Inability to obtain a timely waiver to reemploy a person receiving a retirement allowance from a public retirement system of this State does not result in a breach of contract
LaSalle v Board of Educ. of Bridgehampton Union Free School Dist., 2011 NY Slip Op 02632, Appellate Division, Second Department
Edward J. LaSalle, a retired schoolteacher, applied for a teaching position with the Bridgehampton Union Free School District. In order for LaSalle to be so reemployed without having his retirement allowance adjusted, the district applied for a “§211 waiver” pursuant to §211.2(a) of the Retirement and Social Security Law.*
In essence, if the school district’s application for a §211 waiver for LaSalle was not approved, LaSalle’s earnings could not exceed the statutory annual earnings limitation of $27,500, which was the sum then applicable to him.** [The maximum currently permitted without loss of retirement benefits set out in RSSL §212 absent a waiver is $30,000. However, there is no earning limitations in or after the calendar year in which the retired individual attains age 65.]
LaSalle signed a salary notification for the school year containing a notation that the salary was "pending NYS waiver for Retiree." In addition, a resolution of the board of education appointing LaSalle as a teacher recited that the hiring was "effective" September 5, 2006. The resolution did not contain termination date for the period of employment but it did state that confirmation of his appointment was "pending NYS Education Department waiver for employment of retiree." The school superintendent also wrote to LaSalle to the same effect.
The school district’s waiver application, which it had submitted in June 2006, was denied.
The district then resubmitted a second waiver application and LaSalle commenced teaching on September 5, 2006.
However, by November 2006 LaSalle was close to the maximum compensation he could earn without have his retirement allowance adjusted and the State Department of Education had not acted on its resubmitted waiver application.
In view of the situation, the district offered LaSalle a number of options, including “placement of his retirement benefits on hold, resignation prior to the date when his salary would reach the statutory earnings limitation, or termination of employment.”
LaSalle elected to resign, which resignation took effect prior to the district’s receiving the Education Department’s approval of the §211 application it had filed on behalf of LaSalle.
LaSalle then sued the district “to recover damages for breach of contract and wrongful termination of employment.”
The Appellate Division affirmed Supreme Court’s determination that the district had established its prima facie entitlement to judgment as a matter of law when it dismissed LaSalle’ petition.
Failure to obtain the required waiver in a timely fashion may result in a financial liability to the retiree.
For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had been paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.
N.B. RSSL §217.1 requires "school salary transparency and disclosure" and mandates that school districts and all BOCES to report " all monies earned by a retired person in their employ that is in excess of the limitations set out in §212 to the appropriate retirement system and to the appropriate political subdivision. RSSL §217.2 requires the school district or the BOCES employing a retired person "who is eligible to collect or is already collecting a retirement allowance" to report, among other things, all earnings of such an individual to the appropirate retirement system and to the State Comptroller.
*The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
** RSSL §211.2(a), in pertinent part, provides that ”No retired person may be employed in a position in public service pursuant to subdivision one hereof except upon approval of … (2) the commissioner of education if such person is to be employed in the unclassified service of a school district other than the city of New York, a board of cooperative educational services or a county vocational education and extension board.... The
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02632.htm
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
April 05, 2011
Considering “mitigating factors” in setting a disciplinary penalty
Considering “mitigating factors” in setting a disciplinary penalty
Matter of Senior v Board of Education of Byram Hills Cent. School Dist., 37 AD3d 610,
The Board of Education of the Byram Hills Central School District adopted the findings of a disciplinary hearing officer that concluded that Fenton Senior was guilty of the charges of misconduct filed against him. The charge alleged that Senior was involved in an altercation with a co-worker. The penalty imposed by the Board: termination of Senior’s employment with the School District.
The Appellate Division, after affirming the finding that Senior was guilty of the charges filed against him, annulled the penalty imposed: termination. The court said that “the penalty of termination imposed was so disproportionate to the petitioner's conduct as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education, 34 NY2d 222.
The court then remanded the case to the School Board “for the imposition of an appropriate penalty less severe than the termination of [Senior’s] employment.”
The reason given by the Appellate Division for remanding the case for the purpose of imposing a lesser penalty: The Board “failed to give adequate consideration to certain mitigating factors.”
The “mitigating factors” listed by the court: Strong’s four-year employment record was unblemished, and he performed good deeds in the community.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/physical-altercation-with-coworker.html
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Matter of Senior v Board of Education of Byram Hills Cent. School Dist., 37 AD3d 610,
The Board of Education of the Byram Hills Central School District adopted the findings of a disciplinary hearing officer that concluded that Fenton Senior was guilty of the charges of misconduct filed against him. The charge alleged that Senior was involved in an altercation with a co-worker. The penalty imposed by the Board: termination of Senior’s employment with the School District.
The Appellate Division, after affirming the finding that Senior was guilty of the charges filed against him, annulled the penalty imposed: termination. The court said that “the penalty of termination imposed was so disproportionate to the petitioner's conduct as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education, 34 NY2d 222.
The court then remanded the case to the School Board “for the imposition of an appropriate penalty less severe than the termination of [Senior’s] employment.”
The reason given by the Appellate Division for remanding the case for the purpose of imposing a lesser penalty: The Board “failed to give adequate consideration to certain mitigating factors.”
The “mitigating factors” listed by the court: Strong’s four-year employment record was unblemished, and he performed good deeds in the community.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/physical-altercation-with-coworker.html
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Fitness for promotion
Fitness for promotion
Alston v City of New York, 270 AD2d 3
Sometimes an employee sues the appointing authority in an effort to secure a promotion. Alston, a New York City caseworker, complaining that he had been denied a promotion because of his earlier conviction for Federal mail fraud. Alston asked a Supreme Court justice to direct his agency, New York City’s Administration for Children’s Services, to promote him to a supervisory position. Alston’s theory: Children’s Services’ failure to promote him constituted a violation of Section 296.15 of the Executive Law (New York’s Civil Rights Law).*
The Appellate Division sustained the lower court’s dismissal of Alston’s petition on the grounds that the caseworker’s allegations concerning the reasons why he was denied the promotion -- conviction of a crime -- were speculative.
In contrast, the court noted that record “set out evidence of [Alston’s] mediocre performance as a caseworker and of [Alston’s] prior attempt to deceive ACS by seeking a medical leave when he had actually taken a job with another City agency.”
Further, the court said that it concluded that Alston’s mail fraud conviction, which involved his submission of false car service vouchers in connection with his employment as a caseworker, raises legitimate issues about his fitness for the supervisory position.
* Another element relevant to this case: Section 752 of New York’s Correction Law. Section 752, in general, prohibits an employer from considering an applicants’ conviction of a crime in making its employment decision.
Alston v City of New York, 270 AD2d 3
Sometimes an employee sues the appointing authority in an effort to secure a promotion. Alston, a New York City caseworker, complaining that he had been denied a promotion because of his earlier conviction for Federal mail fraud. Alston asked a Supreme Court justice to direct his agency, New York City’s Administration for Children’s Services, to promote him to a supervisory position. Alston’s theory: Children’s Services’ failure to promote him constituted a violation of Section 296.15 of the Executive Law (New York’s Civil Rights Law).*
The Appellate Division sustained the lower court’s dismissal of Alston’s petition on the grounds that the caseworker’s allegations concerning the reasons why he was denied the promotion -- conviction of a crime -- were speculative.
In contrast, the court noted that record “set out evidence of [Alston’s] mediocre performance as a caseworker and of [Alston’s] prior attempt to deceive ACS by seeking a medical leave when he had actually taken a job with another City agency.”
Further, the court said that it concluded that Alston’s mail fraud conviction, which involved his submission of false car service vouchers in connection with his employment as a caseworker, raises legitimate issues about his fitness for the supervisory position.
* Another element relevant to this case: Section 752 of New York’s Correction Law. Section 752, in general, prohibits an employer from considering an applicants’ conviction of a crime in making its employment decision.
April 04, 2011
Court of Appeals hold that wage freeze by Buffalo Fiscal Stability Authority applies to wages lost during the freeze and to longevity and promotional steps
Court of Appeals hold that wage freeze by Buffalo Fiscal Stability Authority applies to wages lost during the freeze and to longevity and promotional steps
Matter of Meegan v Brown, 2011 NY Slip Op 02436, Court of Appeals
The State Legislature created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.
Among other powers, the BFSA was authorized to impose a wage freeze upon finding that such a freeze was essential to the adoption or maintenance of a City budget or financial plan – which it did in April 2004, determining "that a wage freeze, with respect to the City and all Covered Organizations, is essential to the maintenance of the Revised Financial Plan and to the adoption and maintenance of future budgets and financial plans that are in compliance with the Act."
The freeze, effective April 2004, prevented any increase in wages, including increased payments for salary adjustments according to "plan and step-ups or increments".
The freeze was lifted in July 2007, whereupon the BFSA and the City indicated that City employees would immediately be entitled to a one-step increase in salary and wages. The Unions objected, however, contending that the employees were entitled to advance the four salary steps that they would have received had the freeze not been imposed.
The Union sued and Supreme Court held that Public Authorities Law Section §3858 (2)(c)(iii) applies only to wages lost during the freeze and not to longevity and promotional steps provided in the various contracts between the City and its unions and therefore the teachers were "entitled to their previously negotiated wage increase benefits going forward immediately."
Although the Appellate Division affirmed the Supreme Court ruling for essentially the same reasons, (see 63 AD3d 1673 [4th Dept 2009]), the Court of Appeals reversed, holding: “Public Authorities Law § 3850-a sets forth the Legislature's intent. In that provision, the Legislature declared that the "maintenance of a balanced budget by the city of Buffalo is a matter of overriding state concern." This remedial legislation was enacted to provide the city of Buffalo with "long-term fiscal stability," ensuring confidence of investors in the City's bonds and notes and to protect the economy of the region (id.). The Act further provides that "[t]he provisions of this title shall be liberally construed to assist the effectuation of the public purposes furthered hereby" (id. § 3873). Thus, the entire purpose of the statute was to place the city of Buffalo on sound financial ground over the long term. In order to accomplish such purpose, BFSA was empowered to freeze wages and salary increments until the City's growth and stability were renewed. The intent of the statute supports the City's position.”
The Court of Appeal’s decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02436.htm
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Matter of Meegan v Brown, 2011 NY Slip Op 02436, Court of Appeals
The State Legislature created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.
Among other powers, the BFSA was authorized to impose a wage freeze upon finding that such a freeze was essential to the adoption or maintenance of a City budget or financial plan – which it did in April 2004, determining "that a wage freeze, with respect to the City and all Covered Organizations, is essential to the maintenance of the Revised Financial Plan and to the adoption and maintenance of future budgets and financial plans that are in compliance with the Act."
The freeze, effective April 2004, prevented any increase in wages, including increased payments for salary adjustments according to "plan and step-ups or increments".
The freeze was lifted in July 2007, whereupon the BFSA and the City indicated that City employees would immediately be entitled to a one-step increase in salary and wages. The Unions objected, however, contending that the employees were entitled to advance the four salary steps that they would have received had the freeze not been imposed.
The Union sued and Supreme Court held that Public Authorities Law Section §3858 (2)(c)(iii) applies only to wages lost during the freeze and not to longevity and promotional steps provided in the various contracts between the City and its unions and therefore the teachers were "entitled to their previously negotiated wage increase benefits going forward immediately."
Although the Appellate Division affirmed the Supreme Court ruling for essentially the same reasons, (see 63 AD3d 1673 [4th Dept 2009]), the Court of Appeals reversed, holding: “Public Authorities Law § 3850-a sets forth the Legislature's intent. In that provision, the Legislature declared that the "maintenance of a balanced budget by the city of Buffalo is a matter of overriding state concern." This remedial legislation was enacted to provide the city of Buffalo with "long-term fiscal stability," ensuring confidence of investors in the City's bonds and notes and to protect the economy of the region (id.). The Act further provides that "[t]he provisions of this title shall be liberally construed to assist the effectuation of the public purposes furthered hereby" (id. § 3873). Thus, the entire purpose of the statute was to place the city of Buffalo on sound financial ground over the long term. In order to accomplish such purpose, BFSA was empowered to freeze wages and salary increments until the City's growth and stability were renewed. The intent of the statute supports the City's position.”
The Court of Appeal’s decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02436.htm
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Only a resident of the town may be appointed to serve in a public office of the town
Only a resident of the town may be appointed to serve in a public office of the town
Matter of Ricket v Mahan, 2011 NY Slip Op 02520, Appellate Division, Third Department
After the Town Board of the Town of Colonie passed two resolutions — one appointing John H. Cunningham to a two-year term as Commissioner of Public Works and another appointing Michael M. Burick to a six-year term as Personnel Officer, Theodore W. Ricket, a resident of the Town of Colonie, commenced an Article 78 proceeding challenging both appointments.
Ricket contended that Cunningham's appointment was invalid because he did not reside in the Town, nor did he possess the qualifications established for this position by the Town in its local law.*
As to Burick's appointment as Personnel Officer, Ricket complained that the appointment was invalid because, under the Town Law, as the Town Board was only authorized to appoint him for the remainder of his predecessor's unexpired term.
Supreme Court dismissed Ricket’s petition with respect to Cunningham but determined that Burick could only be appointed by the Town Board for the unexpired portion of his predecessor's term, and so modified his appointment to this position.
Both the Town and Ricket, respectively, appealed the Supreme Court’s rulings.
By way of background, the Appellate Division noted that after the Town had abolished the Office of Superintendent of Highways — an elected position that could only be held by a Town resident — it enacted a local law creating the position of Commissioner of Public Works - Town of Colonie Code §34 This local law, among other things, provided for “an appointed position with a definite term, and set forth a description of the position's official responsibilities and the qualifications needed to be appointed to this position.” However, the local law was silent as to whether the appointee had to be a Town resident.
Since the local law is silent as to whether the Commissioner of Public Works must be a Town resident, the Appellate Division ruled that the issue presented is whether state law serves to impose such a requirement. First, noted the court, the Town, when it enacted this local law, made no reference to any state statute, nor did it identify in the local law any state statute that it intended to supercede.
In this context, the Appellate Division noted that two state statutes are implicated by this proceeding.
1. The Public Officers Law §3(1), provides that "[n]o person shall be capable of holding a civil office who shall not, at the time he [or she] shall be chosen thereto, . . . be a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he [or she] shall be chosen, or within which the electors electing him [or her] reside" (emphasis by the court);** and
2. The Town Law §23(1), states that all "elective officer[s] of the town" and "[e]very other officer of the town at the time of his [or her] appointment and throughout his [or her] term of office shall be an elector of the town" (emphasis by the court). An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).
Although the Town Law identifies some town officers that must be town residents, such as town supervisor and superintendent of highways, this listing, said the court, is not exhaustive and specifically provides that "[a]ll other officers and employees in such a town shall be appointed by the town board." In other words, the state law provides that if a town enacts a local law creating a public or civil office and the person appointed to it is a town officer, the appointee must be a town resident.
However, as neither the Public Officers Law nor the Town Law defines what constitutes a public or civil office or who qualifies as a town officer, the Appellate Division ruled that such a determination must of necessity depend upon the nature of the position, its role in town governance and whether the position involved has responsibilities that require a "high degree of initiative and independent judgment" The Appellate Division also noted “other factors to be considered are whether an oath of office*** is required and whether the appointment is for a definite term,” citing 2006 Atty Gen [Inf Op] 1032).
The court then ruled:
“Here, the Commissioner of Public Works takes an oath of office (see Town of Colonie Code § 34-10), serves a two-year term and, according to the Town Code, is "the principal executive officer and administrative head of the Department of Public Works . . . with such powers as shall be necessary for the proper administration of the Department of Public Works consistent with applicable laws" (Town of Colonie Code § 34-3 [A]). Given the nature of this position — and the crucial role it plays providing essential services for the Town — we conclude that the Commissioner of Public Works is a town officer who must be a town resident. Since Cunningham has acknowledged that he was not a Town resident when he was appointed to this position, and does not intend to become one in the future, his appointment as Commissioner of Public Works does not comport with relevant state law and is invalid.
Const, art VIII, § 1), we note that no one has claimed during this proceeding that these payments were not made for services rendered. As such, the conclusion reached herein does not serve to alter the fact that Cunningham earned the compensation for which he was paid and, as such, the salary and benefits he earned while serving in this position did not constitute an illegal gift of public funds.
“As for Burick's appointment as Personnel Officer, the Town Law specifically provides that "[w]henever a vacancy shall occur or exist in any town office, the town board or a majority of the members thereof, may appoint a qualified person to fill the vacancy" and that when "the appointment [is] made to fill a vacancy in an appointive office, the person so appointed shall hold office for the remainder of the unexpired term" (Town Law §64[5] [emphasis by the court). This provision is controlling and, thus, as Supreme Court found, Burick's appointment as Personnel Officer must be limited to the remainder of his predecessor's unexpired term (see Civil Service Law §15[1][b])****.”
* Ricket also sought a declaration that the salary and benefits paid to Cunningham while he served as Commissioner constituted "an unconstitutional gift of public funds" that must be returned to the Town.
** An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).
*** See, also, Civil Service Law §62 which, in pertinent part, “Every person employed by the state or any of its civil divisions, except an employee in the labor class, before he shall be entitled to enter upon the discharge of any of his duties, shall take and file an oath or affirmation in the form and language prescribed by the constitution for executive, legislative and judicial officers….. execute his or her requires “Constitutional oath upon appointment.”
**** Civil Service Law §15[1][b], in pertinent part, provides that the Personnel of a suburban town described in subdivision four of section two of this chapter shall be appointed by the town board of such town. … The term of office of a personnel officer shall be six years…. A personnel officer shall have all the powers and duties of a municipal civil service commission.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02520.htm
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Matter of Ricket v Mahan, 2011 NY Slip Op 02520, Appellate Division, Third Department
After the Town Board of the Town of Colonie passed two resolutions — one appointing John H. Cunningham to a two-year term as Commissioner of Public Works and another appointing Michael M. Burick to a six-year term as Personnel Officer, Theodore W. Ricket, a resident of the Town of Colonie, commenced an Article 78 proceeding challenging both appointments.
Ricket contended that Cunningham's appointment was invalid because he did not reside in the Town, nor did he possess the qualifications established for this position by the Town in its local law.*
As to Burick's appointment as Personnel Officer, Ricket complained that the appointment was invalid because, under the Town Law, as the Town Board was only authorized to appoint him for the remainder of his predecessor's unexpired term.
Supreme Court dismissed Ricket’s petition with respect to Cunningham but determined that Burick could only be appointed by the Town Board for the unexpired portion of his predecessor's term, and so modified his appointment to this position.
Both the Town and Ricket, respectively, appealed the Supreme Court’s rulings.
By way of background, the Appellate Division noted that after the Town had abolished the Office of Superintendent of Highways — an elected position that could only be held by a Town resident — it enacted a local law creating the position of Commissioner of Public Works - Town of Colonie Code §34 This local law, among other things, provided for “an appointed position with a definite term, and set forth a description of the position's official responsibilities and the qualifications needed to be appointed to this position.” However, the local law was silent as to whether the appointee had to be a Town resident.
Since the local law is silent as to whether the Commissioner of Public Works must be a Town resident, the Appellate Division ruled that the issue presented is whether state law serves to impose such a requirement. First, noted the court, the Town, when it enacted this local law, made no reference to any state statute, nor did it identify in the local law any state statute that it intended to supercede.
In this context, the Appellate Division noted that two state statutes are implicated by this proceeding.
1. The Public Officers Law §3(1), provides that "[n]o person shall be capable of holding a civil office who shall not, at the time he [or she] shall be chosen thereto, . . . be a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he [or she] shall be chosen, or within which the electors electing him [or her] reside" (emphasis by the court);** and
2. The Town Law §23(1), states that all "elective officer[s] of the town" and "[e]very other officer of the town at the time of his [or her] appointment and throughout his [or her] term of office shall be an elector of the town" (emphasis by the court). An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).
Although the Town Law identifies some town officers that must be town residents, such as town supervisor and superintendent of highways, this listing, said the court, is not exhaustive and specifically provides that "[a]ll other officers and employees in such a town shall be appointed by the town board." In other words, the state law provides that if a town enacts a local law creating a public or civil office and the person appointed to it is a town officer, the appointee must be a town resident.
However, as neither the Public Officers Law nor the Town Law defines what constitutes a public or civil office or who qualifies as a town officer, the Appellate Division ruled that such a determination must of necessity depend upon the nature of the position, its role in town governance and whether the position involved has responsibilities that require a "high degree of initiative and independent judgment" The Appellate Division also noted “other factors to be considered are whether an oath of office*** is required and whether the appointment is for a definite term,” citing 2006 Atty Gen [Inf Op] 1032).
The court then ruled:
“Here, the Commissioner of Public Works takes an oath of office (see Town of Colonie Code § 34-10), serves a two-year term and, according to the Town Code, is "the principal executive officer and administrative head of the Department of Public Works . . . with such powers as shall be necessary for the proper administration of the Department of Public Works consistent with applicable laws" (Town of Colonie Code § 34-3 [A]). Given the nature of this position — and the crucial role it plays providing essential services for the Town — we conclude that the Commissioner of Public Works is a town officer who must be a town resident. Since Cunningham has acknowledged that he was not a Town resident when he was appointed to this position, and does not intend to become one in the future, his appointment as Commissioner of Public Works does not comport with relevant state law and is invalid.
Const, art VIII, § 1), we note that no one has claimed during this proceeding that these payments were not made for services rendered. As such, the conclusion reached herein does not serve to alter the fact that Cunningham earned the compensation for which he was paid and, as such, the salary and benefits he earned while serving in this position did not constitute an illegal gift of public funds.
“As for Burick's appointment as Personnel Officer, the Town Law specifically provides that "[w]henever a vacancy shall occur or exist in any town office, the town board or a majority of the members thereof, may appoint a qualified person to fill the vacancy" and that when "the appointment [is] made to fill a vacancy in an appointive office, the person so appointed shall hold office for the remainder of the unexpired term" (Town Law §64[5] [emphasis by the court). This provision is controlling and, thus, as Supreme Court found, Burick's appointment as Personnel Officer must be limited to the remainder of his predecessor's unexpired term (see Civil Service Law §15[1][b])****.”
*** See, also, Civil Service Law §62 which, in pertinent part, “Every person employed by the state or any of its civil divisions, except an employee in the labor class, before he shall be entitled to enter upon the discharge of any of his duties, shall take and file an oath or affirmation in the form and language prescribed by the constitution for executive, legislative and judicial officers….. execute his or her requires “Constitutional oath upon appointment.”
**** Civil Service Law §15[1][b], in pertinent part, provides that the Personnel of a suburban town described in subdivision four of section two of this chapter shall be appointed by the town board of such town. … The term of office of a personnel officer shall be six years…. A personnel officer shall have all the powers and duties of a municipal civil service commission.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02520.htm
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Challenge to dress code alleges gender discrimination
Challenge to dress code alleges gender discrimination
Matthews v City of New York, 270 AD2d 45
While claims of unlawful discrimination based on an employer’s dress code are not as common as they once were, dress code gender discrimination was one of the claims made by provisional caseworker, Makebra Matthews, after she was terminated from her job with the City’s Administration for Children’s Services [ACS].
Matthews, in an effort to regain her former position, alleged that the city was guilty of gender discrimination because it disapproved of her manner of dress and fired her. She contended that her dismissal resulted from ACS’s enforcing a dress code that allowed men, but not women, to wear sexually provocative or otherwise inappropriate clothes at work.
The city, on the other hand, argued while Matthews’ dress might be inappropriate for the workplace, the only reason it had dismissed her was because it was dissatisfied with the way she performed her assignments. Was this a mixed motive case?*
The Appellate Division ruled in favor of the city, commenting that Matthews had failed to make out a prima facie case of discrimination based on sex.
The court said that the city presented abundant evidence showing reasons for being dissatisfied with [Matthews] entirely apart from her manner of dress.
Dismissing Matthews’ complaint, the Appellate Division explained that [a]bsent a prima facie showing of discrimination, the mixed-motive analysis set out by the U.S. Supreme Court in Price Waterhouse v Hopkins is not applicable.
* See Price Waterhouse v Hopkins, 490 US 228
Employee penalized 15 days of vacation leave for failing to comply with his supervisor's lawful order
Employee penalized 15 days of vacation leave for failing to comply with his supervisor's lawful order
Binford v Safir, App. Div., 270 AD2d 129
His failure to comply with a lawful order by his superior cost New York City police officer Warren Binford 15 days of his accumulated vacation credits.
Although Binford attempted to have the courts overturn the disciplinary action taken against him, the Appellate Division dismissed his appeal, noting that the record contained substantial evidence that Binford did not obey [a] superior officer’s order to leave the radio room when directed to do so.
The substantial evidence: testimony by Binford’s superior officer.
The court noted that evidence presented during the disciplinary hearing raised a question that was essentially one of credibility. It, however, said that the Commissioner’s crediting the superior officer’s testimony over that given by Binford was a proper exercise of the Commissioner’s discretion.
Holding that the penalty imposed “does not shock to our sense of fairness,” -- the standard established by the Court of Appeal in Pell v Board of Education, 34 NY2d, 222 -- the court dismissed Binford’s petition.
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Binford v Safir, App. Div., 270 AD2d 129
His failure to comply with a lawful order by his superior cost New York City police officer Warren Binford 15 days of his accumulated vacation credits.
Although Binford attempted to have the courts overturn the disciplinary action taken against him, the Appellate Division dismissed his appeal, noting that the record contained substantial evidence that Binford did not obey [a] superior officer’s order to leave the radio room when directed to do so.
The substantial evidence: testimony by Binford’s superior officer.
The court noted that evidence presented during the disciplinary hearing raised a question that was essentially one of credibility. It, however, said that the Commissioner’s crediting the superior officer’s testimony over that given by Binford was a proper exercise of the Commissioner’s discretion.
Holding that the penalty imposed “does not shock to our sense of fairness,” -- the standard established by the Court of Appeal in Pell v Board of Education, 34 NY2d, 222 -- the court dismissed Binford’s petition.
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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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April 03, 2011
Former Otisville treasurer pleads guilty to embezzling town funds
Former Otisville treasurer pleads guilty to embezzling town funds
Source: Office of the State ComptrollerThe former Otisville treasurer will serve up to three years in jail and reimburse the village $77,000 after pleading guilty today in Orange County Court to grand larceny following an investigation by State Comptroller Thomas P. DiNapoli, the New York State Police and the Orange County District Attorney’s Office. Barbara McDowell is scheduled to be sentenced on June 10.
“McDowell took advantage of the trust of her fellow village residents to line her own pockets,” DiNapoli said. “I want to thank the State Police and Orange County District Attorney Frank Phillips for their assistance in retrieving the thousands of public dollars stolen during McDowell’s tenure.”
Investigators determined McDowell misappropriated village funds over a six-year period by writing at least 30 unauthorized checks to herself, including extra payroll and health benefit waiver checks. McDowell attempted to conceal her theft through poor record keeping and falsifying records.
DiNapoli’s office was alerted by Otisville Mayor Brian Wona after his office discovered that the village’s bank accounts were nearly depleted and requested an examination. In addition to the findings against McDowell, the subsequent audit detailed the lack of adequate internal controls and inadequate policies and procedures in Otisville.
The Comptroller’s office identified irregularities in Otisville’s financial records management as far back as 1999. Subsequent audits in 2002 and 2006 recommended several corrective actions, which were never followed. After the Comptroller’s 2010 audit, the village and mayor committed to adopting policies and procedures to address these issues.
A copy of the audit can be found at; http://osc.state.ny.us/localgov/audits/villages/2010/otisville.pdf
The Comptroller encourages the public to help fight against fraud and abuse. New Yorkers and others may report allegations of fraud, corruption and abuse of New York State taxpayer monies and, or, property by: calling the Comptroller’s toll-free fraud hotline at 1-888-672-4555; filing a complaint online at investigations@osc.state.ny.us, or mailing a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.
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April 01, 2011
Free speech limitations on public employees
Free speech limitations on public employees
Wasson v Sonoma Co. Jr. Coll., 204 F.3d 659
Wasson v Sonoma Co. Jr. Coll., 204 F.3d 659
A public employee may claim that he or she was disciplined as a result of his or her exercising his or her constitutionally protected right of free speech.
This was Sonoma County Junior College instructor Sylvia J. Wasson’s argument following her termination from her position. The reason for her dismissal: the College Board decided that she was the anonymous writer of six defamatory letters and flyers that vilified the college president, Robert Agrella.
Wasson sued, claiming the college’s action violated her First Amendment rights. Wasson, however, had denied writing the five letters and the flyer she claimed was the reason underlying her termination. Her denial proved fatal to her wrongful termination in retaliation for exercising her right to free speech argument.
The U.S. Circuit Court of Appeals, Ninth Circuit, said that a free speech claim depends on speech.... In what may be a variation of Catch 22, the court said that because Wasson denied writing the letters or otherwise being involved in the affair, she had no basis for claiming her right to free speech had been violated.
In the words of the court, “[w]e conclude that the plaintiff fails to state a First Amendment claim in these circumstances because she cannot show the alleged wrongful conduct was in retaliation for any exercise of her free speech rights.”
Wasson also presented an alternative argument: she was defending the First Amendment free speech rights of the actual writer of the offending letters and flyer.
The court dismissed this theory as well. The Circuit Court ruled that Wasson lacked standing because she did not show that she had any relationship to, or with, the alleged anonymous writer, the second prong of the three-prong test set out in Powers v Ohio, 499 US 400.
In order to prevail on the basis of a defending the free speech of others argument, the individual must show that he or she (1) actually suffered an injury in fact, (2) had a close relation to the third party, and (3) there was some hindrance to the third party’s ability to protect his or her own interests.
Further, the courts typically distinguish between a public employee’s exercising his or her right to free speech concerning a matter of public interest in contrast to speech that essentially involves the individual’s personal interests. Pickering v Board of Education, 391 US 563, sets out the tests applied by the courts in such cases.
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The approval of a leave of absence by individual not authorized to approve such leave is invalid
The approval of a leave of absence by individual not authorized to approve such leave is invalid
Renaud v City of New York, 269 AD2d 283
From time to time an individual is absent from work without approval – AWOL. What happens if the individual is absent after receiving approval to go on leave but the individual approving the leave is not authorized to grant such approval? This was an issue in the Renaud case.
Renaud was terminated because she was absent from her position without approval [AWOL] for three months. Renaud’s defense: one of the agency’s employee relations specialists approved the absence and therefore the agency cannot deem her to have been AWOL.
This seems to be an easy issue to decide, except although the employee relations specialist involved was not authorized to approve the leave in the first instance, the specialist was unaware that Renaud had been already referred for discipline because of her AWOL status.
May the employee rely on the unauthorized approval of her absence? This was the question considered by the Appellate Division when Leslie Renaud sued the Administration for Children’s Services in an effort to be reinstated to her position with the agency.
The court said that Children’s Services’ decision to terminate Renaud for a three-month absence without leave that was in flagrant violation of the agency’s time and leave rules was neither arbitrary nor capricious and sustained Children’s Services decision to terminate her.
What about Renaud’s claim that one of the agency’s employment relations specialists had approved her leave. In effect, Renaud contended Children’s Services was estopped from considering her absence AWOL since the employee relations specialist had approved it.
The Appellate Division quickly disposed of this argument. It said that estoppel is not available against an administrative agency for the purpose of ratifying administrative error.
Accordingly, Renaud could not rely on the approval of her leave by the employee relations specialist to neutralize the agency’s decision to dismiss her as the employee relations specialist was not authorized to grant any such approval on behalf of Children’s Services.
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Considering the value of toxicology reports in random drug tests
Considering the value of toxicology reports in random drug tests
Seeley v New York City, 269 AD2d 205
Are uncertified toxicology reports indicating positive drug test results sufficient to support a decision to terminate an employee? This was the issue presented by Clarice E. Seeley, a New York City police officer, who was terminated after being found guilty of testing positive for cocaine in a random drug test.
Seeley argued that due process required the court to vacate the police commissioner’s decision because it was not supported by substantial evidence. Seeley contended that the commissioner based his ruling on unreliable toxicology reports because they were not certified copies.
The Appellate Division was not impressed by this argument. After commenting that an administrative tribunal is not strictly bound by the rules of evidence, the court pointed out that foundation testimony by the toxicologist who supervised the testing and prepared the final toxicology reports was more than adequate to establish the authenticity and reliability of the copies of the reports entered into evidence.
Also noted was the fact that Seeley’s attorney declined the hearing officer’s invitation to examine the original toxicology reports before copies of them were received in evidence. The Appellate Division then sustained Seeley’s dismissal, commenting that the penalty does not shock our sense of fairness under the circumstances.
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March 31, 2011
Discipline or constructive criticism?
Discipline or constructive criticism?
Source: E-mail received by NYPPL referencing an item posted on the Internet at http://auburnpub.com/news/local/article_0a5c06e8-5a78-11e0-95ff-001cc4c03286.html
Suspended Jordan-Elbridge School District principal David Zehner and his attorneys, citing the Education Law and the Public Officer Law, contend that Zehner cannot be “reprimanded” until a hearing officer is selected to hear any charges filed against him pursuant to §3020-a of the Education Law and he is found guilty of those charges.
Zehner considered three actions by the Board to constitute reprimands, or punishments, in the nature of disciplinary actions taken against him and petitioned Supreme Court for an order directing the board "to cease disciplining him until it appoints an arbitrator to conduct a hearing on his 3020-a charges."
The school district, on the other hand, contends that it had not reprimanded Zehner but had merely informed him that he had violated board policy by acting inappropriately at meetings. The school district’s attorney, Frank Miller, Esq., said. “This isn’t a letter of reprimand. ... We have a right to say to one of our employees, ’you’re acting up; we’re going to correct you.’”
Distinguishing between “constructive criticism” and a reprimand in the context of a disciplinary action has been addressed in The Discipline Book [http://thedisciplinebook.blogspot.com/ ] as follows:
"In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the appointing authority’s placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.
"The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.
"In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.
"As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, 14,396, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000, 'Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.'"
"What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature?
"This could be a difficult question to resolve. As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.
"In the Fusco and Irving cases the Commissioner of Education found that 'critical comment' exceeded the parameters circumscribing 'lawful instruction' concerning unacceptable performance.
"In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was 'intended to encourage positive change' in Fusco’s performance. The Commissioner noted that the memorandum 'contains no constructive criticism or a single suggestion for improvement.' Rather, said the Commissioner, the memorandum focused on 'castigating [Fusco] for prior alleged misconduct.'"
"In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .
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Source: E-mail received by NYPPL referencing an item posted on the Internet at http://auburnpub.com/news/local/article_0a5c06e8-5a78-11e0-95ff-001cc4c03286.html
Suspended Jordan-Elbridge School District principal David Zehner and his attorneys, citing the Education Law and the Public Officer Law, contend that Zehner cannot be “reprimanded” until a hearing officer is selected to hear any charges filed against him pursuant to §3020-a of the Education Law and he is found guilty of those charges.
Zehner considered three actions by the Board to constitute reprimands, or punishments, in the nature of disciplinary actions taken against him and petitioned Supreme Court for an order directing the board "to cease disciplining him until it appoints an arbitrator to conduct a hearing on his 3020-a charges."
The school district, on the other hand, contends that it had not reprimanded Zehner but had merely informed him that he had violated board policy by acting inappropriately at meetings. The school district’s attorney, Frank Miller, Esq., said. “This isn’t a letter of reprimand. ... We have a right to say to one of our employees, ’you’re acting up; we’re going to correct you.’”
Distinguishing between “constructive criticism” and a reprimand in the context of a disciplinary action has been addressed in The Discipline Book [http://thedisciplinebook.blogspot.com/ ] as follows:
"In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the appointing authority’s placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.
"The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.
"In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.
"As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, 14,396, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000, 'Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.'"
"What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature?
"This could be a difficult question to resolve. As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.
"In the Fusco and Irving cases the Commissioner of Education found that 'critical comment' exceeded the parameters circumscribing 'lawful instruction' concerning unacceptable performance.
"In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was 'intended to encourage positive change' in Fusco’s performance. The Commissioner noted that the memorandum 'contains no constructive criticism or a single suggestion for improvement.' Rather, said the Commissioner, the memorandum focused on 'castigating [Fusco] for prior alleged misconduct.'"
"In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .
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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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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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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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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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March 30, 2011
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 .
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.
========================
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.
========================
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.
March 29, 2011
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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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.
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.
March 28, 2011
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.htmCertifying 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.
========================= .
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.
=========================
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.
========================= .
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.
.
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.
.
March 25, 2011
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
.
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
.
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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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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Terminating of a tenured public officer without an administrative hearing
Terminating of a tenured public officer without an administrative hearing
Pirozzi v Safir, App. Div., First Department, 270 AD2d 2, motion for leave to appeal denied, 95 NY2d 756
New York City police officer John Pirozzi was terminated from his position without a hearing after he was convicted of a crime he committed in the line of duty and that the appointing authority deemed constituted a violation of Pirozzi’s oath of office.
Claiming that he was entitled to administrative due process before he could be removed from his position, Pirozzi sued. The department, citing Section 30(1)(e) of the Public Officers Law, argued that Pirozzi was removed by operation of law upon his conviction and thus he was not entitled to a pre-termination hearing.*
The Appellate Division agreed and dismissed Pirozzi’s petition. The court said that Pirozzi was properly terminated from the Police Department without a hearing in light of his conviction of aggravated harassment in the second degree. The court cited Duffy v Ward, 81 NY2d 127, as authority for its ruling.
However, in the event a public officer is terminated pursuant to Section 30(1)(e) as a result of his or her conviction of a felony, or a crime involving the violation of his or her oath of office, and the conviction is later reversed or vacated, the individual may request reinstatement to his or her former position, except in cases where the former position was “an elective office.” In the event the appointing authority denies the individual’s request for reinstatement his or her former position, he or she is entitled to a hearing with respect to that decision if the initial conviction was the only basis for the termination.
* Section 30(1)(e) of the Public Officers Law applies only in cases where the individual is a public officer. A police officer is a public officer. Although every public officer is a public employee, not every public employee is a public officer.
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The Discipline Book - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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Pirozzi v Safir, App. Div., First Department, 270 AD2d 2, motion for leave to appeal denied, 95 NY2d 756
New York City police officer John Pirozzi was terminated from his position without a hearing after he was convicted of a crime he committed in the line of duty and that the appointing authority deemed constituted a violation of Pirozzi’s oath of office.
Claiming that he was entitled to administrative due process before he could be removed from his position, Pirozzi sued. The department, citing Section 30(1)(e) of the Public Officers Law, argued that Pirozzi was removed by operation of law upon his conviction and thus he was not entitled to a pre-termination hearing.*
The Appellate Division agreed and dismissed Pirozzi’s petition. The court said that Pirozzi was properly terminated from the Police Department without a hearing in light of his conviction of aggravated harassment in the second degree. The court cited Duffy v Ward, 81 NY2d 127, as authority for its ruling.
However, in the event a public officer is terminated pursuant to Section 30(1)(e) as a result of his or her conviction of a felony, or a crime involving the violation of his or her oath of office, and the conviction is later reversed or vacated, the individual may request reinstatement to his or her former position, except in cases where the former position was “an elective office.” In the event the appointing authority denies the individual’s request for reinstatement his or her former position, he or she is entitled to a hearing with respect to that decision if the initial conviction was the only basis for the termination.
* Section 30(1)(e) of the Public Officers Law applies only in cases where the individual is a public officer. A police officer is a public officer. Although every public officer is a public employee, not every public employee is a public officer.
===================
The Discipline Book - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
===================
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