Concerning the Doctrine of Primary Jurisdiction

Concerning the Doctrine of Primary Jurisdiction

Donato v Plainview-Old Bethpage CSD, 286 AD2d 388

The Doctrine of Primary Jurisdiction was the underpinning of a decision by a State Supreme Court justice in the Donato case -- a case involving an educator's claim that she was eligible for reinstatement from a preferred list.

As the Appellate Division noted, the Doctrine of Primary Jurisdiction “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”*

In other words, although the court has original jurisdiction, questions involving the exercise of an administrative body's special competence or expertise is to be referred to that body for an initial determination.

The doctrine of primary jurisdiction, the court explained, is intended to coordinate the relationship between courts and administrative agencies so that, among other things, the agency's views on factual and technical issues can be made available to the courts where the matter before the court concerns issues that are within the agency's specialized field.

According to the ruling, in 1991 Linda Donato's position at the District's Mattlin Middle School -- Social Studies Chairperson, Grades 5-8 -- was abolished for budgetary reasons. The district placed Donato's name on a preferred eligible list “for reappointment to a similar position” in accordance with Section 3013(3)(a) of the Education Law.

In 1997 the District created a new position -- District-wide Social Studies Chairperson, Grades K-12. Donato asked to be appointed to this new position from the Social Studies Chairperson, Grades 5-8, preferred list. The District, contending that the preferred list was not appropriate because the duties of the position, which it had abolished, were not similar to those of the new position, refused to use the preferred list to appoint Donato to the vacancy.

Donato, claiming that the two positions were, indeed, similar for the purposes of the certification of the preferred list, initiated an Article 78 action to compel the District to use the preferred list. If the preferred list were appropriate for filling the new position, the District would have to either appoint Donato to the new position or elect to keep it vacant.**

The Supreme Court dismissed the Donato's petition after concluding that the doctrine of primary jurisdiction was applicable. The court said that in this instance the Commissioner of Education should resolve the issue of whether or not the positions are similar for the purposes of certifying the preferred list.

The Appellate Division affirmed the lower court's ruling that the doctrine of primary jurisdiction applied in this case. Citing Hessney v Public Schools of Tarrytowns, 228 AD2d 954, the court pointed out that “the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether [Donato's] former position and the new position are similar within the meaning of Education Law Section 3013(3)(a).”

Another procedural wrinkle to consider: A statute sometimes allows an individual to file his or her complaint or appeal either (a) with a court or (b) with an administrative body. Examples of such “election” of jurisdiction opportunities:

1. Section 76 of the Civil Service Law provides that an individual may file his or her appeal from a Section 75 disciplinary determination by an appointing authority initially with the civil service commission having jurisdiction within thirty days of the decision or with the court pursuant to Article 78 of the Civil Practice Law and Rules.

2. Section 297.9 of the Executive Law, New York's Human Rights Law, allows a human rights complaint to be initially filed with a court or with the State Division of Human Rights.

* Another doctrine frequently cited in cases challenging an administrative decision is the doctrine of the exhaustion of administrative remedies. In contrast to the doctrine of primary jurisdiction, the “exhaustion doctrine” involves satisfying a condition precedent to initiating litigation where there is an administrative appeal procedure in place. Typically courts will decline to assume jurisdiction if the complaining party has failed to exhaust his or her available administrative remedy.

** As a general rule, reinstatement from a preferred list does not require that the individual serve a probationary period in contrast to all other types of permanent appointment, which typically require that the individual satisfactorily complete a probationary period in order to attain tenure in the title.

Constitutionally protected speech of public officers and employees

Constitutionally protected speech of public officers and employees

McKinley v Kaplan, CA11, 262 F. 3d 1146

The general rule is that a public employee cannot be disciplined simply for exercising his or her constitutional right to free speech concerning matters of public interest. Where the employee speaks out on matters of public concern, the government bears the burden of justifying any adverse employment action it might take against the individual.

A public employee's speech concerning a private or personal interest, however, is a different matter. The public employer is not required to justify disciplinary action taken in response to an employee's speech regarding personal matters, such as a change in the employee's duties or work location.

Further, in Pickering v Board of Education, 391 US 563, the U.S. Supreme Court held that a public employee's right to freedom of speech is not absolute because “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”

The McKinley case raises another element to consider concerning the right of a public employer to regulate the speech of its employee -- the employer's expectations with respect to a policy-maker's speech concerning matters of public interest related to the individual's work.

Margaret McKinley, a volunteer and unpaid member of the Miami-Dade County Film, Print, and Broadcast Advisory Board,* was removed from her position because, said the County, she had expressed and supported a position that was “inappropriate and insulting to the community” represented by the sponsor of her appointment as well as being inconsistent with County policy.

According to the decision, the County had adopted a policy “prohibiting contracts between the County and any firms doing business either directly or indirectly with Cuba.” After determining that an organization planning an Entertainment Conference “was doing business with Cuba by inviting Cuban artists to perform,” the County voted against providing any public monies to support the event.

McKinley disagreed with this decision and made a statement at a public meeting held by the Miami Beach Fashion, Film, Television and Recording Committee to the effect that losing the Conference would hurt Miami's entertainment industry and that the County's action improperly reflected only the views of the Cuban-American community. She was quoted in the Miami Herald as follows: "While we respect and appreciate the concerns of Cuban-Americans in the exile community, allowing a few people's political standpoint to dictate the potential economic growth of the area is not for the benefit of the community as a whole."

McKinley sued the County after she was dismissed from her position, contending that the county violated her First and Fourteenth Amendment rights because she was fired as a result of the public statement she made concerning a County policy with which she disagreed.

A federal district court judge dismissed McKinley's complaint, holding that the First Amendment did not provide her with any right to continued government employment. The court's rationale: McKinley's role on the Film Board involved public contact and providing input into County policy decisions and she failed to properly represent the views and policies of the County to the public. The Circuit Court affirmed the ruling, pointing out that the Pickering decision sets out a four prong test for determining if an employee's protected speech rights have been violated by a public employer's action:

1. Did the speech involve a matter of public concern?

2. If so, does the government's interest in promoting the efficiency of the public services it performs through its employees out weight the employee's interest in protected speech?

3. If so, did the employee's speech play a substantial part in the government's decision to discharge the employee? and, finally,

4. If the speech was a substantial motivating factor in the employer's decision, has the government shown by a preponderance of the evidence that it would have discharged the employee regardless of the protected conduct?

The parties agreed that the only issue to be addressed in this instance was “the balancing prong of the Pickering test” -- weighing the respective interests of the County and McKinley. According to the court:

1. On McKinley's side of the scale is her interest in voicing her opinion on a controversial county resolution.

2. On the County side is its need to maintain loyalty, discipline, and good working relationships with those employees and board members they appoint and supervise.

The Circuit Court's conclusion: the balance tipped in favor of the County based on the proposition that “governments have a strong interest in staffing their offices with employees that they fully trust, particularly when the employees occupy advisory or policy-making roles.” Finding that McKinley was a “policy-maker,” based on the fact that her duties required her to serve in an advisory capacity with input on policy issues, the court concluded that this factor “gives the County a greater interest in removing her based on her speech.”

The Circuit Court then said that “[p]erhaps more important to our decision than [McKinley's] policy influence or public contact, however, is the fact that [McKinley] served as an appointed representative of the County ... and she failed to support [its] interests.” According to the ruling:

It was not [McKinley's] right to free speech that was affected by the County Commission's decision to remove her. Rather, it was her right to maintain an appointed position ... in light of her choice to publicly dissent from [the County's] clearly stated views and policies.

Whistle blowing involves another element that must be considered when determining if the employer's interest in limiting its employees' speech outweighs an employee's interest in free speech. For example, Section 75-b of the Civil Service Law, provides that a public employer “shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information regarding a violation of law ... which violation creates and presents a substantial and specific danger to the public health or safety....” It also includes a provision, Section 75-b.4, that states that nothing in the Section “shall be deemed to ... prohibit any personnel action which otherwise would have been taken regardless of any disclosure of information.” [See, also, Labor Law 740].

Sometimes it may be difficult to distinguish the line between “free speech” and “whistle blowing.” For example, did the McDonald case [McDonald v City of Freeport [TX], 834 FSupp 921] concern the issue of “free speech,” or “whistle blowing” or, perhaps, both.

In McDonald the court considered allegations made by police officers that the City fired one police officer and forced another to retire after they spoke to the media about alleged police misconduct. Some might classify this type of activity “whistle blowing.” The federal district court, however, made its ruling based on “free speech” concerns, holding that such action violated the police officers' First Amendment rights.

In this instance, said the court, the employee's interest in revealing such matters of public concern outweighed the police department's interest in maintaining “an efficient police department.” According to the decision, only a concern for “national security” or similar situations would serve to limit an employee from revealing improper governmental practices to the public.

* The pay status of the individual has no bearing with respect to an individual's alleged terminated for an improper or unconstitutional reason. As the court indicated in Hyland v Wonder, 972 F.2d 1129, serving as a volunteer constitutes a government benefit or privilege and that “[r]etaliatory actions with less momentous consequences [than loss of employment], such as loss of a volunteer position, are equally egregious in the eyes of the Constitution because a person is being punished for engaging in protected speech.”

School's attorney not a school official

School's attorney not a school official

Decisions of the Commissioner of Education #14,595

One of the issues considered by the Commission of Education in Philips v Liverpool Central School District was Philips' objection to a statement made by the District's attorney during a regular meeting of the District's Board of Education.

The Commissioner, citing Matter of McGinley, [Decision 11,244], said that the statement made by the attorney at the Board's meeting to which Philips objected “is not actionable in the context of a Section 310 appeal to the Commissioner” because the attorney is neither a district officer nor district employee.

Further, the Commissioner said that General Municipal Law Section 805-a, which prohibits a board member from discussing confidential information acquired during the course of his or her official duties, does not apply with respect to statements made by the school district's attorney.

Suspended employee’s reinstatement conditioned on a written assessment from a licensed therapist

Suspended employee’s reinstatement conditioned on a written assessment from a licensed therapist

Matter of Board of Educ. of the City School Dist. Of the City of N.Y. v Campbell, 2011 NY Slip Op 32018(U), Sup Ct, NY County, Judge Joan A. Madden [Not selected for publications in the Official Reports.]

A tenured teacher employed by the Board of Education of the City was reassigned because of his alleged violation of the Board of Education’s Internet use policy barring accessing pornographic material on a school computer. Ultimate the teacher was served with disciplinary charges pursuant to Education Law 3020-a alleging conduct unbecoming a teacher, neglect of duty, and insubordination based on the teacher’s alleged use of a school computer to access and view pornographic and, or, inappropriate materials.

The hearing officer found that the DOE had failed to demonstrate that the teacher was guilty of the specifications charging him with viewing and downloading pornographic photographs, but held that he was guilty of specifications charging him with downloading and viewing two “inappropriate” photographs. 

In consideration of the teachers 15-year tenure without any prior discipline action having be taken against him, the penalty imposed by the hearing officer was "suspension without pay for the remainder of the school year, or 90 days, whichever is longer.” 

In addition, the hearing officer condition the teacher's return to work upon the teacher's “submitting a written assessment from a licensed therapist to the Department’s Office of Legal Services indicating that therapist “has read this Opinion and Award, has evaluated the Respondent, and that he or she concludes that the [teacher] is not addicted to Internet pornography and that his viewing of Internet pornography, as described herein, will not adversely affect his ability to teach and will not place students at risk.”

The teacher subsequently underwent a psychological examination conducted by a licensed therapist. The therapist’s report was provided to the DOE but Legal Services advised a representative of the Teachers’ Union that the therapist's assessment “does not sufficiently comply with the arbitrator’s directive.”

The teacher then filed a motion seeking a court order directing DOE to return him to his position and submitted the therapist's report to the court for its in-camera inspection.*

Upon review of the therapist's assessment, Judge Madden ruled that “it does not satisfy” the hearing officer’s directive, which required that, following an evaluation of the teacher, the therapist conclude “that [teacher] is not addicted to Internet pornography and that his viewing of Internet pornography will not adversely affect his ability to teach and will not place students at risk.”

The court pointed out that its ruling was supported by the therapist's acknowledgment in his report that he could not determine whether if the teacher was addicted to pornography, characterizing such determination as “nearly impossible,” and that he was only able to state that there “is no evidence that Campbell has an Internet addiction.”

Accordingly, said Judge Madden, a condition required by the Award relevant to the teacher’s reinstatement had not been met and denied the motion without prejudice to the teacher “seeking a further psychological assessment consistent with the Award.”

* In the context of this decision it appears that the term is used to mean "the judge takes a private look at the therapist's report." The term is more typically used to describe the process whereby a judge or hearing officer reviews evidence or documents  in private to determine whether sthe evidence or document is admissible.

Discontinuing a disability retirement allowance

Discontinuing a disability retirement allowance

Inquiry from a reader

From time to time a reader will submit a question to the editor of NYPPL. One query recently submitted concerned the authority of the New York State Employees’ Retirement System to discontinue an individual’s disability retirement allowance once such an allowance has been approved for the individual by the System.

The controlling laws, rules and regulations for both the New York Employees’ Retirement System and the New York State Policemen's and Firemen's Retirement System provide for the discontinuation of an individual’s disability retirement allowance under certain circumstances.

With respect to the New York Employees’ Retirement System, subdivision a of §102 of the Retirement and Social Security Law provides, in relevant part, as follows:

Subdivision a. Once each year following the retirement of a member on a disability allowance, the comptroller may, and, upon the beneficiary's application, shall require such disability beneficiary to undergo a medical examination.

If the individual refuses to submit to a medical examination required by the Comptroller, the pension portion of the individual’s retirement allowance, including the “pension-providing-for-increased-take-home-pay,” is to be discontinued. Should the individual continuously refuse to submit to such a medical examination for twelve months, the individual forfeits his or her  pension benefit.

It should be noted that case law suggests that once a pension benefit is forfeited it cannot be reinstated even if the individual subsequently satisfies the condition or requirement that resulted in such forfeiture.

Further, subdivision b of §102 provides, in relevant part, that “The pension, including the pension-providing-for-increased-take- home-pay, of a disability beneficiary shall be reduced in the event that any such disability beneficiary is engaged in a gainful occupation paying more than the difference between his [or her] retirement allowance, as it would be without optional modification and if not reduced by the actuarial equivalent of any outstanding loan and if not increased by the actuarial equivalent of any additional contributions, and his [or her] final salary.” The adjustment is made so that the individual’s annuity and the amount so earnable by the individual is equal the individual’s final salary. If the individual’s earning capacity thereafter changes, the amount of the pension payable may be further adjusted.

In addition, subdivision c of §102, in pertinent part, provides that “In the event that the comptroller shall determine that a disability beneficiary is able to engage in a gainful occupation,” if the individual “so requires” the Comptroller is to certify the name of the individual to the State Civil Service Department or appropriate municipal civil service commission.

The State Civil Service Department or such municipal commission is to then place the individual’s name, “as a preferred eligible,” on the appropriate eligible lists prepared by it for positions for which such individual is qualified and at a salary grade not exceeding that from which he or she was last retired. Adjustments to the individual’s pension benefit will be made so that his or her total compensation shall not exceed his or her final salary. Further, the individual is not eligible for membership in the retirement system as long as he or she receives any pension, including the pension providing for increased take home pay.

Finally, in the event that a “disability beneficiary” is restored to active service of an employer at a salary equal to or in excess of his or her final salary, his or her retirement allowance is discontinued in its entirety [see RSSL §102.d].

With respect to members of the New York State Policemen's and Firemen's Retirement System receiving disability retirement benefits, §402 of the Retirement and Social Security Law tracks the provisions of §102 of the Retirement and Social Security Law including a provision providing that “… a retiree of any New York state police or fire retirement system on a disability allowance who returns to gainful employment as an elected public official shall continue to receive the full amount of his or her retirement allowance, including the pension-providing-for-increased-take-home-pay” [See RSSL §402.f-1].

The requirements of these several provisions of law are reflected in Parts 336 and 337 of the Rules of the State Comptroller [2 NYCRR 336 and 2 NYCRR 337] and these Parts are set out below:

PART 336. DISABILITY RETIREMENT FOR MEMBERS OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM UNDER ARTICLE 14 OF THE RETIREMENT AND SOCIAL SECURITY LAW

[Current through February 28, 2011]

Section 336.5. Recovery of disability beneficiaries.

(a) The Comptroller may, once each year following the retirement of a member on a disability allowance, and upon the beneficiary's application shall, require such disability beneficiary to undergo a medical examination. No such examination may be required until one year following the final determination granting disability retirement. Such examination shall be made at a place mutually agreed upon by the Comptroller and such beneficiary. In the event that any such disability beneficiary shall refuse to submit to a medical examination, the retirement allowance shall be discontinued until the member submits to a medical examination. If such refusal shall continue for one year, all pension rights shall be forfeited.

(b) Following such examination, or examinations, the Comptroller shall render a determination based upon the report of the medical board. Where the Comptroller determines that a beneficiary who has retired from a competitive class position is no longer incapacitated for the performance of gainful employment, the Comptroller shall certify to the applicable civil service department or commission, that the beneficiary is a preferred eligible to be placed upon the appropriate eligible list or lists, if any. Disability payments shall continue until such time as the beneficiary is first offered a position in public service at a salary grade equal to or exceeding that of the position from which the beneficiary had retired.

(c) In the event that a beneficiary had not retired from a competitive class position, or in the event that there exists no eligible list which encompasses the competitive class position from which he or she had retired, disability payments shall cease one calendar year from the date of the Comptroller's redetermination, and the beneficiary shall, if he or she had been vested at the time of retirement, be restored to membership in the New York State Employee's Retirement System.

2 NYCRR 336.6 provides as follows:

(a) The retirement allowance of a disability beneficiary shall be reduced in the event that any such disability beneficiary is employed in an occupation paying more than the difference between his retirement allowance, as it would be without optional modification, and the final salary. The retirement allowance shall be adjusted to a sum which, when added to the amount so earnable, shall equal the final salary. If the earnings subsequently change, the retirement allowance shall be adjusted so that the sum of retirement allowance when added to the amounts earned shall not exceed his final salary. The reduction shall be from the amount that the allowance would have been without optional modification. The retirement allowance of a disability beneficiary shall not be reduced after he or she has attained the applicable mandatory retirement age, or shall have attained the age and the date such beneficiary would have been eligible for service retirement under applicable law had he or she remained in continuous service from the date of retirement. For the purposes of this section, applicable law shall mean the plan and/or provision under which the member was enrolled on the date the disability retirement became effective.

(b) In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his final salary, his retirement allowance shall cease. Thereafter, such person shall contribute to the retirement system in the same manner and at the same rate that he paid prior to his disability retirement. The total service which was credited at the time of  such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned by him subsequent to his last restoration to membership will be credited.

(c) In the event that a disability beneficiary is restored to active public service at a salary less than his final salary but equal to or in excess of the current minimum salary for the position from which he was last retired for disability, such person, if he or she so elects, shall again become a member of the retirement system and the retirement allowance shall cease. If such an election is filed with the Comptroller, such individual shall contribute to the retirement system in the same manner and at the same rate as was paid prior to disability retirement. The total service which  was credited at the time of such retirement shall be credited to the restored individual. Upon his subsequent retirement, additional service earned subsequent to the last restoration to membership will be credited.

PART 337. DISABILITY RETIREMENT FOR MEMBERS OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM UNDER ARTICLE 15 OF THE RETIREMENT AND SOCIAL SECURITY LAW

[Current through February 28, 2011]

Section 337.5. Recovery of disability beneficiaries.

(a) The Comptroller may, once each year following the retirement of a member on a disability allowance, and upon the beneficiary's application shall require such disability beneficiary to undergo a medical examination. No examination upon a beneficiary's application may be required until one year following the final determination granting disability retirement. Such examination shall be made at a place mutually agreed upon by the Comptroller and such beneficiary. In the event that any such disability beneficiary shall refuse to submit to a medical examination, the retirement allowance shall be discontinued until the member submits to a medical examination. If such refusal shall continue for one year, all pension rights shall be forfeited. The following indicia of a disability beneficiary's ability to return to the duties of the position from which such individual retired on account of disability, and any other reasonable indicia, shall be considered in determining whether it is appropriate to require the medical examination of a disability beneficiary (who has not requested such medical examination) for the purposes of this Part:

(1) medical evidence or records submitted to the Retirement System that indicates that the disability beneficiary may be able to perform the duties of the former position;

(2) videotape, photographs or other documentation or evidence submitted to the Retirement System which indicates that the disability beneficiary may be able to perform the duties of the former position;

(3) a determination by the Social Security Agency, Workers' Compensation Board or similar entity which indicates that the disability beneficiary may be able to perform the duties of the former position;

(4) documentation with respect to the disability beneficiary's earnings in a position or positions which may reasonably be construed as indicating that the disability beneficiary may be able to perform the duties of the former position.

(b) Following such examination, or examinations, the Comptroller shall render a determination based upon the report of the medical board. Where the Comptroller determines that a beneficiary who had retired from a competitive class position is no longer incapacitated for the performance of gainful employment, the Comptroller shall certify to the applicable civil service department or commission, that the beneficiary is a preferred eligible to be placed upon the appropriate eligible list or lists, if any exist. Disability payments shall continue until such time as the beneficiary is first offered a position in public service at a salary grade equal to or exceeding that of the position from which the beneficiary had retired.

(c) In the event that a beneficiary had not retired from a competitive class position, or in the event that there exists no eligible list which encompasses the competitive class position from which he or she had retired, disability payments shall cease one calendar year from the date of the Comptroller's redetermination, and the beneficiary shall, if he or she had been vested at the time of retirement, be restored to membership in the New York State Employees' Retirement System.

Section 337.6 provides as follows:

(a) The retirement allowance of a disability beneficiary shall be reduced in the event that any such disability beneficiary is employed in an occupation paying more than the difference between his retirement allowance, as it would be without optional modification, and the final salary. The retirement allowance shall be adjusted to a sum which, when added to the amount so earnable, shall equal the final salary. If the earnings subsequently change, the retirement allowance shall be adjusted so that the sum of retirement allowance when added to the amounts earned shall not exceed his final salary. The reduction shall be from the amount that the allowance would have been without optional modification. The retirement allowance of a disability beneficiary shall not be reduced after he or she has attained the applicable mandatory retirement age, or shall have attained the age and the date such beneficiary would have been eligible for service retirement under applicable law had he or she remained in continuous service from the date of retirement. For the purposes of this section, applicable law shall mean the plan and/or provision under which the member was enrolled on the date the disability retirement became effective.

(b) In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his final salary, his retirement allowance shall cease. Thereafter, such person shall contribute to the retirement system in the same manner as and at the same rate that he paid prior to his disability retirement. The total service which was credited at the time of  such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned by him subsequent to his last restoration to membership will be credited.

(c) In the event that a disability beneficiary is restored to active public service at a salary less than his final salary but equal to or in excess of the current minimum salary for the position from which he was last retired for disability, such person, if he or she so elects, shall again become a member of the retirement system and the retirement allowance shall cease. If such an election is filed with the Comptroller, such individual shall contribute to the retirement system in the same manner and at the same rate as was paid prior to disability retirement. The total service which  was credited at the time of such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned subsequent to the last restoration to membership will be credited.

The Firefighter Rule

The Firefighter Rule

Cibelli v Episcopal Diocese of New York, NYS Supreme Court, Justice Liebowitz, Not selected for publication in the Official Reports

In the Cibelli case, New York State Supreme Court Justice Liebowitz outlines the common law “firefighters rule” and the impact of recent amendments to the General Municipal Law on the application of the common law rule.

In this case a firefighter sued to recover for personal injuries suffered while fighting a fire at a Diocese church. Justice Liebowitz ruled:

1. Cibelli's action was barred by the “firefighter rule;” and

2. Cibelli failed to establish a prima facie case under General Municipal Law Section 205-a, dealing with injuries resulting from fire code and other statutory violations.

As to the “firefighters rule,” the court explained:

It is established law in this State that a firefighter injured in the line of duty is not entitled to recover for the injuries sustained on the theory of common law negligence. In other words, firefighters are barred from recovering damages for injuries resulting from the special risks inherent in the duties they are called to perform.

The rationale for this rule is that firefighters and police officers are trained and compensated to confront dangers and are therefore precluded from recovering damages for the very situations that create a need for their services. Further, “the firefighter rule precludes a police officer or firefighter from recovering in tort when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury.”

Therefore, when firefighters act in furtherance of their duties, which expose them to a heightened risk of sustaining injury, he or she may not recover damages for common law negligence.

Turning to the recent amendments to the General Municipal Law [GML], Justice Liebowitz commented that GML 205-a allows firefighters or representatives of deceased firefighters to sue where an injury “occurs directly or indirectly as a result of any neglect ... or negligence of any person or persons in failing to comply with the requirements of any statutes, ordinances, [or] rules ...” during the discharge of his or her duty.

According to the ruling, in enacting GML 205-a the Legislature intended to protect firefighters from additional dangers resulting from fire prevention code violations and other statutory violations, without the application of the assumption of risk doctrine. The problem here, said Justice Liebowitz, is that Cibelli failed to establish any facts or offer any proof that the Diocese violated any sections of the code.

Finally, Justice Liebowitz rejected Cibelli's argument that he could sue pursuant to General Obligations Law [GOL] Section 11-106. GOL 11-106, said the court, applies only when the “injury is proximately caused by the neglect, willful omission, or intention, willful or culpable conduct of any person or entity other than that ... firefighter's employer or co-employee.” Again Justice Liebowitz decided that Cibelli failed to establish that the Diocese's action or inaction was a proximate cause of his injury.

Working at home is not a reasonable accommodation for a disabled supervisor

Working at home is not a reasonable accommodation for a disabled supervisor

Kvorjak v State of Maine, CA1, 259 F.3d 48

Sometimes granting a disabled employee's request to work at home constitutes a reasonable accommodation of his or her disability. At other times such a request would not constitute a “reasonable accommodation” for the purposes of the Americans With Disabilities Act [ADA].

In the Kvorjak case the U.S. Circuit Court of Appeals, First Circuit, ruled that allowing an individual who is required to supervise other employees to work at home is not a reasonable accommodation for the purposes of the ADA.

Brian Kvorjak, a State of Maine Employment Claims Adjudicator, sued his former employer, the Maine Department of Labor, contending that its refusal to allow him to work at home as an accommodation of his disability violated the ADA.

Kvorjak is partially paralyzed as a result of spinal bifida. He was successfully employed by the State of Maine for twenty-two years, the last seven and one-half with the Department of Labor's Division of Unemployment Field Services. As the result of an economy move, Kvorjak's workstation was relocated and his ten-minute commute to work jumped to a ninety-minute trip.

Although Kvorjak was offered relocation expenses if he moved closer to his new work location, he refused to do so and he was laid off on June 18, 1997. Instead of relocating, Kvorjak had asked to be permitted to work out of his home.

In response to Kvorjak's allegation that the Department's rejection of his request to work at home violated federal and state disability laws, the State argued that it was not obliged to accommodate Kvorjak because his request to work at home stemmed not from his disability but from a personal preference against moving. It emphasized that Kvorjak could not, in any event, perform the essential functions of the claims adjudicator position from his home.

The federal district court concluded as a matter of law that Kvorjak could not perform “several important functions” of the position while working at home. The Circuit Court affirmed the lower court's ruling, pointing out that the individual has the burden of proposing an accommodation that would enable him or her to perform his or her job effectively and is, at least on the face of things, reasonable.

The ruling states that the record demonstrated that the essential functions of a claims adjudicator cannot be performed at an individual employee's home. As Kvorjak failed to introduce any evidence to rebut this, the Circuit Court said that he failed to meet his burden and, thus, granting summary judgment to the State was appropriate.

Accidental disability retirement

Accidental disability retirement

Michalczyk v NYSERS, 286 AD2d 852

Whether or not an employee has reported for work and whether or not the individual's injury resulted from an accident were the critical issues raised in considering Henry Michalczyk's application for accidental disability retirement benefits.

Michalczyk was employed as a Security Hospital Supervising Treatment Assistant at a State psychiatric center. He was injured as a result of two falls. However, his application for accidental disability retirement benefits was denied by the New York State Employees' Retirement System [ERS].

As to his first fall, Michalczyk said he fell while he was walking across an icy parking lot on his way to work. According to Michalczyk, the process of reporting to work at the psychiatric center involved passing through a metal detector, showing identification and obtaining keys. None of these steps had been taken prior to his fall.

The Appellate Division pointed out that it had “repeatedly held” that an employee who is injured before reporting for work is not eligible for accidental disability retirement benefits because he or she was not “in service” when the injuries were sustained. Since Michalczyk had not yet reported for work at the time of his fall, the court ruled that substantial evidence supported ERS's determination denying his claim for disability retirement benefits.

Michalczyk's claim based on the injury he suffered as a result of his second fall raised a different issue: what is an accident.

Michalczyk was injured as a result of a fall while at work on August 18, 1997 -- he slipped while descending a flight of stairs at his work place in the course of making his daily inspection rounds.

Michalczyk testified that he had routinely used the stairs without incident on a daily basis prior to his fall. It was further established that the stairs were clean and unobstructed at the time of Michalczyk fell.

ERS ruled that this mishap was not the product of an “accident” within the meaning of the Retirement and Social Security Law [RSSL].

In Lichtenstein v Board of Trustees of Police Pension Fund, 57 NY2d 1010, the Court of Appeals said that an accident for the purposes of entitlement to accidental disability benefits under RSSL is a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact.”

The court sustained ERS's determination, commenting that “[g]iven [Michalczyk's] routine use of the stairs in performing his daily employment duties, his fall cannot be construed as the result of an extraordinary or unexpected event; hence, it was properly found to result from his own misstep and not the type of accident that would render him eligible for benefits.”

Irresistible impulse as a defense in a disciplinary action

Irresistible impulse as a defense in a disciplinary action

Perry v Comm. of Labor, 283 AD2d 754

Readers may recall that in the 1959 movie Anatomy of a Murder actor James Stewart successfully defended an individual indicted for murder on the theory his client's actions were the product of an “irresistible impulse.”

Unemployment insurance claimant John K. Perry was not as successful with this theory in challenging a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct.

The nature of Perry's alleged misconduct: his misuse of his employer's computer equipment.

Perry, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.

Perry's defense: his behavior was nonvolitional given his “impulse control disorder”. He produced a letter from his psychologist indicating that he suffered from posttraumatic stress disorder displayed in the form of obsessive behavior such as accessing pornographic websites. However, said the court, the evidence failed to establish that Perry was unable to control this impulse while working.

The Appellate Division's conclusion:

Since Perry disregarded his employer's policy against accessing inappropriate websites at work, substantial evidence supports the Board's decision that Perry lost his employment due to disqualifying misconduct.

Challenging a Section 75 disciplinary settlement agreement

Challenging a Section 75 disciplinary settlement agreement

Johnston v Triborough Bridge and Tunnel Auth., NYS Court of Appeals, 97 NY2d 627

Edward P. Johnston, an employee of the Triborough Bridge and Tunnel Authority [TBTA], was involved in an after-hours altercation during which his service revolver discharged. As a result, disciplinary charges were filed against him pursuant to Section 75 of the Civil Service Law.

On April 12, 1989, Johnston and the TBTA settled the disciplinary action and Johnston signed a “Waiver of Section 75 Hearing and Acceptance of Recommended Penalty.” The waiver included the following provisions:

1. Johnston agreed to waive his right to a disciplinary hearing pursuant to Civil Service Law Section 75 and his right to file an appeal pursuant to Civil Service Law Section 76;

2. Johnston agreed to serve a probationary period of 12 months “exclud[ing] all time during which he was not on duty;” and,

3. During this disciplinary probationary period, the TBTA, in its sole discretion, could dismiss him for any new violation of its rules or regulations.

Johnston, while serving his disciplinary probationary, was injured while on duty. As a result he was absent from work from August 19, 1989 until October 1996. In June 1997, following allegations that he had abandoned his post without authorization, TBTA dismissed Johnston without a hearing.

Johnston appealed his termination to the New York City Civil Service Commissioner, arguing that he was no longer on probation on the effective date of his dismissal. This, he contended, meant that was entitled to a hearing pursuant to Civil Service Law Section 75 before he could be terminated.

Johnston based his claim on the theory that his probationary period should be calculated in calendar days. TBTA, on the other hand, contended that the calculation should be based his workdays --only on the days Johnston actually worked, in this instance 253 days. Thus, TBTA argued, Johnston was still serving his disciplinary probation when he was dismissed.* 

As to Johnston's right to appeal to the City's Civil Service Commission, TBTA contended that the Commission lacked jurisdiction to hear the appeal because the settlement agreement specifically provided that Johnston waived his Section 76 rights of appeal.

The Commission agreed, dismissing Johnston's appeal on the ground that it did not have jurisdiction. The Appellate Division, however, sustained a lower court's ruling that “the Commission was bound to construe the 1989 agreement to ascertain whether the waiver therein remained effective at the time of petitioner's termination” [Johnston v TBTA, 278 AD2d 34-35]. The Court of Appeals reversed this holding.

The Court of Appeals held that Section 76 “solely authorizes the Commission to hear appeals from hearings in connection with disciplinary proceedings under section 75.” As there was no such proceeding in Johnston's case, the Commission had no jurisdiction to hear his application to review his discharge, which was not effected under Section 75.

The Court also commented that Section 76(2) limits the Commission's review to the record and transcript of the disciplinary hearing. As there was no record or transcript in this instance, the Commission had no jurisdiction to determine the matter.

In contrast, the Court of Appeals noted that Johnston “could have brought an Article 78 proceeding at the time of his dismissal in June 1997 challenging the TBTA's conclusion that he was a probationary employee” [emphasis supplied], which he failed to do. Accordingly, the Court held that Johnston “cannot reassert his contentions by appealing to the Commission because its jurisdiction is explicitly limited to appeals of Section 75 determinations.

* Typically probationary periods are automatically extended for a term equal in length to the probationer's absence during his or her probationary period. In many jurisdictions the rules allow the appointing authority, at its discretion, to deem part or all of such absence[s] “time served” as a probationer. One notable exception: a probationer who is called to active military duty is deemed to have satisfactorily served in his or her probationary period while on military leave if he or she is honorably released from military service and is subsequently timely reinstated from such leave.

Constructive termination

Constructive termination

Duffy v Paper Magic Group, Inc., CA3, 265 F.3d 163

It is not enough to that the individual feel stressed or frustrated by his or her job situation to claim constructive discharge. The individual must show the existence of a pattern of “intolerable conduct” to support such a claim.

Bernadine Duffy complained that she was constructively discharged as a result of a continuing pattern of discrimination by Paper Magic. Among the examples of treatment she contended resulted in her constructive discharge were the following:

1. She was “passed over” for a promotion;

2. Her supervisor “bent over backwards” to make another, younger, employee's “life easier.”

3. She worked overtime hours, but unlike other salaried employees, did not receive overtime pay.

4. She was one of two supervisors excluded from a company meeting and from a training seminar for supervisors.

5. Supervisors made derogatory remarks about her age.

Duffy said that she complained about such conduct to her employer but nothing changed. As a result of these working conditions Duffy said that her health deteriorated, requiring her to seek treatment by a physician. Duffy resigned from her position and filed charges of unlawful discrimination with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission.

In the litigation that followed, the District Court concluded that Duffy failed to demonstrate that she was constructively discharged or otherwise suffered an adverse employment action within the meaning of the Age Discrimination in Employment Act [ADEA] and entered summary judgment in favor of Paper Magic.

The Circuit Court sustained the lower court's action, rejecting Duffy claim that she was constructively discharged because she experienced a “continuous pattern of discriminatory treatment” at Paper Magic.

It appears that Duffy's testimony focused almost entirely on her subjective view that Paper Magic constructively discharged her but she failed to establish any of the situations set out by the Third Circuit in Clowes v Allegheny Valley Hospital, 991 F.2d 1159, suggesting constructive discharge.

Elements that could support a finding of constructive discharge include the employer's threats to fire an employee, encouraging the employee to resign, or involuntarily transferred an individual to a less desirable position.

Among other actions that could support a claim of constructive discharge - the employer is aware that the employee has been subjected to a continuous pattern of harassment and the employer does nothing to stop it.

The court cited Aman v Cort Furniture Rental Corp., 85 F.3d 1074, to illustrate the course of conduct that could be deemed constructive discharge. In Amen the court said that continuously subjecting a black worker to racially-based insults; admonitions “not to touch or steal anything”; being forced to do menial tasks not assigned to white employees; subjecting the individual to actions by co-workers withholding information and stealing documents needed to perform the job; and the employer's threats to “get rid of [the employee].”

These elements were not present in Duffy's case. Her department was understaffed. But management's deliberate delay in providing needed assistance, thereby making her job more difficult, did not make her job impossible. It simply required her to work longer hours until help arrived, making her job more stressful, but not unbearable. In the words of the court, “employees are not guaranteed stress-free environments and discrimination laws cannot be transformed into a palliative for every workplace grievance, real or imagined, by the simple expedient of quitting.”

The Circuit Court also ruled that Duffy's attempt to use her physician's opinion that her job had an adverse affect upon her health to bolster her claim that her working conditions were intolerable also fails. These health problems support an inference that Duffy's environment was stressful. Again, leaving a stressful environment does not amount to constructive discharge.

Duffy's own explanation as to why she resigned, said that her decision was based, in part, on her son's recent graduation from college and her resultant financial ability to leave. This, said court, “supports our conclusion that [Duffy] was not constructively discharged.”

The Circuit Court decided that Duffy had not produce evidence from which a reasonable jury could find an adverse employment action -- a prerequisite to a successful age discrimination claim -- and affirmed the District Court's summary judgment.

Disqualifying applicants for a particular job

Disqualifying applicants for a particular job

EEOC v Woodbridge Corp., CA8, 263 F.3d 812

Mathews v The Denver Post, CA10, 2001 WL 967797

The Woodbridge and Mathews cases concern similar issues: disqualifying an individual with a disability for a particular job or assignment.

The Woodbridge case asks: Does the employer violate the ADA if it rejects an applicant a particular job because test reveal that he or she is susceptible to certain types of injuries?

The Mathews case asks: Does the employer violate the ADA if it rejects an employee with epilepsy for a job because an essential function of the job requires the operation of heavy machinery?

The Woodbridge Case

The Equal Employment Opportunity Commission sued the Woodbridge Corporation, contending that it violated the ADA when it excluded nineteen applicants for jobs on one of its manufacturing lines because of test results that indicate those applicants may be susceptible to sustaining injuries from repetitive motion.

The Circuit Court affirmed a district court's determination that the ADA was not violated as such individuals were not “disabled” within the meaning of the ADA.

EEOC alleged that Woodbridge unlawfully discriminated against individuals rejected because they were determined to be more likely than others to develop carpal tunnel syndrome.

The company, a producer of polyurethane foam pads used in automobile seats, based its decisions rejecting these applicants on the basis of results of a test designed to reflect abnormal wrist neurometric readings in connection with repetitive wrist motions that its workers on a specific manufacturing foam line would experience.*

Applicants with abnormal neurometry readings were not hired for these foam line production positions although they were considered to be eligible for jobs in other areas within the Woodbridge's plant. EEOC, however, contended that Woodbridge discriminated against the rejected applicants on the basis of “a perceived disability, as Woodbridge regarded the applicants as substantially limited in the ability to work.”

The Circuit Court said that the ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Major life activities include caring for one's self, performing manual tasks, walking, seeing, hearing, breathing, learning and working.**

According to the ruling, an impairment is “substantially limiting” if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform a particular major life activity as compared to an average person in the general population. Such a determination is to be made on a case-by-case basis.

The district court held that the “only documented perception of the [rejected] applicants is that they were not physically qualified to perform the unique requirements of [specific] Woodbridge manufacturing positions. This perception does not prevent the applicants from obtaining employment in a broad class of jobs.”

In contrast, a person is deemed to be substantially limited with respect to working if he or she is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities.”

In making such a determination, the court considers such factors as the number and type of jobs from which the impaired individual is disqualified; the geographical area to which the individual has reasonable access; and the individual's job training, experience, and expectations.

As the purpose of the ADA is to prevent “substantial personal hardship in the form of significant reduction in a person's real work opportunities,” the court must ask if a person's particular impairment constitutes a significant barrier to employment in a class of jobs or a broad range of jobs.

The issue here was whether the nineteen applicants were regarded as “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skill, and abilities.”

According to the decision, “the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.”

What is required to prevail? Proof that the individual's overall employment opportunities are limited rather than being viewed as unqualified for a particular job or assignment. In other words, it is necessary to show that the individual is precluded from being selected for more than one type of job. Being disqualified for but a single, specialized job or a particular job of choice does not satisfy this requirement.

In the words of the Circuit Court: If jobs utilizing an individual's skills are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.

Finding that the nineteen applicants represented by EEOC were not precluded from employment in more than one type of specialized job, the Circuit Court sustained the lower court's granting summary judgment dismissing EEOC's complaint.

The Mathews Case

In Mathews, the U.S. Circuit Court of Appeals, Tenth Circuit, ruled that an employee with epilepsy is not qualified for a job as a journey-level mailer at a newspaper because an essential function of his job requires his operating heavy machinery.

John Mathews sued his former employer, the Denver Post, claiming that it had laid him off in violation of the Americans with Disabilities Act. The district court granted summary judgment to the Post, holding that Mathews had not shown he was a disabled person within the meaning of the Act, nor had he shown he was qualified to do his job during the period November 1994 to May 1996.***

The Circuit Court affirmed the lower court's determination.

Mathews, who started working for the Post in 1983, was promoted to journeyman level mailer in 1988, and is currently employed by the Post. Mathews suffers from epilepsy, including grand mal seizures. He suffered a grand mal seizure on September 6, 1994 and was hospitalization for two days. His doctor told him not to return to work for one month.

Based on the information received from Mathews' personal physician, Dr. Jack Sylman, in a letter dated October 8, 1994, the Post terminated Mathews on the grounds that his medical restrictions prevented him from performing the essential functions of his job. At the same time the Post attempted to assist Mathews by looking for a position at the newspaper that he could perform without offending his medical restrictions.

Dr. Sylman stated that Mathews did have an epileptic seizure and “I would not be comfortable with him either driving, or being near or operating heavy equipment for at least three months. This is a fairly standard guideline generally accepted within the community.” Dr. Sylman also told the Post that Mathews has epilepsy and has had isolated grand mal seizures, some of which have occurred at work. He also said that: Unfortunately there is no cure for this condition though reasonable control has been achieved with Dilantin. However, I cannot assure him that he might not have isolated sporadic seizures without warning. Ideally, it would be best if he were not to drive or work around heavy machinery.

Mathews sought to return to work, suggesting that the Post accommodate him by letting him do the part of the journey-level mailer job that did not involve working with machines. The Post rejected the proposal. On May 9, 1996, Mathews's doctor lifted his medical restrictions, stating that he “should be able to drive or work with machinery.” The Post then rehired Mathews back at his old job.

Mathews sued the Post, claiming that the Post discharged him in violation of the ADA, failed to provide a reasonable accommodation for his disability, and fired him in retaliation for filing a complaint with the EEOC.

The district court held that Mathews had not shown that he was disabled within the meaning of the ADA. Although Mathews argued that his epilepsy substantially limited him in the major life activity of working, the court decided that he was only able to show that his epilepsy interfered with his ability to do particular jobs. To prevail in his ADA action, Mathews was required to show that he was unable to do a class of jobs or a broad range of jobs in order to establish that there was a substantial limitation on his ability to work.

Further, said the court, Mathews had not shown he was a qualified individual, because he could not perform the journey-level mailer's job while he was under doctor's orders not to work with or around dangerous machinery.

Mathews appealed. The Circuit Court dismissed the appeal, concluding that the district court had ruled correctly on the qualification issue and thus it was unnecessary to address the question of whether Mathews was disabled.

* The test used by Woodbridge for this evaluation was discontinue as the company had concerns as to its reliability.

** In Sutton v United Air Lines, Inc., 527 US 471, the Supreme Court suggested, but did not specifically hold, that working was a major life activity

*** Relying on Mathews' physician's statement, the Post did not allow Mathews to work during this period.

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.