Rules of the New York State Civil Service Commission typically do not control with respect to employees of a political subdivision of the State.

Rules of the New York State Civil Service Commission typically do not control with respect to employees of a political subdivision of the State.

Matter of Civil Serv. Employees Assn., Inc. v Baldwin Union Free School Dist., 2011 NY Slip Op 04461, Appellate Division, Second Department

Francesco Pignataro, an employee of the Baldwin Union Free School District, filed a grievance and a demand for arbitration alleging that the District wrongly removed him from the payroll. Ultimately a proposed settlement of the matter was negotiated pursuant to which, among other things, it was agreed that Pignataro would receive the sum of $50,000 as compensation for his leave accruals in exchange for his resignation and the withdrawal of his grievance.

The Appellate Division subsequently ruled that Pignataro's letter of resignation was not "delivered" to the Board so as to preclude Pignataro from unilaterally withdrawing his letter of resignation without the Board's consent "under the pertinent Civil Service Law regulation (see 4 NYCRR 5.3[c])."*

However, 4 NYCRR 1.1, Application of rules, provides that

“Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service.”

Accordingly, 4 NYCRR 5.3[c] controls only with respect to employees of the State of New York as an employer and those entities for which the Civil Service Law is administered by the New York State Department of Civil Service. The Baldwin Union Free School District is not such an entity.

A number of local civil service commissions have adopted a rule similar to 4 NYCRR 5.3[c].** For example, Westchester County Civil Service Rule 17 addresses resignations and provides, in pertinent part, as follows:

“17.3 Withdrawal or amendment [of a resignation]. A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

In the event the Nassau County Civil Service Commission has adopted a rule addressing the ability of an individual to withdraw his or her resignation, presumably the Appellate Division would apply that rule in resolving the matter.

* 4 NYCRR 5.3(c) provides that a resignation of a civil service employee, which must be in writing, "may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority." However, this rule applies only to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions have adopted a similar rule.:

** Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04461.htm

Appellate Division holds that Commissioner of Education has primary jurisdiction to decide tenure area matters

Appellate Division holds that Commissioner of Education has initial jurisdiction to decide tenure area matters

Matter of Moraitis v Board of Educ. Deer Park Union Free School Dist., 2011 NY Slip Op 04254, Appellate Division, Second Department

Deep Park granted Regina Moraitis tenure in the position of "computer teacher," effective August 31, 2003. On January 16, 2009, her position as "computer teacher" was abolished.  

Moraitis filed a proceeding pursuant to CPLR Article 78 seeking a court order compelling Deer Park to reinstate her as a full-time teacher in an accepted tenure area. Supreme Court granted Moraitis’ petition directing Deer Park to “reclassify” Moraitis into an accepted tenure area without loss of tenure time, directed her reinstatement as a full-time teacher, and directed the reinstatement of her benefits from the date of dismissal, with damages in the nature of lost salary and insurance payments.

Deer Park appealed and the Appellate Division vacated the lower court’s ruling.*

The Appellate Division, agreeing with Deer Park’s contention that the proceeding should have been dismissed on the ground that the Commissioner of Education had primary jurisdiction** over the dispute, explained: “It is within the unique knowledge and expertise of the Commissioner of Education to determine the factual issues of whether the [Moraitis] has tenure in an accepted tenure area, and whether her former position, and any new position which she may seek, are similar in nature.


* The Appellate Division, in considering a procedural defense, noted that “Under the facts of this case, a notice of claim pursuant to Education Law §3813(1) was not required.”

** "The doctrine of primary jurisdiction,” -- where the courts and an administrative agency have concurrent jurisdiction and the dispute involves issues beyond the conventional experience of judges . . . "the court will stay its hand until the agency has applied its expertise to the salient questions" [see Flacke v Onondaga Landfill Sys., 69 NY2d 355].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04254.htm

The Five-Step Program for Effective Discipline

The Five-Step Program for Effective Discipline

Reprinted with permission from HR Matters E-Tips, copyright Personnel Policy Service, Inc., Louisville, KY, all rights reserved, the HR Policy and Employment Law Compliance Experts for over 35 years, 1-800-437-3735.  Personnel Policy Service markets group legal service benefits and publishes HR information products, including the free weekly electronic newsletter, HR Matters E-Tips (http://www.ppspublishers.com/hrmetips.htm).  This article is not intended as legal advice.  Readers are encouraged to seek appropriate legal or other professional advice.

No one likes to discipline employees, and as a result supervisors may ignore problem behavior just to avoid confrontation. But, an effective disciplinary procedure is a necessary component of solid employment policies. Below are four pointers to help you determine what type of discipline is appropriate and a five-step progressive disciplinary system you can implement. 

Yet, inaction can be equally dangerous if employee behavior problems are consistently ignored. When your managers do not actively address poor performance and misconduct, morale and productivity will suffer. You can relieve some of this unavoidable stress by establishing clear expectations for employee behavior and by training supervisors to take a proactive approach using a five-step combination of corrective counseling and progressive discipline. This approach should require supervisors to confront employee performance and misconduct problems and to document the proceedings. Further, it should give employees specific feedback, plus action plans and timelines for improvement. * Four Considerations to Determine the Appropriate Discipline * The type of corrective action you should take in a given situation generally depends on four issues: (1) the nature and seriousness of the infraction, (2) whether it is a first time or repeat offense, (3) past handling of similar disciplinary problems, and (4) whether there are special circumstances impacting the level of needed response. (Download free Disciplinary Procedure model policy including HR best practices and legal background.) * Step One: Informal Counseling * Unless an employee has engaged in a serious or repeated offense, the most appropriate initial response normally is to have an informal, yet specific, solutions-oriented coaching session with the employee. During this discussion you should: 1. Remind the employee of pertinent policies and work rules; 2. Provide concrete examples of how the employee’s behavior or performance has fallen short of expectations; 3. Explain the impact of the employee’s deficiencies on the organization and coworkers; and 4. Describe actions the employee needs to take to correct the problem. In many instances, having one or two candid discussions is all you need to help a wayward employee get back on track. * Steps Two Through Five: Progressive Discipline * When the informal coaching attempts fail, or when there is more serious misconduct, formal disciplinary action is necessary. Most organizations follow a “progressive discipline” policy where employees incur increasingly severe consequences for repeated infractions or for the continued failure to remedy deficiencies. Typically, the normal progression in this type of a system is a formal verbal warning, one or two written warnings, suspension, and, finally, termination. 1. Oral warning and counseling. Here, you identify the problem, state your expectations, and explain the adverse consequences if uncorrected. This first disciplinary step is similar to the informal coaching session since it is intended to counsel the employee on improvement. However, the employee should understand that he is now at risk for additional disciplinary action if he does not improve. You should keep a confidential record of the session and put a copy in the employee’s personnel file.

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2. Written warning. If the employee’s behavior does not improve, a written warning should follow. As with oral notice, you again inform the employee of the performance expectations and required changes, but also give the employee formal written notice conveying the increased seriousness. A copy of the warning also should be placed in the employee’s personnel file. 3. Suspension. The next step is a suspension, often referred to as a “decision-making leave.” Its purpose is to place the employee on final notice and force a commitment to improve, or face termination. 4. Termination. If all efforts fail and the employee’s performance does not improve or misconduct continues, the final step is termination. (Of course, in certain circumstances involving particularly bad behavior, termination may be appropriate as the only disciplinary step.) To ensure that discharge is the proper response, all decisions should be reviewed by at least one level of management above the immediate supervisor, and by the HR manager. This review provides a system of checks and balances and should catch questionable decisions that warrant further legal review. * Four More Tips to Effective Discipline * Once you have decided to implement a progressive disciplinary system, you also have to support it with your policies and procedures. To this end, you should: 1. Develop sound written policies. It is safest to have a written discipline policy that provides clear guidelines and, at the same time, reserves your right to exercise discretion in the actual handling of unacceptable behavior or performance. Some employers resist developing a written discipline policy on the grounds that they want to maintain desired flexibility. This approach can easily lead to arbitrary, inconsistent, and even discriminatory treatment of employees. (Download free Disciplinary Procedure model policy including HR best practices and legal background.) 2. Implement disciplinary procedures fairly and carefully. Make it clear to your workforce that the goal of your discipline system is correction of problem behaviors and not punishment for the sake of punishment. Employees are more likely to accept discipline when counseling and disciplinary procedures emphasize employee improvement and when warnings are given before more severe discipline is imposed. At every phase of corrective action, the employee should be given the opportunity to respond and give feedback. 3. Train supervisors in their roles and responsibilities. Supervisors are management’s frontline contact and play a pivotal role in dealing with conduct and performance issues. You should support this role by providing proper training to spot and handle problem behaviors and by lending expertise, guidance, and support when formal disciplinary action is necessary. In addition, supervisors should be carefully trained about the vital relationship between proper discipline and employment law compliance. 4. Require and maintain accurate documentation. Proper documentation of employee problems and related corrective actions is essential to support and validate your disciplinary process. First, it provides an accurate accounting of the steps taken to help the employee improve and can be used to evaluate the employee. Second, it provides a critical line of defense if you have to justify your actions or defend a lawsuit.