Dissatisfaction with a new job assignment

Dissatisfaction with a new job assignment
Matter of Gaines and the NYC Transit Authority [Commissioner of Labor], Appellate Division, 37 AD3d 962
Shawn A. Gaines was disqualified from receiving unemployment insurance benefits after the Unemployment Insurance Board found that he had voluntarily left his employment without good cause.

Gaines, after working as a train operator for 21 years, was temporarily suspended from his job and scheduled to return to work in October 2004. In the interim, however, the Transit Authority implemented a policy prohibiting employees from working as train operators when, as was the situation with Gaines, they have medical restrictions that prevent them from operating trains in passenger service.

Gaines’ restriction: he suffered a hearing loss.

The Authority, however, told Gaines it would place him in a different position and directed him to report for medical examinations. Gaines did not report for the examinations nor did he provide the Authority with the documentation it had requested concerning his medical condition. Instead, Gaines filed a claim for unemployment insurance benefits claiming that he was terminated for lack of work.

The Unemployment Insurance Appeal Board disqualified him from receiving benefits after finding that Gaines had voluntarily left his employment without good cause. The Board also charged Gaines with a recoverable overpayment of more than $1,600 and reduced his right to receive future benefits by eight effective days. Gaines appealed.

The Appellate Division affirmed the Board’s determination, stating that dissatisfaction with a new job assignment, the terms and conditions of which are comparable to a former job, has been held not to constitute good cause for leaving one's job.

Other factors cited by the court supporting the Board’s determinations:

1. Gaines said he did not want to be placed in a different position even though an Authority representative testified that Gaines would receive the same salary and vacation time.

2. By failing to appear for the Authority’s medical examinations before knowing the nature of the position to which he was to be reassigned, Gaines failed to take reasonable steps to protect his employment.

Considering the fact that Gaines “inaccurately represented that he was laid off when continuing work was, in fact, available,” the court ruled that substantial evidence also supports the Board's finding that he made a willful misrepresentation to obtain benefits.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/dissatisfaction-with-new-job-assignment.html
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Interpreting contract language

Interpreting contract language
Local 589 v Cuevas, 271 AD2d 535

Using clear and unambiguous language in a collective bargaining agreement makes it easier for a court to resolve the meaning of a Taylor Law contract provision.

In the Local 589 case, the union attempted to convince the court that PERB had misinterpreted the provisions set out in a collective bargaining agreement when it declined to accept jurisdiction over an improper practice charge filed by the Local. The Appellate Division, Second Department disagreed, affirming PERB’s determination in the matter.
The City of Newburgh and International Association of Firefighters Local 589 had negotiated a collective bargaining agreement that included a “Section 207-a Procedure” that dealt with filing application for, and the awarding of, disability benefits pursuant to Section 207-a of the General Municipal Law.

The negotiated procedure stated that [a]ny claim of violation, misapplication, or misinterpretation of the terms of the Procedure shall be subject to review only by judicial proceeding.

Claiming that requiring a disabled firefighter’s physician to fill out a newly-created form violated the Procedure, the Local filed an improper practice charge with PERB. PERB, however, declined to assume jurisdiction, holding that it was procedurally barred by the Procedure from reviewing the charge in view of the clear and unambiguous contract language used in the collective bargaining agreement.

Although a State Supreme Court annulled PERB’s determination, the Appellate Division disagreed, finding that PERB dismissal of the Local’s improper practice charge was based upon a reasonable interpretation of the provision at issue. The court noted that the scope of judicial review of a PERB determination interpreting the Civil Service Law is limited, and unless the determination is affected by an error of law or is arbitrary and capricious, it will be upheld. PERB, said the court, is presumed to have developed an expertise which requires the courts to accept its construction of that law if it is not unreasonable.

What is standard applied by the courts in such cases? The Second Department said that [a]s long as the PERB interpretation is legally permissible and does not breach constitutional rights or protections, the courts will not disturb that determination.

PERB had decided that the thrust of Local 589’s unfair practice charge was that the new documentation requirement violates the established terms of the Procedure. In view of the specific language contained in the Procedure concerning resolving disputes concerning its provisions -- shall be subject to review only by judicial proceeding -- the Appellate Division said that PERB’s determination that it could not review the improper practice charge was a reasonable and supportable interpretation of the parties’ agreement.
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Smoke breaks ruled off-duty activity

Smoke breaks ruled off-duty activity
Eckerson v State and Local Retirement Systems, 270 AD2d 705, motion for leave to appeal denied, 95 NY2d 756

Significant accidental disability retirement benefits are available to members of the New York State and Local Retirement Systems [ERS] who are disabled as the result of an accident incurred in performing official duties.

In the Eckerson case, the Appellate Division considered the issue of what constitutes performing official duties for the purpose of establishing eligibility for accidental disability retirement benefits.

Dennis Eckerson, an employee of the Central New York Psychiatric Center, slipped and fell returning from a designated smoking area to the building where he worked.

ERS ruled that Eckerson was not in service when he was injured returning from his smoking break and disapproved his application for accidental disability retirement benefits. Eckerson filed an Article 78 petition challenged ERS’ determination.

Admitting that he smoked a cigarette prior to his fall, Eckerson also testified that he went to the smoking area to conduct work-related business. This conflicting evidence, said the Appellate Division, created a credibility issue for ERS to resolve. The court sustained ERS’ conclusion that Eckerson’s representation that he went to the smoking area to conduct official business was not creditable.

The court also noted that in considering accidental disability retirement applications filed by other ERS members based on a “slip and fall” on their employer’s premises, ERS had concluded that the member was not in service for the purpose of eligibility for such benefits in situations where:

1. The employee had not yet reported for work [Farley v McCall, 239 AD2d 779];

2. The employee was injured during a lunch break [Nappi v Regan, 186 AD2d 855]; and

3. The employee was injured after the work shift had ended [DiGuida v McCall, 244 AD2d 756].

The Appellate Division said that it found nothing irrational in ERS’ applying a similar rationale in the case of an injury sustained by an employee during his or her smoke break where the member cannot demonstrate that he or she was conducting official business at the time.

On the issue of credibility, frequently the review of an application for accidental disability retirement benefits involves conflicting evidence.

In Giebner v McCall, 270 A.D.2d 705 , also decided by the Appellate Division, the court held that where the record contains contradictory medical evidence concerning whether the applicant was permanently disabled, it was within ERS’s discretion to evaluate the differing medical opinions and resolve the conflict against the applicant.

The Appellate Division applied the same standard in resolving the question of determining credibility in Eckerson’s case.
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Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error

Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error
Matter of Social Servs. Employees Union, Local 371 v City of New York, Dept. of Juvenile Justice, 2011 NY Slip Op 02455, Appellate Division, First Department

Judge Alice Schlesinger confirmed an arbitration award reinstating Bowana Robinson to his position as an institutional aide at the City of New York's Department of Juvenile Justice. The award also provided Robinson with back pay and seniority.

The Appellate Division vacated the lower court’s ruling and remanded the matter to the arbitrator “for a determination of an appropriate penalty.” The court said that the arbitrator had failed to “give preclusive effect” to the fact that Robinson had plead guilty plea of petit larceny, which “was irrational” and the arbitrator’s award “places Robinson back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.”

The ruling in Kelly v. Levin, 440 NYS2d 424 involved a similar situation - an administrative tribunal's failure to give preclusive effect to a relevant criminal conviction by a court. Kelly involved a school business administrator charged with larcenies of school funds and bringing discredit upon the school district.

The Education Law §3020-a disciplinary panel found the Kelly guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being served with the §3020-a disciplinary charges (see People v Kelly, 72 AD2d 670).

The court ruled that it was reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02455.htm .

Refusing a light duty assignment may affect eligibility for other benefits

Refusing a light duty assignment may affect eligibility for other benefits

Peluso v Fairview Fire District, 269 AD2d 623

One factor to consider in cases involving claims resulting from job related injuries or disease: the impact of refusing to accept a light duty assignment with respect to other benefits that might be available to a disabled worker.

Clearly both General Municipal Law Section 207-a, applicable to firefighters and General Municipal Law Section 207-c, applicable to law enforcement personnel, provide for the discontinuation of benefits if a disabled police officer or firefighter declines to perform a light duty assignment consistent with his or her position unless the individual can produce evidence that he or she is medically unqualified to perform the light duty assignment.

In the Peluso case, the Appellate Division agreed with the Workers’ Compensation Board that Peluso’s rejection of a light duty assignment was evidence that he had voluntarily withdrew from the labor market. This, said the court, justified the Board denying his claim for workers’ compensation benefits.

Peluso retired from his position of fire captain, claiming he could no longer work as the result of a disabling back condition caused by several job related injuries.

The Appellate Division, in affirming the Board’s action, said that the fire chief’s testimony that several different types of light-duty assignments were available to all firefighters, including Peluso, depending on the nature of the disability constituted substantial evidence sufficient to sustain the Board’s determination.

The fire chief had testified that Peluso did not request a light-duty assignment, did not accept a light duty assignment when one was offered to him and that he continued to perform his regular duties as a captain, including responding to two calls on his last day of work.

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Hansen v Wallkill, App. Div., 2d Department, 270 AD2d 390

Sometimes an individual and an employer decides to terminate the individual’s employment or settle a disciplinary action in accordance with agreed upon terms and conditions. Such an agreement typically contains a “non-disclosure” clause. What happens if the terms of the settlement are made public without the expressed consent of both parties? This was the issue raised in the Hansen case.

Jon Hansen and the Town of Wallkill entered into a settlement agreement that required the Town to make “severance payments” to Hansen. When the town supervisor, Howard Mills, revealed the amount of the severance payments being made to Hansen under the terms of the agreement to the town board, Hansen sued for damages, claiming the disclosure constituted a breach of contract.

Hansen pointed to a clause in the agreement that provided that the terms of the settlement were to remain confidential except as may be required by law or legal process.

Mills, on the other hand, argued that the town board was told the amount of Hansen’s severance pay in response to a question during a regular meeting and that his disclosing this information was required under the Freedom of Information Law (FOIL).*

The Appellate Division sustained a lower court’s ruling dismissing Hansen’s complaint.

The court said that “[i]t is well settled that FOIL imposes a broad duty of disclosure on government agencies,” citing Section 84 of the Public Officers Law.

In essence, all public records are to be disclosed pursuant to a FOIL demand except:

1. When disclosure is specifically prohibited by law or by a court order; or

2. Where a record falls within an exception which permits the custodian of the record or document, as a matter of the exercise of discretion, to withhold the information and the entity elects to exercise its discetion and withholds it.

The disclosure of the amount of the severance payment, said the court, does not fall within any of the FOIL exceptions. Further, while the town supervisor did not seek court authorization for the disclosure, the agreement did not require prior court authorization to do so.

Suppose the information sought under FOIL concerns a disciplinary settlement. Can a public employer agree to keep the settlement document confidential?

This issue was considered by the Appellate Division in LaRocca v Jericho UFSD, 220 AD2d 424. In LaRocca, the court decided that the terms of a disciplinary settlement were subject to disclosure under FOIL.

The court held that a disciplinary settlement agreement did not constitute an employment history as defined by FOIL and therefore was presumptively available for public inspection. In addition, the court said that “as a matter of public policy, [a public employer] cannot bargain away the public’s right to access to public records.”

The Appellate Division decided that a settlement agreement, or any part of it, providing for confidentiality or denying the public access to the document is unenforceable as against the pubic interest.

The settlement agreement between LaRocca and Jericho, however, contained references to charges that LaRocca denied, or were not admitted, together with the names of other employees. The Appellate Division held that disclosure of those specific portions of the agreement would constitute an unwarranted invasion of privacy within the meaning of FOIL and thus could be redacted from the document.

* A “FOIL request” is the method used by an individual to inform the custodian of the public record involved that he or she wishes to inspect or copy public records and to identify the particular documents or records of interest.

Employee suspended without pay for eight days after being found guilty of refusing to immediately comply with supervisor’s instruction

Employee suspended without pay for eight days after being found guilty of refusing to immediately comply with supervisor’s instruction
NYC Dept. of Transportation v Solli, OATH Index #2888/10 .

OATH Administrative Law Judge Kara Miller recommended dismissal of charges brought against a New York City Department of Transportation employee. .

With respect to charges involving an alleged verbal and physical altercation with a co-worker with a co-worker, Judge Miller determined that the employee, Donna Solli, attempted to avoid a confrontation with a co-worker by leaving the area. .

The co-worker, however, followed Solli to a different location and initiated physical contact. Judge Miller found that “the force used by [Solli], if any, was defensive. .

Solli was also served with a separate charge of insubordination. The Department alleged that Solli refused her supervisor’s instructions to repair a pothole.

Although Solli ultimately complied with the supervisor’s directive, Judge Miller ruled that her failure to do so promptly was misconduct. .

The ALJ recommended that the Department place Solli on suspension without pay for eight days. . The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2888.pdf
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Extending a promotion eligible list following wrongful disqualification

Extending a promotion eligible list following wrongful disqualification
Matter of Carozza v City of New York, 37 AD3d 247

Brigitte Carozza won her lawsuit contending that she and her co-plaintiffs had been “wrongfully disqualified retroactively from consideration for promotion by reason of having just been placed in new job titles” (see Matter of Carozza v City of New York, 10 AD3d 488 [2004]).* As a result, Carozza and her co-plaintiffs were placed on promotion eligible lists just one month before those lists expired.

Carozza and her co-plaintiffs immediately brought a second lawsuit seeking the creation of special eligible lists pursuant to Civil Service Law §56(3). The placement of their names on such a list would provide them with an additional period of eligibility for promotion from a list. Carozza, and her co-petitioners, however, were not as successful in this second action.

The Appellate Division ruled that Carozza’s “successful challenge” to her, and her co-petitioners’ disqualification was not based on a finding that an error had caused a flaw in the entire promotional process, resulting in a list that did not accurately measure the merit and fitness of those candidates whose names were on the list.**

Accordingly, said the court, the remedy sought in this second lawsuit “does not comport” with the merit and fitness mandate set out in Article V, Section 6 of the New York State Constitution.

The court’s rationale: “Under the circumstances, it cannot be said that the original lists had no legal existence and thus could not have expired.”

The decision is posted on the Internet at
:http://nypublicpersonnellawarchives.blogspot.com/2007/02/eligibility-for-promotion.html

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* In Carozza I, the court said: “CSC rationally concluded that the employees' acceptance of jobs in a new title series could not retroactively disqualify them for promotions in their old title series for which they were qualified at the time they took the promotional examination, at least in the absence of clear notice that by accepting the new jobs they were effectively voiding the examinations and otherwise disqualifying themselves for promotion in the old series.”

** Civil Service Law §56(3), in pertinent part, provides as follows: Notwithstanding any law to the contrary, the name of any applicant or eligible whose disqualification has been reversed or whose rank order on an eligible list has been adjusted through administrative or judicial action or proceeding shall be placed on an eligible list for a period of time equal to the period of disqualification or for the period the application has been improperly ranked, up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer. If an eligible list expires prior to the expiration of such period of restoration, the name of the applicant or eligible shall be placed on a special eligible list, which shall have a duration equal to the remainder of the period of restoration.

Scope of arbitrating an alleged violation of a collective bargaining agreement

Scope of arbitrating an alleged violation of a collective bargaining agreement

Richfield Springs CSD v Allen, 270 AD2d 734

Changes in health insurance benefits may be initiated by a third party that actually provides the benefit. Does an employee organization have any right to challenge a unilateral change in the health insurance plan made by the third party?

This was the major issue in Richfield Springs, a case that essentially explores the issue of the scope of arbitration under a Taylor Law agreement.

The health insurance plan covering members of the Richfield Faculty Association was changed. The plan had been established under Sections 92-a and 119 of the General Municipal Law and was commonly referred to as the BOCES plan.

The Association’s basic objection: there was a change of carriers responsible for administering the BOCES Plan’s coverage for prescription drugs. The Association’s basic concern: the coverage to be provided by the new carrier would be inferior to the coverage under the BOCES’s existing plan.

The Association demanded that the former prescription drug insurance be continued and that unit members be given reimbursement for any financial loss that they incurred as a result of the change. To enforce its demand, the Association filed a grievance formally objecting to the change. Eventually Richfield Springs Faculty Association President Tracy Allen demanded that the Association’s grievance be submitted to arbitration.

In response to the demand for arbitration, the Richfield Central School District asked for, and obtained, a stay of arbitration from a State Supreme Court judge. Its argument: the dispute was not subject to the arbitration clause of the Agreement. The Association appealed.*

The Appellate Division reversed the lower court’s ruling. The court decided that the Association’s grievance regarding the change in the carrier of the prescription drug plan covering its members is arbitrable after all.

The court explained that “[i]t is settled law that grievances arising under public sector parties’ collective bargaining agreements are subject to arbitration where both arbitration of the subject matter of the dispute is authorized by the Taylor Law (Civil Service Law Article 14) and the parties clearly agreed by the terms of their contractual arbitration clause to refer their differences in the specific disputed area to arbitration,” citing Matter of Liverpool Central School, 42 NY2d 509.

This view was amplified by the Court of Appeals in a subsequent ruling, Matter of Watertown Education Association, 93 NY2d 132.

Using a two-step analysis, first the Appellate Division applied the Liverpool test and concluded that contract arbitration clause in the contract covered the subject matter of the dispute. It then applied the Watertown test -- did the parties in fact agree to arbitrate this particular grievance? It concluded that the parties had so agreed.

The court pointed to the fact that the Richfield Springs collective bargaining agreement specifically included a clause stating that prescription drug coverage was to be provided by Prescription Card Services (PCS). Further, said the court, the Agreement expressly provided that [a]ny change in [insurance] plan or carrier shall be by mutual agreement of the parties.

The Appellate Division said that since there is no dispute that the specified carrier of the prescription drug plan was changed from PCS to another provider without the Association’s consent, this supported the claim of an alleged violation of the Agreement, which the parties clearly and unequivocally agreed to arbitrate.

What about the district’s argument that it was not compelled to arbitrate changes unilaterally initiated by a third party? The Appellate Division decided that this was irrelevant insofar as the parties to the collective bargaining agreement were concerned.

The decision indicates that the fact that the claimed reduction in employee health benefits may have been effected by a third party, here the BOCES Plan’s Board of Directors, which was not a party to the collective bargaining agreement, rather than by the school district, does not determine whether or not the grievance is arbitrable.

The test applied by the Appellate Division: where the parties broadly agreed to arbitrate any alleged violation of their collective bargaining agreement or any dispute with respect to its meaning or application, and included language dealing specifically with health insurance benefits, a grievance concerning a claimed reduction in health insurance benefits is arbitrable.

Accordingly, the Appellate Division ruled that the Association’s grievance was arbitrable and the scope of the pertinent provisions of the Agreement and the merits of the grievance should be resolved by the arbitrator.

In another case involving the implementation of a contract arbitration procedure, In re Marinelli (Keller), 269 AD2d 750, the Appellate Division, Fourth Department granted Keller’s motion to compel the arbitration of a contract dispute.

Keller, as president of the Wayne Finger Lakes BOCES Faculty Association, had submitted a grievance claiming that the BOCES’s scheduling of a work day prior to Labor Day was in violation of an express provision in the collective bargaining agreement.

When the BOCES refused to submit the question to arbitration, Keller filed a petition to compel arbitration pursuant to Article 75 of the Civil Practice Law and Rules.

The Appellate Division pointed out the collective bargaining agreement in question defined an arbitrable grievance as a claim by any member of the bargaining unit based on a violation of any of the specific and express provisions of this Agreement.

The court agreed with the Association that parties agreed `by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.’

However, there are other considerations that may preclude a unilateral change in a Taylor Law agreement from being submitted to arbitration.

Although not identified as an issue in the Richfield Springs case, as the Appellate Division, Second Department noted in Port Washington USFD v Port Washington Teachers Association, 268 AD2d 523, [motion for leave to appeal denied, 95 NY2d 761], a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration.

In Port Washington, the parties agreed to include a specific religious holiday provision in a Taylor Law agreement. The clause allowed employees to be absent with pay to observe certain religious holidays without charging any leave accruals. The school district then refused to implement the provision, claiming that it was unconstitutional.

The Appellate Division agreed that the provision was unconstitutional and held that the school district’s refusal to implement the contract clause was not subject to arbitration under the contract’s grievance procedure.

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* Initially the Association’s motion to compel arbitration was granted by the Supreme Court but subsequently an amended order was issued staying arbitration based on the court’s finding that the Taylor Law agreement did not bind the district to arbitrate disputes between the Association and a third party, here the BOCES Plan administrators.

Liquidation of sick leave benefits upon retirement

Liquidation of sick leave benefits upon retirement
O’Brien v Deer Park UFSD, USDC, EDNY, 127 F. Supp.2d 342

Federal District Court Judge Denis R. Hurley ruled that paying teachers who retire after age 55 less for their unused sick leave than that paid to teachers who retire before attaining age 56 as provided by the terms of an agreement negotiated pursuant to the Taylor Law violated the federal Age Discrimination in Employment Act [ADEA] and the Older Workers’ Benefit Protection Act [OWBPA].

The collective bargaining agreement provided that teachers who retired during the first year after reaching age 55 would be paid in full for all of their accumulated sick leave; those who retired later, i.e. at age 56 or older, would per paid a decreasing percentage of the full value of their sick leave credits.

The court said that under ADEA and Older Workers Benefit Protection Act, employment benefits must be equally available regardless of age.

Applicant denied unemployment insurance benefits after being terminated for sexual harassment after a disciplinary hearing

Applicant denied unemployment insurance benefits after being terminated for sexual harassment after a disciplinary hearing
Matter of Nwaozor v City of New York, 2011 NY Slip Op 02098, Appellate Division, Third Department

Pius C. Nwaozor, a supervisor for the Department of Homeless Services, was served with disciplinary charges alleging sexual harassment involving a client of the agency. Although the arbitrator determined that Nwaozor was guilty of certain charges and that suspension without pay should be imposed as the penalty, the appointing authority dismissed him from his position.

When his application for unemployment insurance benefits was ultimately rejected by the Unemployment Insurance Appeal Board, Nwaozor appealed.

The Appellate Division affirmed the Board’s determination.

Nwaozor had argued that the Board was bound by the arbitrator’s determination that although he was found guilty of sexual harassment, his termination “was unwarranted.”

The Appellate Division disagreed, pointing out that the Board is required to give the arbitrator’s determination collateral estoppel effect. It is then “incumbent upon the Board to make an independent evaluation” as to whether Nwapzpr’s constituted ‘misconduct’ for the purposes of unemployment insurance.

The arbitrator found that Nwaozor had sexually harassed a client, which behavior is detrimental to his employer's interest. Accordingly, said the court, the Board's decision disqualifying Nwaozor from receiving benefits due to misconduct was rationally based.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02098.htm

Certifying the preferred list to fill a vacancy

Certifying the preferred list to fill a vacancy
Castle v Putnam-Westchester BOCES, 269 AD2d 394

Section 3013 of the Education Law deals with layoff upon the abolishment of a position by a school district or a BOCES.

The statute provides, in pertinent part, for the reinstatement of a person who has been laid off “to an office or position similar to the one, which such person filled without reduction in salary or increment....”

The implication of the Castle decision by the Appellate Division is that an employer is not obligated to combine two part-time positions into a single full-time position in order to reinstate an educator whose name is on a preferred list. Lorraine Castle, then a full-time school psychologist, was excessed from her position.

When Castle learned that two part-time school psychologist positions were created she asked the court to direct that these two positions be combined into one full-time position and order her reinstatement with back salary.*

Castle’s basic argument: Putnam-Westchester BOCES should have combined the two part-time positions to create one full-time position and then reinstated her from the preferred list rather than employee two part-time per diem school psychologists. The Appellate Division disagreed and affirmed a lower court’s ruling dismissing her petition.

According to the ruling, there was no “vacancy” within the meaning of Section 3013(3) for the purposed of entitling Castle to have her name certified from the preferred list for appointment. The court cited Zurlo v Ambach, 75 AD2d 662, as authority for its ruling.

In Zurlo, the Appellate Division, Third Department, Judge Mikoll dissenting, approved a school board’s creating two three-quarter time positions rather than one full-time position and one half-time position notwithstanding the fact that Zurlo, who was appointed to one of the new three-quarter time positions, was on a preferred list after having been excessed from a full-time position. In contrast, the fact that an appropriate preferred list is available to fill a vacancy does not mandate that the appointing authority actually fill an existing vacant position.

If, however, an appointment is to be made to the vacancy, the preferred list must used.

* An individual whose name is on a preferred list may be appointed to a position for which he or she is otherwise qualified “part-time.” If the individual whose name is on a preferred list is appointed to a “part-time position” or in a different full-time position in the same jurisdiction, or is employed full-time by another jurisdiction, he or she would retain his or her preferred list status for appointment to a full-time position that is “the same or similar” to his or her former position should one become available while his or her name is on the preferred list.

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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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Vacating an arbitration award

Vacating an arbitration award
Westchester County v CSEA Local 869, 270 AD2d 348, leave to appeal denied, 95 NY2d 755

It is unusual for an arbitration award to be vacated by a court, given the limited reasons for vacating such an award set out in Article 75 of the Civil Practice Law and Rules.

However, the Appellate Division, Second Department found justification for doing just that after an arbitrator reinstated a union member to his former position after he had been terminated by Westchester County. The arbitrator issued an award reinstating Local 869 unit member Donald Holtum to his position as Lead Technical Assistant at Westchester Community College.

The County challenged the decision and a State Supreme Court judge vacated the award. Local 869 appealed.

The Appellate Division affirmed the lower court’s ruling, finding that the award was irrational within the meaning of Article 75. According to the ruling, the arbitrator’s interpretation of the parties’ collective bargaining agreement was “unsupported by the plain language of that agreement...” thereby justifying its being vacated by the court.
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All Correction Law §753 factors must be considered before disqualifying an applicant because of his or her conviction of a crime

All Correction Law §753 factors must be considered before disqualifying an applicant because of his or her conviction of a crime
Matter of Acosta v New York City Dept. of Educ., 2011 NY Slip Op 02073, Court of Appeals

In this decision the Court of Appeals explains that where a prospective employer rejects an applicant for employment because of that individual’s conviction of a crime, Correction Law §753 requires that the employer must determine that the conviction is relevant to the duties of the position or poses an unreasonable danger to clients, co-workers or the public.*

In affirming the Appellate Division’s ruling, the Court of Appeals said that it concluded that “the New York City Department of Education (DOE) failed to comply with the requirements of the Correction Law and thus acted arbitrarily in denying [Acosta’s] application for security clearance.”

The Court of Appeals explained:

The Legislature has determined that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the ground that the applicant was previously convicted of a crime. This general prohibition advances the rehabilitation and reintegration goals of the Penal Law. Furthermore, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole. The "direct relationship" exception and the "unreasonable risk" exception to this general rule may be resorted to only upon a consideration of each of the eight factors enumerated in Correction Law §753 (see Arrocha, 93 NY2d at 364).

As to the “direct relationship” exception, here there must be “a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual" in order to deny the applicant the employment or a license.

The second exception, “unreasonable risk” permits the denial of employment or a license to an individual where "the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

The following eight criteria must each be considered by the appointing authority:

1. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

2. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

4. The time which has elapsed since the occurrence of the criminal offense or offenses.

5. The age of the person at the time of occurrence of the criminal offense or offenses.

6. The seriousness of the offense or offenses.

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public."

In the words of the Court of Appeals, A failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive.

* NYPPL’s summary of the Appellate Division’s ruling, 62 AD3d 455, is posted on the Internet at http://publicpersonnellaw.blogspot.com/2010/02/rejection-of-applicant-for-employment.html ]

The Court of Appeal's decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02073.htm
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Evidence - "Because I said so" isn't enough

Evidence - "Because I said so" isn't enough
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

One of the more frequent causes of court appeals of administrative decisions arises from the tendency of administrative decision makers to make decisions based on their experience and gut feelings rather than objective evidence. Somebody who has been in the business for a long time may come to believe that she or he knows what is going on and everyone else should just listen - ipse dixit in old Law Latin. But that's not due process. On her Law of the Land blog, Patty Salkin describes a recent Pennsylvania case where this happened in "PA Appeals Court Agrees that City Must Issue Condition Use Permit for Strip Club Where City Failed to Meet Burden of Proof".

The Pittsburgh zoning code was updated in 2009 and permitted adult entertainment as a conditional use in the Urban Industrial zoning district. Marquise wanted to operate a strip club on land in the urban industrial zone, but the City Council failed to hold a hearing as was required by the Pittsburgh Code and Marquise’s application was subsequently denied. The trial court granted the application and the City appealed.The City argued on appeal that it had presented substantial evidence that the proposed strip club would cause harm to the health, safety and welfare of the community. The Court noted that the burden of persuasion as to health, safety and welfare concerns falls on the objector, in this case the City. The Court looked to the language in the ordinance and determined that the burden of persuasion had not expressly shifted to the applicant.

Instead, the Court noted that the applicant only had to show specific requirements while the City had the burden to show all general policy concerns and negative effects.

Marquise satisfied all of the required specific conditions set out in the Pittsburgh Code. The Court further noted that the City only presented speculative evidence of the possible harm that would be caused by granting the conditional use permit. Additionally, the City failed to present any evidence of potential health and safety impacts as well as evidence that the proposed strip club would cause a detrimental effect on traffic. The Court held that there was sufficient evidence to support the trial court’s decision.

I guess these cases are often about adult entertainment facilities because you have enough money on one side and enough moral outrage on the other to get the case to a published level. Speculation isn't evidence. Also, by not holding a hearing the City Council lost the benefit of judicial deference.

EMM

Randall comments: This is a two-way street as the Appellate Division indicated in Murane v Department of Educ. of the City of New York. In Murane the court noted that the employee’s contention that she received an unsatisfactory performance rating because the principal was biased against was "speculative and insufficient to establish bad faith." In other word, Murane was iewed by the court as ipse dixit* as she failed to present evidence sufficient to demonstrate bad faith on the part of the principal to support her allegation. The Murane decision is posted at: http://publicpersonnellaw.blogspot.com/2011/03/four-month-statute-of-limitations-for.html.

* Latin: He himself said it. An unsupported statement that rests solely on the authority of the individual who makes it.
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