Eligibility for benefits pursuant to the Volunteer Firefighters' Benefit Law

Eligibility for benefits pursuant to the Volunteer Firefighters' Benefit Law

Matter of Weinstein v Somers Fire Dist., 37 AD3d 917

Robert Weinstein, a self-employed real estate agent, sustained a back injury in July 2001 while lifting an oxygen tank into an ambulance in furtherance of his duties as a volunteer firefighter. A Workers' Compensation Law Judge ruled that Weinstein’s injury constituted a permanent partial disability and that he had suffered a 50% loss of earning capacity. Accordingly, Weinstein was eligible for benefits provided by Section 10 of the Volunteer Firefighters' Benefit Law.*

The Fire District and its workers' compensation carrier appealed the Workers’ Compensation Board’s determination.

According to the ruling, Weinstein suffered "chronic low back pain . . . [which] reduced his ability to work." The record indicated that Weinstein’s employer had indicated that Weinstein’s “average work hours had been lowered from 60 hours per week to 25 hours per week” because of the work-related injury that resulted in Weinstein’s “chronic low back pain.”

This, said the Appellate Division, constituted substantial evidence in support of the Board's decision that claimant's injury resulted in a 50% reduction in earning capacity.

* The Volunteer Firefighters’ Benefit Law provides, in relevant part: “A volunteer firefighter who is injured in the line of duty is entitled to workers' compensation benefits if he or she demonstrates a loss of earning capacity, namely, an inability to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute."

School district’s lawsuit against former members of a school board for alleged fiscal mismanagement held subject to a six-year statute of limitations and thus was timely filed

School district’s lawsuit against former members of a school board for alleged fiscal mismanagement held subject to a six-year statute of limitations and thus was timely filed 

Roslyn Union Free School Dist. v Barkan, 2011 NY Slip Op 03646, Court of Appeals

The issue in this appeal was whether a three or six-year statute of limitations applies to causes of action for negligence and breach of fiduciary duty by a school district against a former member of its school board. The Court of Appeals held the six-year limitations period in CPLR 213(7) is applicable and, therefore, this action was timely commenced by the School District against a former member of the school board.*

The School District’s action against a number of members of the school board stemmed from what the Court of Appeals characterized as a long-running conspiracy to loot the school district's coffers by a number of school district administrators. An extensive forensic audit by the State Comptroller determined that, from 1998 through 2004, approximately $11 million had been misappropriated: Assistant Superintendent for Business Pamela Gluckin had stolen over $4.6 million; Superintendent Frank Tassone had taken more than $2.4 million; and Account Clerk Deborah Rigano had received about $300,000. Various sums had been funneled to more than two dozen people.

The court noted that one of the defendants in this action, Carol Margaritis, was a member of the Board for approximately one year, beginning in 2000 and left the Board before Gluckin's criminal activities came to light. Further, said the court, there are no allegations that Margaritis knew about the ongoing illegal scheme, benefited from the theft of the school district's funds or received any portion of the stolen monies. Her only link to the situation was that she was a member of the Board during a time period that funds were being stolen by school district employees.

In any event, Margaritis moved to dismiss the complaint against her, arguing that the causes of action were time-barred because the school district's claims were subject to the three-year statute of limitations in CPLR 214 (4) and the complaint was filed more than three years after she ceased being a school board member. This argument was rejected by the high court and it ruled that the six-year statute of limitations controlled and thus the lawsuit against her was timely.

The Court of Appeals commented that this was “an unusual case because it is rare for school districts to engage in litigation against the individuals who voluntarily seek election to serve on school boards. Such public service is commendable and a vital component of our state's legal and moral duty to educate its children. The filing of a lawsuit by a school district against the members of its school board is certainly a disincentive for attracting qualified candidates to perform this important civic function.”

The court attributed this action by the district as responding to a particularly egregious set of facts involving severe financial mismanagement — over $11 million was stolen from taxpayers in a criminal conspiracy operated by two high-ranking school district employees and certain members of the Board were allegedly complicit because they may have breached the duties that were entrusted to them to protect the school district's assets.

Although the complaint here was not barred by the statute of limitations, the court agree with the Appellate Division that the school district's allegations did not state a cause of action against Margaritis for an accounting. “This equitable remedy is designed to require a person in possession of financial records to produce them, demonstrate how money was expended and return pilfered funds in his or her possession.”

As the State Comptroller was able to trace countless financial transactions in order to determine how the vast bulk of the stolen monies was used and the identity of the individuals who received the funds, the court ruled that there appeared to be no need for an accounting by Margaritis, but reinstated the causes of action for breach of fiduciary duty, common-law negligence and declaratory judgment as against her as having been timely filed.

* The question before the Court of Appeals was not whether any board member bears a degree of responsibility for the financial losses suffered by Roslyn Union Free School District but whether the case against the former members of the school board was timely filed.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03646.htm

Involuntary leave under Civil Service Law Section 72

Involuntary leave under Civil Service Law Section 72

NYC Parks and Recreation v Matthews, OATH, 219/00

The New York City Department of Parks and Recreation wanted to place Rufus Matthews on leave pursuant to Section 72 of the Civil Service Law. Matthews objected.

The department claimed that Matthews, a park maintenance worker, was medically unfit to perform the duties and responsibilities of his position due to a heart condition.

Matthews, on the other hand, contended that he was fully able to perform the duties of his position notwithstanding his “heart condition.”

Pointing out that Section 72 places the “burden of proving mental or physical unfitness” upon the entity alleging it, OATH Administrative Law Judge [ALJ] Rosemarie Maldonado held that Parks and Recreation had failed to prove by a preponderance of the evidence that Matthews was “currently unfit” to competently perform his job duties as a city park maintenance worker.

Maldonado said that Matthews’s personal physician presented “compelling evidence” that [Matthews’] “cardiac rehabilitation was complete, and that physical exertion did not pose an unreasonable risk to his patient.”

In response to the department’s concern that Matthews “is endangering himself” by insisting that he be reinstated to full duty, the ALJ said while “commendably humanitarian,” the legal issue remains the impact of Matthew’s condition on his current ability to work.

Maldonado said that unless there is a clear showing of present impairment, the employer cannot place an individual on Section 72 leave “simply because there is some risk” that Matthews’ performance of his work might place him in some physical jeopardy.

According to the decision, where it is apparent at the time of the hearing that the employee’s condition is in check or otherwise under control, OATH has declined to find unfitness merely because of the existence of the potential for relapse or deterioration.

Reassigning work formerly performed by an individual laid off after his or her position is abolished

Reassigning work formerly performed by an individual laid off after his or her position is abolished

Matter of Kelly Krause and the Spencer-Van Etten CSD, Commissioner of Education, Decision No. 15,516

The lesson in this decision is that although it is not unlawful to reassign or redistribute the work performed by the former incumbent of a position that has been abolished to other staff members, the individual or individuals to whom the work is assigned must be qualified to perform the duties assigned to them.

The Spencer-Van Etten Central School District employed Kelly Krause as a full-time home economics teacher beginning with the 2000-2001 school year. During the 2004-2005 school year, Krause taught three Home and Career Skills courses to seventh grade students and two related courses to high school students.

At its July 12, 2005 meeting, the District’s Board adopted a resolution abolishing a number of teaching positions, including its full-time Home and Career Skills teaching position. Krause was laid off and her name was placed on a preferred eligible list for the Home and Career Skills title.

The District, however, continued to offer Home and Career Skills courses during the 2005-2006 school year. These courses, however, were assigned to five of the District’s incumbent teachers, none of whom was certified to teach Home and Career Skills.

Krause appealed to the Commissioner of Education, contending that the District’s actions with respect to the Home and Career Skills curriculum did not meet regulatory requirements.*

The Commissioner ruled that the District had improperly assigned teachers who lacked the required certification to teach its Home and Career Skills courses. He also found the Krause was on the “preferred eligible list” and remained available to teach the course during the time at issue here.

Noting that Education Law §3009 prohibits boards of education from employing unqualified teachers, the Commissioner said that the District’s practice of assigning teachers without the requisite Family and Consumer Sciences/Home Economics certification to teach the entire core curriculum in effect circumvents both the certification requirements and the incidental teaching regulations.

Although he said that the District improperly assigned uncertified teachers to its Home and Career Skills courses, the Commissioner concluded that the District had not created a specific position mandating the use of the preferred list to fill the vacancy. In the words of the Commissioner”

The record here shows that no vacancy occurred and no new position was created; instead, [the District’s] former teaching duties were redistributed albeit to teachers who lacked the proper certification. If, as a result of this decision, the District creates a new position in Home and Career Skills, [Krause] may indeed be entitled to such position by virtue of her place on the preferred eligible list of candidates.

The Commissioner ordered the District to “cease assigning teachers who lack the appropriate Family and Consumer Sciences or Home Economics certification to its seventh grade Home and Career Skills classes, review its curriculum, and comply with Education Law §3013 in the filling of any future vacancies.”

* The Home and Career Skills core curriculum prepared by the State Education Department (“SED”) identifies four process skills and ten content areas to be included in the course. The curriculum also notes that a certified Family and Consumer Sciences teacher must teach the course.

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected
Kevin M Gorey, Jr. v New York State Comptroller, 2011 NY Slip Op 03329, Appellate Division, Third Department

Kevin M. Gorey Sr. applied for service retirement effective September 1, 2004 and elected benefit payments under the "Single Life Allowance" option. This option provided that Gorey Sr. would receive the maximum lifetime retirement allowance payable to him and the payments would stop upon his death. Further, this option did not permit Gorey to designate a beneficiary.

New York State and Local Employees’ Retirement System [ERS] sent Gorey Sr. a letter confirming his option selection and detailing his annual benefit payments. In addition, ERS told Gorey Sr. that he could his selection of his retirement option prior to September 30, 2004. Gorey Sr. did not submit any change and died on November 19, 2004.

Gorey Sr.’s children [Gorey, Jr.] asked ERS to void decedent's selection of the "Single Life Allowance" option, contending that Gorey, Sr. was incompetent at the time he made the selection. Ultimately ERS rejected Gorey Jr.’s application, holding that Gorey Jr. had not established that Gorey Sr. was incompetent* when he made his retirement option selection and Gorey Jr. sued in an effort to overturn the Retirement System’s decision.

The Appellate Division affirmed the Retirement System’s determination.

Noting that Gorey Jr. contend that the Retirement System “did not take adequate steps to ensure that [Gorey Sr.] made a proper retirement option choice, the court said that the Retirement System is "not required to insure that proposed retirees receive the best possible entitlement," citing Matter of Cummings v New York State & Local Employees' Retirement Sys., 187 AD2d 862, appeal dismissed 81 NY2d 834.

Further, said the court, the State Comptroller "has the exclusive authority to determine all applications for any form of retirement or benefits" and his decision will not be disturbed if it is supported by substantial evidence.

* The applicant for a retirement allowance is presumed to have been competent at the time he or she made his or her retirement option selection and the burden is on those challenging that election to prove the contrary.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03329.htm

Infringing on constitutionally protected speech

Infringing on constitutionally protected speech
Timothy M. Wrobel v County of Erie, CA2, 2007 WL. 186264

In reviewing Wrobel’s claim that Erie County had violated his right to free speech and association, the U.S. Court of Appeals for the Second Circuit said:

1. Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment.

2. Conditioning public employment on the provision of support for the favored political party “unquestionably inhibits protected belief and association”.*

The court concluded, “When reasonable inferences are drawn in Wrobel’s favor, the amended complaint sufficiently alleges that Wrobel was retaliated against for his lack of political affiliation with, or his refusal to pledge his allegiance to, the new Erie County administration.”

The Circuit Court also noted that in Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir. 2006), it explained that “actionable retaliation” in the context of the First Amendment was employer actions that “well might have dissuaded a reasonable worker [from asserting First Amendment-protected rights]”.**

As to Wrobel’s claim that the County had violated his First Amendment free speech rights, the Circuit Court said that "While we agree with the District Court that Wrobel’s pre-transfer speech was not on a matter of public concern, and was therefore not constitutionally protected we do not agree with its conclusion that Wrobel had not sufficiently alleged actionable retaliation following his expression of protected speech.”

Wrobel alleged that “defendant Douglas Naylon implicated him as the perpetrator of a theft of government property shortly after Wrobel discussed the corruption and politicization of his place of employment with an FBI agent.” Wrobel also alleged that other county officials had bribed others to testify against him at an arbitration hearing shortly after he engaged in protected speech.

In Conrick v Myers, 461 US 1l38, the United States Supreme Court established a two-prong test with respect to claims of dismissal in retaliation for "whistle blowing." To win, the individual must prove that (1) his or her speech is protected, i.e., the speech was a matter of public concern, and (2) that the protected speech was a substantial factor in motivating the termination

These adverse actions, said the court, “are sufficient to support a First Amendment retaliation claim,” because Wrobel’s petition “sets forth the necessary nexus between [Wrobel’s] statements concerning a matter of public concern and the defendant[s’] subsequent alleged retaliatory acts.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution.***

The decision is posted on the Internet at:  

http://nypublicpersonnellawarchives.blogspot.com/2007/01/freedom-of-association.html

* See also §107 of the Civil Service Law setting out certain prohibitions against certain political activities and improper influence.

** The court commented that monitoring of Wrobel’s phone calls, transfer of Wrobel to a faraway location, initiation of a criminal investigation against Wrobel, and other adverse actions alleged in the amended complaint—if proven true—would be sufficient to dissuade a reasonable worker from asserting his First Amendment rights. Wrobel, said the court, adequately alleges that the adverse actions were taken in retaliation for his protected associational activity.

*** See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, where the court held that a public employee’s speech was not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

In re Police Officer Ruben Olavarria, etc., v Raymond W. Kelly, as Police Commissioner of the City of New York, et al., 37 AD3d 191

The so-called Pell Doctrine frequently is cited as the standard against which a disciplinary penalty imposed on a public employee by the appointing authority is to be measured.*

In Olavarria, the Appellate Division affirmed the imposition of the penalty of dismissal on a New York City police officer found guilty of a number of alleged acts of misconduct, including assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty.

Ruling that it found no basis to question the credibility of the findings underlying holding that Olavarria was guilty of these charges, the Appellate Division said the “Under the circumstances, the penalty of dismissal does not shock the judicial conscience,” citing another leading decision addressing the imposition of the “ultimate” administrative disciplinary penalty, -- dismissal. Harp v New York City Police Dept., 96 NY2d 892.

For the full text of this decision, go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/penalty-of-dismissal-sustained.html

* Pell v Board of Education, 34 NY2d 222, a disciplinary penalty imposed by an appointing authority will not be overturned unless the court finds that it is shocking to one's sense of fairness.

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

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

“Important practice reminder

An important reminder that applies in most administrative jurisdictions: "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations", on the New York Public Personnel Law blog. Neither do settlement negotiations or even (sometimes) administrative appeals. And, as in the case discussed in [another post*], the statutes of limitations for judicial review of administrative decision are often very short (four months for a personnel decision in this case). In my practice days, one of the first research tasks I set myself when taking on an administrative matter was "how many days do I have to take this to the Court of Appeals if it goes south?" Or north, as the case may be. Just in case.

“And typically the S/L is measured from the promulgation of a "final" order. When is "final" in this context in this jurisdiction? Do you know?” 

* Dean Patty Salkin (Albany Law School) describes such a situation in "Fed. Dist. Court Prevents Performing Arts Center From Relocating to Dilapidated Historic Warehouse" on her Law of the Land blog: 

Edward M. McClure

Malpractice in disciplinary actions

Malpractice in disciplinary actions

Tinelli v Redl, CA2, 199 F.3d 603, Affd. 121 S.Ct. 47

After being found guilty of disciplinary charges, an individual decides to sue his or her attorney, contending that the lawyer’s action, or failure to act, in the disciplinary hearing or an appeal constituted malpractice.

In the Tinelli case, the U.S. Circuit Court of Appeals, Second Circuit considered such a malpractice claim. The decision sets out a test for determining if there is a basis for such an action against the attorney.

Joseph Tinelli was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He retained an attorney, Frank Redl, to represent him in the matter. Following a two-day hearing, the hearing officer found Tinelli guilty of three charges of “misconduct and incompetence.”

The appointing authority adopted the findings of the hearing officer and imposed the penalty recommended by the hearing officer: termination.

Tinelli appealed. According to the decision, Redl failed to take any “further action ... after the initial filing of the petition for Tinelli’s appeal” in New York State Supreme Court. As a result, six months later Tinelli’s “appeal expired.”

Tinelli sued Redl, contending that the attorney’s (1) failure to perfect the Article 78 appeal and (2) his failure to ask the court for an extension of time to perfect the appeal, constituted malpractice.

He also charged that Redl’s performance at the administrative disciplinary hearing constituted malpractice.

The U.S. Circuit Court of Appeals decided that whether or not Redl’s handling the appeal constituted malpractice depended on whether or not Tinelli’s appeal would have been successful. In other words, if Tinelli would not have won the appeal regardless of the action or inaction of his attorney, there was no basis for holding the attorney liable for malpractice.

After reviewing the record, the circuit court said that “Tinelli’s appeal would not have succeeded because the hearing officer’s findings of misconduct and incompetence were supported by substantial evidence and because there was no abuse of discretion in recommending Tinelli’s termination under the circumstances.”

The court dismissed Tinelli’s claim, holding that his attorney could not be held liable for malpractice because he failed to perfect the appeal since Tinelli would not have been able to overturn either the administrative disciplinary determination or the penalty imposed.

As to Tinelli’s claim that “Redl’s poor performance at the administrative hearings constituted malpractice,” Redl’s motion for summary judgment dismissing this allegation was also granted.

Mandatory subjects of negotiations

Mandatory subjects of negotiations

Carmel PBA v PERB, 267 AD2d 858

The Carmel PBA case involves a “legal interpretation” made by the New York State Public Employment Relations Board [PERB].

The Appellate Division ruled that the administrative agency’s determination would be upheld if it is not affected by an error of law, is neither arbitrary nor capricious, and does not constitute abuse of discretion.

The case arose when PERB ruled that Town of Carmel’s changing an “early vacation procedure” was a nonmandatory subject of collective bargaining. The PBA challenged PERB’s decision, claiming that in addition to being arbitrary and capricious and against the substantial weight of the evidence, the ruling constituted “an error of law.”

Carmel had in place a scheme for selecting vacation to be taken during the year -- “vacation picks.” PBA members could select their vacation before the beginning of the year in which vacation time is to be taken (“early vacation picks”) or during the year prior to the taking of the requested vacation time (“later vacation picks”). In addition, a “minimum staffing level rule” required that at least four police officers be assigned to patrol shift.

The Town changed the “staffing” requirements to be observed in selecting vacations in October 1995. The new procedure:

1. Barred the “overlap of vacations” by police officers and sergeants on the same tour; and

2. If the department had only one lieutenant, the chief of police, lieutenant and/or sergeant could not “overlap [their respective] vacations.”

PBA filed an improper practice charge with PERB contending that the Town violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally imposed the new policy.

Initially, PERB deferred its consideration of the charge because a grievance arbitration concerning the matter was pending.

The arbitrator ruled that the parties’ 1994 agreement’s provision concerning vacation selection did not apply after 1995. After the arbitrator’s issued the award, PERB accepted jurisdiction and addressed the merits of the PBA’s petition.

PERB decided that “the vacation selection procedure was necessarily and “inextricably entwined with the Town’s staffing determination.” This, it held, meant that it was not a mandatory subject of negotiation. The PBA appealed.

The Appellate Division commenced its review by pointing out that while “the refusal of public employers to negotiate in good faith with recognized employee organizations concerning the terms and conditions of employment constitutes an improper employment practice within the meaning of Section 209-a,” not all terms and conditions of employment are subject to mandatory negotiation.

What is a mandatory subject of collective bargaining?

The court said that PERB has the authority to make this determination and so long as its “interpretation is legally permissible and * * * there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation.”

Accordingly, said the court, PERB’s determination that the Town’s policy prohibiting certain overlaps of vacation was not a mandatory subject of collective bargaining under the Taylor Law must be confirmed.

In explaining its ruling the Appellate Division cited International Assn. of Firefighters of City of Newburgh, Local 589 v Helsby, 59 AD2d 342, 345, leave to appeal denied, 43 NY2d 649.

In that decision the court held that the number of employees the municipality will hire “is clearly a basic policy decision to be made solely by the municipal governing body as to the allocation of its resources and the extent and quality of fire protection to be provided by the [municipality] for its citizenry.”

How does this impact on the PBA’s claim that the Town should be required to negotiate the policy change? The Appellate Division’s answer:

Since the Town’s determination to increase its minimum staffing level is clearly a basic policy question for it to make, to hold that here is a duty to bargain the early approval of overlapping vacations is incompatible with the Town’s managerial prerogative to set and change minimum staffing levels at the employer’s discretion.

Finding that PERB’s decision was not arbitrary or capricious or based on an error of law, the Appellate Division dismissed the PBA’s appeal.

A postscript to "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual"

A postscript to "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual" [See: http://publicpersonnellaw.blogspot.com/2011/04/doctrine-of-estoppel-not-available-to.html ]

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

"In his New York Public Personnel Law blog, Harvey Randall reviews a case involving one kind of administrative law issue that often darkens an attorney's door: The government has given your client something by mistake and now intends to take it back. But your client, ignorant of the error, has spent the money or made plans or persuaded investors or otherwise reasonably relied on the erroneous decision and doesn't want to pay it back, change plans, return investments, or otherwise reverse course. In the case discussed by Mr. Randall in "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual", a retired city government lawyer finds out seven years after retirement that she has been overpaid almost $1000 per month, and the New York City Employees' Retirement System is going to deduct 25% of her (reduced) pension until it is repaid. She has spent the money and made all sorts of plans that depend on the original monthly payment. Sounds like a job for Equitable Estoppel!

"Not. The opinion from the reviewing court cites to a lot of state precedent, but doesn't really get to the meat of the law here. The City is relying on a N.Y. statute:

"Should any change or error in records result in any member or beneficiary receiving from the retirement system more or less than he or she would have been entitled to receive otherwise, on the discovery of any such error such Board shall correct such error, and as far as practicable, shall adjust the payments in such a manner that the actuarial equivalent of the benefit to which he or she was entitled shall be paid.

"New York City Administrative Code §13-182 (emphasis added).

"According to Mr. Randall:

"Accordingly, in the event an overpayment is made, the agency has authority to recoup the overpayment by withholding or reducing the current pension benefits to which the retiree would otherwise be entitled. As to applying the doctrine of estoppel in this case, Judge Mendez ruled that the doctrine could only be applied against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.

"Not just the authority to recoup the overpayment, but the obligation to recoup the overpayment. The court's opinion does not explain the law behind why estoppel fails in this case, but we can look at what is sometimes termed the first maxim of equity: "Aequitas sequiture legem" - "equity follows the law". 30A C.J.S. Equity § 128 (updated March 2011); Story, Joseph. Commentaries on equity jurisprudence: as administered in England and America (Boston, 1836), §64. This maxim means different things in different contexts. For our purposes in this case, equity will not contradict a statute or common law rule on point (subject to a bunch of exceptions that rarely apply against governments and that don't apply here). Here we have a statutory - a legal - requirement that the City get the money back.

"I'm sorry but your client is, ummmm, going to be disappointed."

EMM

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits
Matter of Seiferheld v Kelly, 2011 NY Slip Op 03309, Court of Appeals

New York City police officer James J. Seiferheld retired for alleged disability in 2004 and was awarded accident disability benefits. Seiferheld had applied for disability retirement benefits claiming that he suffered from constant pain in his right shoulder and neck, loss of range of motion in his neck and shoulder, and pain radiating into his arm as the result of a line-of-duty accident. This injury, he contended, prevented him from performing police duty. His application was granted, and he was awarded accident disability retirement on May 12, 2004.

Subsequently the police department received information that Seiferheld was working. It instituted an investigation that ultimately reported that Seiferheld was "performing construction work on a daily basis," which work included “picking up siding, passing it to others, lifting it over his head and nailing materials above his head with both arms extended for some time — all tasks performed without apparent difficulty.” A number of these activities were recorded on videotape.

The police department notified the Police Pension Fund that Seiferheld "may no longer be disabled" and the Pension Fund subsequently reexamined him. During his interview with the Pension Fund’s Medical Board Seiferheld said that he "cannot lift any heavy objects . . . cannot work overhead . . . has no outside work and his major occupation is babysitting his two children."

The Pension Fund's Medical Board concluded that Seiferheld’s condition "has improved dramatically," and recommended disapproval of his retirement application. Ultimately the Pension Fund board of trustees voted, over the dissent of several trustees, to invoke New York City Administrative Code §13-254** entitled "Safeguards on disability retirement," under which a disability pensioner found to be able to work may be returned to city service. Seiferheld was placed on a list of candidates eligible to become police officers, but subsequently he was informed that he was "medically disqualified" for that position "due to the presence of an unauthorized substance, cocaine, in your hair sample."* 

When the Pension Fund's Director of Pension Payroll advised Seiferheld "that your pension benefit will be suspended beginning with the July 2007 payroll," Seiferheld filed an Article 78 petition seeking to annul the determination to suspend his pension benefits.

Supreme Court denied the application; the Appellate Division reversed, annulling the suspension of benefits; the Court of Appeals “reluctantly” affirmed the Appellate Division’s ruling.

Characterizing New York City Administrative Code §13-254 as “complicated,” the Court of Appeals explained, in a “simplified summary,” that a “disability pensioner found to be able to work is put on a civil service list, and his or her pension is reduced based on outside earnings and the amount ‘earned . . . or earnable’ in any City job that is offered.”

Noting that the application of the statute to this case presents something of a puzzle, because although Seiferheld was put on a civil service list, he was not, and evidently could not be, offered a job because of his cocaine us, the court commented that “if the statute is mechanically applied, [Seiferheld] might actually benefit from using cocaine, because he presumably does not want to be offered a City job; he wants to remain retired and receive his pension.

Supreme Court, in a thoughtful opinion, correctly concluded that this anomaly could not have been intended by the statute's authors.

The Appellate Division, however, reversed Supreme Court's order, without discussing Supreme Court's analysis of the statute, because the suspension of Seiferheld's benefits "was not directed by the Board of Trustees" of the Pension Fund.

The Court of Appeals concluded that the Appellate Division was correct as it is “clear from a reading of the safeguards statute that action under that statute must be taken by the board.” The court explained that  “However well justified a reduction or termination of benefits may be … the board of trustees has to do it.”

The majority*** of the Court of Appeals, at the conclusion of its opinion, wrote:

“Though [Seiferheld] is entitled to prevail here, the case as a whole is very troubling. It seems from the record that [Seiferheld] either has received or is in a position to claim accident disability benefits for the last seven years, and counting. Yet any reader of this record must have serious doubt that he was ever really disabled. Whether any of the benefits paid to him may be recouped is a subject on which we express no opinion. But we do express the hope that the Pension Fund's board of trustees will generally act to protect the Fund and the public with more efficiency than it has displayed in this case.”

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03309.htm 

* General Municipal Law §207-a5 provides “The appropriate municipal or fire district officials may transfer such a fireman to a position in the same or another agency or department where they are able to do so pursuant to applicable civil service requirements and provided the fireman shall consent thereto.” while General Municipal Law §207-c4 provides “The appropriate municipal officials may transfer such a policeman to a position in another agency or department where they are able to do so pursuant to applicable civil service requirements and provided the policeman shall consent thereto.” 

** The "safeguards" statute, New York City Administrative Code § 13-254, under which the Pension Fund tried to bring Seiferheld back to work, provides, in relevant part: "Once each year the board [of trustees of the Police Pension Fund] may . . . require any disability pensioner, under the minimum age or period for service retirement elected by him or her, to undergo medical examination. . . . Upon the completion of such examination the medical board shall report and certify to the board whether such beneficiary is or is not totally or partially incapacitated physically or mentally and whether he or she is or is not engaged in or able to engage in a gainful occupation. If the board concurs in a report by the medical board that such beneficiary is able to engage in a gainful occupation, he or she [sic] shall certify the name of such beneficiary to the appropriate civil service commission . . . and such commission shall place his or her name as a preferred eligible on such appropriate lists of candidates as are prepared for appointment to positions for which he or she is stated to be qualified. Should such beneficiary be engaged in a gainful occupation, or should he or she be offered city-service as a result of the placing of his or her name on a civil service list, such board shall reduce the amount of his or her disability pension . . . if any, to an amount which, when added to that then earned by him or her, or earnable by him or her in city-service so offered him or her, shall not exceed the current maximum salary for the title next higher than that held by him or her when he or she was retired." 

*** Justice Pigott, in his dissent, said: “In my view, the Appellate Division erred in finding that the Board of Trustees had not considered what action should be taken with respect to revocation of the Accident Disability Retirement benefits. This error, which the majority of this Court repeats, rests on an assumption that the Board's final determination had merely been that Seiferheld should be returned to work as a police officer. This leaves out a crucial part of the Board's ruling. The Board's final determination was that Seiferheld was not disabled, should not receive disability benefits, and should be returned to work” and would “reverse, deny the petition and dismiss the article 78 proceeding.” 
  

Statute of limitations for judicial review of a final administrative decision neither tolled nor extended by filing a request for reconsiderationll the statute of limitations for filing a timely judicial challenge to the determination

Statute of limitations for judicial review of a final administrative decision neither tolled nor extended by filing a request for reconsideration

Matter of Chapman v New York State Teachers' Retirement Sys., 2011 NY Slip Op 02994, Appellate Division, Third Department

Cheryl Hogg-Chapman, a former school counselor, applied for disability retirement benefits after falling on the stairs at work.

Following a review of Hogg-Chapman's medical records, the New York State Teachers’ Retirement System’s Medical Board concluded that there was no basis upon which to grant her request for disability retirement benefits. Hogg-Chapman was advised of the Medical Board’s determination and ultimately TRS informed petitioner it would be recommending such to respondent. Thereafter, NYSTRS notified Hogg-Chapman that it accepted the Medical Board's recommendation, and her application for disability retirement benefits was denied.

Hogg-Chapman filed an Article 78 petition challenging NYSTRS’ August 2008 determination. Supreme Court dismissed her petition, finding that the challenge was barred by the applicable four-month statute of limitations.

The Appellate Division affirmed the lower court’s ruling.

The court pointed out that §217(1) of the Civil Practice Law and Rules requires that "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner."

Explaining that "an administrative determination becomes final and binding when it definitively impacts and aggrieves the party seeking judicial review," the Appellate Division said that there is no dispute that NYSTRS notified Hogg-Chapman in August 2008 that her application for disability retirement benefits was denied. Although Hogg-Chapman sent the Medical Board additional medical evidence and requested that it reconsider its recommendation, this did not serve to toll the statute of limitations period or make NYSTRS’ determination any less final.

Thus, said the court, as Hogg-Chapman’s Article 78 petition was filed more than four months after NYSTRS rendered its determination, Supreme Court properly dismissed the petition as time barred.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02994.htm

Proof of filing a timely application for disability benefits critical

Proof of filing a timely application for disability benefits critical

Jarek v McCall, 268 A.D.2d 654

It may prove critical to have proof that an application was filed with an agency as the Jarek case demonstrates.

John Jarek, a school custodian suffered a heart attack on January 31, 1993. Unable to work, Jarek resigned from his position on March 4, 1993.

Jarek filed an application for ordinary disability retirement with the New York State Employees’ Retirement System [ERS] within 90 days of his last day of service.

The application form was notarized and sent by first class mail to ERS. Not having heard from ERS, some six months later Jarek asked ERS to advise him of the status of his application. ERS told him that it never received his application form.

Ultimately, ERS denied Jarek ordinary disability retirement benefits because he had not filed a timely application form for benefits.*

Although an ERS hearing officer recommended that Jarek’s application be accepted since he had mailed it in a timely manner and through no fault of his own it had not be received by ERS, the Comptroller sustained ERS’s initial decision denying Jarek benefits. Jarek appealed.

Did the fact that Jarek mailed his application in a timely manner qualify him for benefits? The Appellate Division said because Jarek could not prove he had filed his application within 90 days of his last day of service, the Comptroller’s determination must be sustained.

The court pointed out that in other situations it had held that simply mailing an application for benefits does not constitute filing of the required application form. According to the ruling, filing for the purposes of establishing eligibility for benefits “only occurs upon actual delivery to and receipt” by ERS.

Thus, if the application is mailed, some means of demonstrating that the application was received by the System is critical to an individual’s ability to prove that his or her application for benefits was filed within the time period required.

Upholding the Comptroller’s decision that Jarek’s “act of mailing his application for ordinary disability retirement benefits” was not the equivalent of filing such an application, the Appellate Division said that this determination was reasonable and thus must be sustained under the circumstances.

The court said that “[w]hile the result is harsh, it is one the law compels.

The Appellate Division noted that Jarek claimed that he “did everything within his power to meet the 90-day deadline ....”

However, said the court, Jarek “failed to use available mailing methods which would have provided him with notice of [ERS’s] receipt (or lack thereof) of his application and further waited over six months to check on its status.”

It is clearly prudent to make certain that the individual can prove that he or she timely filed such an application.

Had Jarek used certified or registered mail -- or delivered his application in person and obtained a receipt -- he would have had a better chance of prevailing even if ERS had lost his application after receiving it. 

* Sections 62 and 63 of the Retirement and Social Security Law require a member to file his or her application for ordinary disability retirement benefits within 90 days of his or her last day of service. Accordingly, Jarek had to file his application within 90 days of March 4, 1993.

Considering the employee's personnel record in setting a disciplinary penalty

Considering the employee's personnel record in setting a disciplinary penalty

Thomas v Mt. Vernon, 267 AD2d 241

The Thomas ruling points out the elements that must be observed if the appointing officer wishes to consider an employee’s personnel record in setting a disciplinary penalty.

Robin Thomas was employed by the Mount Vernon Department of Public Safety. She was terminated from her position after being found guilty of habitual lateness. Thomas appealed the Commissioner of Public Safety’s determination.

Although the Appellate Division sustained the commissioner’s decision finding her guilty of the charges filed against her, it remanded the matter to him “for a new determination as to the penalty to be imposed” (Thomas v City of Mount Vernon, 249 AD2d 483).

When the original penalty - dismissal - was again imposed, Thomas again appealed. She contended that her “prior disciplinary record” was considered in setting the penalty.

Thomas argued that although the commissioner considered her prior disciplinary record, he failed to comply with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur (63 NY2d 470) in such situations.

The Appellate Division observed that an employee’s prior disciplinary history could be considered in setting a disciplinary penalty if:

1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed; and

  

2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The court said that there was nothing in the record to support Thomas’ claim that she was denied an opportunity to review her personnel record or to submit her objections in writing prior to the commissioner making his determination as to the appropriate penalty to be imposed. Accordingly, it ruled that the commissioner had complied with the standards set out by the Court of Appeals in Bigelow.

As to the penalty imposed - dismissal - the Appellate Division said that it was persuaded that the penalty met the Pell standard as it was not “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” [Pell v Board of Education, 34 NY2d 222].

Commenting that Thomas’ conduct that resulted in this disciplinary action, together with her conduct underlying a previous suspension, “established a pattern of excessive absences and a failure to correct this behavior after her suspension,” the Appellate Division sustained her termination and dismissed her appeal.

Termination for violating the employee’s “last chance agreement” disqualifies individual for unemployment insurance benefits

Termination for violating the employee’s “last chance agreement” disqualifies individual for unemployment insurance benefits

Matter of Brown v Lincoln Ctr. for The Performing Arts, Inc., 2011 NY Slip Op 02982, Appellate Division, Third Department

Gloria Brown worked for as a security guard at a performing arts center for more than nine years. Brown had a history of disciplinary violations and after an incident in which she left her post without authorization, she and Lincoln Center entered into a “last chance agreement” that provided that her employment would be terminated if she committed further disciplinary infractions.

In December 2009, Brown met with representatives of the employer to discuss certain policy violations, including her failure to dress in the appropriate manner and to remain attentive at her post. The meeting was prematurely ended because of Brown’s behavior and another meeting was scheduled for early January 2010 with her union representative was present. Ultimately Brown was terminated and she applied for unemployment insurance benefits.

An Unemployment Insurance Administrative Law Judge concluded that Brown was terminated for misconduct and upheld the initial determination denying her unemployment benefits.

The Unemployment Insurance Appeal Board, however, overruled the Administrative Law Judge and awarded Brown benefits, finding that Lincoln Center “had not enforced the last chance agreement by allowing claimant to commit other disciplinary infractions without consequence prior to the December 2009 meeting.” Lincoln Center appealed and the court vacated the Board’s decision.

Noting that insubordinate behavior and, or, disrespectful conduct toward a supervisor has been held to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits, the Appellate Division found that the record contained ample evidence that Brown became loud, boisterous and disrespectful toward her supervisor during the December 2009 meeting. This clearly amounted to insubordination violative of the last chance agreement and was the equivalent of disqualifying misconduct.

As to the Board's finding that the Center “had not enforced the last chance agreement,” the Appellate Division said found “the record is devoid of evidence” establishing that the employer neglected to enforce the last chance agreement with respect to disciplinary infractions committed by Brown prior to the December 2009 meeting and that Brown was somehow misled thereby.

Although the Center’s director of human resources testified that Brown committed some minor violations, the nature and extent of them were not disclosed. However, said the Appellate Division, “it was the employer's prerogative” to determine if such acts constituted a level of misconduct warranting termination and the director stated that they did not.

Thus, said the court, substantial evidence does not support the Board's decision awarding Brown unemployment insurance benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02982.htm

Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual

Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual

Matter of Olick v D'Alessandro, 2011 NY Slip Op 50718(U), Supreme Court, New York County, Judge Manuel J. Mendez [Not selected for publications in the Official Reports]

Alice D. Olick filed petitions pursuant to Article 78 of the Civil Practice Law and Rules in an effort to annul and the determination by the New York Teachers’ Retirement and the New York City Employees’ Retirement Systems that reduced the amount of her retirement allowance and barring deductions from future retirement allowance payments for alleged “overpayments” made to her during the past seven years since her retirement.

For more than seven (7) years since her retirement Olick had been receiving an annual retirement allowance of $62,381. On March 16, 2009 she was advised that she would receive a "revised benefits letter" with a larger Annual Retirement Allowance. In addition in conversations had with NYCERS employees she was advised that she would receive a bulk payment for each of the seven years since her retirement.

In December 2009, however, Olick was advised that her retirement allowance informing her that her pension was not being increased, instead it was being decreased and she was responsible for the return of excess payments in the amount of $32,879.82 made to her over the past seven years.*  The Retirement System attributed the original mistaken pension calculation to "a programming error….”

Olick appealed NYCERS' reduction of her pension, contending, among other things, that the decision was arbitrary and capricious. She also argued that [1] NYCERS failed take into account that in reliance on the original calculation she and her husband had planned and budgeted for their retirement, making life altering decisions relying on the certainty that her pension would be $62,381, plus Social Security and that [2] she paid taxes on this amount and that she received the Annual Pension Allowance for seven years before any alleged error was detected.

In its defense the Retirement System said that Estoppel is not available against a governmental agency seeking to recoup overpayment of a benefit.

Judge Mendez said that the applicable statute, New York City Administrative Code §13-182 Retirement and Pensions, provides, in pertinent part: "Should any change or error in records result in any member or beneficiary receiving from the retirement system more or less than he or she would have been entitled to receive otherwise, on the discovery of any such error such Board shall correct such error, and as far as practicable, shall adjust the payments in such a manner that the actuarial equivalent of the benefit to which he or she was entitled shall be paid."

Accordingly, in the event an overpayment is made, the agency has authority to recoup the overpayment by withholding or reducing the current pension benefits to which the retiree would otherwise be entitled. As to applying the doctrine of estoppel in this case, Judge Mendez ruled that the doctrine could only be applied against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.

Citing Freda v. Board of Education of the City of New York, 224 AD2d 360, Judge Mendez said the statement of an employee of the agency later found to be incorrect, even if relied upon by the employee does not bar the agency from correcting an error later discovered and recouping any overpayment made to the retiree.

The bottom line: as Olick received a greater annual retirement allowance than she was entitled to receive, once the error was discovered, under the statute, NYCERS is entitled to recover the amount paid in excess of what Olick was entitled to receive. 

Further, the overpayment can be recovered by withholding or reducing the current pension benefit Olick is receiving.

  

In an Article 78 proceeding such as this one, the court's function is limited to a determination whether the administrative determination is arbitrary and capricious in that it is "without sound basis in reason and is generally taken without regard to the facts" and unless the decision is arbitrary, the court cannot substitute its judgment, even if it would have reached a different result if presented with the issue in the first instance.

Applying this standard, Judge Mendez denied Olick’s petition.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_50718.htm

* Olick’s monthly gross retirement allowance was reduced by almost $1,000 from $5,264.44 to $4,333.12.  

POSTSCRIPT: 

In his blog, Administrative Law Professor [ http://lawprofessors.typepad.com/adminlaw/ ], Edward M. McClure comments: 

In his New York Public Personnel Law blog, Harvey Randall reviews a case involving one kind of administrative law issue that often darkens an attorney's door: The government has given your client something by mistake and now intends to take it back. But your client, ignorant of the error, has spent the money or made plans or persuaded investors or otherwise reasonably relied on the erroneous decision and doesn't want to pay it back, change plans, return investments, or otherwise reverse course. In the case discussed by Mr. Randall in "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual", a retired city government lawyer finds out seven years after retirement that she has been overpaid almost $1000 per month, and the New York City Employees' Retirement System is going to deduct 25% of her (reduced) pension until it is repaid. She has spent the money and made all sorts of plans that depend on the original monthly payment. Sounds like a job for Equitable Estoppel!

Not. The opinion from the reviewing court cites to a lot of state precedent, but doesn't really get to the meat of the law here. The City is relying on a N.Y. statute:

Should any change or error in records result in any member or beneficiary receiving from the retirement system more or less than he or she would have been entitled to receive otherwise, on the discovery of any such error such Board shall correct such error, and as far as practicable, shall adjust the payments in such a manner that the actuarial equivalent of the benefit to which he or she was entitled shall be paid.

New York City Administrative Code §13-182 (emphasis added).

According to Mr. Randall,

Accordingly, in the event an overpayment is made, the agency has authority to recoup the overpayment by withholding or reducing the current pension benefits to which the retiree would otherwise be entitled. As to applying the doctrine of estoppel in this case, Judge Mendez ruled that the doctrine could only be applied against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.

Not just the authority to recoup the overpayment, but the obligation to recoup the overpayment. The court's opinion does not explain the law behind why estoppel fails in this case, but we can look at what is sometimes termed the first maxim of equity: "Aequitas sequiture legem" - "equity follows the law". 30A C.J.S. Equity § 128 (updated March 2011); Story, Joseph. Commentaries on equity jurisprudence : as administered in England and America (Boston, 1836), §64. This maxim means different things in different contexts. For our purposes in this case, equity will not contradict a statute or common law rule on point (subject to a bunch of exceptions that rarely apply against governments and that don't apply here). Here we have a statutory - a legal - requirement that the City get the money back.

I'm sorry but your client is, ummmm, going to be disappointed.

EMM

Procedure for requesting a disciplinary hearing

Procedure for requesting a disciplinary hearing
Gagnon v Wappingers CSD, 268 AD2d 472

Section 3020-a.2(c) of the Education Law requires the individual against whom disciplinary charges have been filed to advise the district’s clerk or secretary whether or not he or she wishes to provided with a hearing. Such a request must be filed within 10 days of the individual’s receiving the statement of the charges. If the individual fails to notify the clerk or secretary that he or she wishes to have a hearing within this ten-day period, and this defect is “unexcused,” the individual is deemed to have waived his or her right to a hearing.

This was the situation facing Conrad Gagnon. Gagnon had been served with disciplinary charges pursuant to Section 3020-a of the Education Law. He, however, failed to advise the district’s clerk or secretary that he wanted a hearing within the statutory 10-day period allowed for this purpose. The district issued its disciplinary determination without holding a hearing.

Gagnon filed a petition pursuant to Article 78 of the Civil Practice Law and Rules contending that “his failure to make a timely demand for a hearing was excusable” and therefore the district’s refusal to accept his untimely request for a Section 3020-a disciplinary hearing was arbitrary and capricious and an abuse of discretion. A Supreme Court judge was not persuaded and dismissed Gagnon’s petition.

The Appellate Division affirmed the lower court’s ruling, noting that Gagnon “failed to proffer any evidence that he in fact requested permission to file a late demand for a hearing, or to rebut the sworn assertions proffered by the Board that no such request was ever made.” In other words, not only did Gagnon concede that he fail to file a timely request for a disciplinary hearing, he was unable to demonstrate that he had made any request for such a hearing whatsoever.

The decision clearly demonstrates the importance of both the employer and the employee, respectively, establishing what some refer to as a “paper trail” demonstrating that all procedural elements in such cases were complied with.

In contrast to Section 3020-a, Section 75 of the Civil Service Law mandates that a hearing to consider disciplinary charges filed against an individual in the classified service be scheduled and held if discipline is to be imposed on an employee subject to its provisions.

Going forward with the Section 75 disciplinary hearing is not contingent on the employee’s requesting such a proceeding. Although Section 75.2 requires that the employee be allowed not less than eight days to file an answer to the charges and specifications, there is no statutory requirement that he or she do so.*

The appointing authority must hold a Section 75 disciplinary hearing – and prove the charges and specifications filed against the employee -- even if the individual does not submit an answer the charges.

Further, case law indicates that the hearing must go forward, even if the employee fails to appear at, or participate in, the proceeding if the employer wishes to impose discipline on the individual.

* Section 75.2, in pertinent part, provides “A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefore, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing.”

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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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Appointing authority may reject a proposed disciplinary settlement

Appointing authority may reject a proposed disciplinary settlement

Tetro v Safir, App. Div., First Dept

It is not uncommon for an employee to offer to, or to agree to, “settle” disciplinary charges that have been filed against him or her.

Is the appointing officer bound to accept the “negotiated settlement?” Not necessarily, as the Tetro decision by the Appellate Division demonstrates.

In Tetro, the Appellate Division affirmed the appointing authority’s rejection of the terms of the settlement of a disciplinary action previously agreed to by the employee and impose a harsher penalty -- termination -- upon the individual.

Anthony Tetro, a New York City police officer, was dismissed from his position after he was found guilty of giving “false testimony at the criminal trial of a former police officer.”

Tetro testified that his partner discovered a gun in their patrol car while he was removing a prisoner from the vehicle.

The evidence showed that Tetro and his partner failed to check underneath the back seat of the patrol car and that other police officers later found the weapon.

Tetro had “negotiated a plea agreement” in order to settle the disciplinary charges filed against him but the Commissioner rejected it and decided that the appropriate penalty to impose was dismissal from the department.

The Appellate Division ruled that Tetro’s “contract rights were not violated” when the Commissioner declined to accept the settlement agreement and imposed a different penalty. The court cited Silverman v McGuire, 51 NY2d 228, in support of its ruling.

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law

Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), Supreme Court, Wayne County, Docket Number: 71473/2010, Judge Dennis M. Kehoe [Not selected for publication in the Official Reports]

The Village Board of the Town of Sodus filed a petition in Supreme Court seeking to remove Kelley M. Allen from his position of Village Mayor.

The Village Board contended that Allen was not a resident of the Village the time of election in November 2008, nor is he now, and thus ineligible to serve as the Village Mayor, citing Village Law §300(1).

In rebuttal, Allen said that he maintained a residence in an apartment on the second floor of a building located within the Village at 29 West Main Street. The building is owned by Allen’s wife, Tracey L. Fox, Esq., who has maintained her law office at that address for some eleven years.* 

Judge Kehoe, noting that the Village Law does not define the term "resident", said that under Election Law §1-104(22) the term refers to "that place where a person maintains a fixed, permanent and principal home, and to which he, whenever temporarily located elsewhere, intends to return"** of his or her domicile.

The court then said that while “numerous cases have held that it is possible for an individual to maintain more than one bona fide residence, in People v. O'Hara, 96 NY2d 378, the Court of Appeals held that the "crucial" factor in determining the legitimacy of a particular residence under the Election Law is that the individual must manifest an intent to live there, coupled with a physical presence, "without any aura of sham."

Having been reviewed the deposition testimony of Mr Allen and his wife at length and considering all the evidence in the light most favorable to the Allen, Judge Kehoe that the Village Board made a prima facia showing of entitlement to summary judgment as a matter of law, and that the Allen has failed to rebut the showing.

Based on Allen’s deposition testimony that [1] he had rented the upstairs apartment from his wife four days before the election, for an annual rental of $1.00, for a period which extends through December 31, 2012, the date his term as Mayor expires; [2] that the furnishings of the apartment consist of one bed with a crate used as a night table, had no appliances such as a refrigerator, stove, or microwave - and no television or computer; [3] that he did not move his personal belongings to the apartment; and [4] that he regularly ate dinner with his wife and children at the residence in the Town of Sodus; and spent the majority of his nights there, Judge Kehoe said he must conclude that the Allen’s attempt to establish a residence in the Village of Sodus was contrived for the purpose of making him eligible to run for the office of Mayor.

Having not met the criteria necessary to establish himself as a resident of the Village of Sodus, the court granted the Village Board’s motion for summary judgment, citing Public Officers Law §30(1)(d).

Public Officers Law §30(1)(d) provides that a public office becomes vacant if the incumbent of such office ceases to be “an inhabitant of the state, or if he be a local   officer, of the political subdivision, or municipal corporation of which   he is required to be a resident when chosen....”

As the Appellate Division noted in Johnson v Town of Amherst, 74 AD3d 1896, having a residence in a jurisdiction is not always the same as having a domicle in that jurisdiction.

The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.” James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.” As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.

The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."* and the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”

The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.

Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.

The Johnson decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm 

The Allen decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2011/2011_31035.pdf

* The decision notes that Allen and his wife own a residence located within the Town of Sodus but outside the Village limits, and have lived there with their two children since the year 2000.

The ability of an “in-network” health care provider to sue an ERISA health benefit plan for breach of contract in state court depends on the nature of its claim

The ability of an “in-network” health care provider to sue an ERISA health benefit plan for breach of contract in state court depends on the nature of its claim

Montefiore Med. Ctr. v. Teamsters Local 272, 10-1451-cv, USCA 2^nd Circuit

The question presented in this appeal: May a healthcare provider’s breach of contract and quasi-contract claims against an ERISA health benefit plan were completely preempted by federal law under the two-prong test for preemption established in Aetna Health Inc. v. Davila, 542 U.S. 200?

The Davila two-prong test to determine whether a claim falls “within the scope” of §502(a)(1)(B). provides that claims are completely preempted by ERISA if they are brought:

a. by “an individual [who] at some point in time, could have brought his claim under ERISA § 502(a)(1)(B),”; and

b. under circumstances in which “there is no other independent legal duty that is implicated by a defendant’s actions.”

The Circuit Court noted that the test is conjunctive; i.e., a state-law cause of action is preempted only if both prongs of the test are satisfied.

The Circuit Court of Appeals ruled that:

1. An “in-network” health care provider may receive a valid assignment of rights from an ERISA plan beneficiary pursuant to ERISA §502(a)(1)(B)*;

2. Where a provider’s claim involves the right to payment and not simply theamount or execution of payment, i.e.,  where the claim principally implicates coverage and benefit determinations as set forth by the terms of the ERISA benefit plan, and not simply the contractually correct payment amount or the proper execution of the monetary transfer—that claim constitutes a colorable claim for benefits pursuant to ERISA §502(a)(1)(B).

In this instance, said the court, at least some of Montefiore's claims for reimbursement are completely preempted by federal law. However, the Circuit Court noted, the remaining state-law claims are properly subject to the exercise of the District Court’s supplemental jurisdiction.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/638f47ad-5866-4fe6-b0b7-de8642e536f7/1/doc/10-1451Complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/638f47ad-5866-4fe6-b0b7-de8642e536f7/1/hilite/

* 1 Section 502(a)(1)(B) provides, in relevant part: A civil action may be brought -- (1) by a participant or beneficiary -- (B) to recover benefits due to him [or her] under the terms of his [or her] plan, to enforce his [or her] rights under the terms of the plan, or to clarify his [or her] rights to future benefits under the terms of the plan.

Creating and abolishing a temporary position

Creating and abolishing a temporary position

Wilson v Madison-Oneida BOCES, 268 AD2d 625

Frequently a public employer will establish a temporary position to handle a particular need that is expected to be resolved in a relatively short period. The Wilson case addresses the creation and abolishment of temporary positions and the rights of individuals appointed to such temporary positions.

 The Madison-Oneida BOCES appointed Dana Wilson as “temporary clerk of the works” to perform construction oversight services for the Cazenovia Central School District and the Stockbridge Valley Central School District. The item was established as a temporary position in the civil service.*

BOCES initially wrote to Wilson telling him that his appointment was effective February 9, 1996 and would run through June 30, 1996. He was to be compensated at an annual salary rate of $40,000. BOCES later wrote Wilson advising him that he was appointed “temporary clerk of the works” for the period July 1, 1996 through June 30, 1997 at the same rate of compensation.

When the work at Cazenovia was nearing completion, Wilson commenced working at Stockbridge. When Stockbridge’s project was shut down due to poor weather conditions, Stockbridge asked BOCES to “adjust its contract” for clerk of the works services. As a result, BOCES abolished Wilson’s position effective January 17, 1997 and discontinued his employment.

Wilson sued, contending that BOCES violated its “employment agreement” to employ him through June 30, 1997 and, in addition, urged that it had terminated him without just cause.

The Supreme Court, treating this as an “Article 78” proceeding rather than as an action for “breach of contract,” dismissed his petition, finding that it was untimely. Wilson appealed.

First, the Appellate Division pointed out that the four-month Statute of Limitations contained in Section 217 of the Civil Practice Law and Rules is applicable to proceedings contesting the abolishment of positions in the public service. It then said that the time period to challenge the decision runs from the date abolition. Agreeing with the lower court, the Appellate Division said that Wilson’s Article 78 petition was untimely.

In an effort to avoid this result, Wilson tried to convince the court that this was a “breach of contract” case and thus his petition was timely as it was subject to a longer Statute of Limitations provision.

The Appellate Division rejected Wilson argument, holding that there was insufficient evidence to demonstrate a formal employment contract between Wilson and BOCES or the school districts. It said that the “employment notices” he relied do not establish the existence of such an agreement.

Thus, said the court, Wilson’s claims involve the abolition of the position of temporary clerk of the works, a matter that may be properly challenged only via an Article 78 proceeding.

According to the ruling, Wilson’s position was officially abolished effective January 17, 1997 at a meeting of BOCES held on February 13, 1997. The Appellate Division concluded that regardless of whether the four-month Statute of Limitations is measured from the date of the BOCES meeting or the effective date of abolition of the position, Wilson’s commencement of the action in January 1998 was untimely.

* The decision refers to Wilson’s temporary position as being in the “civil service” when it would be more accurate to describe it as being in the “classified service.” In New York, the civil service consists of the classified service and the unclassified service. Educators, typically serving in positions in the unclassified service, are also in the civil service.