PERB has exclusive jurisdiction to determine improper practice charge

PERB has exclusive jurisdiction to determine improper practice charge

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v Westchester County, 35 AD3d 592, 828 N.Y.S.2d 412

Westchester County created three director positions in the Westchester County Department of Public Safety. It appointed three civilians to those positions rather than appoint “sworn officers” to the vacancies.

The Westchester County PBA sued, contending that because the positions involve the performance of traditional police functions, its members were deprived of positions that should have been reserved exclusively for them. In the words of the Appellate Division, “More precisely, [PBA] argues that it has an obligation to "preserve the work that its members perform." The PBA complained that the County is seeking to “circumvent" the collective bargaining agreement by creating what are, in essence, police positions, and staffing them with civilians.”

The Court said PBA’s underlying complaint is that the County committed an improper employer practice by its failure to bargain with it prior to the creation and relegation of work properly assigned within the bargaining unit to persons outside of it. Accepting PBA’s characterization of the nature of its case, the Appellate Division concluded that PBA’s action must be dismissed because resolving the improper labor practice charge it advanced is within the exclusive jurisdiction of the Public Employment Relations Board.

The decision noted that PBA, in an effort to maintain its law suit, argued that it had cited Civil Service Law § 209-a(1)(d) merely for the purpose of demonstrating standing but that the merits of this action were not within PERB's jurisdiction. The Appellate Division rejected the PBA’s “attempt to evade the consequences of its standing argument;” stating, “clearly, the [PBA] cannot have it both ways.”

Unless the CBA so provides, the statute of limitations for filing a lawsuit is not tolled because a contract grievance procedure must be exhausted before initiating litigation

Unless the CBA so provides, the statute of limitations for filing a lawsuit is not tolled because a contract grievance procedure must be exhausted before initiating litigation

Civil Serv. Employees Assn., Inc. v County of Nassau, 2011 NY Slip Op 05649, Appellate Division, Second Department

The Civil Service Employees Association and a number of the employees in the collective bargaining unit it represents[CSEA] initiated a lawsuit alleging that Nassau County breached a provision in the collective bargaining agreement (CBA) executed by the County and CSEA.

CSEA contended that Nassau alleged that Nassau had improperly placed employees promoted in calendar years 1999 and 2000 in the incorrect step or grade on the relevant graded salary schedule. Although both Nassau and CSEA moved for summary judgment,  Supreme Court denied the County's motion but granted CSEA’s cross motion for summary judgment on the issue of liability, and directed an inquest on the issue of damages.

Nassau appealed.

The Appellate Division, noting that an arbitrator previously denied CSEA’s request for a finding that the County had breached the CBA with respect to its handling of pre-2001 promotions, said that advisory determination never became binding on CSEA and thus its complaint was not barred by the doctrine of res judicata.

However, said the court, Nassau was correct when it contended that the six-year statute of limitations for an action upon a contractual obligation applies to CSEA’s action. Further, the statute of limitations was not tolled to allow CSEA to go through the internal grievance process, as they were required to do pursuant to the CBA's terms.

The Appellate Division ruled that “In the absence of a provision in the CBA providing for the tolling of the statute of limitations while [CSEA] exhausted the grievance process, the mere fact that the CBA required [CSEA] to exhaust the grievance process before filing suit in state court did not toll the statute of limitations,” citing Nassau Ch. Civ. Serv. Empls. Assn., Local 830, AFSCME, Local 1000, AFL-CIO v County of Nassau, 154 Misc 2d 545,  affd 203 AD2d 267.

Accordingly, because the complaint was filed on April 11, 2006, CSEA may only attempt to recover breach of contract damages for acts occurring on or after April 11, 2000. 

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05649.htm

Free Speech in the classroom

Free Speech in the classroom

Opinions by US Circuit Courts of Appeal

A number of U.S. Circuit Courts of Appeal have considered challenges from teachers contending that their respective employers had curtailed their constitutional right to free speech.

1. Mayer v. Monroe County Community School Corporation, 474 F.3d 477

In this 42 USC 1983 lawsuit, a teacher alleged that she was dismissed from her position because of her statement opposing the United State’s military involvement in Iraq in a social studies class. The Circuit Court said that the First Amendment does not entitle primary and secondary teachers to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system while teaching in a classroom setting.

2. Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271

Here the Circuit Court ruled that a former teacher did not suffer unlawful retaliation for engaging in speech protected by the First Amendment after finding that the teacher’s speech, which concerned bilingual education, was not causally related to the adverse employment actions taken by the school board.

3. Casey v. W. Las Vegas Independent School District, 473 F.3d 1323

The school district and officials were sued for allegedly demoting and ultimately terminating a teacher for reasons that the teacher claimed constituted unlawful retaliation for her exercising her First Amendment rights. The court dismissed the appeal, commenting that the teacher failed to show that her statements concerning “the Head Start program” and miscellaneous violations of state or federal law were made in her capacity as a citizen and not pursuant to her “official duties.”

Making a false report of an incident to an employer

Making a false report of an incident to an employer

Sweeney v Safir, 267 AD2d 99, Motion to appeal denied, 95 NY2d 753

New York City police officer Kevin Sweeney reported that he was the victim of a gunpoint robbery of his fiancée’s car. He made these allegations in both police reports and in his testimony before a Grand Jury. The commissioner determined that rather than being the victim of a robbery -- the car had been simply stolen from the street when Sweeney left it double-parked with the keys in the ignition and the engine running. Sweeney was dismissed from his position for making false statements.

The Appellate Division unanimously confirmed the Commissioner's action, finding that “no basis exists to disturb” the commissioner's determination and that the penalty of dismissal does not shock its sense of fairness.

Medical examination procedures established by the employer negotiable

Medical examination procedures established by the employer negotiable

Professional Firefighters, Local 32, v City of Utica, 32 PERB 3056

The City of Utica unilaterally directed its firefighters to take a physical examination administered by a City-designated physician. It advised firefighters that it would terminate anyone who failed the examination. Local 32 filed an unfair labor practice charge with PERB alleging that the City had refused to negotiate “specific subjects related to the City's directive.”

PERB directed the City to negotiate the local's demands concerning “the pre-testing, testing, post-testing and re-testing procedures” and related issues, including the firefighter's ability to select the examining physician. 

Public policy and arbitration awards

Public policy and arbitration awards

Correctional Officers PBA v State, 94 NY2d 321

Edward Kuhnel, a State correctional officer, was suspended from duty and served with disciplinary charges after the Department of Correctional Services learned that he flew a Nazi flag from the front porch of his home on December 10, 1996 -- the 55th anniversary of Hitler's declaration of war on the United States.

Kuhnel was charged with violating two department rules:

[1] “No employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or its personnel;” and 

[2] “An employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.”

The Department also charged that Kuhnel's conduct “endangered the safety and security of all facilities in the New York State Department of Correctional Services.”

The disciplinary arbitrator found that the department failed to prove Kuhnel was guilty of the charges filed against him and ordered him reinstated to his position.

The arbitrator concluded that there was no linkage between the off-duty misconduct and Kuhnel's employment because, he said, the department failed to show that Kuhnel's conduct harmed “the department's business, adversely affected his ability to perform his job, or caused co-workers not to work with him.”

According to the arbitrator, the expectation or projection of possible harm, in contrast with evidence of actual harm, was not enough to permit restriction of the employee's symbolic free speech or regulation of his off-duty conduct. As to the charge that Kuhnel had joined or affiliated himself with an organization, that would “conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee,” the arbitrator said that the department “provided no evidence of Kuhnel's affiliation with the Neo-Nazi party's objectives or activities.”

PBA filed a petition pursuant to Article 75 of the Civil Practice Law and Rules to confirm the award. The department filed a “cross-petition” in an effort to vacate the arbitration award on the grounds that “it was irrational and violated public policy.” Supreme Court granted the PBA's petition confirming the award.*

The Appellate Division, in a 3 to 5 decision affirmed the Supreme Court's action, holding that the award was rational and did not violate a strong public policy of this State. The department appealed the ruling to the Court of Appeals, which held that “our jurisprudence has carefully limited the invocation of public policy concerns as a basis for usurping the role of an arbitrator and determining a dispute on the merits.” It then affirmed the Appellate Division's determination.

The court's rational:

Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management and the courts generally play a limited role. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies and cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one.

Addressing the public policy argument advanced by the department, the Court said that:

The public policy exception has its roots in common law, where it is well settled that a court will not enforce a contract that violates public policy. A court, however, may not vacate an award on public policy grounds when vague or attenuated considerations of a general public interest are at stake. Courts shed their cloak of noninterference [only] where specific terms of the arbitration agreement violate a defined and discernible public policy.

 

The Court of Appeals said that “looking at the only prong of the public policy exception argued before this Court, we conclude that the award does not violate a well-defined constitutional, statutory or common law of this State.”

* Petitions to confirm an arbitration award must be filed within one year of the determination; petitions to vacate an arbitration award must be filed within three months of the date of the award.

Statutory residency requirement to serve in elective office held constitutional

Statutory residency requirement to serve in elective office held constitutional

Matter of Walsh v Katz, 2011 NY Slip Op 04545, Court of Appeals

The relevant statute providing for the election of a town justice for Fisher's Island, Suffolk County, provides, in relevant part, for "… one town justice who shall reside upon Fisher's island in said town … such town justice residing upon Fisher's island shall, in addition to his duties as town justice, serve as a member of the Southold town board."

In July 2009, Daniel C. Ross, a resident of Southold but not a resident of Fisher's Island, filed a petition designating himself a candidate in the September 2009 primary election for the nomination of the Democratic Party as its candidate for the Fisher's Island town justice/town board member seat.

Arthur J. Walsh and Nina J. Schmid — residents of Fisher's Island — filed objections to Ross’s designating petition, alleging that it was invalid because Ross did not meet the residency requirement.

The Board of Elections denied the objections and upheld the designating petition whereupon Walsh and Schmid initiated a lawsuit seeking to prohibit the BOE from placing Ross's name on the ballot. Ross counterclaimed and, in effect, cross-petitioned to validate the designating petition, challenging, among other things, the constitutionality of the residency requirement.

Subsequently the Appellate Division upheld the constitutionality of the statute on equal protection grounds (66 AD3d 1052) holding that a rational basis standard was applicable, and that a rational basis exists to support the Legislature's determination that the fifth town justice/town board member for Southold should be a resident of Fisher's Island.*

Although Ross lost the November 2009 general election, the Court of Appeals said that this action presents a live controversy. Supreme Court converted and continued Ross's constitutional claims as a declaratory judgment action, and the Appellate Division decided the constitutional issues. Though no longer a candidate, Ross is a voter who claims that his right to vote is being unconstitutionally burdened.

The Court of Appeals affirmed the Appellate Division’s ruling, holding that the Fisher's Island residency requirement satisfies the rational basis test, explaining that in considering an equal protection challenge to a state election law a court must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."

The direct impact of the Fisher's Island residency requirement is not on one's right to vote, but on an individual's right to be a candidate for public office. The residency requirement here challenged did not require a candidate to be a resident of Fisher's Island prior to commencement of his or her term of office. In other words, said the court, “the winner of the town justice/town board position does not need to establish residency on Fisher's Island until the beginning of his/her term, and must only retain that residency for the duration of the term.”

Accordingly, any Town of Southold, Suffolk County resident who would otherwise be eligible to run for political office may run for the Fisher's Island seat. 

The Court of Appeals also noted that the United States Supreme Court stated a “basic teaching of representative government … that elected officials represent all of those who elect them, and not merely those who are their neighbors," citing Dusch (387 US 112, Dallas County, Alabama v Reese (421 US 477) and Fortson v Dorsey, 379 US 433.

As the Fisher's Island seat is subject to a town-wide vote, the individual elected to fill the seat represents the entire town, not just the residents of Fishers Island. Accordingly, said the court, “Ross's contention that the residency requirement gives the people of Fishers Island a permanent advantage of greater representation is unavailing.”

* With respect to Supreme Court's ruling that the prevailing candidate need not abide by the residency requirement until 30 days after beginning his or her term of office, the Appellate Division modified Supreme Court's order by holding that, in this instance January 1, 2010, was the appropriate date by which a candidate had to meet the residency requirement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04545.htm

Sexual harassment complaints

Considering complaints alleging sexual harassment

Rider v Rondout Valley CSD, Comm. Ed. Decision 14238

The decision of the Commissioner of Education in the appeal filed by Carolyn Rider concerns the Rondout Valley Central School District’s investigation of Rider’s complaint of sexual harassment by a co-worker and the remedy provided by the district.

Rider, a secretary in the district’s middle school’s guidance office, filed charges that middle school guidance counselor, Carol Arnone-Ippolitti, had engaged in actions against her that constituted sexual harassment.

The superintendent of schools, David S. Giles, conducted an investigation of Rider’s allegations. In the course of the investigation, which lasted several months, Giles conducted more than 70 interviews, meeting with Rider, Arnone-Ippolitti, and other members of the staff.

Giles verified that a number of Rider’s allegations were true and as to those, he found that “Arnone-Ippolitti’s actions were offensive, insensitive, created a hostile work environment and rose to the level of sexual harassment.”

In his report to the board, Giles recommended that Arnone-Ippolitti:

1. Be given a “counseling letter,” a copy of which was to be placed in her personnel file;

2. Undergo counseling and sensitivity training;

3. Be assigned to another work location and her “behavior closely monitored by the building principal.”

In addition, Giles said that a copy of his report to the board should also be placed in Arnone-Ippolitti’s personnel file.

Rider appealed some of the superintendent’s findings to the board. After reviewing the entire record in executive session, the board concluded only three of the 21 incidents alleged by Rider “could be characterized as sexual in nature.” The board also determined that these three incidents were not sufficient to “form a basis for hostile work environment sexual harassment.”

However, the board also said that Arnone-Ippolitti “had engaged in distasteful, unprofessional, and unacceptable conduct.” Although the board initially directed that Arnone-Ippolitti “be returned” to her middle school position, it reversed itself after Rider asked it to “reconsider its decision.”*

Rider appealed, complaining that there were deficiencies in Giles’ investigation such as the individuals interviewed were not sworn to tell the truth. She also objected to Giles findings that did not support her allegations of misconduct on the part of Arnone-Ippolitti and to a number of elements in the board’s resolution of the matter.

Before reaching the merits of Rider’s appeal, the Commissioner pointed out that a necessary party, Arnone-Ippolitti, had neither been named in the appeal nor served with copies of Rider’s “notice and petition.” This was a fatal omission on Rider’s part and the Commissioner dismissed her appeal. The decision notes that if the Commissioner were “to decide any aspect of this appeal in [Rider’s] favor, Ms. Arnone-Ippolitti’s rights would unquestionably be affected.”

However, the Commissioner did take the opportunity to note that even if Rider’s appeal had not been dismissed on procedural grounds, it would have been dismissed on the merits.

The Commissioner noted the “extensive investigation” conducted by Giles, which resulted in Arnone-Ippolitti being given a counseling memorandum, sensitivity training and that her activities at work were being monitored in support of this conclusion.

The Commissioner noted that while the board disagreed with some of the superintendent’s findings -- i.e., the presence of a hostile work environment, it did not change his recommendations as to the personnel actions to be taken against Arnone-Ippolitti.

The rule a case such as this is that the Commissioner will not substitute his judgment for that of a school board unless it is demonstrated that board’s actions were arbitrary or capricious, constituted an abuse of discretion or failed to comply with law.

In contrast to finding any of these elements present in this case, the Commissioner said that after reviewing the record concerning the procedures following in investigating Rider’s complaints and the action taken by the board, there was “no basis for substituting” his judgment for that of the superintendent or the board.

* The board apparently adopted the recommendations of the superintendent concerning counseling and other remedial personnel actions resulting from his investigation of Arnone-Ippolitti’s conduct.

Sick leave and workers’ compensation

Sick leave and workers’ compensation

Robinson v NYC Department of Social Services, 266 A.D.2d 613

Ada Robinson, a stenographer/secretary, filed a claim for workers’ compensation benefits based upon work-related carpal tunnel syndrome. Although she “failed to file her claim” within the two-year period as required by Section 28 of the Workers’ Compensation Law, the Workers’ Compensation Board awarded her workers’ compensation benefits. The department appealed.

The department had continued Robinson on the payroll following her surgery to relieve her condition. The Board decided that this constituted an advance payment of wages within the meaning of Section 28, and held that the “limitations period” did not apply in her case.*

As Robinson “could have used sick leave” even if her condition had not been work-related, the department argued that she would have been paid regardless of the cause of injury and thus it had not made an advance payment.

The department’s personnel records, however, showed that Robinson had checked the disability box, not one of the sick leave boxes, on the “request for leave form” approved and signed by her supervisor. Also, her request for additional absence, also approved by her supervisor, included the notation “Workers’ Comp.”

Thus, said the court, the record supported the Board’s ruling that the department continued to pay Robinson in recognition of its workers’ compensation liability.

* Remuneration in the form of wages can constitute an advance payment where the payment is provided in recognition of workers compensation liability. In contrast, payments made regardless of the cause of injury do not constitute an advance payment.

Determining General Municipal Law Section 207-a benefits to be paid the individual after he or she retires

Determining General Municipal Law Section 207-a benefits to be paid the individual after he or she retires

Gresis v Fairview Fire District, Supreme Court, Justice Loehr, 15 Misc.3d 209

James J. Gresis is a retired Fire Captain receiving a performance of duty disability retirement allowance from the New York State Employees’ Retirement System plus a supplemental benefit pursuant to General Municipal Law Section 207-a(2) paid by Fairview. The Section 207-a supplemental benefit to be paid by Fairview is the difference between the amount of Gresis’ disability retirement allowance and the amount of “his regular salary and wages” until he reaches mandatory service retirement age, age 70.*

When Gresis commenced receiving his retirement allowance, the collective bargaining agreement (CBA) then in effect between the Fairview Fire Department and the Fire Fighters Association provided for a graduated salary structure for firefighters based on years of service. Further, Gresis’ “regular salary and wages” as a Captain was determined by applying a mathematical formula that provided Fairview Fire Captains with an annual salary that was 35% higher than the salary of a first-grade Firefighter.

In September 2002, all Captains, with the exception of Gresis, were reclassified Deputy Chiefs. Any Captain seeking to be appointed to this new title had to take and pass the Deputy Chief's examination. It appears that all Captains, with the exception of Gresis, took the Deputy Chief's examination and were appointed Deputy Chiefs.

Initially Fairport provided a Section 207-a supplement to Gresis based on a Captain's salary. However, commencing in mid-2006, Fairview reduced the supplement it had been paying Gresis to a lesser amount.

Gresis claimed that his supplement should be based on the compensation rate paid to Deputy Chiefs. The impact of this change in compensation, according to Gresis, was as though Fairport had demoted him from two grade levels above the Firefighter's grade to one grade above Firefighter’s grade. Fairview’s reduction of his supplementation to his retirement allowance, Gresis argued, violated General Municipal Law Section 207-a.

Fairport, on the other hand, maintained that it had continued to pay Gresis at the grade he retired at: Captain. It argued that any reduction in the amount of the supplement was the result of the reclassification and the new CBA, In effect, Fairport said that the pay rate for its Fire Captains at the time Gresis retired was now equal to the pay rate for its Fire Lieutenants. Thus, Fairport contended, it had not demoted Gresis but merely provided him with the supplement reflecting the change in the classification and allocation of his former position.

The court, citing Pease v Colucci, 59 AD2d 233,** rejected Fairview’s theory. It ruled that Section 207-a guarantees that any firefighter who suffers an employment-connected disability will receive his or her full annual wage “which shall not be interrupted or reduced in any respect except as based on the employee's own misconduct.”

The court decided that Fairport’s reduction of Gresis’ supplemental benefit from two grades above a Firefighter's to one grade above a Firefighter's was arbitrary and capricious and in violation of General Municipal Law Section 207-a(2).

* In Drahos v Village of Johnston City, 80 AD2d 100, the Court held that a firefighter injured in the line of duty and unable to return to work is entitled to the full amount of his regular salary until he returns, citing Section 207-a of the General Municipal Law. This, said the Drahos court, includes increases and adjustments received by firefighters in active status during the period of absence.

**  In Pease the Appellate Division ruled that once an individual became qualified for a Section 207-a benefit, the benefit continues until the individual recovers or reaches the mandatory age of retirement. The Pease case involved a Buffalo fire lieutenant who was "laid off" from his position while on Section 207-a leave. Lieutenant Pease’s position was abolished due to the City of Buffalo's financial difficulties. Buffalo then "reinstated" Pease to a firefighter position; reducing his Section 207-a supplement by calculating it on basis of a "firefighter's salary" rather than his previous salary as a lieutenant. This change, said the court, violated mandates set out in Section 207-a with respect to supplements to the retirement allowance to be paid to by the employer.

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Proceeding with disciplinary action in situations where disability may be a consideration

Proceeding with disciplinary action in situations where disability may be a consideration

Matter of Schlitz v Cavanagh, 14 Misc.3d 1213(A

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law: (1) serving disciplinary charges against an individual pursuant to Section 75 and (2) Section 72, which is triggered in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

Essentially Section 72 provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to perform the duties of the position satisfactorily because of that disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive. Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced.

Schlitz also was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 -- non-occupational disability leave -- from his position.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a “mental health issue” that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination and penalty by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing of disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that the Town was required to present the evidence of his depression in the §75 hearing as a defense or in mitigation of the misconduct charges.

Justice Mayer found that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer held that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

Section 73 of the Civil Service Law addresses the termination of an individual who has been continuously absent from his or her position on Section 72 leave for more than one year.

Third Circuit sustains employee's removal for lying about reason for absences

Third Circuit sustains employee's removal for lying about reason for absences

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

John Prigge told Sears, his employer, that he was absent for two days to receive radiation treatment for prostate cancer.  In reality, Prigge suffered from bipolar disorder, which had been diagnosed several years earlier.  Prigge was subsequently absent for seven days during which he was admitted to a medical clinic suffering from depression.  On this occasion, Prigge advised Sears that his absence was due to incapacity and treatment for bipolar disorder.  He also confessed that his prior absence was not due to prostate cancer, but to bipolar disorder. 

Sears demanded that Prigge provide medical documentation substantiating his need for leave due to prostate cancer and bipolar disorder.  Prigge provided medical documentation substantiating his need for leave due to bipolar disorder.  He provided medical certification verifying that he did not suffer from prostate cancer.  Sears fired for failure to substantiate his need for leave with medical documentation due to prostate cancer, and for lying about his need for prostate cancer. 

The Third Circuit agreed with Sears.  It found, essentially, that Sears had the right to terminate Prigge for lying about his need for leave, and because he failed to substantiate that need with supporting medical documentation. 

Mr. Bosland Comments:  However awkward or embarrassing, employees need to tell their employers the real reason for their need for FMLA leave.  Courts have not allowed employees to tell their employer a false reason for the need for leave.  In addition to being truthful, had Prigge told Sears the real reason for the prior leave it would have likely been covered by the FMLA.  Courts have not excused employees from telling their employer the real reason for their need leave out of embarrassment or fear that the reason will be fodder for office gossip.  Nor have they looked past the false reason to find FMLA coverage based on the real reason for the leave.  Courts have consistently found that employers are entitled to the real reason animating the need for leave. 

Prigge v. Sears Holding Corp., No. 10-3397 (3d Cir. June 23, 2011).

Insurance to defend and indemnify offices and employees of a political subdivision of the State

Insurance to defend and indemnify offices and employees of a political subdivision of the State

Watkins Glen Central School District v. National Union Fire Ins. Co. of Pittsburgh, 286 A.D.2d 48

Sections 17 and 18 of the Public Officers Law provide for the defense and indemnification of public employees in connection with their official acts or their failure to perform an official act. Sometimes a public employer decides to purchase an insurance policy to protect itself in the event it is sued for its employees' alleged acts or omissions, official or otherwise.

The Watkins Glen Central School District purchased an “errors and omission” insurance policy from National Union Fire. When the District asked to Company to defend and indemnify it in connection with another law suit, Dean v Watkins Glen Central School District, [Western District of New York, Civil Action No. 98-CV-0362C], National Union said it was not obligated to defend and indemnify the District under the terms of the policy.* The District sued National, seeking a court order declaring that the insurance company was obligated to defend and indemnify it in connection with the Dean action.

In Dean, the plaintiff alleged that the District was negligent in its hiring and supervision of a teacher with a history of sexual misconduct with students. Did this mean that National Union could disclaim coverage under the exclusion for intentional acts set out in the policy it issued to the District?

The Appellate Division said that National Union could not disclaim coverage, finding that “to permit the insurer to do so would wholly vitiate coverage and frustrate the reasonable expectations of the insured, contrary to the parties' unambiguous intentions.”

Accordingly, ruled the court, under the circumstances of this case, Watkins Glen is entitled to be defended and, if need be, indemnified by National Union Fire as a matter of law.

Significantly, National Union claimed that coverage for damages arising from the teacher’s alleged sexual misconduct was expressly foreclosed pursuant to the unambiguous language of the assault and battery and bodily injury/emotional distress exclusions set out in the District's policy. The District, on the other hand, offered parole evidence that the parties had purposely negotiated for the elimination of a provision within the policy that would have expressly excluded coverage for sexual molestation.

The Appellate Division said that an understanding of the type of insurance policy involved was critical to correctly deciding the appeal. An errors and omissions policy is not a standard general liability policy but rather “is intended to insure a member of a designated calling against liability arising out of the mistakes inherent in the practice of that particular profession or business” other than those engaged in the legal and medical fields.

The Appellate Division ruled that National Union's errors and omissions policy was intended to cover the District's negligence in its rendering of professional services. Such coverage, said the court, undeniably includes negligence in the hiring and supervision of employees. Finding “no direct controlling authority to the contrary from any New York court precluding such errors and omissions coverage in a case such as this,” the Appellate Division said that it was persuaded that “National Union is indeed obligated to provide the School District with defense and indemnification for its potential liability for its alleged professional malpractice.”

* In the Dean case it was alleged that the District was negligent in connection with its hiring, supervision, and retention of a teacher. The teacher was reportedly convicted in Pennsylvania in 1974 of sex crimes he committed in the course of his employment as an elementary school teacher and Dean alleged that the teacher committed criminal acts of sexual abuse as against the Dean infant plaintiffs while in the employ of the District.

Limiting the use of personal leave accruals

Limiting the use of personal leave accruals

Johnston v ITT Aerospace/Communications, CA7, 272 F.3d 498

Sometimes an employee will challenge his or her employer's placing restrictions on the use of an employee's personal leave accruals. In the Johnston case, the Circuit Court of Appeals considered whether an employer's leave policy that distinguished between granting paid leave in connection with an individual's responding to a court order and the employee's filing a lawsuit on his or her own behalf, was lawful.

Kevin M. Johnston, an employee of ITT Aerospace/Communications Division of ITT Industries, Inc., challenged the company's attendance policy, which contains an exception for absences that are due to the employee's being ordered by a court “to appear as a witness (not a party).” The issue was raised as part of Johnston's Title VII law suit against ITT after he was assessed two unexcused absences for days on which he attended a preliminary pretrial conference, and gave his deposition, in the Title VII action that he filed against ITT.

The Circuit Court concluded that “[t]here is nothing unlawful about a leave policy that distinguishes between leave that is due to a court order and leave to enable an employee to engage in private business, including the filing of lawsuits.”

Mental stress and workers' compensation

Mental stress and workers' compensation

Vaupell v Buffalo City School District, 288 A.D.2d 510

The provisions set out in Section 2(7) of the Workers' Compensation Law [WCL] was a critical factor in resolving the appeal filed by Naomi Vaupell challenging the Workers' Compensation Board's denying her additional benefits following her termination by the Buffalo City School District.

WCL Section 2(7) specifically excludes from compensation “an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.”

Naomi Vaupell had suffered a head laceration and concussion in September 1993 while working as a special education teacher for the Buffalo City School District. She filed for and received workers' compensation benefits for a consequential psychiatric condition. In September 1994, Vaupell returned to work with no restrictions imposed by her treating psychiatrist and her Workers' Compensation case was closed.

In September 1995, Vaupell was denied tenure and terminated from her position based upon her poor job performance. She then filed for additional workers' compensation benefits alleging that her ineffectiveness as a teacher and termination were causally related to her previously compensable psychiatric condition.

A Workers' Compensation Administrative Law Judge denied Vaupell's claim upon finding that any recurrence of her stress-related symptoms was due to her poor performance evaluations. The Workers' Compensation Board affirmed this decision and Vaupell appealed its ruling.

The Appellate Division dismissed Vaupell's appeal, noting that “[s]ince the Board decided only the question of whether claimant's inability to perform her job and her resulting termination were causally related to her 1993 injury, this Court's review is limited to determining whether substantial evidence supports the Board's conclusion that claimant's loss of employment was solely related to the employer's denial of tenure and her poor work performance,” thus triggering the provisions of WCL Section 2(7).

The decision notes that Vaupell testified that she was emotionally devastated when she received negative evaluations and the letter of dismissal. Accordingly, said the court, “the Board's conclusion that Vaupell's symptoms of stress were related to poor work evaluations rather than her original compensable injury is supported by the record.”

As the evidence presented at the Workers' Compensation hearing established that Vaupell had been evaluated as unsatisfactory in the performance of her teaching duties prior to, as well as after, her injury and the lack of any evidence in the record suggesting that the employer acted in bad faith in making the negative evaluations or denying Vaupell tenure, the Appellate Division declined to disturb the Board's decision.

PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice

PERB rules employer’s conducting a survey of unit members to determine if a recognized or certified collective bargaining agent should continue to represent the unit an improper employer practice
Matter of Monroe County v New York State Pub. Empl. Relations Bd., 2011 NY Slip Op 05170

The Public Employment Relations Board found ruled that Monroe County had committed an improper employer practice in violation of the Taylor Law when it conducted a survey “to assess whether to hold a secret ballot election” to determine if CSEA should continue as the union representing certain of the County’s part-time employees.

CSEA had told Monroe that the CSEA unit for part-time employees was in administratorship, i.e., the CSEA local had taken over control of the part-time unit, because the unit no longer had any officers “to run it.”  Although Monroe had agreed to negotiate with CSEA concerning the part-time workers in the unit, it mailed all of its part-time employees represented by CSEA a letter and survey form underlying CSEA’s improper practice charge.

PERB affirmed its hearing officer’s determination that Monroe had "interfered with, restrained and coerced employees in the exercise of protected rights." Monroe appealed, seeking to annul PERB's determination while PERB counterclaimed seeking enforcement of its remedial order.

The Appellate Division concluded that substantial evidence supported PERB's determination that Monroe had violated Civil Service Law §209-a (1) (a) by conducting the survey. The court rejected Monroe’s claim that it was acting appropriately and was justified in sending out the survey based on a provision in the prior collective bargaining agreement.

The provision relied on by Monroe stated that CSEA's "representative status shall continue as long as it represents a majority of the bargaining unit employees, provided that if [Monroe County] receives evidence that thirty percent or more of the unit employees are questioning this status, the parties will conduct a secret ballot election conducted by PERB to determine representative status."

The Appellate Division ruled that PERB’s finding that this language did not provide Monroe with the authority to actively solicit employees' opinions regarding their potential dissatisfaction with CSEA's union representation nor did Monroe have authority under the regulations to seek decertification of CSEA was “rational.” It commented that courts give deference to PERB's interpretation of a collective bargaining agreement, which is within PERB's area of expertise, as long as that interpretation is reasonable, rational and supported by the language of the agreement.

Notwithstanding Monroe’s concerns regarding CSEA's ability to effectively represent its employees in the part-time unit, the Appellate Division decided that PERB “reasonably determined that this concern did not permit [Monroe County] to conduct a survey. Accordingly, said the court, PERB was entitled to a judgment of enforcement of its remedial order.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05170.htm

Pension benefits and marital property

Pension benefits and marital property

DeLuca v DeLuca, 97 N.Y.2d 139

Retirement benefits frequently are an important factor in a divorce. In the DeLuca case the Court of Appeals ruled that retirement benefits from the New York City Police Superior Officers Variable Supplements Fund [VSF] are marital property subject to equitable distribution in a divorce proceeding.

New York City Detective Crescenzo DeLuca divorced his wife, Maria, after 30 years of marriage. Before the divorce became final, DeLuca retired and began receiving VSF benefits in addition to his regular pension benefits.

A New York Supreme Court justice subsequently granted Crescenzo the divorce. As part of the equitable distribution of Crescenzo's assets, the court awarded Marie half of his past and future VSF payments. The Appellate Division, however, modified the award (276 AD2 143), holding that VSF benefits were not marital property on the theory that VSF benefits were not pension benefits under the City's Administrative Code Section 13-279[b].

The Court of Appeals disagreed, holding that the VSF was subject to equitable distribution in a divorce proceeding. The court said the VSF, along with its counterpart for police officers below the rank of sergeant ... were the result of contract negotiations between the City of New York and the unions representing police officers. In 1968, both sides jointly proposed legislation allowing the Police Pension Fund, whose pension investments were limited to fixed-income obligations, to invest some of its assets in equities, such as common stock, with the hope of creating higher earnings. The additional earnings could then be used as extra post-retirement compensation to attract qualified individuals and induce long-term service.

The Court of Appeals decided that whether VSF benefits constitute marital property cannot be determined by the Administrative Code provisions relied on by the Appellate Division but rather are to be determined pursuant to the relevant provisions of the Domestic Relations Law.

The general rule in such cases is that if the benefit is something of value and was earned in whole or in part during the marriage, it may be considered marital property subject to equitable distribution. Referring to Majauskas v Majauskas, 61 NY2d 481, the court pointed out that “rights in a vested but non-matured pension were marital property.”

Thus, said the court, formalized concepts such as “vesting” and “maturity” are not determinative in such situations, noting that in Olivo v Olivo, 82 NY2d 202, it ruled that compensation received after dissolution of the marriage for services rendered during the marriage is marital property.

In the words of the court, “VSF benefits are a supplement to pension fund payments and, as such, a form of compensation for past services related to the first 20 years of police employment, notwithstanding the date they mature.”

Also noted was the fact that although issues such as “vesting” and “maturity” do not raise serious obstacles to the determination that VSF benefits are marital property, they do affect valuation and distribution. 

In processing a grievance all procedural steps must be satisfied

In processing a grievance all procedural steps must be satisfied

Brown v Nassau County, 288 AD2d 216

The lesson in the Brown case: failure to follow the steps set out in a collective bargaining agreement's grievance procedure in a timely fashion may prove fatal to seeking further relief.

Larry Brown filed an out-of-title work grievance. When he and his union attempted to appeal the Step 3 determination of the Nassau County Office of Labor Relations [OLR], OLR rejected his grievance, saying that it was untimely. The Appellate Division agreed.

Brown's grievance was filed in accordance with a “five-step grievance procedure” set out in the collective bargaining agreement. OLR denied Brown's grievance at Step three and it appears that neither Brown nor the union proceeded to a Step four “advisory appeal” as set out Section 23-1.4 of the agreement.

According to the decision, the union made an untimely request that the County “schedule ... an arbitration date” following the County's unwillingness to stipulate to settle the dispute in accordance with the recommendation of a mediator.

The court noted that there was no proof that the County, in contrast to Brown and the union, the parties aggrieved by the Step 3 determination, was responsible for initiating the procedure at Step Four, or for the scheduling of the arbitration procedures.

Brown and the union sought a court order to compel arbitration of the grievance. The Appellate Division said that since there is no evidence that either Brown or the union ever timely “proceed[ed] to an advisory appeal” to either of the two alternative arbitral forums described in Section 23-1.4 of the parties' agreement, it agreed with the Supreme Court that, in light of this failure to complete the five-step grievance procedure, neither Brown nor the union could sue the County directly.

The simple answer: Had either Brown or the union followed the time requirement for perfecting the appeal to the next step, Step 4, the matter would have been subject to arbitration as permitted under the agreement.

Brown and the union also contended that they should not have been required to complete all five steps of the grievance procedure, because proceeding through all such steps would have been futile. The Appellate Division rejected this argument as being “without merit.”

Rebutting employer's defense to charges of unlawful discrimination

Rebutting employer's defense to charges of unlawful discrimination

Wallace v Methodist Hospital System, CA5, 271 F.3d 212

In the Wallace case, the Circuit Court of Appeals, Fifth Circuit, points out that an individual charging his or her employer with unlawful discrimination “must present facts to rebut each and every legitimate non-discriminatory reason advanced by [her employer] in order to survive [a motion for] summary judgment”.

Implicit in this ruling: if but one of the explanations offered by an employer in defending itself against allegations of unlawful discrimination survives, the employer will prevail.

Frequently an individual is able to establish a prima facie case of discrimination in challenging an adverse employment decision by introducing circumstantial evidence sufficient to raise a presumption of discrimination.

Once this is done, the employer is charged with the burden of producing a legitimate nondiscriminatory reason for the adverse employment decision. If the employer provides a legitimate nondiscriminatory reason for its action, the presumption of discrimination is defeated.

It then becomes the individual's burden to persuade the trier of fact that he or she was, in fact, the victim of unlawful discrimination by showing by a preponderance of the evidence that the employer intentionally discriminated against him or her because of his or her protected status.

In the Wallace case, the Hospital did not dispute that a former nurse, Veronica A. Wallace, had established a prima facie case of discrimination. However, in response to that prima facie case, the Hospital offered two nondiscriminatory reasons for discharging Wallace.

According to the decision, the Hospital contended that Wallace had violated two of its written rules and the violation of either constituted grounds for her immediate termination under its written policies without regard to her past performance:

(1) the employee performed a procedure without receiving a physician's order even though Hospital's written policies required an order; and

(2) the employee falsified medical records.

Although Wallace admitted that she had violated both policies, she argued that she was subject to disparate disciplinary treatment, and, therefore, Methodist's stated reasons were a pretext for discrimination.

According to the ruling, at the heart of whether the district court properly found that Wallace failed to demonstrate by substantial evidence that the Hospital's explanation of its actions constituted pretext.

While Wallace contended that she had provided evidence of disparate treatment, the district court held that the examples of disparate treatment she offered did not involve “similarly situated nurses.”

The Circuit Court sustained the lower court's findings, noting that it has held that in order for a plaintiff to show disparate treatment, Wallace had to demonstrate “that the misconduct for which she was discharged was nearly identical to that engaged in by a[n] employee [not within her protected class] whom [the company] retained,” citing Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177.

Put another way, the conduct at issue is not nearly identical when the difference between the plaintiff's conduct and that of those alleged to be similarly situated accounts for the difference in treatment received from the employer.

Here, said the court, the Hospital had shown that “with but one exception,” the nurses to whom Wallace points are not similarly situated as “they had either acted under a doctor's orders, did not need a doctor's order for their actions, or no one in a supervisory capacity was aware of the nurse's actions.”

In addition, said the court, Wallace failed to rebut the second reason advanced by the Hospital in discharging her -- falsification of medical records.

Concluding that there was no legally sufficient basis that would allow a jury to decide that Wallace had been discharged because of discrimination, the Circuit Court sustained the lower court's dismissal of Wallace's complaint.

Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration

Actively participating in the arbitration process without objection precludes the party later claiming that the matter presented to the arbitrator was not subject to arbitration
Matter of Jandrew v County of Cortland, 2011 NY Slip Op 04143, Appellate Division, Third Department

Cortland County terminated Bryon Jandrew from his position with the County.

Jandrew filed a grievance under the relevant collective bargaining agreement [CBA]. The grievance was ultimately submitted to binding arbitration in accordance with the CBA, and an arbitrator was jointly elected by the parties.

Although Cortland contended that the subject matter of the grievance was not subject to arbitration, it did not seek a stay of arbitration and agreed to have the issue of arbitrability of Jandrew’s grievance determined by the arbitrator, as well as the issues of whether Jandrew was “properly terminated” and, if not “properly terminated,” the appropriate remedy.

The arbitrator ruled that Jandrew’s grievance was arbitrable. The arbitrator then determined that Jandrew’s termination was without cause and, as the remedy ruled that the County must reinstate him to his former position with back pay and benefits.

Although Courtland then notified Jandrew's attorney that it would appeal the award and that Jandrew “should not show up to work pending the appeal,” the County neither appealed the award nor did it move to vacate or modify it. Further, the County did not restore Jandrew to the payroll or provide back pay or benefits as directed by the arbitrator.

Jandrew then filed a petition pursuant to CPLR Article 75 seeking to confirm the arbitrator's award, whereupon Courtland filed an answer to his petition and moved to vacate the award.

Supreme Court confirmed the arbitration award and the Appellate Division affirmed the lower court’s action.

The Appellate Division rejected Cortland’s argument that the award should be vacated because the arbitrator lacked the authority to decide the controversy. The court pointed out that “A party who actively participates in arbitration without seeking a stay pursuant to CPLR §7503(b) waives the right to a judicial determination of the arbitrability of the dispute,” citing Matter of United Federation of Teachers, Local 2, AFT, AFL-CIO v Board of Education of City School District of City of New York, 1 NY3d 72.

In this instance, said the court, although the County initially took the position that the grievance was not arbitrable, it thereafter joined in the selection of the arbitrator, fully participated in the arbitration proceeding and, most significantly, itself submitted to arbitration the issue of whether the grievance was arbitrable rather than "availing itself of all its reasonable judicial remedies."

Accordingly, the Appellate Division concluded that the County had waived its right to contest the arbitrator's power to decide the controversy.

Further, said the court, “By submitting [the grievance] to arbitration, [Cortland] ran the risk that the arbitrator would find the dispute covered under the CBA, as she did, and while a contrary determination certainly would have been reasonable on the present record, it is not for us to substitute our judgment for that of the arbitrator in this regard.”

Finally, the Appellate Division rejected Cortland’s contention that the arbitrator's award violated public policy. Although an arbitration award may be vacated on this “extremely narrow ground” it may be vacated only where a court can conclude, "'without engaging in any extended fact-finding or legal analysis' that a law 'prohibit[s], in an absolute sense, [the] particular matters [to be] decided'" or that "the award itself violate[s] a well-defined constitutional, statutory or common law of this State"

Simply stated, said the court, “we fail to find any strong public policy precluding parties to a collective bargaining agreement from agreeing that the disciplining of employees for failure to maintain minimum job qualifications is to be submitted to and decided by an arbitrator.”

Similarly, with respect to the County’s argument that the award usurped the County Personnel Officer's power to set minimum job qualifications, the Appellate Division said “again the Cortland failed to point to any public policy that ‘prohibit[s], in an absolute sense,’ an employer from delegating to an arbitrator the authority to determine if an employee continues to meet the minimum qualifications of his or her position.”

Considering the adage that arbitrators "may do justice as they see it, applying their own sense of law and equity to the facts as they find them to be," the Appellate Division concluded that Cortland had not established that the arbitration award should be vacated for public policy reasons.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04143.htm

Removing a candidate's name from the eligible list

Removing a candidate's name from the eligible list

Ryff v Westchester Co. Personnel Office, 287 AD2d 723

The Westchester County Personnel Office removed Michael Ryff's name from the eligible list for police officer. Ryff demanded that the Office provide him with copies of reports concerning an investigation that resulted in his previous termination from his position as a probationary police officer with the Westchester County Department of Public Safety. The Appellate Division ruled that Ryff was not entitled to be given copies of such reports.

In addition, it declined to provide “judicial intervention,” ruling that the Personnel Office's determination to remove the Ryff's name from the eligible list after affording him an opportunity to submit written opposition to the disqualification pursuant to Civil Service Law Section 50(4)(e) was neither irrational nor arbitrary.

Civil Service Law Section 50(4)(e) permits the State or a municipal civil service commission to disqualification of an individual who was dismissed from his or her position upon stated charges alleging incompetence or misconduct. Section 50(4) also authorizes a commission to disqualify an individual following an investigation of his or her qualifications and an opportunity to object to such disqualification.

Suspension of retirement allowance upon post-retirement employment

Suspension of retirement allowance upon post-retirement employment

Matter of Grella v Hevesi, 38 AD3d 113

Philip M. Grella retired effective January 1, 2003 after serving as an Assistant District Attorney in Nassau County for 24 years and six years as a Judge of the Nassau County District Court.

Grella was appointed as a Court of Claims Judge effective June 30, 2003 and administratively assigned to Supreme Court. The Retirement System notified Judge Grella that his retirement allowance would be suspended because of his postretirement employment once his earnings reached $25,000. He was also told that because he had been reemployed by the same employer from which he had retired, he could earn up to $36,000 without any diminution of his retirement allowance if he obtained a so-called 211 waiver [see Retirement and Social Security Law § 211].

In addition, the Retirement System decided that the nature of Grella post-retirement employment made him ineligible for the Civil Service Law §150 elective office exception.

The public policy in New York is that in the event a retired member of a public retirement system of this State is employed by State or a political subdivision of the State, his or her retirement allowance is suspended until he or she again retires.* The major exceptions to this policy:

1. Retirement and Social Security Law §212 sets forth limits on annual earnings which a retiree under the age of 65 may earn in public employment without diminution of his or her retirement allowance.

2. Section 150 of the Civil Service Law, which generally provides for the suspension of pension and annuity during a retiree’s post-retirement employment by the state, or of any municipal corporation, or political subdivision of the state, for compensation, does not apply where such compensation is paid in connection with jury duty, or serving as an inspector of election, poll clerk or ballot clerk under the election law, or received compensation for serving as a notary public or commissioner of deeds, or compensation received for serving in an elective public office.

3. The Section 150 exception for election to public officer does not apply in situations where the individual “subsequent to his or her retirement from an elective public office, accepts appointment, is re-elected or takes a new oath of office to the same elective public office from which he or she retired.” In such cases the retiree’s retirement allowance is suspended until the date he or she vacates such elective public office, unless the amount earned for any calendar year for that elective public office does not exceed the earning limitation provided for retired persons in section two hundred twelve of the retirement and social security law.”

When Grella challenged the Retirement System’s determination, State Supreme Court Justice George B. Ceresia, Jr. ruled that Grella “did not accept elective public office within the meaning of Civil Service Law §150 when he was appointed by the Governor to the New York State Court of Claims” [see 10 Misc.3d 519].

Justice Ceresa said that Grella’s was appointed, rather than elected to his Court of Claims position and this was not converted to elective office merely by reason of his assignment to New York State Supreme Court, an elective position. The Appellate Division agreed and dismissed Grella’s appeal.

On another point, Judge Grella had argued that the Retirement System should be “equitably estopped” from suspending his retirement benefits because, he claimed, he relied on” erroneous advice from an Office of Court Administration [OCA] representative regarding his entitlement to receive benefits” if he accepted postretirement employment with OCA.

Although acting on this advise may have proven detrimental to Grella, the Appellate Division said the doctrine estoppel “generally cannot be invoked against the state or its agencies” because erroneous advice provided by a government employee as “this does not constitute the type of unusual circumstance” triggering the application of the doctrine. 

* The retiree’s retirement allowance is typically not affected in the event he or she accepts employment with a private sector employer, with the federal government or with another State or undertakes self-employment.

Acceptance of gifts by public officials

Acceptance of gifts by public officials

Decision of the Commissioner of Education, Decision No. 15,486

Members of the Board of Education of the Massapequa Union Free School District attended a social event sponsored by the board’s attorneys. Paul Dashefsky, claiming that as the fair market value of the reception was between $200 and $300 per person, complained that such attendance constituted a violation of district policy and General Municipal Law §805-a.

He asked the Commissioner to rule that the board members’ attendance constituted a violation of law and district policy. He also asked the Commissioner to direct the board members “to cease and desist from accepting any prohibited gifts.” Finally, Dashefsky wanted the Commissioner to direct the board members “to publicly disclose all gifts accepted during their term of service;” and to reimburse the district for the fair market value of any gifts accepted in violation of law or district policy.

Although the Commissioner dismissed Dashefsky’s appeal as untimely, he said that “Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.”

Dashefsky had the burden of demonstrating a clear legal right to the relief he sought and the burden of establishing the facts upon which he seeks relief. The Commissioner said that Dashefsky’s claim that the cost of the reception was between $200 and $300 per person was mere speculation as there was nothing in the record to confirm this allegation. Accordingly, said the Commissioner, Dashefsky failed to establish that the dollar limit set out in the statute or the policy had been violated..

The Commissioner, however, said that he felt “compelled to remind [the board members] of the gift prohibitions in the General Municipal Law and their obligations thereunder.” General Municipal Law §805-a(1) states:

No municipal officer or employee shall: a. directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part.

The Commissioner cautioned:

“A violation of §805-a(1) occurs not only where there is an intent to influence or reward an official but also in instances where there is an appearance that a gift will influence the official (Op Atty Gen No. 89-48). Under this standard, it may “reasonably be inferred” that the reception was intended to influence, or “could reasonably be expected to influence” the board’s decision to continue its business relationship with the law firm or to reward the board for past actions, including the retention of the firm’s services.

“As public officials, board members must avoid even the appearance of impropriety. (Op Atty Gen No. 89-48). I thus encourage the individual board members to be scrupulous in their adherence to the gift prohibitions contained in General Municipal Law §805-a(1) and board policy.”

Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years

Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years
Matter of Murphy v Commissioner of Labor, 2011 NY Slip Op 05396, Appellate Division, Third Department

A professional employed by an educational institution is ineligible for unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment.*

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 1, 2010, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.

Patricia J. Murphy was employed as a per diem substitute teacher in Manhattan and the Bronx by the New York City Department of Education during the 2008-2009 school year for a total of 154 days. On June 12, 2009, claimant was sent a letter by the employer assuring her of continued employment during the upcoming 2009-2010 school year, with the amount of work available and the economic terms and conditions of employment to be substantially the same as in the previous year.

Murphy applied for unemployment insurance benefits for the summer of 2009 buts the Unemployment Insurance Appeal Board ultimately determined that she was ineligible to receive them as she had received a reasonable assurance of continued employment. Murphy appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, holding that the testimony by the school district, together with the letter sent to Murphy indicating a belief she would be offered the same amount of work during the succeeding academic year, provide substantial evidence to support the Board's determination.

* Labor Law §590 [10]

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05396.htm

Applicant for employment as a corrections officer rejected because of misdemeanor convictions

Applicant for employment as a corrections officer rejected because of misdemeanor convictions

Matter of Little v County of Westchester, 36 AD3d 616

Kith Little was disqualified for employment as a Westchester County corrections officer because he had been earlier convicted of misdemeanors.

He sued Rocco Pozzi, the Westchester County Commissioner of Correction, seeking a court order directing his appointment as a corrections officer. The court sustained the Commissioner’s determination that Little’s previous misdemeanor convictions rendered him unfit for the position of correction officer.

The Appellate Division said that the appointing authority has wide discretion in determining the fitness of candidates, “which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

Finding that Pozzi’s decision was neither irrational nor arbitrary, the court dismissed Little’s appeal.

Section 50.4 of the Civil Service Law permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." 

Except in cases of fraud, there is a three-year statute of limitation on disqualifying an employee pursuant to Section 50.4.

Misinformation may be given by a candidate when completing an application for employment. The Angelopoulos case, [Angelopoulos v New York City Civil Service Commission, Appellate Division, First Department], however, did not involve misinformation but rather the omission of certain information from the application form. According to the decision by the Appellate Division, First Department, Angelopoulos was disqualified from his position of police officer on the grounds that he "fraudulently omitted his military service on his application for employment...."

Although Angelopoulos stated that he had no prior military service and that he had never used an alias, it was determined that he had enlisted in the United States Army under the name of Angelo.

This misrepresentation was discovered during a post-employment investigation that revealed that a felony warrant had been issued against Angelopoulos for desertion from the Army and that he was given a "General Discharge in absentia" from the Army. On the basis of this falsification, Angelopoulos was disqualified from the police force for fraud. His dismissal upheld by the New York City Civil Service Commission.

Under Section 50.4 of the Civil Service Law, an individual may be disqualified only for "fraud of a substantial nature" in his application. Angelopoulos argued that he did not commit any fraud as he had agreed to a general discharge in connection with the settlement of a disciplinary matter while in the Army and that "he understood that his period of service was a ‘nullity’, which he need never reveal."

The Appellate Division said that Angelopoulos neither disclosed the fact of his service nor his use of an alias in connection with his military service. This, it ruled, "could not be said that these misrepresentations were immaterial."

The Court also noted that Angelopoulos falsely indicated that he was employed in a civilian job while he was actually in the military, which it said "goes beyond mere concealment." It then sustained his disqualification by the Commission.

Another case, Carchietta v Department of Personnel, 568 NY2d 386, involved the disqualification of a candidate for appointment to police officer positions based on information revealed in the course of a pre-employment checking the applicant's background.

Carchietta was disqualified by the New York City Department of Personnel for appointment as a police officer. The Department had disqualified him on the grounds of "character" following a background investigation. According to the report, Carchietta, as a youth, had been arrested in connection with his alleged participation in the transfer of a forged prescription for illicit drugs. Apparently, the Department decided that his explanation of his involvement in the incident was "questionable."

Claiming that the Department's decision to disqualify him was arbitrary and capricious, Carchietta sued. Rejecting his appeal, the Appellate Division said that Carchietta had failed to present evidentiary facts from which an inference of bad faith, illegality or arbitrary or capricious conduct can be drawn. The court said that record supported the Civil Service Commission's "exercise of its broad discretion" in disqualifying Carchietta for the position of police officer on the basis of his "character."

Section 106 of the Civil Service Law makes it a misdemeanor for any individual to impersonate a candidate in a civil service examination as well as a candidate allowing another individual to impersonate him or her in the examination.

Although litigation involving disqualification of a candidate pursuant to §50.4 of the Civil Service Law is relatively common, cases dealing with alleged violations of §106 are rare. One of the few cases reported concerning violations of §106 is People v Knox, l78 AD 344, a case decided in 1903, in which the Appellate Division ruled that a civil service commission may disqualify an applicant where it finds that fraud or deception has been practiced.

Daubman v Nassau County Civil Service Commission, 601 NY2d 14, notes that §50.4(b) of the Civil Service Law allows a civil service commission to disqualify an individual for appointment if the applicant or appointee "is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of the position...." 

The Daubman decision suggests that a civil service commission should consider the standards imposed by the State's Human Rights Law in determining whether an individual should be disqualified because of a "disability."