Filing of disciplinary charges against an employee must timely

Filing of disciplinary charges against an employee must timely

Transit Authority v Campbell, OATH Index No. 343/00

As a general rule, a statute of limitations continues to run with respect to the deadline for filing a timely action in the proper forum even if the complaint has been filed in a different, but incorrect, forum or notwithstanding the fact that another action is pending. This point was made clear to the Transit Authority when OATH Administrative Law Judge Ray Fleischhacker vacated Section 75 disciplinary charges it had filed against Colette Campbell as untimely.

In 1996 the New York City Transit Authority reassigned Campbell to a lower grade position. Campbell filed an Article 78 petition claiming the action constituted a disciplinary demotion, in violation of her Section 75 rights to due process. The court agreed, finding the Authority’s action constituted disciplinary action within the meaning of Civil Service Law Section 75.

It was conceded that on August 16, 1996, without a hearing, and as a result of the events which form the basis for the charges in this case, the Authority reassigned the respondent from a Level II supervisor to a Level I supervisor, with a significant cut in pay.

The Appellate Division rejected the Authority’s argument that “its action was a transfer permitted by Personnel Director rules without resort to a hearing” [Campbell v NYC Transit Authority, 253 AD2d 813], holding that Campbell was entitled to a Section 75 disciplinary hearing. The Court of Appeals denied the Authority’s petition to appeal on April 29, 1999 [93 N.Y.2d 805].

In July 1999 the Authority served Campbell with disciplinary charges setting out eight specifications of misconduct alleged to have occurred between May and August 1996. ALJ Fleischhacker, however, ruled that the agency’s delay in serving the charges until appeals related to the 1996 Article 78 action had been exhausted meant that they were filed too late.

Campbell contended that the statute of limitations in Section 75 began to run upon the commission of the alleged misconduct, was never tolled, and expired well before any charges were served. The Authority, on the other hand, argued that it was not until its effort to appeal the Appellate Division determination was denied by the Court of Appeals that it was obliged to serve charges.

Civil Service Law section 75(4) provides that “[n]otwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges . . ., provided, however, that such limitation shall not apply where the incompetency or misconduct complained of and described in the charges, would, if proved in a court of appropriate jurisdiction, constitute a crime.”*

Pointing out that all the Authority had to do “to toll the statute of limitations was to draft and serve the revised charges” in 1996, Judge Fleischhacker found that the Authority was time-barred from proceeding against Campbell.

Judge Fleischhacker said that a number of action could toll the running of the statute of limitations set out in Section 75, including:

1. An employee may be estopped to plead the Statute of Limitations where the employer was induced by fraud, misrepresentations or deception to refrain from filing a timely action;”

2. Where the misconduct constitutes “a continuing violation;” or

3. The parties can agree to extend limitations periods [but a court cannot, although a court order staying the disciplinary action tolls the running of the statute of limitations].

In contrast, the withdrawal of charges filed against an individual does not toll the statute of limitations insofar as “refilling such charges” at a later date is concerned.

* The statute of limitations for State employees designated “managerial or confidential” within the meaning of the Taylor Law is one year except where the charges, if proved in a court of appropriate jurisdiction, constitute a crime, in which case the one-year limitation would not apply.

Injury at the worksite

Injury at the worksite

Crockett v Safir, 269 AD2 227

Donna Crockett, a New York City police officer, was injured while on duty. She was “brushing her teeth in the ladies’ room of a police building.” A mirror dislodged and struck her.

Crockett’s asked that her injury be designated as “line-of-duty,” thereby entitling her reimbursement for her hospital bills. Her request was denied. The Commissioner ruled that Crockett was not “actually employed in discharging the orders of a superior officer at the time of the accident,” as required by the statute.

The Appellate Division affirmed the Commissioner’s decision, holding that his interpreting the statute to exclude personal hygiene not undertaken at the direction of a superior officer was not irrational. If, said the court, benefits were to be provided for any accidental injuries sustained while on duty by police officers, the Administrative Code would have so provided or at least used language similar to the “city-service” language used in Section 13-252 of the city’s Administrative Code concerning accident disability retirement.

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Negotiating paid religious holidays

Negotiating paid religious holidays

Port Washington UFSD v Port Washington TA, App. Div., 268 AD2d 523; motion to appeal dismissed, 95 NY2d 761, motion to appeal on Constitutional grounds dismissed 95 NY2d 790

According to the Appellate Division, Second Department’s ruling in the Port Washington Union Free School District case, a Taylor Law contract provision allowing an individual to be absent on a religious holiday with pay without charging his or her absence to leave credits violates the First Amendment.

In the course of collective bargaining under the Taylor Law, Port Washington agreed to include a “Religious Holiday” provision in the agreement.*

The contract clause allowed a teacher to be absent with pay on “any of the religious holidays designated by the New York State Commissioner of Education” without charging his or her absence to leave credits. To receive this benefit the teacher had to submit a written request to absent himself or herself for the holiday.

In September 1997, however, the district advised teachers who had requested paid days off for religious observance that the district would not implement the Religious Holidays provision in the contract “because it was unconstitutional.”

The district said that if a teacher wished to be absent for a religious observance, he or she would be required to charge the absence to his or her appropriate leave credits or request to be placed on a leave without pay for the duration of the absence.

Six teachers and the Port Washington Teachers Association filed a grievance and demanded that the district’s alleged violation of the agreement be submitted to arbitration in accordance with the Taylor Law contract’s grievance procedure.

The district objected and asked a State Supreme Court judge to stay the arbitration proceeding pursuant to Section 7503 of the Civil Practice Law and Rules. The district’s argument: the enforcement of the provision pursuant to an arbitration award would be unconstitutional.

The judge agreed with the district’s rational for refusing to implement the Religious Holidays provision -- the provision was unconstitutional -- and issued an order staying the arbitration. The teachers and the Association appealed.

The Appellate Division said that the first issue to be resolved in cases involving the granting of a stay of arbitration in a public sector dispute arising under a Taylor Law is whether the provision in question is, in fact, subject to arbitration. The court, referring to the Court of Appeals ruling in Matter of Blackburne, 87 NY2d 660, said:

If a statute, decisional law or public policy precludes the governmental employer and employee from referring the dispute to arbitration, then the answer to this inquiry is no and the claim is not arbitrable.

Citing Griffin v Coughlin, 88 NY2d 674, the Appellate Division pointed out that “[t]here is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State’s power to force one to profess a religious belief.” It affirmed the lower court’s order staying the arbitration on the grounds that the contract provision violated the Establishment Clause of the First Amendment of the Federal Constitution.

The Appellate Division’s rationale:

The Religious Holidays provision in the Taylor Law agreement between the district and the association “rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant.”

In contrast to the type of provision included in the Port Washington contract, many Taylor Law collective bargaining agreements provide for absences with pay charged to “personal leave.”

Typically, such leave may be used for any “personal business” including the observation of religious holidays. Presumably such provisions would pass the Second Department’s Constitutional test as they neither favor the “religiously observant” nor penalize “agnostics, atheists, and members who were less observant.”

* The New York State Public Employment Relations Board [PERB] has held that negotiating days off for religious observances was not a mandatory subject of collective bargaining [CSEA v Eastchester UFSD, 29 PERB 3041].
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Disclosure of a public agency’s "policies, procedures, rules and regulations”

Disclosure of a public agency’s "policies, procedures, rules and regulations”

Sabilia v State of New York, 14 Misc.3d 1228(A)

Peter Sabilia and his wife, Stephanie, sued the State of New York after Peter was injured as a result of his being run over by a State motor vehicle sunbathing on the beach at Jones Beach State Park. The vehicle, a pick-up truck, was being driven by John J. Fitzwilliam, an employee of the New York State Park Police. Fitzwilliam allegedly drove over Sabilia while, according to Fitzwilliam, he was attempting to avoid a "large hole" during a routine beach patrol.

In the course of this litigation before Court of Claims Judge Milano, the Sabilias asked for copies of “policies, procedures, rules, regulations, and training manuals" concerning driving a vehicle on the beach that were applicable at the time. Judge Milano noted that:

“Importantly, the claimants' demand specifically stated that they did not seek "any police strategies regarding pursuit techniques/strategies of any kind whatsoever and is limited to those rules . . . dealing with driving on the beach (when not in pursuit)."

The State’s response:

"We will not be providing any training manuals, regulations, policies, procedures or other internal memorandums that pertain to driving a vehicle on the beach." The reasons for this advanced by the State: “its own policies and procedures have ‘little relevance to the legal standard of care’ and that the ‘standard of care in the operation of a police vehicle is controlled by the reckless disregard standard as defined in [Vehicle and Traffic Law] §1104(e) and relevant case law’"

The State also argued that materials requested by the Sailias are "privileged and confidential" and might have "a detrimental impact on the safety and security of the various officers, as well as the general public" and that the “disclosure of its policy as to non-emergency, routine operation of a pick-up truck on the beach will "limit the ability [of the officers] to successfully perform their duties and self evaluation and analysis."

Noting that the disclosure provisions of the Civil Practice Law and Rules are to be liberally construed the court said that "The party seeking to prevent disclosure has a heavy burden, especially where the materials sought are relevant” and that “It is the party opposing discovery who has the burden to prove that the particular items sought are exempt or immune from disclosure.”

Concluding that the State’s internally adopted standard of care, if any, for the routine, non-emergency operation of a motor vehicle on the beach, is relevant, Judge Milano said that a "failure to abide by its own rule is some evidence of negligence."*

As the State’s reliance on “the recklessness standard of care” set forth in Vehicle and Traffic Law §1104 (e), Judge Milano said that the Sailias “correctly state that the record is devoid of any evidence that Fitzwilliam was ‘involved in an emergency operation,’ which is a prerequisite for the statute to apply.”

Holding that “The conclusory assertions of privilege and confidentiality regarding [State’s] policy as to non-emergency, routine operation of a pick-up truck on the beach, set forth in the affirmation of [State’s] attorney, are unpersuasive and that the State failed to sustain its burden of showing that the disclosure of the requested materials would pose any danger to park police officers or the public,” Judge Milano ordered the State to provide the requested "policies, procedures, rules, regulations and/or training manuals regarding driving a vehicle on the beach which were applicable at the time" to the Court for an in camera** inspection by the court.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/disclosing-certain-policies-procedures.html

  

*  Citing Sherman v Robinson, 80 NY2d 483, Judge Milano said that the "[v]iolation of a company's internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence."

**  From the Latin “in chambers.” A review conducted by a judge in a court closed to the public or in the judge’s chambers rather than in open court.
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Joint employers

Joint employers

Putnam County Sheriff’s OMA v Putnam County, 33 PERB 3001

Who is the employer of the personnel serving with the Putnam County Sheriff’s Department? Putnam County contended that the county is the sole employer of Sheriff’s Department personnel while the Sheriff argued that he and the county were “joint employers” of these employees.

The issue arose when the Putnam County Sheriff’s Office Managers Association [OMA] filed a petition seeking certification as the exclusive bargaining agent for a unit consisting of lieutenants, captains and a chief criminal investigator employed by the “Office of the Sheriff.”

The county filed a response claiming that it was the sole employer of these employees and that they were managerial employees and thus not entitled to representation rights under the Taylor Law.

The sheriff also filed an answer in which he said that he and the county were “joint employers” of these employees and that he believed that certifying OMA to represent a negotiating unit consisting of these employees was appropriate.

Reversing a determination by its administrative law judge [ALJ], PERB ruled that the sheriff and the county were “joint employers” for the purposes of the Taylor Law.

PERB’s rationale: holding that the county was the sole employer would “relieve elected sheriffs of their right and duty to negotiate under the Act and it could elicit petitions to consolidate some or all of the titles in existing sheriffs department units with county-wide units, often the very units from which they were fragmented in the first place.”

This is not a new concept: in County of Ulster v Ulster County Sheriff, 3 PERB 3032, a case decided in 1970, PERB ruled that the county and the sheriff were joint employers and separate bargaining units for the sheriff’s department were appropriate.

What distinguishes the Putnam County sheriffs from other Putnam county governmental unit heads? The sheriff is an elected official and can only be removed by the Governor while other county unit heads serve at the pleasure of the county executive.

In contrast to the status of an elective sheriff, whom PERB characterized as an “executive officer,” PERB said that an “appointed sheriff” is “essentially a department head.

Accordingly, the elected sheriff has independent status as a joint employer. PERB had addressed this difference in Nassau County v Nassau County Sheriff, 25 PERB 3036. This is consistent with the general rule that an appointing authority’s power to appoint implies the power to remove, while the elective sheriff is a Constitutional office and subject to different removal procedures.

Turning to the ALJ’s ruling that “the at-issue employees” are not managerial, PERB said that the employees are “high-level supervisors akin to the clerks of the Court of Appeals and the Appellate Divisions, First and Second Departments. PERB concluded that despite their role in personnel and policymaking determinations, the clerks were neither managerial nor confidential employees.

Out of title work and position classification determinations

Out of title work and position classification determinations

Curtiss v Angello, 269 AD2d 675

The Appellate Division recently considered a number of issues involving the classification and allocation of positions in the public service.

In Curtiss, the Appellate Division, Third Department addressed a rather unusual situation: an administrator’s reliance on new, but not yet official, job specifications rather than official but obsolete job descriptions in resolving an “out-of-title” work grievance.

John F. Curtiss, a Fish and Wildlife Technician II employed by the State Department of Environmental Conservation, filed a grievance claiming that he was working “out of title.”

Although Environmental Conservation sustained the grievance, the then State Director of the Governor’s Office Employee Relations [OER], Linda Angello, reversed the agency’s determination and denied Curtiss’ grievance. Curtiss sued, challenging Angello’s decision on the grounds that it was arbitrary and capricious.

Essentially, Curtiss wanted to be reclassified to Fish and Wildlife Technician III. Angello, in rejecting the grievance, determined that the duties of a Fish and Wildlife Technician III included region-wide coordination of programs and direct supervision of subordinate staff, duties that Curtiss did not perform.” Angello’s findings, however, were based on new, “tentative specifications” for the two positions rather than the then current “official” job descriptions for the two titles.

The Appellate Division sustained Angello’s determination, noting that the “relevant standard of review is whether the record as a whole provides a rational basis for the determination denying [Curtiss’] grievance.

Curtiss argued that Angello’s determination was arbitrary because it was not based exclusively on the “official” job classification specifications promulgated by the State’s Division of Classification and Compensation in effect when his grievance was actually filed.

Classification and Compensation’s “official” specifications referred to by Curtiss had been issued in 1970. Angello unquestionably had considered new and “tentative” job descriptions for the Fish and Wildlife Technician II and Fish and Wildlife Technician III titles in making her determination.

These “tentative” job descriptions for the two titles had been prepared by the State Department of Civil Service following its review of the duties being performed by incumbents of a number of positions in Environmental Conservation.

Civil Service found that the duties of the incumbents of the various titles in Environmental Conservation that it had reviewed “had changed over time, rendering the 1970 specifications obsolete.” In March 1998, after Curtiss had filed his grievance, new job descriptions for the Fish and Wildlife Technician II and III titles were promulgated and the positions were reallocated to higher salary grades.

The court held that it was neither arbitrary nor irrational for Angello to consider the results of the job audits prepared by Civil Service as they “disclosed the actual duties being performed by incumbents.”

As to title held by Curtiss in particular, the Appellate Division said that “in the 1970 specifications the principal distinction between the two titles was the greater supervisory and administrative responsibility of the higher grade title.” The audits, said the court, revealed that “although the duties of the incumbents had changed, the principal distinction continued to be the greater supervisory and administrative responsibility of the higher grade title.”

Curtiss had cited Rausch v Pellegrini, 237 AD2d 771, in support of his “out of title” work argument. The Appellate Division said that Rausch was not relevant in this case, noting that unlike Rausch, Curtiss “was not obligated to perform the duties of his supervisor.”

Further, said the court, the fact that there is some overlap of the duties performed by Curtiss and those performed by a Fish and Wildlife Technician III does not justify sustaining his grievance.

Finding that the record as a whole provides a rational basis for Angello’s conclusion that Curtiss was not performing out-of-title work, the Appellate Division sustained the lower courts dismissal of his petition.

Readers may have noted another interesting aspect of this case -- Curtiss had “won” his grievance at the departmental level. As the “employer” makes the determination in pre-arbitration steps of the grievance procedure, typically any appeal is filed by the grievant or his or her representative.

May the employer, in effect, “appeal” a grievance determination by an official at an earlier step in the grievance procedure and then reverse the earlier “lower level” grievance ruling favorable to the employee made by management?

This was the significant issue addressed in Weed v Orange County, a case decided by the Appellate Division in the early 1990’s.

Weed was injured on the job. The Orange County Commissioner of Personnel rejected Weed’s application for a one-year leave of absence with full pay. Weed claimed he was entitled to such leave under the terms of “Article 20” of the then controlling Taylor Law agreement.

After the Commissioner disapproved his application, Weed filed a “Step One” grievance with his immediate supervisor in accordance with the terms of the grievance procedure set out in the collective bargaining agreement. The supervisor sustained the grievance. The Commissioner of Personnel, however, refused to implement the supervisor’s ruling.

Weed sued, only to have the Appellate Division dismiss his complaint. The court said that under the terms of the collective bargaining agreement, “the Commissioner of Personnel is given sole discretion in granting paid leave.” According to the opinion, there was no evidence that the parties to the agreement “intended to limit the discretion of the Commissioner of Personnel.”

The Appellate Division said that in the absence of any such evidence, there was no rational basis for the supervisor’s “construing Article 20 as a mandatory requirement [to grant paid leave to Weed] on the part of the County.”

The bottom line: the County was not required to comply with the determination by Weed’s supervisor, who had initially sustained Weed’s grievance.

Finally, the decision reports that the two titles in question were “reallocated to a higher grade and, presumably, the incumbents were entitled to have their salaries adjusted accordingly. What happens if the titles are reallocated to a lower grade?

Typically, the permanent incumbents serving in the positions reallocated to a lower salary grade would be “grand fathered” to protect their salaries.* Any future salary increases would be subject to the maximum of the lower salary grade to which the titles were reallocated. The grand fathering of salaries to protect the income of incumbents of positions that have been reallocated to a lower salary grade is illustrated by the decision in the New York State Court Clerks Association case.

The Office of Court Administration [OCA] had decided that the salary grade of existing trial court clerk titles should remain unchanged, based upon “an extensive review of the trial and appellate-level court clerk titles for the purpose of establishing joint salary scales.” OCA also decided that some court clerk positions should be reallocated to a lower salary grade.

OCA protected the salaries of the permanent employees serving in appellate court clerk titles whose positions had been reallocated to a lower salary grade by “grand fathering” their salaries. The Appellate Division said that “grand fathering permanent incumbents in the context of a downward reclassification of their titles is an accepted practice that effectuates the mandate of Civil Service Law Section 121(2)(a)....”

Section 121(2)(a) provides that “the annual salary of any position ..., which is classified or reclassified, or which is allocated or reallocated to a salary grade pursuant to the provisions of this article shall not be reduced for the then permanent incumbent by reason of any provision of this article so long as such position is held by the then permanent incumbent”

The court said that “contrary to petitioner’s contention,” although grand fathering, results in some “transitional salary inequities,” it constitutes “a rationally justifiable means of facilitating the orderly implementation of [OCA’s] Classification Plan”. Accordingly, the Appellate Division, citing the Court of Appeals ruling in Tolub v Evans, 58 NY2d 1, held that OCA’s action “does not offend due process,” because in matters concerning the State’s budget, “equal protection does not require that all classifications be made with mathematical precision.”

Finally, the court said that “[a]dministrative determinations concerning position classifications ... will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis”, citing Cove v Sise, 71 NY2d 910, 912.

* In such cases the position is typically “red-lined” or “earmarked” for allocation upon its becoming vacant.
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E-mails between government workers are public documents

E-mails between government workers are public documents

Cowles Publishing Co. v Kootenai County Board of Supervisors, 2007 Opinion No. 74

The Idaho Supreme Court ruled that e-mail correspondence between government employees is public record. The e-mail correspondence at issue was between a supervisor and a subordinate, both of whom were employees of the county.

Essentially, the court held that “The emails exchanged by public employees are public records and are not exempt from disclosure under either [Idaho] statutory exemptions or constitutional law.”

The full text of the ruling is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2007/05/idaho-supreme-court-e-mails-between.html

Early intervention counseling

Early intervention counseling

Tatum v Horn, 37 AD3d 285

Wayne Tatum appealed his dismissal from his position as a New York City correction office after being found guilty of a number of allegations of misconduct.

The Appellate Division ruled that the New York City Department of Correction presented ample evidence at Tatum’s disciplinary hearing proving allegations that he had violated numerous departmental rules.

Tatum had been charged with being AWOL on multiple occasions, failing to sign-out of the correctional facility to which he was assigned, failing to contact his superiors when required, and insubordination by failing to obey a supervisor’s order. 

In response to Tatum’s argument that the Department had not sent him to an “early intervention counseling program”, the court said that “Correction was not obliged to send him to its early intervention counseling program, a program that is discretionary, not mandatory.” In addition, the Appellate Division commented that “the value of such counseling would have been questionable in light of [Tatum’s] long disciplinary history."

In a similar case, Carroll v Perkle, 296 AD2d 755,  Leave to appeal denied 98 NY2d 764, one of the issues considered by the court concerned “intervention counseling programs.” 

The Appellate Division ruled that Carroll had been denied administrative due process because the Education Law Section 3020-a Hearing Panel failed to consider “mitigating circumstances” in determining the penalty. 

The Appellate Division said that the Hearing Panel failed to honor Carroll’s request that the Board of Education’s “lack of effort to correct his behavior,” be considered by the panel in determining the appropriate penalty to be imposed. §3020-a(4) of the Education Law provides that “At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including, but not limited to, remediation, peer intervention or an employee assistance plan.”

The decision is posted on the Internet at: 

http://nypublicpersonnellawarchives.blogspot.com/

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