Administrative adjudications

Administrative adjudications

Brzostek v Syracuse Fire Dept., 238 AD2d 947; Leave to appeal denied, 92 NY2d 102

In the Brzostek case, the Appellate Division, Fourth Department, was asked to review an administrative adjudication. In an earlier appeal concerning the parties, the court ruled that Brzostek was entitled to a determination on the merits of his request for General Municipal Law Section 207-a (2) benefits [Brzostek v City of Syracuse, 238 AD2d 947; Leave to appeal denied, 92 NY2d 1026].*

Instead of holding a hearing, thereby creating “an administrative record for judicial review,” the City and Brzostek agreed upon a “set of stipulated facts” which were submitted to Supreme Court. Supreme Court then reviewed the matter “de novo.”

The Appellate Division ruled that such a procedure was incorrect. It said that an administrative determination must be made by the appropriate agency in the first instance, and Brzostek had the burden of proving that he was eligible for Section 207-a benefits.

The court said that the department had to determine the merits of Brzostek's application and remanded the matter to it for this purpose. Once the administrative agency makes its determination, if the individual objects, he or she may appeal the decision.

An administrative agency's administrative determination is subject to judicial review in a CPLR article 78 proceeding. The traditional test applied by the courts is such instances: is the administrative determination supported by substantial evidence in the record.

* General Municipal Law Section 207-a provides significant benefits to firefighters who are disabled as the result on an injury sustained in the line of duty.

Bill targeting pension abuse passed by State Legislature

Bill targeting pension abuse passed by State Legislature

The New York State Legislature passed legislation* on June 20, 2011 to enhance State Comptroller Thomas P. DiNapoli’s ability to catch those who abuse the state pension system.

The bill grants the Comptroller’s office access to State Department of Taxation and Finance's wage reporting system to identify New York State and Local Retirement System retirees working for local governments in order to determine if any exceed the retirement earnings limitation set out in the Retirement and Social Security Law. If a state or local government employee earns more than those limits, the Comptroller has the authority to suspend and recoup any excess payments made with respect to the pension portion of the individual’s retirement allowance.

The Retirement and Social Security Law (RSSL) places limits on the amount that may be earned by a retiree who returns to public employment with the State as an employer, or with a political subdivision of the State, without it affecting his or her retirement allowance.** Most retirees are covered by Section 212 of the RSSL, which allows retirees under age 65 to earn up to $30,000 per calendar year without any penalty with respect to the pension portion of his or her retirement allowance.

Currently, the Retirement System annually compares retiree information with payroll data for state employees.  However, no similar mechanism existed to check payroll information of the thousands of local public employers statewide.

* Assembly 7911; Senate 5460

** See §210 et. seq. of the Retirement and Social Security Law..

Broadbanding of positions

Broadbanding of positions

Ensley v Diamond, 258 AD2d 263, Leave to appeal denied 93 NY2d 814

The Ensley case contrasts two different position classification concepts: (1) “reclassification” of positions and (2) “broadbanding” of positions.

According to Charles Ensley, the New York City Department of Citywide Administrative Services' Resolution 98-12, adopted on November 12, 1998, reclassified a number of existing positions. He contended that the resolution was null and void because the City failed to comply with Section 20 of the Civil Service Law before adopting the resolution.

The city, on the other hand, argued that it had not reclassified any position but had, instead, “created new titles, each of which encompassed more than one assignment.” The Appellate Division, First Department, in its decision, characterized the city's action challenged by Ensley as “broadbanding.”*

First, some background: Section 20.1 of the Civil Service Law requires each municipal commission to adopt rules “for the jurisdictional classification of positions” and “for the position classification of such offices and employment....”

Section 20.2 makes such rules, and any amendment to such rules, subject to a public hearing and the approval of the State Civil Service Commission.

Unless placed in a different jurisdictional class by the legislature, all positions in the classified service are automatically in the competitive class. Jurisdiction classification concerns the placement of a position in a different jurisdictional class: the exempt, noncompetitive or labor class.

In contrast, position classification of positions is based on the duties and qualification to be performed by the incumbent. A position is reclassified when it is determined that the actual duties being performed are substantially different from those initially set out as the “job description” that recites the duties of the position.

Reclassification is commonly used to correct “out-of-title” work situations or to reflect basic changes in the duties and responsibilities of the position in general or an individual in particular. Reclassification may, or may not, involve a change in the salary grade to which the position is allocated.

The Appellate Division decided that Ensley failed to prove that the city's action in adopting Resolution 98-12 involved the “reclassification” of positions. It then described the city's action as involving the broadbanding, rather than the reclassification, of positions. Having reached this conclusion, it sustained the Supreme Court's dismissal of Ensley's petition.

The court described broadbanding as an action involving the consolidation of assignments under the same title, with no additional examinations required to move between assignments within the title. As to the legal basis for broadbanding, the Appellate Division said that broadbanding was permitted under the Civil Service Law, citing Kitchings v Jenkins, 85 NY2d 694, as authority for this conclusion.

 * In a different context, the term "broadbanding" is sometimes used to describe the process of "zone scoring" a written test.

Direct dealing

Direct dealing

Stillwater Teachers Assoc. v Stillwater CSD, 32 PERB 4914

In labor relations, the term “direct dealing” is used to describe a situation where the employer deals directly with an individual concerning the individual’s terms and conditions of employment instead of dealing with the employee’s collective bargaining representative.

The Stillwater Teachers Association charged the district with an unfair labor practice - direct dealing. The association alleged that the school superintendent had advised a unit employee that if he resigned, the district would reemploy him at a higher salary than permitted by the collective bargaining agreement between the parties.

Administrative Law Judge Susan A. Camenzo concluded that the charge of direct dealing was unsubstantiated. The decision notes that other unit members unhappy with their salary had been told of the possible effects of resignation such as loss of tenure, seniority and were given no promise of reemployment. 

Here, said Camenzo, the employee assessed the risks and “decided on his own to resign and reapply for his old position at a higher contractual salary.

Employment agreements

Employment agreements

Dillon, et al, v City of New York, 238 AD2d 302; Leave to appeal denied, 90 NY2d 811

Typically, an individual is given a letter of appointment upon initial employment setting out the effective date of appointment and other important facts such as title and salary.

In some instances, the parties may enter into a contract. The employment of a school superintendent by a school district is an example of this.

The Dillon case concerns another type agreement that the parties may enter -- one in which the employee agrees to perform service for a specified period of time.

John T. Dillon, Jr. and his co-plaintiffs were appointed as Assistant District Attorneys in Bronx County. Prior to being hired, and as a condition of employment, they each signed a statement acknowledging that: “Assistant District Attorneys are required to abide by a commitment to give four years of initial service to the Office of the District Attorney. Failure to honor that commitment may result in a loss of benefits and an unfavorable termination from the Office.”

This four-year commitment was subsequently changed to three years. Dillon, Michael Newman and Eileen Koretz each submitted their resignations before completing their three-year service obligations. These resignations were apparently disregarded by the District Attorney and notations indicating “Terminated - Did Not Fulfill Commitment” were placed in their respective personnel files. In other words, their separation was deemed a termination, not a resignation.

Among the claims made by Dillon and the others in this litigation was that they had been defamed because of the characterization of their respective departures as a termination rather than a resignation. A State Supreme Court justice denied the district attorney's motion for summary judgment. In considering the district attorney's appeal from this ruling, the Appellate Division, with respect to Dillon's “employment commitment,” said:

“To allow an employee who contractually commits to work a number of years, which is common in many prosecutors' offices, to “resign” prior to satisfaction of the commitment period, and then threaten to sue for defamation if the employer characterizes the employee's departure as termination, would render meaningless the contractual commitment.”

The Appellate Division rejected Dillion's contention that the District Attorney's own, unilateral, reduction of the commitment period from four years to three years, abrogated the contractual commitment. The court said this argument was meritless as the district attorney's action only reduced the extent, and not the obligation, of employees' time commitments.

Exhausting administrative remedies

Exhausting administrative remedies

Jardim v PERB, 265 AD2d 329

The Jardim case demonstrates the importance of exhausting one's administrative remedies before initialing litigation challenging an administrative determination.

A Public Employment Relations Board administrative law judge [ALJ] dismissed improper practices charges filed by Leroy Jardim. Jardim claimed that he had been subjected to disciplinary action as a result of his performing his union duties.

In effect, Jardim alleged that he had been disciplined for performing “protected activities” within the meaning of the Taylor Law -- an unfair labor practice. The ALJ decided that the disciplinary action had not been taken against him because of his union activities.

Jardim then filed a petition with a State Supreme Court appealing the ALJ's determination. This proved to be a fatal procedural error. His petition was dismissed because the court determined that Jardim had not exhausted his administrative remedies. It seems that Jardim elected to file a petition appealing the ALJ's decision in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules instead of filing his “exceptions” to the ALJ's ruling with PERB.

The Appellate Division, Second Department affirmed the lower court's ruling. The court said that “administrative review” was available to Jardim. Thus, the dismissal of his petition by the Supreme Court was appropriate.

The court pointed out that PERB's rules provided for such an administrative review, citing Section 204.10 [4 NYCRR 204.10] of the rules. Section 204.10(a) permits a party to appeal a determination by an ALJ to the board, provided such an appeal -- referred to as “exceptions” to the ALJ's determination -- is filed within 15 working days after the individual has received the ALJ's decision.

Section 204.10 (b)(4) of the rules requires the party filing exceptions to specifically state them in the appeal. Any basis for an exception to a “ruling, finding, conclusion or recommendation” made by the ALJ “which is not specifically urged is waived”.

Not being familiar with the rules not a valid excuse for failure to follow procedures

Not being familiar with the rules not a valid excuse for failure to follow procedures

Broome Co. Sheriff's Law Enforcement Supervisors v Sheriff's Department, 32 PERB 3054

Binghamton Police Supervisors Association v City of Binghamton, 32 PERB 3055

Ignorance or a misunderstanding of PERB's rules is not an acceptable excuse as the Law Enforcement Supervisors and Binghamton Police Supervisors decisions illustrate.

The Broome County Sheriff's Law Enforcement Supervisors Association filed a representation petition with PERB's Director of Employment Practices and Representation. The Association wanted to have the Broome County Sheriffs PBA decertified and the Association designated as the collective bargaining representative for a unit consisting of supervisory officers.

PERB’s director of representation dismissed the Association's petition after finding that the “showing of interest” [SOI] simultaneously filed with its petition “did not include a description of the unit the Association alleged to be appropriate....” The section of the Association's SOI form to be used to describe the unit the Association sought to represent was blank. This, said the director, meant that the SOI was not “on a form prescribed by the director” and therefore did not meet the requirements set out in Section 201.4(b) of PERB's' rules [4 NYCRR 201.4(b)].

The Association filed an exception to the director's ruling, contending that it had not been promptly notified of the deficiency and thus was prevented from correcting it in a timely fashion. In addition, the Association's representative said that the representation forms he received from PERB “had not included any form for an SOI petition.”

PERB sustained the director's determination. It said that the rules clearly set out the requirement. “A party who is ignorant of a requirement under the Rules is no differently situated than a person who is mistaken in his or her understanding of the meaning or application of the Rules.”

As an alternative argument, the Association claimed that it used a “floppy disk” of PERB forms that PERB created and offered for sale to the public but that the disk did not contain an SOI petition. PERB rejected the claim, noting that the disk included the SOI petition and “the Association's representative apparently used that computer version of the form to file a corrected SOI petition with the director.”

Commenting that it applies its rules strictly, “especially the Rules pertaining to showing of interest requirements,” PERB sustained the director's dismissal of the Association's representation petition.

In a similar case, Binghamton Police Supervisors Association v City of Binghamton, 32 PERB 3055, PERB rejected the Association's representation petition because, it also, “did not include a description of the unit the Association alleged to be appropriate....”