Civil deputy sheriff should not have to wait to be harmed before being given weapon and firearms training

Civil deputy sheriff should not have to wait to be harmed before being given weapon and firearms training

Mtr. of Monroe County Deputy Sheriffs Assoc.; Arbitration Award, PERB Case A200-439

Monroe County and the Monroe County Deputy Sheriffs Association submitted the following issue to PERB Arbitrator James A. Gross: Whether the Monroe County Sheriff's Office created an unusual work condition by failing to provide firearms and proper training in connection with firearms for the Civil Bureau.

Holding that the Sheriff's Office did, in fact, create an unusual work condition by failing to provide civil deputy sheriffs with firearms and training, Arbitrator Gross directed that Monroe County “provide firearms to civil deputies when they perform their duties.”

The parties apparently conceded that the grievance, as presented to the arbitrator, was subject to the contract grievance procedure pursuant to Article 36.2.1. of the collective bargaining agreement. Article 36.2.1 set out the definition of a grievance and provides as follows:

A grievance shall be defined as any claimed violation of a specific provision of this agreement, or any matter that relates to employee health and safety.

The County argued that “the issuance of weapons does not comply with the duties and functions of non-criminal civil deputies position [sic]” and that its civil deputies are not performing police functions. The County also maintained that there was no evidence that any civil deputy had been injured performing his or her duties “for at least 30 years” as a result of his or her performing civil deputy sheriff duties.

The Association contended that the civil deputies should carry a weapon because they are perceived to be law enforcement personnel and displayed badges. According to the Association:

1. A badge is recognized as a police presence; and

2. Any person identified as a law enforcement officer is automatically in a high-risk situation either by becoming a target for hostility or by being drawn into hostile and dangerous situations involving others.

Arbitrator Gross ruled that the County violated Article 36.2.1 by failing to provide firearms to its civil deputy sheriffs. 

After considering the testimony of witnesses, the arbitrator's concluded that:It would be irresponsible to deny these Civil Deputies the equipment they need to meet the greatest threats to their safety simply because no Civil Deputy in Monroe County has been killed or seriously injured in the performance of their duties - as has happened elsewhere in New York State. No person should have to wait to be harmed before being given adequate protection.

Using an employee personnel files to determine an appropriate disciplinary penalty

Using an employee personnel files to determine an appropriate disciplinary penalty

Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470

Perhaps the leading case concerning the use of an employee's personnel records in disciplinary procedures is the Court of Appeals’ decision in Bigelow v Trustees of the Village of Gouverneur

In Bigelow, the Court of Appeals held that if a civil service employee is found guilty of misconduct, a public employer may consider material included in the employee's personnel files in determining the appropriate sanction.

The employee, however, must first be advised of the information in his or her personnel record that the appointing authority will consider in determining the penalty and then must be given an opportunity to submit a written response concerning that information.

Individual serving in major nontenured policy-making or advisory position ineligible for unemployment insurance benefits upon separation

Individual serving in major nontenured policy-making or advisory position ineligible for unemployment insurance benefits upon separation

Fromer v Commissioner of Labor, 286 AD2d 816

The critical issue in this aspect of the litigation brought by Howard A. Fromer in his effort to obtain unemployment insurance benefits was his employment status with the now abolished State Energy Office: was he an independent officer of the agency?

The Appellate Division, Third Department, sustained a ruling by the Unemployment Insurance Appeals board holding that Fromer was not eligible for unemployment insurance benefits following his termination when his position was abolished. Fromer had served as general counsel to the State Energy Office from October 1988 until it was abolished on March 31, 1995.

The reason for Fromer's disqualification for benefits: The Board determined that Fromer served in a major nontenured policymaking or advisory position. Accordingly, he was “statutorily excluded” for such benefits by Labor Law Section 565(2)(e).

Earlier the Appellate Division had remanded the case to the Board for it to consider Fromer's argument that because he was a veteran within the meaning of Section 75 of the Civil Service Law, he was entitled to benefits [268 AD2d 707]. In considering this issue, the Board concluded that Fromer was an independent officer and, therefore, he was not entitled to limited tenure under Section 75. Fromer again appealed.

The Appellate Division again sustained the Board's determination, ruling that the protection afforded by Section 75 does not extend to those who hold “the position of private secretary, cashier or deputy of any official or department.” This listing, said the court, has been judicially interpreted to include independent officers, citing O'Day v Yeager, 308 NY 580.

Quoting from O'Day, the court commented that in determining whether a particular person is an independent officer, “[n]o automatic rule, no definitive signpost, is at hand, for it may fairly be said that each case must be decided upon its own facts.”

The court rejected Fromer's argument that because there was no statutory provision creating the position of general counsel for the Energy Office, there was no support for the Board's finding that he was an independent officer. It said that “[c]reation of the office by statute is a guide and not the sine qua non of whether a civil service position is independent.”

The Appellate Division said the record demonstrated that Fromer's position with the Energy Office was not that of a subordinate employee and that all of his duties and responsibilities required a high degree of initiative and independent thought and judgment.

Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

Matter of Veeder v New York State Police Dept., 2011 NY Slip Op 05921, Appellate Division, Third Department

The widow of a Division of State Police forensic scientist, Donna Veeder, filed an application for workers' compensation death benefits, claiming that her husband became depressed and committed suicide as a result of actions she alleged were taken against him by the Division in the course of an investigation of her late husband’s performance of his duties.

The Workers' Compensation Law Board affirmed, concluding that Workers' Compensation Law §2(7)* barred the claim since the Division's actions were made in good faith and were the result of "a lawful personnel decision involving an investigation and potential disciplinary action."

Veeder appealed contending that that §2(7) was inapplicable because her husband had committed suicide and thus his injuries cannot be "solely mental."

The Appellate Division rejected this argument, explaining that “The unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent's suicide was predominantly the product of the depression and stress he experienced from the employer's inquiry” into his performance of his duties. Accordingly, if work-related stress is not compensable under Workers' Compensation Law §2(7), “it necessarily follows that any physical injury that resulted therefrom cannot be compensable either.”

Considering Veeder’s argument that the Division’s actions in this case were not undertaken in the context of a "disciplinary action" within the meaning of the statute, the Appellate Division decided that Board's finding lacks substantial evidence in the record.

The court noted that there was “unequivocally” testimony that “there was no disciplinary action underway during the inquiry” and that the purpose of the meetings was to review the procedures employed by Veeder’s late husband “in conducting the testing and to look into ways for the laboratory to improve its testing methods.”

As the Board, having found the Division's actions to constitute a "disciplinary action" under Workers' Compensation Law §2(7), it did not reach the employer's alternative argument that its actions in that regard could also be deemed an evaluation of decedent's work under the statute, and that the stress experienced by decedent was no greater than that normally encountered in the work environment.

Accordingly, the Appellate Division vacated the Board’s determination and remanded the matter to it “for resolution of these issues.”

* Workers' Compensation Law §2(7) provides, in relevant part, that "[t]he terms 'injury' and 'personal injury' shall not include an injury which is solely mental and is based on workrelated 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"

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05921.htm

Leave for religious holidays

Leave for religious holidays

Burns v The Warwick Valley CSD, USDC, SDNY, 166 F. Supp. 2d 881

Warwick Valley Central School District teachers sued the district contending that the district's policy of asking about the religious tenets of employees' religion before granting “personal leave” for religious observances was unconstitutional. The teachers asked federal district court Justice McMahon to bar the district from making such inquiries in the future.

According to the teachers, the district's “new policy” implementing a Taylor Law contract in connection with the use of personal leave for religious observances provided for the district to first inquire about “formal religious practices of an applicant's organized religion.” If the District saw no conflict between those practices and working hours, it then made an inquiry testing the sincerity of the teacher's beliefs.*

The court ruled that the teachers did not show that the district's policy is likely to cause them recurring injury, noting that the parties stipulated that the district has given teachers all the leave they have requested since the new policy was implemented. This, said the Federal District Court, meant that the teachers did not have standing to sue, and granted the district's motion for summary judgment.

* In Port Washington USFD v Port Washington TA, 268 A.D.2d 523, motion for leave to appeal denied, 95 N.Y.2d 761, the Appellate Division ruled that a Taylor Law contract provision allowing an individual to be absent on a religious holiday with pay without charging his or her absence to leave credits violates the First Amendment. 

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law

Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602

This case arose when Vincenza Mennella attempted to obtain court approval to file a late notice of claim in order to sue the Uniondale Union Free School District to recover damages for alleged racial discrimination and “fraudulent inducement.”

Mennella was still in her first year of a three-year probationary period when the school board voted to terminate her employment as the Dean of Students at the Uniondale High School.

As a condition precedent to commencement of a legal action against a school district, Section 3813(1) of the Education Law requires that a written verified claim be presented to the governing body of the school district within three months of accrual of the claim. Such a notice of claim must provide the school district with information as to the nature of the claim, the time when, the place where, and the manner in which, the claim arose as well as the essential fact concerning the claim.

In the Mennella case, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

According to the ruling, six days after the school district terminated Mennella's probationary employment, she filed a petition with the Commissioner of Education seeking review of that determination.

Mennella's petition to the Commissioner of Education included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were “baseless”.

The Appellate Division said that the petition to the Commissioner of Education constituted the functional equivalent of a notice of claim with respect to the Mennella's allegations of racial discrimination.

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Abolishing a full-time position in favor of two part-time positions and the Doctrine of Legislative Equivalency

Matter of Lamb v Town of Esopus, 35 AD3d 1004, 827 N.Y.S.2d 307

The Lamb case raised two issues addressed by the Appellate Division. The first is relatively common, dealing with the abolishment of a position. The second is relatively rare: a claim that the doctrine of legislative equivalency was not applied in this case.

The Town of Esopus abolished the full-time building department aide position held by Debra L. Lamb and established two part-time positions instead. Lamb sued, seeking a court order directing Esopus to reinstate her to her former position with back pay and benefits. Supreme Court dismissed Lamb’s petition and the Appellate Division affirmed the lower court’s action.

Esopus claimed that it restructured its building department to keep down costs and increase efficiency. This, it contended, required elimination of Lamb’s full-time position. The Town also argued that Lamb did not have any tenure status in her position, which was a position in the non-competitive class.

The Appellate Division said that once the Town came forward with prima facie evidence that Lamb was not entitled to Civil Service Law protection, the burden shifted to her to raise a triable issue of fact regarding her entitlement to such protection. This, said the court, she failed to do.

While Lamb had been employed the Town for a number of years and passed a civil service examination qualifying her for numerous clerical positions, she failed to present proof that she was employed in a noncompetitive class position for five continuous years, a threshold requirement for tenure in the position (see Civil Service Law §75 [c]).*

Further, said the court, even had Lamb enjoyed the benefits accorded non-competitive class employees by §75.1(c) the Town could eliminate her position for purposes of economy or efficiency. It was Lamb’s burden to demonstrate that the elimination of her position was motivated by bad faith or was a subterfuge. Her efforts to meet this burden by contending that the Town failed to prove any cost savings resulted from its reorganization of the building department and elimination of her full-time position was rejected by the court.

The Town, said the court, showed that the reorganization increased efficiency by permitting it to hire a full-time building inspector by “transferring the benefits previously provided to [Lamb's] position.” The Town also said that the hiring several part-time workers also allowed the department to be open an additional 16 hours per week and not close during the lunch hour, thus increasing public access to the office.

The Appellate Division said that Lamb failed to meet her burden of overcoming the Town’s bona fide reasons for eliminating her position.

Lamb also argued that the elimination of her position violated the doctrine of legislative equivalency. Under that doctrine, said the court, "a position created by a legislative act can only be abolished by a correlative legislative act,” citing Matter of Torre v County of Nassau, 86 NY2d 421 and other cases.

According to the decision, it appears that Lamb’s position was created in January 2001 by a resolution providing for the “appointment of officers and employees,” and the same full-time position was eliminated when the Town enacted a resolution providing for the “appointment of officers and employees” in January 2005. As the position was created and abolished by the same means, the court said that the Town had acted in accord with the principle of legislative equivalency.

* Civil Service Law Section 75.1(c) provides that “an employee holding a position in the non-competitive class other than a position designated in the rules of the state or municipal civil service commission as confidential** or requiring the performance of functions influencing policy, who since his last entry into service has completed at least five years of continuous service in the non-competitive class in a position or positions not so designated in the rules as confidential or requiring the performance of functions influencing policy….”

** N.B. “confidential” within the meaning of Section 75.1(c) is not the equivalent of  “confidential” as that term is used in Article 14 of the Civil Service Law; the Taylor Law.