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
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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
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Employee terminated for falsifying attendance records and other misconduct

Employee terminated for falsifying attendance records and other misconduct
Dinnocenzo v Lackawanna, 270 AD2d 840

In Dinnocenzo the Appellate Division, Fourth Department, sustained the termination of an employee found guilty of falsifying his time records and other offenses.

James Dinnocenzo was charged, and found guilty, of disciplinary charges alleging misconduct and insubordination. Among the specifications:

1. Unauthorized absence from work;

2. Failure to obey his superior’s orders to report his absences; and

3. Submitting time sheets falsely indicating the hours that he was present at work.

Finding that there was substantial evidence in the record to support the findings of guilt, the court said that in light of all the circumstances, the penalty of dismissal was not so disproportionate to the misconduct as to be `shocking to one’s sense of fairness’ -- the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

As to Dinnocenzo’s testimony concerning the reason for his absences and minimizing the length of those absences, this, said the court, raised an issue of credibility for the Hearing Officer to resolve. The Hearing Officer apparently was not persuaded by Dinnocenzo’s efforts to explain his actions.
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Rebutting a statutory presumption

Rebutting a statutory presumption
Hutnik v Kelly, 37 AD3d 346

New York City police officer John Hutnik applied for accident disability retirement benefits pursuant to Section 207-k of the General Municipal Law. Section 207-k creates a rebuttable presumption that Hutnik’s “heart-related disability” underlying his application for accidental disability retirement benefits was service-related.

In this instance the Appellate Division found that this statutory presumption was “rebutted by credible evidence” that Hutnik did not suffer from a heart-related disability, notwithstanding his personal physician’s opinion to the contrary. As there was no other evidence or claim presented by Hutnik as to any other possible cause for the medical condition underlying his claim, the Appellate Division sustained the rejection of his application for accidental disability retirement benefits.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/rebuttable-presumption.html

Failure to exhaust the available administrative remedy to challenge a determination held a fatal defect in seeking judicial relief

Failure to exhaust the available administrative remedy to challenge a determination held a fatal defect in seeking judicial relief
Matter of Connor v Town of Niskayuna, 2011 NY Slip Op 01556, Appellate Division, Third Department

A number of police officers submitted applications for membership in the New York State and Local Retirement System. Although advised of the availability of two optional retirement plans available to them pursuant to §§384 and 384-d of the Retirement and Social Security Law, and that an election to become a member of either optional retirement plan must be filed within one year of becoming a police officer or member of the Retirement System, none of the police officers in this action filed an election to become a member of either of the two optional plans when they submitted their applications. Accordingly, they were automatically enrolled in the retirement plan provided by Retirement and Social Security Law §375-c.

The police officers subsequently filed an application for enrollment in the §384-d retirement plan. The Comptroller, however, issued a written determination declining to process their respective applications because the statutory one-year election period had expired.

The police officers involved then commenced this CPLR article 78 proceeding seeking to compel the Comptroller to accept their applications and to make all contributions required in connection with their membership in the §384-d plan. Supreme Court dismissed the petition on the ground that the police officers failed to exhaust their administrative remedies.

The Appellate Division affirmed the lower court’s ruling, pointing out “It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law," citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.

Here, said the court, the Retirement and Social Security Law sets out the procedure for challenging a retirement benefit determination made by the Comptroller whereby the disappointed individual is to request a hearing and redetermination and then, upon final determination of the Comptroller, he or she commence a CPLR Article 78 proceeding.

In this instance, despite their dissatisfaction with the Comptroller's decision to reject their applications as untimely, the police officers failed to avail themselves of the proceedures set out in Retirement and Social Security Law §374(d).* The Appellate Division said that that the Comptroller's written refusal to process their applications constituted a "determination" within the meaning of Retirement and Social Security Law §374(c).

As the police officers could have challenged the rejections of their respective applications by requesting a hearing and redetermination, they failed to do so. Accordingly, Supreme Court correctly dismissed their Article 78 petition for failure to exhaust the administrative remedies available to them by statute.

*§374.d provides, in pertinent part, that: “At any time within four months … the applicant or his [or her] counsel may serve a written demand upon the comptroller for a hearing and redetermination of such application. … The comptroller shall have the same power upon such hearing as upon the original application. After such hearing the comptroller shall make his final determination. A copy thereof shall be mailed to the applicant and his [or her] counsel, if any. Such final determination shall be subject to review only as provided in article seventy-eight of the civil practice law and rules.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01556.htm
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FMLA does not cover faith healing trip

FMLA does not cover faith healing trip
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.

Tayag v. Lahey Clinic, ____F.3d____(1st Cir. Jan. 22, 2011), is both an interesting and important case. The First Circuit held that a company that fired a woman for taking unapproved time off to accompany her husband on a “faith healing” trip did not violate the federal Family and Medical Leave Act. The circuit agreed with a lower court's finding that the trip, a seven-week “healing pilgrimage” was not protected under the statute “because it was effectively a vacation.” Such travel is not “medical care” as defined by the FMLA, 29 U.S.C. §2601.

Mitchell H. Rubinstein

NYPPL Comments: In Sanni v NYS Office of Mental Health [USDC, EDNY, decided February 15, 2000], “faith healing” was one of the issues in a disciplinary action.

Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law.

Ultimately a hearing officer found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty: “Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient 'possessed by spirits.'”
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Employer’s “one-strike rule” denying employment to applicants who test positive for drug or alcohol use did not have an unlawful disparate impact on rehabilitated drug addicts
Source: Posted on the Internet in CCH Workday at http://cch-workday.blogspot.com/ . Reproduced with permission. Copyright© CCH 2011, All rights reserved.

Rejecting disparate treatment and disparate impact claims brought under the ADA and California Fair Employment and Housing Act (FEHA) by a former drug addict who was denied a longshoreman’s job, a divided Ninth Circuit panel upheld the Pacific Maritime Association’s “one-strike rule,” which automatically eliminates from consideration job applicants who test positive for drug or alcohol use (Lopez v Pacific Maritime Assoc, 09-55698 March 2, 2011). Not only was it lawful for the employer association to eliminate applicants who were using drugs when they applied to be longshore workers, it was also permissible to disqualify those applicants permanently, the appeals court [Judge Pregerson dissented in part] held, affirming summary judgment to the employer association.

While the one-strike rule imposes a harsh penalty, and many people question the rule’s reasonableness in light of the fact that many drug users later rehabilitate themselves, “unreasonable rules do not necessarily violate the ADA or the FEHA,” the majority wrote.

The employer association represents shipping lines, stevedore companies, and terminal operators that run the ports along the west coast, negotiating bargaining agent and administering payroll and hiring policies. One of those policies is the one-strike rule, under which the association rejects outright any job applicant who tests positive for drug or alcohol use during the pre-employment screening process. Applicants are notified at least seven days in advance of administering the drug test. Failing the drug test, even once, disqualifies an applicant permanently from future employment.

The plaintiff first applied for a longshoreman position in 1997 at a Long Beach, California port. At that time, however, he suffered from an addiction to drugs and alcohol, and tested positive for marijuana at the time of his drug test; he was therefore disqualified from further consideration under the one-strike rule. He became clean and sober in 2002 and, in 2004, reapplied to be a longshoreman. However, because of the one-strike rule, his application was rejected. He attempted to appeal, but the employer does not entertain appeals from disqualifications arising from positive drug tests. This action followed, alleging the employer violated the ADA and the FEHA by discriminating against him on the basis of his protected status as a rehabilitated drug addict. The Ninth Circuit affirmed the district court’s grant of summary judgment to the employer.

Disparate treatment. The plaintiff asserted three arguments in support of his disparate treatment claim, none of which prevailed. First, he claimed the one-strike rule facially discriminates against recovering or recovered drug addicts. The appeals court disagreed. “The rule eliminates all candidates who test positive for drug use, whether they test positive because of a disabling drug addiction or because of an untimely decision to try drugs for the first time, recreationally, on the day before the drug test,” the appeals court reasoned. “Conversely, the rule allows a drug addicted applicant who happens to be sober at the time of the drug test to complete pre-employment processing successfully. . . The triggering event for purposes of the one-strike rule is a failed drug test, not an applicant’s drug addiction.” The majority cited the Supreme Court’s 2003 opinion in Raytheon Co v Hernandez in support. There, the Court held that an employer’s policy not to rehire workers who lost their jobs due to drug-related misconduct constituted a neutral, nondiscriminatory reason for refusing to rehire an aggrieved employee.

Next, the plaintiff argued that the employer adopted the one-strike rule intentionally to exclude recovering and recovered drug addicts from its workforce. However, the record belies that allegation, the appeals court found. Before adopting the measure, the longshore industry suffered numerous serious accidents and injuries, including several fatalities. These incidents were attributed in part to a workplace culture that permitted drug and alcohol use. Conducting pre-employment drug screening in order to eliminate job applicants who would be more likely to use drugs or alcohol at work was a union-approved approach to these safety concerns. The employer decided to make permanent the disqualification of applicants who tested positive because it thought that applicants who could not abstain from using an illegal drug, even after receiving advance notice of an upcoming drug test, showed less responsibility and less interest in the job than applicants who passed the drug test. As such, there was no evidence that the employer rejected applicants who tested positive based on a calculation that an applicant might test positive because of a drug addiction, rather than because of recreational use.

Finally, the plaintiff contended, summary judgment was in error because the employer only learned of the plaintiff’s drug addiction shortly after disqualifying him. This assertion only served to undermine his claim, however, that he was disqualified from employment due to his protected status as a recovering addict. If it were truly unaware that a disability existed, it would be impossible for the employer’s hiring decision to have been based, even in part, on the applicant’s stated disability, and he could not, ipso facto, have been subject to disparate treatment, the court wrote.

Disparate impact. The plaintiff’s disparate impact claim also failed. While he argued that the one-strike rule disparately affected recovering drug addicts by eliminating anyone who previously tested positive for drug use, the plaintiff offered “only the bald assertion that this result must be so.” However, “as we have noted, the rule does not necessarily screen out recovering drug addicts disproportionately.” The plaintiff must have produced evidence from which a factfinder could reasonably conclude that the one-strike rule results in the employer hiring fewer recovering drug addicts, as compared to the number of qualified recovered drug addicts in the relevant labor market. The record contains neither statistical nor anecdotal evidence to that effect, notwithstanding an affidavit from a forensic economist introduced by the plaintiff in support of this assertion.

Dissent.

Judge Pregerson dissented in part; he would have allowed the plaintiff to advance his disparate impact claim based on the forensic expert testimony that drug addicts are disproportionately affected by the lifetime ban, as well as evidence that at least 27 individuals were subjected to the ban during roughly the same period. “Because the identities of those individuals are protected, the court does not know which, if any, of them were drug addicts rather than casual users, or which of the addicts, if any, were later rehabilitated. It is clear, however, that a significant number of individuals were impacted by the ban. It is also reasonable to infer that at least some of those individuals, like Lopez, were at one time addicted to drugs, but after participating in a drug rehabilitation program, were able to overcome their addiction,” Pregerson argued. He also asserted the district court erred in requiring statistical evidence to support the disparate impact claim. While statistical evidence is generally required to show disparate impact under, for example, the ADEA, such evidence is not required for similar claims under the ADA. Furthermore, the dissent noted, “it is manifestly unreasonable to require statistical data regarding the number of recovering addicts either hired by an employer or screened out by the test. These figures are not kept by employers, and indeed such data likely could not be lawfully acquired.”

“I do not suggest that we now determine whether lifetime employment bars resulting from a positive drug test necessarily violate the ADA,” the dissent noted. Here, however, Pregerson was swayed by the unique nature and scope of the employer association in this case. “Where such a test is mandated by an employer who exercises singular control over an industry spanning the whole west coast of the United States, the potential impact of the policy is broad and pervasive.”

The decision is posted on the Internet at:
http://www.ca9.uscourts.gov/datastore/opinions/2011/03/02/09-55698.pdf

Investigation by NYS State Comptroller DiNapoli’s Office results in former town employee pleading guilty to charges of embezzlement

Investigation by NYS State Comptroller DiNapoli’s Office results in former town employee pleading guilty to charges of embezzlement
Source: Office of the State Comptroller

The former bookkeeper for the Towns of Kinderhook and Greenport has pleaded guilty to all charges related to her theft of approximately $300,000 in public funds following an investigation by State Comptroller Thomas P. DiNapoli's office, the New York State Police and Columbia County District Attorney Beth Cozzolino.

Additional information concerning the investigation and prosecution of the bookkeeper is posted on the Internet at: http://www.osc.state.ny.us/press/releases/mar11/030111.htm
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Even if a CBA's arbitration clause is broadly worded, a matter may be excluded from arbitration if the CBA's language clearly shows such an intent

Even if a CBA's arbitration clause is broadly worded, a matter may be excluded from arbitration if the CBA's language clearly shows such an intent
Matter of Massena Cent. School Dist. v Massena Confederated School Employees' Assn., NYSUT, AFL-CIO, 2011 NY Slip Op 01550, Appellate Division, Third Department

A school district employee, Eric Fetterly, was absent from his employment for 11 months after suffering a work-related injury.

When Fetterly returned to work, the School District told him that it had paid health insurance premiums on his behalf during his absence in error and asked for reimbursement. Ultimately the matter was submitted arbitration where the threshold issue was whether the health insurance dispute was arbitrable under the collective bargaining agreement.

When arbitrator ruled that the matter was, indeed, subject to arbitration, the School District appealed seeking a court order vacating the arbitrator’s determination. Supreme Court granted the District’s petition on the ground that it exceeded a specific, enumerated limitation on the arbitrator's power and the Employees’ Association appealed.

The Appellate Division said that “The threshold question of arbitrability is ordinarily a judicial determination, unless the agreement "'clearly and unmistakably'" provides otherwise,” citing Shearson v Sacharow, 91 NY2d 39.

The arbitration provision at issue, said the court, is limited and its “restrictive language cannot be read to manifest a clear and unmistakable intent to permit the arbitrator to enlarge the scope of arbitration in the guise of interpretation.” As the CBA explicitly forbids the arbitrator from "supplement[ing], enlarg[ing], diminish[ing], or alter[ing] the scope of [its] meaning," the Appellate Division said that “in order to determine whether the arbitrator exceeded his power in interpreting the exclusionary language, this Court must exercise its threshold responsibility to determine independently whether the dispute is arbitrable.”

Finding that the collective bargaining agreement provided that “not all grievances are arbitrable, prohibits the arbitrator from addressing issues outside his or her authority or enlarging the scope of the CBA, and specifically excludes "the subject of health insurance" from arbitration, the Appellate Division concluded that “it is evident that the parties did not intend to arbitrate this dispute” and affirmed Supreme Court’s ruling vacating the arbitrator’s determination.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01550.htm
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Professional consultants are employees and not independent contractors

Professional consultants are employees and not independent contractors
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 Wells v. Commissioner of Labor, 77 AD3d 993, is an interesting unemployment case. Applying the right to control test, the court held that professional consultants were employees, reasoning:

Initially, we note that the existence of an employment relationship is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of Brevis Music Inc. [Commissioner of Labor], 54 AD3d 1084, 1085 [2008], lv denied 11 NY3d 712 [2008]). Where professionals are involved, the relevant inquiry is "whether the purported employer retains overall control of important aspects of the services performed" (Matter of Piano School of N.Y. City [Commissioner of Labor], 71 AD3d 1358, 1359 [2010]; see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736;Matter of Parisi [Commissioner of Labor], 54 AD3d 456, 457 [2008]).

In the instant case, it was established that claimant contacted Madison after hearing about the position from another consultant and that Madison conducted an interview to ascertain if claimant was suited for the job. Madison, in turn, sent claimant a written contract setting his compensation at $350 per day and referred him to the client who performed a background check, provided training and directed his daily work activities.

Under the terms of the contract, claimant was precluded from otherwise working for Madison's client companies or partners during the term of the assignment and for one year thereafter, was subject to client confidentiality agreements and was entitled to reimbursement of certain business expenses. In order to obtain payment, claimant was required to complete a time sheet provided by Madison to be submitted at times it directed. In addition, although Madison did not provide formal training, it supplied claimant with informational booklets on its clients' policies and procedures, had a representative conduct site visits to periodically meet with the consultants and responded to client complaints about consultants' work.

This Court has acknowledged that "'an organization which screens the services of professionals, pays them at a set rate and then offers their services to clients exercises sufficient control to create an employment relationship'" (Matter of Singh [Thomas A. Sirianni, Inc. — Commissioner of Labor], 43 AD3d 498, 499 [2007], quoting Matter of Kimberg [Hudacs], 188 AD2d 781, 781 [1992]; see Matter of Atelek [Head Hunters Hair Design — Commissioner of Labor], 278 AD2d 560, 560 [2000]). The record reveals that Madison did more than this, as indicated by its interaction with the consultants, responsibility for their work and the terms of the written contract. The fact that the contract was entitled an "Independent Consultant Agreement" is not dispositive (see Matter of Kaplan [Tupperware Distrib. — Commissioner of Labor], 257 AD2d 951, 952 [1999], lv dismissed 93 NY2d 920 [1999]).

Accordingly, as substantial evidence supports the Board's decisions, we decline to disturb them, notwithstanding evidence in the record that would support a contrary conclusion (see Matter of DeSantis [Commissioner of Labor], 54 AD3d 1103, 1104-1105 [2008]).

Mitchell H. Rubinstein

Agency’s use of its non-punitive procedure not a prerequisite to disciplinary action

Agency’s use of its non-punitive procedure not a prerequisite to disciplinary action
Matter of Van Osten v Horn, 37 AD3d 317

The Commissioner of the New York City Department of Corrections terminated correction officer Michele Van Osten’s employment after finding her guilty of disciplinary charges that her absences from work were excessive and inadequately explained, and that she was unable to perform the full range of her duties as a corrections officer.

One of the arguments advanced by Van Osten was that the Department could not bring formal disciplinary proceedings against her because it had not earlier provided her with the “informal, non-punitive mechanism adopted by [the] Department to address certain employee misconduct.”

The Appellate Division ruled that fact that such an informal, non-punitive mechanism had been adopted by Department [sometimes referred to as "progresssive discipline"] and could be utilized by the Department at its discretion did not limit its prerogative to initiate formal disciplinary proceedings against an employee pursuant to the Civil Service Law without first using its informal procedure.

As to the penalty imposed, termination, the court said that “Under the circumstances, termination is not a sanction shocking to our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/discipline-not-barred-by-availability.html


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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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Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy

Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy
Matter of City of Middletown v City of Middletown Police Benevolent Assn., 2011 NY Slip Op 01400, Appellate Division, Third Department

The City of Middletown Police Benevolent Association ( PBA) and the City were parties to a collective bargaining agreement that had expired. The parties reached an impasse in the course of negotiating a new agreement and the PBA submitted filed a petition with the Public Employment Relations Board ( PERB) seeking the compulsory interest arbitration of several subjects, including a disciplinary procedure proposal, a bill of rights proposal and a proposal concerning procedure under General Municipal Law §207-c.

The City then filed an improper practice charge with PERB claiming, among other things, that the demands submitted by the PBA were not mandatory subjects of negotiation.

PERB ultimately held that the proposals for a bill of rights and disciplinary procedure — both of which involve police disciplinary matters — were prohibited subjects of negotiations, but “created an exception from this general prohibition of collective bargaining for honorably discharged veterans and volunteer firefighters.”

Concluding that collective bargaining over police disciplinary matters was prohibited, without exception, Supreme Court found that PERB's decision was affected by an error of law and granted the City’s petition challenging PERB’s ruling.

The Appellate Division affirmed the Supreme Court’s holding, explaining that “Although strong state public policy favors collective bargaining, there exists a "competing policy … favoring strong disciplinary authority for those in charge of police forces," citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563.

The Appellate Division said that "legislation specifically commits police discipline to the discretion of local officials . . . the policy favoring [local] control over the police prevails, and collective bargaining over disciplinary matters is prohibited." As the issue here concerned the relative weight to be given to competing policies, rather than the application of the Taylor Law to particular facts, Appellate Division said that “no deference is accorded to PERB's determination.”

Noting that the Middletown City Charter grants the Board of Police Commissioners the power to "enact, modify and repeal orders, rules and regulations for the . . . discipline of the police department" and "[t]o punish . . . any police officer of the city," these enactments "state the policy favoring management authority over police disciplinary matters in clear terms" and "express a policy so important that the policy favoring collective bargaining should give way."

As to PERB finding that such prohibition against collective bargaining does not apply to honorably discharged veterans and volunteer firefighters, the Appellate Division said that it agreed with Supreme Court “that PERB's determination in this regard was affected by an error of law and, therefore, cannot be upheld.” Specifically, the court decided that PERB's reliance on case law holding that the special protections granted to honorably discharged veterans and volunteer firefighters under Civil Service Law former §22 trump police disciplinary procedures set forth in a local charter was misplaced.*

The bottom line: the Appellate Division conclude that the discipline of Middletown’s police force, including honorably discharged veterans and volunteer firefighters, is not a permissible subject of collective bargaining.

* §22.1 of the Civil Service Law (Chapter 15 of the Laws of 1909, as amended), sets out procedures to be followed with respect to the “Removal of veterans and volunteer firemen” while §22.2 of such law sets out procedures with respect to the “Removal generally” of “officers and employees holding a position in the competitive class of the civil service of the state or any civil division or city thereof.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01400.htm
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A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process

A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process
Matter of Hyman v Cornell Univ., 2011 NY Slip Op 01548, Appellate Division, Third Department

A Cornell faculty member alleged that a graduate student exchanged a series of e-mails. The faculty member told the student she should not contact him after the student suggested that they have a sexual affair.

When the student continued to send the faculty member e-mails, he told her that he that he would take formal action against petitioner if she persisted in communicating with him. Although the student agreed to discontinue communication, she subsequently e-mailed Cornell’s president, copying the faculty member, alleging that her "institutional rights" had been repeatedly violated by Department faculty.

The faculty member instituted proceedings against the graduate student and ultimately filed a complaint accusing her of harassment in violation of Cornell’s Code of Conduct.*

The graduate student than filed a complaint against the faculty member, accusing him of sexual harassment and retaliation. Ultimately the Cornell’s Hearing Board sent the student a written reprimand and issued a “no-contact order.”

The student sued, but Supreme Court dismissed her Article 78 petition. Subsequently the Appellate Division dismissed the student’s appeal of the Supreme Court’s ruling, stating that:

It is well settled that in reviewing a college’s or university's disciplinary determinations, "court[s] must determine 'whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings," citing Matter of Warner v Elmira Coll., 59 AD3d 909.

The court explained that only in the event the college or university “has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious.”

* Cornell’s Code of Conduct makes it a violation "[t]o intentionally harass another person by . . . acting toward that person in a manner [that] is . . . severely annoying . . . and beyond the scope of free speech."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01548.htm
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Freedom of information and speech

Freedom of information and speech
Informal Opinions of the Attorney General: 2000-2

The basic principle underlying New York State’s Freedom of Information Law [FOIL] is that all public documents are subject to disclosure upon request unless such disclosure is specifically prohibited by law.

For example, the State’s Public Health Law, Mental Hygiene Law and Education Law prohibit the disclosure of certain documents or information to the public without specific authorization by a court.

FOIL, however, also lists a number of exemptions that authorizes, but does not require, the custodian of the document to withhold particular information or documents if, as a matter of discretion, it elects to do so. Similarly, the State’s Open Meetings Law requires that the public be allowed to attend all meetings held by a public entity, although the public may be excluded from executive sessions held by the entity.

Executive sessions may be held for limited purposes, however. These include sessions in which the body will discuss items that would imperil public safety if disclosed; result in the identification of law enforcement personnel or police informants; concern matters involving criminal investigations; discussions concerning pending legislation or Taylor Law negotiations; personnel matters involving a particular individual; certain economic issues and matters concerning examinations and tests.

Although discussions of matters considered in executive session may be withheld even if they are recorded, both FOIL and the Open Meetings Law require that any formal vote taken during an executive session be made a public record subject to FOIL together with a record of how each member of the body voted.

May a local legislative body adopt a resolution prohibiting a member of that body from disclosing matters discussed in an executive session held by that body? This was the question presented to the Attorney General by Gregory J. Amoroso, the City of Rome’s corporation counsel.

In response, the Attorney General noted the parallels between the exceptions allowed under FOIL and the purposes for which a public body may go into an executive session from which the public is barred. His conclusion:

A governing body of a municipality may withhold any records of discussions properly taking place during an executive session and, further, it may prohibit its members from revealing the content of such discussions to the public.

However, cautioned the Attorney General, while the decision to go into executive session is a matter of properly exercising discretion and nothing in either FOIL or the Open Meetings Law prohibits the barring of the disclosure the nature of the discussions conducted in executive session by a participant, all such prohibitions are subject to federal and state freedom of speech requirements.

The clear implication here: neither FOIL nor the Open Meetings Law will serve as a shield in the event a court determines that a limitation placed on revealing matters considered in executive session violates the individual’s constitutional right to free speech. Courts have typically found that limitations placed on a public officer or employee with respect to his or her disclosing matters of public interest violates the individual’s right of free speech.

In contrast, prohibiting an individual from publicly discussing subjects or governmental decisions or actions involving matters of a personal interest rather than a public interest does not violate the individual’s constitutionally protected right of free speech. As the U.S. Supreme Court indicated in Connick v Myers, 461 US 138, constitutional free speech rights are not implicated when only matters of a personal interest to the individual, in contrast to matters of public concern, are involved.
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Vacating or modifying an arbitrator’s award

Vacating or modifying an arbitrator’s award
Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 2011 NY Slip Op 01482, Appellate Division, Second Department

Article 75 of the Civil Practice Rules provides that an arbitration award may be vacated by the courts upon a finding of:

a. Corruption, fraud or misconduct in obtaining the award; or

b. Partiality of the arbitrator, unless the award was by "confession;" or

c. The arbitrator exceed his or her authority or so imperfectly executed his or her power that no award as to the subject matter submitted was made; or

d. There was a failure to follow the procedures set out in Article 75.

An arbitrator's award may be modified only if there was a miscalculation of numbers or a mistake in the description of a person or thing; an award was made regarding some matter not submitted to the arbitrator for arbitration; or the award was "imperfect as to form" but not involving the merits of the controversy.

The Westchester case involved a proceeding pursuant to CPLR article 75 to vacate an arbitration award. The Appellate Division set out the following guidelines with respect to judicial review of an arbitration award:

1. Judicial review of arbitration awards is extremely limited.

2. An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.

3. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator.

4. Courts should not assume the role of overseers to mold the award to conform to their sense of justice.

In this instance the court held that party seeking to vacate the arbitrator’s award “failed to meet its burden of proving by clear and convincing evidence that the arbitrator committed misconduct, and that such misconduct prejudiced its rights or the integrity of the arbitration process.”

Further, said the Appellate Division, an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1)(iii) "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 decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01482.htm
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Administrative law judge denies employee’s attempt to convert a disciplinary hearing into a “disability proceeding”

Administrative law judge denies employee’s attempt to convert a disciplinary hearing into a “disability proceeding”
NYC Human Resources Administration v Krisilas, OATH Index #931/11

A clerical associate was charged with sleeping on duty, absence without leave, excessive lateness, and discourtesy to a supervisor. The employee’s attorney moved to dismiss the disciplinary charges and convert the matter to a disability proceeding, claiming his client suffered from a disability.

OATH Administrative Law Judge Ingrid Addison denied the motion, ruling that an employer's duty to accommodate an employee's disability is triggered by the employee's request for accommodation and is limited to disabilities known by the employer.

Here, said Judge Addison, the employee never told the agency he suffered from a disability for which he needed accommodation. Nor, said the judge, did the evidence establish that the employee's misconduct was caused by a disability.

The ALJ held that the disciplinary charges were proven in the course of the disciplinary hearing and recommended that the individual be terminated from his position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-931.pdf
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State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State’s Public Employee OSHA regulations

State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State’s Public Employee OSHA regulations
Source: New York State Register, March 2, 2011

On March 2, 2011 the State Register published a notice that the State Labor Department has proposed to incorporate by reference updates to OSHA standards into the State Public Employee Occupational Safety and Health Standards by amending its regulations. [See 12 NYCRR §800.3.]

The Department states that the amendment is necessary because Section 27-a(4)(a) of the Labor Law directs the Commissioner to adopt by rule, for the protection of the safety and health of public employees, all safety and health standards promulgated under the U.S. Occupational Safety and Health Act of 1970, and to promulgate and repeal such rules and regulations as may be necessary to conform to the standards established pursuant to that Act. This, says the Department, insures that public employees will be afforded the same safeguards in their workplaces as are granted to employees in the private sector.

The text of proposed rule and any required statements and analyses may be obtained from Michael Paglialonga, New York State Department of Labor, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-1938, email: michael.paglialonga@labor.ny.gov

Data, views or arguments may be submitted to Mr. Paglialonga.

Public comment will be received until 45 days after publication of this notice.
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Settling a disciplinary action by agreeing to disciplinary probation

Settling a disciplinary action by agreeing to disciplinary probation
Matter of Campbell v State of New York, 37 AD3d 993

The New York State Office of Mental Health [OMH] filed disciplinary charges against Monica A. Campbell. Instead of proceeding with a disciplinary hearing, Campbell and her union, New York State Correctional Officers and Police Benevolent Association [PBA] “settled” the matter by agreeing to have Campbell serve a “one-year disciplinary probationary period.”

The settlement agreement provided that:

Should Ms. Campbell commit any actions or omissions during this one-year period “which rise to the level of misconduct and/or incompetence” she will be terminated from [s]tate service without recourse to Article 8 [of the collective bargaining agreement].

The disciplinary grievance procedure set out in Article 8 provided for arbitration as the final step in a disciplinary action.

Ultimately OMH determined that Campbell was guilty misconduct while in “disciplinary probationary status” and terminated her employment. PBA appealed her termination and demanded arbitration. OMH refused to submit its decision to terminate Campbell to arbitration, contending that arbitration was not available under the terms of the disciplinary settlement agreement. PBA filed a petition pursuant to CPLR Section 7503 seeking a court order compelling arbitration.

Supreme Court found that the disciplinary settlement agreement did not exclude arbitration of the question of whether Campbell was guilty of misconduct and ordered arbitration. OMH appealed.

As the Appellate Division’s decision notes, it is well settled that a right to arbitration, like contract rights generally, may be waived or abandoned. The issue here, said the court, was whether the disciplinary settlement agreement entered into by the parties constituted a waiver of PBA’s right to submit Campbell’s dismissal to arbitration.

According to the record, the settlement agreement initially made Campbell a probationary employee for one year. This language, however, was amended at the request of PBA’s attorney and the phrase “disciplinary evaluation period” [DEP] was substituted in its place in order to “avoid impairment of Campbell's seniority and layoff rights.”

Noting that paragraph 9 of the PBA’s petition seeking to compel arbitration itself confirm that the parties understood that the DEP would be a probationary period, the Appellate Division said that “This clear meaning and understanding of the parties is in complete harmony with the meaning and use of DEPs in similar reported cases,” citing Matter of Miller v Coughlin, 59 NY2d 490, 493; and Matter of McGough v State of New York, 243 AD2d 983, 983-984 [1997], lv denied 91 NY2d 807, among others.

The court said the disciplinary settlement agreement specified the party that would determine whether there was subsequent misconduct by Campbell, – i.e., OMH. Accordingly, said the Appellate Division, Campbell’s sole remedy was to challenge OMH’s determination that resulted in her termination pursuant to CPLR Article 78.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/disciplinary-probation.html

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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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Analyzing out-of-title work grievances determinations

Analyzing out-of-title work grievances determinations
Steen v Governor’s Office of Employee Relations, 271 AD2d 738

Resolving out-of-title work disputes is not something courts typically do.

As the Appellate Division, citing Cove v Sise, 71 NY2d 910, noted in deciding the Steen case: “it is well settled that [a]dministrative determinations concerning position classifications are ... subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis."

But, said the court, where, as here, the record lacks any rational basis upon which to conclude that petitioners are not doing out-of-title work courts will intervene.

In Steen v GOER, the Appellate Division overturned a determination by the Governor’s Office of Employee Relations because it found that in this instance the comparison of petitioners’ duties with the duties of a Treatment Team Leader is inapposite -- i.e., it was neither appropriate nor pertinent to do so.

Why? Because, said the court, [a]n employee need not be assigned the full range of duties of a higher salary grade to be performing out-of-title work. The Appellate Division pointed to Collins v GOER, and Kuppinger v GOER, 203 AD2d 664, as support for its ruling.

Nancy Steen had filed a grievance claiming that she and a number of co-workers were being required to perform out-of-title duties and asked that their positions be reclassified and reallocated to higher-grade positions in recognition of their assignments. After the grievance was denied at all steps of the grievance procedure, she sued.

Steen contended that she and her co-grievants were appointed to positions of Recreation Workers, SG-14, Recreation Therapists, SG-14 or Senior Recreation Therapists, (Filed Mar. 29, 2000.) SG-17 by Pilgrim State Hospital. Following Pilgrim’s instituting a new program known as the Buffalo Model, Steen contended that she and the other employees were given an in-house designation of Treatment Plan Coordinators and were assigned a specific number of patients. Steen’s basic claim: the creation of the in-house title Treatment Plan Coordinators was a subterfuge allowing Pilgrim to assign out-of-title work to them and that their new duties were consistent with the duties of a Treatment Team Leader, SG 25.

According to the Appellate Division, as Treatment Plan Coordinators, each petitioner was responsible for transcribing information from the patient’s chart to a treatment plan worksheet and also interviewing each patient and entering the information from the interview in the second section of the worksheet.

Thereafter, the treatment team met and developed the treatment plan. Steen and her co-workers were then required to conduct a review with respect to each patient after 90 days to evaluate the progress of each patient with respect to the goals and objectives in the plan devised from the worksheets.

The court’s conclusion: [t]he focus of the review should have been whether the duties are appropriate to petitioners’ titles.

Noting that the reviewing officer recognized that the duties at issue are not contained verbatim in the classification standard but concluded they were a logical extension of the responsibility of professional or para-professional members of the treatment team, the court annulled GOER’s ruling denying Steen’s grievance.

Finding that there was no support for the reviewing officer’s conclusion in the record, the Appellate Division decided that the determination did not have a rational basis.

Further, the court specifically commented that a review of a patient’s entire chart containing information from each discipline represented by the team and the interview of the patient is simply not a logical extension of petitioners’ responsibilities to fill out forms and reports concerning patients in their recreational programs.
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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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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

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

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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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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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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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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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
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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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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.”
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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.

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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 reference manual.

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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.
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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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