service Law, the individual’s initial date of uninterrupted permanent service controls. Such seniority runs from the date on which the employee commenced his or her original probationary period, not the date on which he or she satisfactorily completed that probationary period.
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Administrative decisions and actions must be made in compliance to the law

Administrative decisions and actions must be made in compliance to the law
Cimino v Grasso, Decisions of the Commissioner of Education, #14,319

Michael J. Cimino asked the Commissioner of Education to remove members of the board of education and the superintendent of the Plainedge Union Free School District.

The complaint: the board and the superintendent had spent $79,000 to illegally construct and equip a room for the board without first obtaining voter approval, without getting competitive bids and without the board adopting a resolution authorizing the expenditures.

Cimino also alleged that expenditures for the purchase of computers, computer desks and online service for home use by board members constitutes an unconstitutional gift of public monies [Article VIII, Section 1].

Contending that all the expenditures were made in good faith and for legitimate district interests, school superintendent Gene Grasso took full responsibility for the decision to fund the projects with operation and maintenance monies rather than as capital expenses. He also said that the board had absolutely no involvement in the project.

The Commissioner, with certain exceptions, said that serious violations of law and policy have occurred in this matter. However, he also stated that removal from office is a drastic remedy that should be taken only in extreme circumstances. As there was no evidence that the superintendent or board members willfully violated the law and the construction constituted a substantial and continuing benefit to the district, the Commissioner declined to exercise his power of removal.

The superintendent and the board members were told to be absolutely scrupulous in their future compliance with the law, as additional violations of this kind may well subject them to removal.
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March 15, 2011

All about "cloud computing"

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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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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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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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.

* 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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March 11, 2011

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

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- 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.
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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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