Rules of the Civil Service Commission providing for separate Layoff Units for law enforcement personnel employed by Environmental Conservation

Rules of the Civil Service Commission providing for separate Layoff Units for law enforcement personnel employed by Environmental Conservation
Source: New York State Register March 23, 2011 - Volume XXXIII, Issue 12

The New York State Civil Service Commission has adopted rules providing for the Agency Law Enforcement Services negotiating unit of the Department of Environmental being designated separate units for the purposes of suspension, demotion of displacement (layoff units) pursuant to §§80 and 80-a of the Civil Service Law.

The text of rule may be obtained from Ms. Shirley LaPlante, NYS Department of Civil Service, AESSOB, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us

The Civil Service Commission did not receive any public comment concerning this change during the comment period.
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Four-month statute of limitations for filing an Article 78 petition not tolled while individual pursues his or her administrative remedies

Four-month statute of limitations for filing an Article 78 petition not tolled while individual pursues his or her administrative remedies
Matter of Murane v Department of Educ. of the City of New York, 2011 NY Slip Op 02054, Appellate Division, First Department

Jennifer Murane appealed the Supreme Court’s dismissal of her Article 78 petition seeking to annul her termination as a probationary teacher by the New York City Department of Education, to have her year-end unsatisfactory rating expunged from her record and to direct her reinstatement to her position.

The Appellate Division ruled that Supreme Court correctly ruled that her challenge to her termination as a probationary teacher was untimely, not having be brought within four-months of the effective date of her termination. The fact that Murane had pursued her administrative remedies, said the court, did not toll the four-month statute of limitations for filing an Article 78 action.

Although Murane’s petition for judicial review of her unsatisfactory performance rating was not untimely, the Appellate Division said that she “failed to show that the rating was arbitrary and capricious or made in bad faith.” Detailed observation reports by the principal and assistant principal describing her poor performance in class management, engagement of students, and lesson planning, provided a rational basis for the rating.

As to Murane’s claim of “bad faith,” the court ruled that her contention that the principal was biased against her was "speculative and insufficient to establish bad faith."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02054.htm
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Tests for determining the “arbitrability” of Taylor Law contract provisions

Tests for determining the “arbitrability” of Taylor Law contract provisions
Odessa-Montour CSD v Odessa-Montour Teachers Asso., 271 AD2d 931

The Odessa-Montour decision by the Appellate Division, Third Department applied the guidelines set out in the Court of Appeal’s ruling in Watertown City School District v Watertown Education Association, 93 NY2d 132. Watertown addresses issues involving demands for arbitrating alleged violations of Taylor Law agreements. The ruling also suggests that Watertown may not be as much of a closed door to obtaining a stay arbitration involving grievances arising from alleged violations of Taylor Law agreements as some may believe.

In Watertown the Court of Appeals held that any anti-arbitrational presumption implied by its previous ruling in the Liverpool case, [Liverpool Central School District v United Liverpool Faculty Association, 42 NY2d 509], is no longer justified in the public sector labor environment.

In applying the Watertown ruling in deciding Odessa-Montour, the Appellate Division signaled that Watertown does not mean that every grievance flowing from alleged violations of Taylor Law agreements are automatically arbitrable. The Appellate Division explained that the Court of Appeal’s decision in Watertown indicates only that the anti-arbitrational presumption is no longer valid -- two tests must still be met:

1. The court must be satisfied that the Taylor Law authorizes arbitration of the particular subject matter; and

2. The parties agreed by the terms of their particular arbitration clause to refer such matter to arbitration.

Unless both tests are satisfied, courts retain authority to issue a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. How did the Appellate Division apply these tests in resolving the Odessa-Montour appeal?

The decision indicates that when Jerry Burris retired from his position with the Odessa-Montour Central School District he decided to terminate his individual health insurance coverage in the district’s health insurance plan. Upon his retirement, Burris’ spouse, who was also employed by the district, enrolled him for dependent coverage under her health insurance coverage.

Seven years passed. Burris’ spouse requested, and was granted, a leave of absence without pay from her position with the district. Burris asked the district to re-enroll him once again in its health insurance plan -- with individual coverage. The third party plan administrator, however, denied the request because Burris had waived his right to individual coverage in favor of dependent coverage at the time of his retirement.

The Odessa-Montour Teachers Association [Association] filed a grievance, contending that rejecting Burris’ request for re-enrollment in the plan constituted a violation of its Taylor Law contract. Eventually the Association submitted the grievance to arbitration in accordance with the contract grievance procedure.

The district objected and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order barring the submission of the matter to arbitration. State Supreme Court Justice Samuel J. Castellino granted the stay.

The Association appealed, arguing that the district had agreed to arbitrate the issue of a retiree’s ability to change his or her health insurance enrollment. It made the following arguments in support of its claim:

1. The Taylor Law agreement allocates the costs of health insurance premiums between district and its retirees.

2. A clause in the agreement refers to the health insurance administrative manual and thus makes the health plan administrator’s decision to deny Burris re-enrollment ... is subject to arbitration.

3. The contract defines the term grievance as a claim by any teacher or group of teachers that there is a violation, misinterpretation, or misapplication of this Agreement and the district concedes that retirees are included in the definition of teacher within the meaning of the collective bargaining agreement.

4. The collective bargaining agreement contained a broad arbitration clause.

The Appellate Division said that the question presented to the court to resolve is whether or not the parties agreed to arbitrate the issue.

The court said that [i]n light of the narrow arbitration clause in the collective bargaining agreement at issue and Burris’ status as a seven-year retiree who voluntarily opted out of health insurance coverage at the time of retirement, we agree with Supreme Court’s ruling that the subject dispute is not subject to arbitration under the parties’ collective bargaining agreement.

Referring to Watertown, the Appellate Division observed that when considering a dispute as to whether a particular grievance is outside a collective bargaining agreement, a court should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement].

Its conclusion: no reasonable relationship exists between the subject matter of the instant dispute -- a retiree’s attempt to re-enroll in a health insurance plan, which he voluntarily opted out of seven years earlier -- and the general subject matter of the collective bargaining agreement.
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Comic book law

Comic book law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

One of the most entertaining blawgs I follow is LAW AND THE MULTIVERSE: SUPERHEROES, SUPERVILLAINS, AND THE LAW, writting by attorneys James Daily and Ryan Davidson. They examine the legal implications of comic book characters and situations, and sometimes similar movie characters and situations. Often I forward them to my faculty members as potential discussion or exam questions. Today's post is about administrative and criminal law in the discovery and distribution of a new drug.

Introduction:

Limitless opened this weekend, and is the subject of LAW AND THE MULTIVERSE'S second look at a movie. Spoilers to follow, as always.

The basic premise is that Edward Morra (Bradley Cooper) stumbles across a drug, “NZT,” which massively boosts one’s memory and intelligence. This enables him to write his unstarted-and-overdue book in a matter of days, learn any language in a matter of hours, and become a concert-level pianist in a long weekend.

So basically, what we’ve got here is every nerd’s fantasy: if I was only smart enough, I’d be able to get the money and the girl.

The movie has been described as “more interesting than it has any right to be,” which is about right. But there are a number of legal issues in the movie to talk about, mostly about the drug itself.

First, a high-level overview of how drugs are regulated in the US. For a drug to be legally prescribed or distributed it must be approved by the Food and Drug Administration. Clinical trials for new drugs must also have FDA approval. Some drugs are further restricted by the Controlled Substances Act, which establishes a schedule of controlled substances, some of which can be prescribed by a doctor with a DEA number and some of which are banned outright (e.g. heroin). Finally, individual states can add to (but not subtract from!) the federal controlled substances schedule. Now we’ll look a little closer at how all of this affects NZT.

Daily and Davidson have discussed other administrative law topics, including the Social Security System, air traffic control and the FAA, Superman's immigration status, and federal export control laws. Also torts, contracts, criminal law, Constitutional law, among other subjects. And the comments are usually thoughtful. Fun and educational!

EMM
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The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case

The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case
Matter of Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Commn., 2011 NY Slip Op 02009, Appellate Division, Second Department

Public agencies are not immune to the almost always fatal procedural omission of failing properly serve the necessary parties in an appeal of an adverse administrative ruling as is demonstrated in this Article 78 action.

Greenburgh Central Schools District #7 had filed CPLR Article 78 action to review the Westchester County Human Rights Commission finding that District had engaged in unlawful age discrimination in violation of the Westchester County Human Rights Law. The Commission had also imposed a monetary penalty on the District.

Supreme Court, Westchester County, after declining to extend the statute of limitations to file such an action, dismissed the proceeding for lack of personal jurisdiction.

The Appellate Division affirmed the lower court’s ruling, pointing out that it was undisputed that the school district had failed to properly serve Westchester Human Rights with the notice of petition and petition in accordance with CPLR 312.

Further, said the court, Greenburgh “failed to demonstrate good cause for an extension of time to serve, and failed to show that such an extension is warranted in the interest of justice.”

In particular, the court noted that Greenburgh had failed to demonstrate diligence in its attempt at service, and failed to demonstrate a potentially meritorious argument in support of the petition.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02009.htm
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Termination by operation of law

Termination by operation of law
Bowman v Kerik, 271 AD2d 225

Section 30.1(e) of the Public Officers Law provides that a public office becomes vacant upon the conviction of the incumbent of a felony, or a crime involving a violation of the individual’s oath of office. The significance of this provision is that no pre-termination hearing that may otherwise be viewed as mandated by law such as the proceeding set out in Section 75 of the Civil Service Law or a Taylor Law disciplinary grievance procedure is required to effect the termination.

In Bowman, Section 30.1(e) was the basis for the court’s sustaining the termination of several New York City correction officers without a hearing. As the Appellate Division noted, Section 30.1(e) is a self-executing statute and no pretermination hearing was required.

Bowman and other correction officers had challenged their dismissal without notice and hearing, claiming they were entitled to such a due process hearing. The corrections officers pled guilty to an intent to evade any tax imposed under [an] income or earnings tax statute....*

The Appellate Division found that their public offices were vacated automatically on conviction by operation of law because of the misdemeanors to which they had pleaded guilty. As noted in Kelly v Levin, 440 NY2d 424, even if these individuals were given a due process hearing, the only penalty that could be imposed by an appointing authority or hearing officer was dismissal.

* For the purposes of 30(1)(e), a plea of guilty is the equivalent of a conviction.
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Challenging administrative decisions

Challenging administrative decisions
Gomez v Safir, 271 AD2d 246

The Gomez case points out a procedural trap that an individual may encounter in the event he or she delays challenging an administrative decision. In this instance the case involved a delay by a police officer in contesting an administrative decision denying his request to engage in off-duty employment.*

There two basis issues involved in this case:

1. Did a pending grievance concerning the denial of his administrative application for off-duty employment approval toll the statute of limitations for filing an Article 78 petition challenging the administrative disapproval action? and

2. Was the determination of the commissioner in denying Gomez’s request reasonable?

New York City police officer Felipe Gomez wanted to be a professional boxer. When his administrative request to work off-duty in pursuit of a boxing career was disapproved, he appealed the administrative determination to the commissioner. He also filed a contract grievance protesting the denial of his request for permission to engage in off-duty employment as a professional boxer.

First, the commissioner denied Gomez’s administrative appeal concerning permission to participate in boxing while off-duty. Gomez did not immediately challenge the commissioner’s administrative decision but decided to wait for commissioner’s decision concerning his grievance.
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The commissioner also denied Gomez’s grievance, ruling that Gomez’s complaint did not involve a contractual right subject to the grievance process; Gomez then initiated an Article 78 action seeking a court order vacating the commissioner’s administrative decision.

However, by the time the commissioner issued the grievance ruling more than four months had passed by since the commissioner had issued his administrative ruling on Gomez’s administrative appeal. As a result the first issue to be resolved by the court was a procedural one -- was Gomez’s Article 78 petition appealing the commissioner’s administrative ruling timely; i.e., was it filed within four months of the final administrative determination?

State Supreme Court Judge William McCooe said it was untimely and dismissed Gomez’s petition. Why? Because, said the court, the commissioner’s administrative decision became final and binding on Gomez when he was told that the commissioner had denied his administrative appeal. Accordingly, the four-month statute of limitations for bringing an Article 78 action commenced to run at that time.

The critical element in resolving the timeliness issue: Judge McCooe said that Gomez’s attempt to resort to contractual grievance procedures did not toll the four-month limitations period, citing Lubin v Board of Education, 60 NY2d 974.

The lesson here: delays in filing an Article 78 petition because the employee is awaiting the resolution of a grievance or arbitration concerning the same issue is fatal as the Gomez decision demonstrates.

Similarly, in Roper v NYC Department of Citywide Administration, Appellate Division, Third Department, 271 AD2d 737, the court sustained the Unemployment Insurance Appeal Board’s dismissed Clyde Roper’s appeal of the denial of his unemployment insurance claim as untimely. Clyde testified that he received the ALJ’s decision but did not appeal based upon his attorney’s advice to wait for a pending arbitration decision. The court sustained the board’s conclusion that Clyde failed to comply with the 20-day filing requirement of Section 621(1) of the Labor Law and dismissed his appeal.

Although the Appellate Division dismissed Gomez’s complaint for technical reasons, it also elected to comment on the merits of his claim. The court pointed out that although Section 208-d of the General Municipal Law allows a police officer to accept off-duty employment, such employment must not affect his physical condition to the extent that it impairs his ability to efficiently perform [his or her regular] duties.

The court’s conclusion as to merits of Gomez’s appeal: given this qualification, it cannot be said that the blanket prohibition against professional boxing apparently applied here is so lacking in reason as to be arbitrary.

* A number of law enforcement agencies have adopted a policy setting the nature of off-duty employment that its officers may accept and generally require the officers to obtain prior approval before accepting off-duty employment. In some instances, the department’s off-duty work policy has been incorporated in an agreement negotiated pursuant to the Taylor Law. An employer’s restriction on employee’s use of their nonworking time is generally a mandatory subject of negotiations and the union’s acquiescence to limitations concerning off-duty work does not constitute a waiver of the right to bargain subsequent prohibition [see Sheriff’s Association and Ulster Co. Sheriff, 27 PERB 3028].
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Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements

Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements
Edward Carter, et al v Incorporated Village Of Ocean Beach, USCA, Second Circuit 10-0740-cv*

Carter and his co-plaintiffs [hereinafter "Carter"] sued the Village and certain of its officials, alleging that they were unlawfully terminated from their respective seasonal police officer positions. They also alleged that their termination was in retaliation for reporting misconduct within the department in violation of the First, Fifth, and Fourteenth Amendments and that certain of the defendants made “derogatory statements” about them.

The federal district court ruled that Carter’s claims failed as a matter of law, concluding that Carter did not engage in “constitutionally protected speech” and thus could not establish First Amendment claims. The court said that “even if [Carter's] factual claims were credited in full, they established only that [Carter] spoke “pursuant to their official duties” and thus “not . . . as citizens for First Amendment purposes.”

The district court also ruled that Carter had not suffered a deprivation of either a protected liberty or property interest.

The Court of Appeals affirmed the lower court’s decision, holding that Carter’s allegations establish no more than that [the plaintiffs] reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.”

Speech, said the court, “that owes its existence to a public employee’s professional responsibilities” is made “pursuant to” that employee’s “official duties.” Accordingly, the Circuit Court concluded, Carter was not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.

As to Carter’s claim that he was deprived of a protected property interest without due process of law, the Circuit Court of Appeals said that “To state a claim for deprivation of property without due process of law, a plaintiff must, as a preliminary matter, ‘identify a property interest protected by the Due Process Clause,’” citing Harrington v County of Suffolk, 607 F.3d 31.

However, to demonstrate a property interest in public employment, the plaintiff must have “more than a unilateral expectation of” continued or future employment but instead “a legitimate claim of entitlement to it.”

Carter, said the court, established no such “claim of entitlement” in that the record establishes that all of the plaintiffs in this action were all at-will, part-time, seasonal employees who had no contractual or other basis for asserting any “entitlement” to continued or future employment.

Carter had also contended that he was entitled to a pretermination hearing in accordance with Civil Service Law §75(1)(c). However, said the court, only certain individuals who have “completed at least five years of continuous service” are entitled to such administrative due process by operation of law. In this instance, said the Circuit Court, the district court had determined that no plaintiff was employed “continuously” for a five year period, and, accordingly, that §75(1)(c) provides no support for plaintiffs’ claims.”

Finally, as to Carter’s allegations of a so-called “stigma plus” deprivation of constitutionally protected right, stigma plus’ refers to a claim brought for injury to one’s reputation (the stigma) coupled with the "deprivation of some ‘tangible interest’ or property right (the plus), without adequate process."

The Circuit Court of Appeals agreed with the district court’ holding that even assuming a “deprivation” occurred in this instance – "that is, assuming plaintiffs could establish the 'stigma' and the 'plus' – the claims would nonetheless fail because plaintiffs were afforded 'adequate process' in the form of a post-deprivation Article 78 hearing in state court."

The Circuit Court explained that “where, as here, plaintiffs are ‘at will’ government employees raising stigma-plus claims, our law makes clear that 'due process does not require a pre-termination hearing,' and access to post-termination process, such as an Article 78 hearing, is sufficient to satisfy constitutional requirements."

* N.B. This ruling is a Summary Order. Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/596b4436-f8b9-4643-82a9-59e7edb21841/3/doc/10-0740_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/596b4436-f8b9-4643-82a9-59e7edb21841/3/hilite/
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Discipinary charges filed against employee for off-duty misconduct

Discipinary charges filed against employee for off-duty misconduct
Cannata v Safir, 269 AD2d 327

The Appellate Division, First Department did not have any difficulty in sustaining the decision of the Police Commissioner to dismiss New York City police officer Michael Cannata based on his finding that Cannata, while off-duty had:

1. Refused to move his illegally parked car when asked to do so by a Yonkers police officer;

2. Acted in a rude and aggressive manner, making racial remarks about the police officer; and

3. Lied about his conduct during the departmental investigation and disciplinary hearing.

Commenting that the commissioner’s determination was supported by substantial evidence, including the testimony of numerous Yonkers police officers, the Appellate Division said that there was no basis to disturb the commissioner’s credibility determinations.

Under the circumstances, the court said that "the penalty of dismissal does not shock our sense of fairness."

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Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law

Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law
Matter of Lomax v Kelly, 2011 NY Slip Op 01894, Appellate Division, First Department

Richard Lomax, a New York City probationary police officer, was off-duty with a fellow officer when the vehicle he was driving skidded on ice and rear-ended another car. Lomax called 911 to report the accident.

The occupants of the other vehicle, however, attacked the officers resulting in Lomax sustaining serious head injuries.

In the course of prosecuting the assailants, an Assistant District Attorney discovered that Lomax's medical records indicated that he was intoxicated at the time of the accident. This was reported to a NYPD sergeant, who then reported the finding to the Internal Affairs Bureau and ultimately Lomax was terminated.

Lomax challenged his dismissal from his position. In considering Lomax’s appeal, the Appellate Division said that “Even assuming that the Assistant District Attorney violated the Health Insurance Portability and Accountability Act of 1996 [HIPPA]* upon disclosing the contents of [Lomax’s] medical records to the NYPD, [NYPD] properly relied on records lawfully obtained from an independent source to conduct the [Internal Affairs] investigation.”

The Appellate Division, sustaining his termination as a probationary employee, ruled that the medical records used by NYPD showing that Lomax was driving while intoxicated provided “a rational basis for his dismissal as a probationary police officer and established that the termination was not made in bad faith.”

* N.B. As to such disclosure by the Assistant Attorney General, HIPPA’s privacy rules require “that health plans, health care clearinghouses, and certain health care providers guard against misuse of individuals' identifiable health information and limit the sharing of such information” [see Public Law 104-191; Title II, Subtitle F; Part C--Administrative Simplification, §1171, Definitions, posted on the Internet at http://www.cms.gov/HIPAAGenInfo/Downloads/HIPAALaw.pdf ].

The Lomax decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01894.htm
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