Refusal to accept shift reassignment results in employee's dismissal for "unauthorized absence"

Refusal to accept shift reassignment results in employee's dismissal for "unauthorized absence"
Kennedy v City of New York, 270 AD2d 93

The Kennedy decision demonstrates the importance of the following the principle “obey now; grieve later.”* In Kennedy’s case, her failure to honor that principle led to a disastrous results.

Stephanie Kennedy, an untenured employee in the noncompetitive class, was involuntarily reassigned to the night shift. She filed a grievance contending that a less senior employee should have been assigned to the night shift and refused to report to her assignment on the night shift while her grievance was pending.** As a result, she was terminated from her position.

Kennedy sued, alleging that her dismissal was made in bad faith because she was involuntarily reassigned to another shift without having been given a reasonable opportunity to arrange for childcare. The Appellate Division ruled that Kennedy’s termination was not made in bad faith.

The court pointed out that Kennedy presented no evidence that she had sought “an accommodation with respect to the transfer*** while she tried to arrange for childcare or invoked the hardship exception provisions of the collective bargaining agreement.”

The problem, said the court, was that Kennedy absented herself from work without permission while she pursued her unsuccessful grievance based on her claim that other, more junior employees should have been made to work the night shift. This unauthorized absence neutralized any inference of bad faith on the part of the appointing authority when it discharged her.

* However, there are exceptions to this general rule such as where complying with the employer’s directive would involve an unlawful act or expose the individual or others to bodily harm.

* Kennedy’s grievance was ultimately denied.

*** The court’s decision characterized Kennedy’s change to the night shift as a transfer. It would be better to have described it as a reassignment. Transfers within the meaning of the Civil Service Law involve a movement of a individual under the jurisdiction of one appointing authority to another; a reassignment of an individual involves his or her change from one position to a different position under the jurisdiction of the same appointing authority.
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Arbitrator’s award based on a finding of “past practice” did not modify the collective bargaining agreement between the parties

Arbitrator’s award based on a finding of “past practice” did not modify the collective bargaining agreement between the parties
Matter of Romaine v New York City Tr. Auth., 2011 NY Slip Op 02015, Appellate Division, Second Department

The Appellate Division affirmed a Supreme Court decision confirming an arbitration award, noting that “An arbitration award rendered after a consensual arbitration may be vacated by a court only on the grounds set forth in CPLR 7511(b).*

The court ruled that the arbitrator had not modified the relevant collective bargaining agreement [CBA] by relying on “past practices” to determine that the New York City Transit Authority was required to assign "shuttle work" to volunteers on its overtime list.

The arbitrator essentially determined that a mutual agreement had developed between the parties with respect to “shuttle work” over the past 20 years, which was an integral part of the collective bargaining agreement and “did not negate or bypass an express provision of the CBA.”

The Appellate Division also rejected the Transit Authority’s argument that the arbitration award “violates a strong public policy,” commenting that "[T]he scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow."

Here, said the court, the Authority failed to show that the "court can conclude without engaging in any extended fact-finding or legal analysis that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided'" or that the award itself violates a well-defined law of this State.”

* The Appellate Division also noted that “A court may vacate an arbitration award on the ground that the arbitrator "exceeded his [or her] powers" 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_02015.htm
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Employee found guilty of providing sensitive information about a narcotics investigation dismissed from her position with the police department

Employee found guilty of providing sensitive information about a narcotics investigation dismissed from her position with the police department
Matter of Villar v Kelly, 2011 NY Slip Op 02058, Appellate Division, First Department

The New York City Commissioner of Police dismissed Maria Villar from her position after finding that she had “wrongfully discussed and divulged official department business” involving sensitive information concerning an investigation.

The Appellate Division sustained the Commissioner’s determination and the penalty imposed. The court found that the decision to dismiss Villar was supported by substantial evidence.

The court noted that “Given the risk to the general public arising from the passing of sensitive information about a narcotics case to another subject of the same ongoing narcotics investigation, the penalty of dismissal does not shock our sense of fairness.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02058.htm
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Legislative immunity bars unlawful discrimination lawsuit

Legislative immunity bars unlawful discrimination lawsuit
Almonte v. City of Long Beach, 478 F. 3d 10

In a civil rights and wrongful discharge case based on the members of the City of Long Beach’s city council voting to eliminate the funding for a number of positions, a federal district court rejected Long Beach’s motion to dismiss the complaint.

The Federal Circuit Court of Appeals, Second Circuit, reversed the lower court’s decision.

The Circuit Court said that Legislative immunity applies not only to the council members' budget vote to eliminate funding the positions in question, but also to any discussions and agreements members may have had regarding the new budget prior to the vote, regardless of whether those discussions and agreements took place in secret.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/united-states-cour-t-of-appeals-2-for.html
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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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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1272 page e-book. For more information click on http://thedisciplinebook.blogspot.com/

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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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Compelling arbitration in cases where the grievance is based on the unilateral act or omission of a third party

Compelling arbitration in cases where the grievance is based on the unilateral act or omission of a third party
Remsen CSD v Remsen Teachers Asso., 270 AD2d 796 [Decided with In re Mohawk Central School District, 270 AD2d 798]

In Richfield Springs CSD v Allen, 270 AD2d 734, the Appellate Division, Third Department, held that the fact that a third party provides the employer’s negotiated fringe benefit does not insulate the employer from its duty to negotiate changes in the terms and conditions of employment if third party unilaterally decides to change the benefit.

In Richfield, the union was concerned that a change in a prescription drug plan provided by a new carrier would be inferior to the coverage provided by the old carrier.

The Appellate Division held that the grievance challenging the change in the carrier of the prescription drug plan covering its members was subject to arbitration under the contract grievance procedure set out in the Taylor Law agreement.

A substitute for the carrier of the prescription drug plan specified in the agreement was changed without the Association’s consent. This, said the court, supported the claim of an alleged violation of the Agreement which the parties clearly and unequivocally agreed to arbitrate.

The Appellate Division, Fourth Department, came to the same conclusion in the Remsen case.

Remsen Teachers Association president Nora Revere sued to compel the district to submit a grievance alleging a violation of its collective bargaining agreement. The district said that any change was beyond its control since the alleged violation resulted from the third party replacing its then current insurance carrier for its prescription drug plan with a different carrier.

According to the decision, the fact that the changes were made by an entity that was not a party to the collective bargaining agreement did not justify granting the district’s motion to stay arbitration.

In view of the parties’ broad arbitration agreement and the provisions relating to health insurance benefits, the court ruled that the alleged violation of the collective bargaining agreement resulting from changes in prescription drug benefits presents an arbitrable issue.

The Fourth Department pointed out that whether the district possesses authority or control over the amount or type of health insurance benefits provided to its employees, and whether the district the collective bargaining agreement with respect to maintaining a certain level of benefits, is for the arbitrator to determine.


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Consolidating positions in the public service

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

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

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

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

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

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

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

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

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

* Latin: For or with even stronger reason.

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

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

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

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

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

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

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

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

1. Violated its collective bargaining agreement with PCTEA;

2. Violated a past practice; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The superintendent and the board members were told to be absolutely scrupulous in their future compliance with the law, as additional violations of this kind may well subject them to removal.
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All about "cloud computing"

All about "cloud computing"
Source: Sui Generis - a New York Law Blog written by Nicole Black, Esq. at http://nylawblog.typepad.com/suigeneris/

Nicole Black explains the basics of “cloud computing” in an article published in the March 14, 2011 issue of the Daily Record.

It is posted on the Internet at:
http://nylawblog.typepad.com/files/dr-3.14.11.pdf
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Serving disciplinary charges on an employee in a disciplinary probation period status does not preclude his or her summary termination

Serving disciplinary charges on an employee in a disciplinary probation period status does not preclude his or her summary termination
Matter of Nieves-Diaz v City of New York, 37 AD3d 356

After being served with disciplinary charges while serving a disciplinary probation period, New York City Police Detective Luis Nieves-Diaz was summarily terminated from the Department without being given a pre-termination hearing on those charges.

In response to Nieves-Diaz’s appeal challenging his termination, the Appellate Division said that because Nieves-Diaz was on “dismissal probation,” he was subject to termination for any reason or for no reason, and without explanation, as long as the termination was not made in bad faith or for an impermissible reason.

Nieves-Diaz’s appeal did not allege that his termination was made in bad faith or for an impermissible reason.

Noting that the Department had “broad prerogative” to terminate Nieves-Diaz as a probationary employee, the Appellate Division ruled that the fact that Nieves-Diaz was served with disciplinary charges while in disciplinary probation status did not preclude his summary termination as a probationary employee.

Thus, said the court, the Department was not required to provide Nieves-Diaz with a “pre-termination hearing” regarding the charges that were served on him while he was in probationary status as a “condition precedent” to his dismissal.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/summary-termiination-during.html
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A public employer may not unilaterally discontinue a past practice but must negotiate any proposed change with the appropriate employee organization

A public employer may not unilaterally discontinue a past practice but must negotiate any proposed change with the appropriate employee organization
Matter of Meegan v Brown, 2011 NY Slip Op 01158, Appellate Division

The City of Buffalo appealed the denial of its Article 75 motion seeking a stay of arbitration to address a grievance filed by Buffalo Police Benevolent Association President Robert P. Meegan, Jr. challenging the City’s refusal to pay certain collective bargaining agreement (CBA) benefits to police officers receiving General Municipal Law §207-c benefits

Affirming the Supreme Court’s dismissal of the City’s motion, the Appellate Division said that although “It is well settled that the benefits provided to a police officer pursuant to General Municipal Law §207-c are exclusive, and a CBA will not be construed as impliedly expanding such benefit.,” there is no prohibition against a CBA providing for enhancements to §207-c benefits provided by law.

As the City of Buffalo conceded, it had been paying CBA benefits to police officers receiving General Municipal Law §207-c benefits for over 40 years. Viewing this as a “past practice” providing for certain “fringe benefits for current employees,” the Appellate Division held that such a past practice cannot be unilaterally modified by the public employer “even where unrelated to any specific contractual provision.” The court explained that a public employer has "a duty to negotiate with the bargaining representative of current employees regarding any change in past practice affecting [such] benefits."

The Appellate Division also observed that the CBA contained a "Maintenance of Benefits" clause.

This clause, said the court, provided that "[a]ll conditions or provisions beneficial to employees now in effect [that] are not specifically provided for in [the CBA] or [that] have not been replaced by provisions of [the CBA] shall remain in effect for the duration of [the CBA], unless mutually agreed otherwise between the City and [petitioner Buffalo Police Benevolent Association]."

Clearly, said the court, the City also had a contractual duty to negotiate a change in any past practice and it lacked the authority to unilaterally discontinue the payment of the benefits at issue to police officers receiving General Municipal Law §207-c benefits.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01158.htm

=====================

General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. For more information click on http://section207.blogspot.com/

======================

Hearing officer rejects motion to seal disciplinary hearing records but redacts the name of the victim of the employee's misconduct

Hearing officer rejects motion to seal disciplinary hearing records but redacts* the name of the victim of the employee's misconduct
Fire Department v Palleschi, OATH Index #551/11

In this Civil Service Law §75 disciplinary action, an EMT Lieutenant was charged with “bringing the agency into disrepute and showing disrespect to the public.” OATH Administrative Law Judge Joan Salzman said that the Lieutenant admitted the charges “in all material respects” and that the critical issue was her recommendation to as to the appropriate penalty for such misconduct.

Judge Salzman recommended the termination of an EMS lieutenant who admitted that he had posted private and confidential patient information on his Facebook page, "where 460 of his friends could see it for their amusement."

Significantly, Judge Salzman rejected a motion made after the close of the evidence whereby the parties jointly asked to have the Administrative Law Judge “seal the entire record.”

The ALJ explained her reason as follows:

I declined, because this was a public hearing, 48 RCNY §1-49 (Lexis 2009), and there was no reason to seal the entire record. See Mosallem v. Berenson, 76 A.D.3d 345, 348-49 (1st Dep’t 2010) (“Under New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records”; public right to access is not absolute, and confidentiality is the exception, not the rule). However, I did indicate to the parties that I was not going to identify the patient in my decision and directed them to review the transcript and exhibits and to redact her identity (meaning name, address, and phone number) from this record should it be sought for publication or filed in court. Even though that information was on the Internet, I see no reason to republish it.

* Remove or black out material in a document prior to its publication or release.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-192.pdf
..

Complying with all statutory tests critical to sustaining an administrative decision

Complying with all statutory tests critical to sustaining an administrative decision
Gallo v Office of Mental Retardation and Developmental Disabilities, 37 AD3d 984

Albert P. Gallo’s application for employment as a bus driver with the Schenectady County Chapter NYSARC, Inc. (ARC) was rejected by OMRDD after it found that Gallo had been convicted of assault in the second degree in 1988.

OMRDD said that his employment as an ARC driver involved an unreasonable risk to the safety or welfare of consumers served by ARC in view of this conviction. Gallo sued, asking the court to overturn OMRDD’s determination.

Supreme Court found the record “insufficiently developed” and annulled OMRDD’s determination. The court also directed OMRDD to approve ARC's employment of Gallo but denied Gallo counsel fees. The parties cross-appealed, OMRDD from that part of the judgment annulling its determination and directing it to approve Gallo’s employment by ARC and Gallo from the denial of counsel fees.

The Appellate Division said that OMRDD is required by statute to undertake criminal history background checks of employees of voluntary corporations such as Schenectady ARC. It noted that when Gallo’s background check revealed the 1988 assault in the second-degree conviction, OMRDD notified Gallo of its finding. It also advised him “to submit any answering documentation.”

After receiving Gallo’s letter of explanation and letters of reference, OMRDD rejected Gallo’s application, indicating that its decision was “on the grounds that [Gallo was] convicted of a crime or crimes” and that this determination was consistent with the provisions of Correction Law Article 23-A.

The court noted that Correction Law Section 753, which is part of Article 23-A, sets out eight elements that a public agency is to consider in making a determination pursuant to Correction Law Section 752 concerning licensure or employment of any individual with a criminal conviction. In the words of the Appellate Division:

When all eight factors are considered and the positive factors are balanced against the negative factors, the resulting decision is neither arbitrary nor capricious nor does it constitute an abuse of discretion and reviewing courts may not reweigh the factors and substitute their judgment for that of the agency.

In this instance, however, the Appellate Division found that a number of the statutory elements required to be considered were not set out in the “checklist” that OMRDD claimed mirrored the statutory factors and was used in making OMRDD’s determination regarding Gallo’s eligibility for employment by ARC.

Because these factors were apparently not considered, the Appellate Division ruled that OMRDD’s determination was arbitrary. It remitted the matter back to OMRDD for its consideration of “the public policy issue and for a determination of whether a certificate of relief from disabilities or good conduct or the equivalent evidence would benefit this applicant.”

Addressing the issue of the attorney fees claimed by Gallo, the court said it that denial of counsel fees was not premature and OMRDD’s position herein “may ultimately prove to be correct” and, in any event, “it was substantially justified.”

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/complying-with-all-statutory-tests.html
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While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant’s statutory rights

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

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

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

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

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

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

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

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

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

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

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

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
=========================
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Employer’s filing appropriate Workers’ Compensation claims forms defeats “statute of limitation” objection to payment employee’s claim

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

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

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

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

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

Intimately the Workers' Compensation Board affirmed and HHC appealed.

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

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

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

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

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

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

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

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01389.htm
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Federal charges characterized as involving “the failings of New York State government” and highlighting the need for comprehensive reform legislation

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

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

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

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

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