Reemployment of public retirees

Reemployment of public retirees

Connolly v McCall, CA2, 254 F.3d 36

Section 150 of the Civil Service Law and Section 211 of the Retirement and Social Security Law [RSSL] set out the rules governing the reemployment for compensation of an individual receiving a retirement allowance from a New York public retirement system. The basic purpose of these provisions: to control so-called “double dipping” by individuals retiring from State or municipal public service and subsequently accepting employment with their former or another New York public employer.

The basic provision, Section 150, directs that the individual's retirement allowance from a New York public retirement system “shall be suspended during such service or employment and while such person is receiving any salary.”

RSSL Section 211, on the other hand, allows an exception to Section 150's absolute bar to simultaneously receiving such compensation and a retirement allowance from a New York public retirement system. It permits the employment of a retired person in a position or positions in the public service, subject to certain earning limitations, without any effect on his or her status as retired and without suspension or diminution of his or her retirement allowance,” provided that certain conditions are met. Retirees granted such a “Section 211 approval” are barred from participating in the pension plan associated with their second public job.

Timothy J. Connolly retired New York City Police Department and subsequently was employed by the New York State Organized Crime Task Force. A number of Section 211 approvals were granted in connection with Connolly's post-retirement employment by the Task Force.

Connolly challenged the limitation of his joining a retirement system set out in Section 211, claiming that it violates the federal constitution by requiring a retiree to either forgo receipt of the pension benefits accrued from the first job or forgo accumulation of additional pension benefits from the second job. Connolly pointed out that no such limitation was imposed upon the employment of an individual who retired from the private sector or the federal government or who was receiving a “non-New York public retirement benefit upon employment by the State.

McCall argued that New York's approach regarding the re-employment of retirees furthers its legitimate interest in saving public money by barring pension practices that have the character of “double-dipping,” i.e., preventing an individual's continuing to receive a New York public pension while also receiving a New York public salary. This, said McCall, reflects the notion that such simultaneous income streams “could constitute an abuse of the public fisc.”

Considering the merits of Connolly's 14th Amendment arguments, the Circuit Court of Appeals ruled that Connolly failed to state a claim either under the Due Process or the Equal Protection Clauses of the 14th Amendment.

Connolly challenged “the substantive fairness of New York law.” However, said the court, in so doing Connolly failed to identify any protected property interest of which he has been deprived. In reality Connolly “is objecting to ... the very fact that New York law confers no property interest on people in his circumstances.”

As to Connolly's Equal Protection theory, which he based on the alleged disparity of treatment between New York state and local public employees who previously worked for another New York State or municipal employer, and those who previously worked for a private employer, or a non-New York public employer, the Circuit Court pointed out that “[o]nly the former class of employees is forced to choose between giving up the pension associated with their prior job and giving up accrual of additional pension benefits in their subsequent New York public employment.”

The basic rule applied by the courts in resolving a challenge based on “equal protection” claims: the classification must be upheld against the equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.

In the Circuit Court's view, whether or not New York's Civil Service Law Section 150-Retirement and Social Security Law Section 211 formula constitutes a sound policy is irrelevant. Here, said the court, “there is nothing irrational about the state deciding that at any one time a public employee should not both be accruing a new public pension and receiving an old public pension.”

In the words of the court, “[w]hen both the jobs, and their associated pension plans, involve New York public employment, the state's interests in, and control over, their financial consequences are stronger than when only the second job involves New York public employment.”

Ruling that New York's approach does not offend federal principles of equal protection, the Circuit Court dismissed Connolly's appeal.

Complaint alleging educational malpractice dismissed

Complaint alleging educational malpractice dismissed

Helm v. Professional Children’s School, 103 Misc 2d 1053

In Helm, a Court of Claims judge ruled that problems, including the practical impossibility of proving that the alleged malpractice of the teacher was the cause of the learning deficiency claimed by the parents of a child and the fact that student attitudes, motivation, home environment and temperament may all play an essential role, should, as a matter of public policy, bar consideration by the Court of Claims of educational malpractice against either public or private schools.

The opinion referred to the decision in Donahue v. Copiague Union Free School District, 47 NY2d 440, a case that involved a similar question.

Different types of appointments and employments in the public sector may be made by appointing authorities

Different types of appointments and employments in the public sector may be made by appointing authorities

Matthews v Morristown, 286 A.D.2d 535

Typically a public officer or employee is appointed to a specific position by a particular appointing authority. There are, however, a number of special employment situations in the public service, the four most common being:

1. Joint appointment -- a single individual is employed in a single position funded by two different appointing authorities.

2. Shared employment -- two or more individuals are employed part-time by a single appointing authority and “share” a single position.

3. Dual employment -- a single individual is employed by the same employer to simultaneously serve two different positions.

4. Extra service employment -- an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Matthews case involves another type of employer-employee relationship, the special employee.

An employee of the Town of Oswegatchie, Jerry L. Matthews, was severely injured when he was struck by road-grading equipment owned by the Town of Morristown and operated by one of Morristown's employee. This equipment was being used to complete a road project for the Town of Oswegatchie pursuant to a “shared services” agreement entered into by a number of towns in St. Lawrence County.

Matthews sued Morristown seeking damages for his injuries. Morristown named Oswegatchie as a third-party defendant for the purpose of obtaining indemnification from it if Morristown was held liable for Matthews injuries.

Then Morristown and Oswegatchie each moved for summary judgment, claiming that Morristown's machine operator was a “special employee” of Oswegatchie and, therefore, Matthews co-employee.

What is the significance of having such status as “special employee?” If there was a “co-employee” relationship, Matthews exclusive remedy is workers' compensation and he cannot sue Morristown for damages.

The Appellate Division, Third Department explained that “[w]hether a general employee of one employer [here Morristown] may be a special employee of another [here Oswegatchie] is generally a question of fact involving consideration of a number of factors.

Citing Braxton v Mendelson, 233 NY 122, the court said that a number of elements may be helpful in attempting to decide the question. These include who pays the employee's wages; the right to hire or discharge; the right to direct the employee where to go, and what to do; the custody or ownership of the tools and appliances the employee may use in his or her work; and the business of the employer or that of the “special employer.”

In this case these were unresolved issues. The shared services agreement specifically authorized Morristown to provide public works “services” to other municipalities and receive a like number of hours of service in return. The “shared services agreement,” however, did not state that Morristown's employees would be “deemed” employees of the other municipalities when such other municipalities were receiving services being provided by Morristown.

The key issue: Was Morristown's employee in the special employment of Oswegatchie at the time of the accident or was he performing the work which was his duty to perform for Morristown as a Morristown employee pursuant to the shared services agreement.

Finding that “this record does not incontrovertibly demonstrate” that Morristown “exercised exclusive 'control and direction of the manner, details and ultimate results of employee's work,'” the Appellate Division reversed the Supreme Court's order granting Morristown's and Oswegatchie's motions for summary judgment. 

The free speech rights of volunteer workers serving with a public or quasi-public entity

The free speech rights of volunteer workers serving with a public or quasi-public entity

Gorman-Bakos v Cornell Cooperative Extension of Schenectady County and others, CA2, 252 F. 3d 545

Among the issues commented upon by the Second Circuit Court of Appeals in deciding the Gorman-Bakos case was the status of volunteers serving with an “agency of the State.” Does such a volunteer have the same constitutional rights and protections with respect to free speech as are available to a paid employee of an “agency of the State?”

Lynn Gorman-Bakos and her husband, Rodney Bakos, served as volunteers with the Schenectady County Cooperative Extension 4-H program. Contending that they were dismissed from the program in retaliation for their exercising constitutionally protected speech, they sued. The Extension Program, on the other hand, said that the Bakoses had not been terminated but that they had resigned from their respective volunteer positions.

According to the decision, the federal district court justice “presumed that plaintiffs had suffered an adverse employment action,” i.e., they were in fact terminated. Although the Circuit Court did not specifically address the question of whether the Bakoses claims of termination from their respective volunteer positions based on alleged retaliation because of their exercising their right of free speech was the same as those enjoyed by salaried government employees or whether they should be evaluated by applying a different standard, the court did note that in Hyland v Wonder, 972 F.2d 1129, the U.S. Court of Appeals, Ninth Circuit, ruled that: "Serving as a volunteer constituted 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.”

This suggests that the Second Circuit, were it to address the question, would not distinguish between paid employees and volunteer workers insofar as the right to protected free speech is concerned. The general rule in such “free speech” cases was set out in Connick v Myers, 461 US 138. In Connick the U.S. Supreme Court said that federal courts will consider retaliation allegations based on an employee's claim of free speech where the speech concerns matters of public concern in contrast to speech involving “only matters of a personal interest” to the employee.

A second test that must be met by a public employee claiming that his or her employer's action violates his or her right to free speech: Did the employee's statement outweigh the employer's interest in terminating or otherwise disciplining an employee whose conduct “hinder effective and efficient fulfillment of its responsibilities to the public?” Other decisions in which a public employee's right to free speech was considered include Tytor v Laramie County School District, CA10 [unpublished]; Jeffries v Harleston, CA2, 52 F3d 9; and Barnard v Jackson County, CA8, 43 F3d 1218.

Section 207-c line of duty disability not available for disability resulting from an “off-duty” injury

Section 207-c line of duty disability not available for disability resulting from an “off-duty” injury

Wynne v Town of Ramapo, 286 A.D.2d 338

Contending that he was injured in the line of duty, Town of Ramapo police officer William Wynne applied for disability benefits pursuant to Section 207-c of the General Municipal Law. Section 207-c provides certain benefits, including the continuation of their full salary, to law enforcement personnel absent from work because of a disability incurred while performing their official duties.

Wynne conceded that he had injured his hand while off-duty and on vacation. Wynne said that he was driving through a nearby town at the time. Stopped by a resident who knew he was a police officer, he was asked to rescue an infant that accidentally locked himself in the car.

Unable to secure the assistance of the local police, Wynne called the Town of Ramapo police dispatcher. The dispatcher, after speaking with a supervisor, advised Wynne there were no Ramapo patrol cars available and that he was not authorized to break the car window.

Notwithstanding this instruction, Wynne, with the car owner's permission, used a hammer to break a window to free the child. In so doing, Wynne injured his hand.

Wynne testified that he was aware that, other than in high-speed pursuits, the regulations of the police department of the Town of Ramapo required him to obtain permission to take any police action outside of the jurisdiction of the Town of Ramapo.

A hearing officer confirmed a determination by the Ramapo Chief of the Police denying Wynne Section 207-c benefits. Wynne appealed, only to have his petition rejected by the Appellate Division.

The Appellate Division ruled that the determination that Wynne was not acting as a police officer in breaking the window to free the child, and thus, was not entitled to benefits pursuant to General Municipal Law Section 207-c, was rational and was supported by substantial evidence in the record.

In another “off-duty” police officer injury situation, the Attorney General concluded that “a City is not responsible, under Section 207-c of the General Municipal Law, for payment of salary or medical expenses to a police officer who is injured while he is off-duty and working as a security guard for a private employer. (Informal Opinion of the Attorney General, 81-52).

The fact that “the police officer was making an arrest at the time of his injury” did not persuade the Attorney General to the contrary regarding the City's obligation to proved Section 207-c benefits. However, the opinion noted that in some instances, such as an injury resulting from the arrest of a person under a warrant, and unrelated to the performance of his or her “off-duty” work, Section 207-c might apply.

In contrast, in Alifieris v American Airlines, 63 NY2d 370, the Court of Appeals ruled that an off-duty police officer who is sued as a result of his or her official actions, even if he or she acted outside the employing police agency's geographical jurisdiction, is entitled to indemnification if held liable for damages as a result of such off-duty conduct.

The Alifieris case involved an off-duty Suffolk County police officer who was sued by Alifieris for an alleged assault which had taken place in Brooklyn, New York. Cooper claimed that he was acting as a police officer at the time. Suffolk County had argued Cooper could not get indemnification because he was off-duty and outside Suffolk County's jurisdiction at the time the assault was alleged to have occurred.

However, the courts have noted that police officer's conduct, as with any employee, that "is brought on by a matter wholly personal in nature, the source of which is not job-related ... cannot be said to fall within the scope of his employment." [See Stavitz v City of New York, 98 AD2d 529.]

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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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Work-related stress

Work-related stress

Mattoon v Workers' Compensation Board, 284 A.D.2d 667

An employee is the target of some personnel change or action involving his or her position or assignment. The employee, claiming that the personnel action was “stressful,” quits and then files for unemployment insurance benefits. This was the situation underlying the appeal filed by Lori B. Mattoon.

Mattoon was employed by the New York State Department of Labor as an agency services representative. Her work assignment was changed by her new supervisor. In December 1993, Mattoon left her employment “due to work-related stress that resulted in depression, posttraumatic stress disorder and generalized anxiety disorder.” The Labor Department conceded that “the event ultimately triggering [Mattoon's] psychic injury was a new manager's reassignment of [Mattoon] to a particularly stressful work position.”

The Workers' Compensation Appeals Board, however, denied Mattoon's claim for workers' compensation benefits. The Board determined that Mattoon's inability to deal with her new assignment was a direct consequence of lawful personnel decisions, which were taken in good faith by the employer. Mattoon appealed, arguing that the Board's determination that she did not suffer a compensable psychic injury is not supported by substantial evidence.

The Third Department rejected Mattoon's appeal. It said that it was well established that a psychic injury based upon work-related stress is not compensable if it 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 comments that a “change of work duties” did not constitute a job transfer” within the meaning of Workers' Compensation Law Section 2.7.

AELE focus on personnel issues of interest to those in law enforcement and firefighting

AELE focus on personnel issues of interest to those in law enforcement and firefighting

Source: AELE

AELE, - on the Internet at http://www.aele.org/ - offers a unique resource, with free publications and online back issues since 2000 in three major areas:  

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html

2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html

3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

Readers may sign up for a news feed at http://www.google.com/ig/add?feedurl=http%3A%2F%2Fwww.aele.org%2Ffeed.xml

AELEs August 2011 issues of these several publications include the following items:

From the Law Enforcement Liability Reporter -- an article concerning the use of deadly force. Here SWAT officers were not liable for the death of a 19-month-old infant whom they accidentally shot while trying to rescue her from her cocaine using father, who was holding her hostage. It was held that the SWAT team had justification for the use of deadly force against the father, who had threatened to kill the child, kill himself, and anyone who entered his auto shop. “The officers acted in an objectively reasonable manner after the father shot at them while holding the child.” Lopez v. City of Los Angeles, #B219499, 2011 Cal. App. Lexis 729 (Cal. App.). On the Internet at: http://caselaw.lp.findlaw.com/data2/californiastatecases/B219499.PDF

From the Fire, Police & Corrections Personnel Reporter -- an article summarizing an appeal from a disciplinary hearings indicating that a police officer's federal lawsuit challenging his arrest and termination for allegedly misappropriating $600 from a crime scene during a search of a home were properly dismissed. The court held that the officers “post-suspension hearing satisfied due process requirements, even though it occurred fourteen days after his acquittal on criminal charges arising out of the incident.” Nunez-Colon v. Toledo-Davila, #09-1784, 2011 U.S. App. Lexis 10639 (1st Cir.). On the Internet at: http://caselaw.findlaw.com/us-1st-circuit/1568924.html

From the Jail and Prisoner Law Bulletin -- an item concerning inmate housing reporting that “A federal appeals court rejected a prisoner's argument that he had a right, under the Ninth Amendment, to choose his own cellmate.” Murray v. Bledsoe, #10-4397, 2011 U.S. App. Lexis 11702 (3rd Cir.). On the Internet at  http://caselaw.findlaw.com/us-3rd-circuit/1570207.html

Interested individuals may register to receive these free electronic publications at http://www.aele.org/law

Also available, AELE’s free search web site providing access to its database of more than 30,000 case summaries posted since 1975 at http://www.aele.org/htdig/common/search.html
 

Authority to initiate discipline for just cause implies the imposition of a “just penalty”

Authority to initiate discipline for just cause implies the imposition of a “just penalty”

Boston Med. Center v Local 285, 260 F.3d 16

Many collective bargaining agreements provide that an employee may be disciplined “for just cause.” However, few contracts define “just cause.”

In the Boston Medical Center [BMC] case, the U.S. Circuit Court of Appeals addressed the application of a negotiated agreement that permitted an employer to discipline employees for just cause. Its conclusion: the term just cause not only applies in initiating disciplinary action against an employee; it also encompasses the concept of imposing a “just penalty” based on the offense or offenses for which the employee is found guilty.

Katherine Hartney, a registered nurse [RN] employed by BMC for some ten years, was terminated following the death of an infant under her care. BMC's action was based on its determination that Hartney “engaged in serious substandard nursing practices” in caring for the infant.

The Union grieved Hartney's discharge to arbitration. The arbitrator ruled that BMC violated the collective bargaining agreement because it terminated Hartney without just cause. She reinstated Hartney and reduced the penalty imposed by BMC from discharge to an unpaid, nine-month suspension without pay. BMC attempted to have the arbitration award vacated.

The issues submitted to the arbitrator:

1. Did the Hospital violate Article XV of the collective bargaining agreement when it terminated the grievant, Katherine Hartney, on October 2, 1998?; and

2. If so, what shall be the remedy?” Article XV of the collective bargaining agreement provides: “No RN who has completed his/her probationary period shall be disciplined or discharged except for just cause.”

The arbitrator concluded that “there is just cause for the imposition of discipline in this matter but ... discharge is too harsh a penalty for an employee with an unblemished record of employment for nearly ten years.” In considering the appropriate penalty, the arbitrator said that:

“While [Article XV] makes no explicit reference to progressive discipline, it references 'just cause,' a concept which encompasses both liability for the action(s) charged and fairness in the amount of discipline imposed.”

BMC was ordered to reinstate Hartney, without back pay, and directed Hartney to participate in a remedial educational program as part of the reinstatement process.

The Circuit Court decided that the plain language of Article XV, requiring just cause before an RN is disciplined or discharged, contemplates a range of disciplinary penalty responses. The court said that it agreed with the arbitrator's rationale that the concept of just cause requires a close relationship between the employee's misconduct and the employer's response along that disciplinary range.

Thus, said the court, the arbitrator was free to conclude that there was no just cause for discharging Hartney, but that there was just cause for imposing a lesser disciplinary penalty. In other words, it was appropriate for the arbitrator to conclude that the employer's right to discipline an employee for just cause was subject to consideration of a just penalty as well. This concept has been recognized by New York State's Court of Appeals in Pell v Board of Education, 34 NY2d 222.

In reversing the district court's judgment granting summary judgment in favor of BMC, the Circuit Court said that it did not minimize in any way the tragic death of the infant. However, the court explained, BMC signed a collective bargaining agreement containing an arbitration clause conveying substantial authority to the arbitrator to decide whether there is just cause for discharge. If, said the Circuit Court, BMC wants to reserve more “disciplinary authority” to itself, it may attempt to do so during its next round of contract negotiations.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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Assigning a principal to a school

Assigning a principal to a school

Commissioner of Education's Decision 14,606

Section 100.2(a) of the Commissioner's regulations, requires a board of education to “employ and assign to each school under its supervision a full-time principal holding the appropriate certification....”

Parents of children attending Olean City School District elementary schools challenged a resolution adopted by the school board on November 21, 2000 providing “that an alternative mode of building administration be employed effective July 1, 2001 that would combine the principalship responsibilities of the North Hill and Boardmanville Elementary Schools.” The two schools are eight tenths of a mile apart. The parents asked the Commissioner to order the district “to comply with the Commissioner's regulations and retain a full-time principal for each school.”

Although the Commissioner dismissed the appeal as untimely, he cautioned that “it appears from the record that a variance request is required to effectuate respondent board's resolution.”*

As to the district's argument that the fact that the two schools are located 8/10 of a mile apart justifies the appointment of one principal for the two schools, the Commissioner said that “there are no distance prerequisites in the regulation that would obviate the need for the district to apply for a variance.”

The Commissioner distinguished between a situation such as Olean's where a district fails to assign a principal to each of its separate schools and a situation where a district has assigned a principal to “a school composed of more than one building in close proximity,” citing the appeal of the Middle Island Principals' Association, Commissioner's Decision 10,229.

The Commissioner advised the district “to carefully consider any principal appointments to assure compliance with all applicable regulations.” The State Education Department's variance office was directed to contact the district concerning the status of its principal appointments and the submission of a variance request in the event “an alternative mode of building administration” is still desired.

As an example, a variance was granted to a school district that had decided to administer its two smallest elementary schools by assigning a team of one principal and two assistant principals to them. The Commissioner rejected an appeal contending that the District could not do this [Commissioner's Decision 10,851], commenting that both assistant principals held valid elementary principal certificates and were qualified to perform the duties assigned to them.

* Section 100.3 of the Regulations of the Commissioner of Education permit a waiver from the general provision that “each school in a District shall have assigned to it a qualified principal.”

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Teacher claims his harassment by students violates Title VII and the Civil Rights Act

Peries v NYC Board of Education, USDC, EDNY, 97 CV 7109(APR), 2001 WL 1328921

Vincent Peries was born in Sri Lanka in 1933. After he came to the United States in 1968, he received a Ph.D. in Adapted Physical Education and Child Development, as well as an MBA in international finance and a M.Sc. in Teaching English as a Second Language. After teaching at several colleges, he taught at several New York City public schools, including at Francis Lewis High School. At Francis Lewis Dr. Peries taught special education courses, working in both a resource room setting, where students receive individual assistance, and in self-contained classes.

Dr. Peries' Title VII and 42 USC 1981 complaints alleged that since the early 1990s, he has been subjected to a “steady barrage of insults and demeaning conduct from students based on [his] national origin and race.”

Federal District Court Judge Ross said that Peries' claim in this case is unusual in that the alleged harassment was not by co-workers, but by Peries' students and neither party identified any litigation involving this type of harassment. Judge Ross said the “most relevant cases in the Title VII context are those in which an employee has been harassed by the customers of his employer.”

In one case involving employees harassed by their employer's customers, Quinn v Green Tree Credit Corp., 159 F.3d 759, the U.S. Circuit Court of Appeals, Second Circuit, held that in such situations “such a duty can be no greater than that owed with respect to co-worker harassment.” In Quinn, the court referred to 29 CFR 1604.11(e), which provides:

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer . . . knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases, the [EEOC] will consider the extent of the employer's control and any other legal responsibility, which the employer may have with respect to the conduct of such non-employees.

Although there may be some circumstances in which an employer truly has little or no authority to control the actions of customers, rendering the employer's duty less than that for co-worker harassment, the relationship between school officials and students is not such a situation. In Davis v Monroe County Board of Education, 526 US 629, the Supreme Court held that a school board may be liable for the failure to stop students from sexually harassing other students if school officials are deliberately indifferent to the harassment.

As to Dr. Peries, the court said that he can prevail only if he can show first that a hostile environment existed and second that the school board either provided no reasonable avenue of complaint or knew of the harassment and failed to take appropriate remedial action.

Dr. Peries has shown the existence of a hostile work environment. The second issue: whether school officials took appropriate remedial action is a question of fact, not law.

The jury's analysis of this question can include such issues as what disciplinary options are available short of student suspension and what constitutes a proper division of student disciplinary responsibility between administrators and teachers.

Although Peries has failed to state a prima facie case with respect to his allegations that any school officials harassed him, his claim that school officials knew, or should have known, about the harassment by students and failed to take appropriate remedial action may go to a jury.

Accordingly Judge Ross ruled that Dr. Peries' Title VII hostile work environment claim against the Board of Education survived, but his civil rights claims against the individual defendants must be dismissed.

The Marriage Equality Act and New York State Taxes

The Marriage Equality Act and New York State Taxes
 Source: New York State Department of Taxation and Finance

A document explaining the tax implications of New York's Marriage Equality Act has been posted on  the New York State Department of Taxation and Finance's Web site at http://www.tax.ny.gov/pdf/memos/multitax/m11_8c_8i_7m_1mctmt_1r_12s.pdf

The document explains that all marriages, whether of same-sex couples or different-sex couples, will be treated equally under all laws of the state.

Accordingly, the Act applies to all taxes administered by the Tax Department as of the effective date of July 24, 2011.

Layoff, reinstatement and tenure by estoppel considered

Layoff, reinstatement and tenure by estoppel considered
Decisions of the Commissioner of Education, Decision #16256

Full text of the decision

1. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District and Lynn Hadity relating to preferred eligibility rights.

2. Appeal of MARY DICKINSON from action of the Board of Education of the Deer Park Union Free School District regarding teacher termination.



KING, JR., Acting Commissioner.--On or about March 31, 2009, petitioner commenced an appeal pursuant to Education Law §310 challenging the determination of the Board of Education of the Deer Park Union Free School District (“board” or “respondent board”) to appoint Lynn Hadity as a reading teacher (“Dickinson I”).  In a separate appeal commenced on or about July 22, 2009, petitioner challenged the actions of the board terminating her employment (“Dickinson II”).

On June 30, 2010, a decision was rendered, consolidating the two appeals (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082) and concluding in Dickinson I that the board violated petitioner’s rights when it failed to recall her to the vacant reading teacher position created in the 2008-2009 school year and ordering that she be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008; and, concluding in Dickinson II, that when petitioner was recalled to a reading teacher position in June 2009, she was a probationary employee not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a and, therefore, was properly terminated on July 28, 2009.[1]

Pursuant to Article 78 of the Civil Practice Law and Rules, respondent appealed the decision to Supreme Court, Albany County.  In a decision dated February 22, 2011, the court ordered that the petition be granted solely to the extent of vacating the Commissioner’s determination in Dickinson II and remanded the matter to the Commissioner “for clarification on the effect of his determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II and the basis upon which such determination is made.”[2]  Accordingly, as remanded by the court, I have considered petitioner’s tenure claims in Dickinson II in light of Dickinson I.

Pursuant to §276.5 of the Commissioner’s regulations, respondent board submitted a memorandum of law addressing the effect of the decision in Dickinson I on petitioner’s tenure status.[3]  The board alleges that the decision in Dickinson I properly did not interfere with its authority to grant or withhold tenure from petitioner.  The board seeks a determination that its recall and termination of petitioner as a probationary teacher was proper, that petitioner did not obtain tenure by virtue of Dickinson I and that petitioner is entitled only to the salary, seniority and benefits of a probationary reading teacher as of September 1, 2008 until her termination on August 31, 2009, less any compensation she received in the interim.

On or about September 1, 2005, petitioner was appointed as a remedial reading teacher in the district, subject to a two-year probationary period.  On April 24, 2007, the board granted petitioner tenure in reading, effective August 31, 2007.  On June 30, 2007, petitioner’s position was abolished and her name was placed on the district’s preferred eligibility list for a reading position.

Dickinson I held, inter alia, that the board violated petitioner’s rights when it failed to notify and recall her to an elementary school reading teacher position created for the 2008-2009 school year and ordered that petitioner “be reinstated to a reading teacher position with back pay, seniority and benefits as of September 1, 2008, less any compensation she may have received in the interim.”

Petitioner’s reinstatement on September 1, 2008 by order pursuant to Dickinson I did not result in her acquiring tenure in the district.  As previously noted in Dickinson II, in Remus v Bd. of Educ. for Tonawanda City School Dist. (96 NY2d 271, 278), the Court of Appeals held that a board of education resolution that grants tenure to a teacher effective on a specified future date “confers tenure upon the teacher only as of that specified future date.”  (see Mahoney v Mills, 29 AD3d 1043, lv to app den 7 NY3d 708).  There is no dispute that petitioner’s teaching position was properly abolished on June 30, 2007, prior to the August 31, 2007 effective date of the conditional tenure appointment on August 31, 2007.  Therefore, petitioner’s tenure never took effect.

Consequently, when petitioner was “recalled and appointed” as of September 1, 2008, by virtue of the order in Dickinson I, it was to a probationary position in the reading tenure area.  Although she was awarded back pay, petitioner never rendered any further actual service in that tenure area.  Therefore, petitioner was a probationary employee when the board acted to recall her to a reading position on June 23, 2009 and simultaneously rescinded her conditional tenure appointment.  Accordingly, petitioner was a probationary employee when she was terminated by respondent and was not entitled to the procedural protections of Education Law §§3013, 3020 and 3020-a.
Nor does the decision in Dickinson I result in petitioner acquiring “tenure by estoppel”. 

“Tenure by estoppel ‘results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term’” (Matter of Gould v. Bd. of Educ. of the Sewankhaka Cent. High School Dist. et al., 81 NY2d 446, citing Matter of Lindsey v Bd. of Educ., of Mount Morris Cent. School Dist., et al., 72 AD2d 185, 186) (emphasis added).  This is not the situation before me.  Here, the board did not knowingly permit petitioner to teach beyond the expiration of her probationary term but, instead, was ordered in Dickinson I to reinstate her retroactively to September 1, 2008.  It is noteworthy that, when the board did act to recall petitioner on June 23, 2009 to a probationary position in the reading tenure area, it simultaneously rescinded its April 24, 2007 conditional appointment of petitioner in that tenure area.  Indeed, petitioner never rendered any further service in the reading tenure area under the reasonable expectation that it would lead to tenure.   As such, the board did not itself acquiesce or consent to the continuance of her employment in the district and, consequently, petitioner did not acquire tenure by estoppel (see LaBarr v Board of Ed. Of Union Free School Dist. No. 1, Town of Hempstead, 425 F Supp 219 [EDNY 1977]).

Based on the foregoing, I find that the relief provided in Dickinson I had no effect on petitioner’s tenure status and, therefore, the rationale for dismissing petitioner’s tenure claims as set forth in the decision in Dickinson II remains unaltered (Appeals of Dickinson, 49 Ed Dept Rep 463, Decision No. 16,082).

While petitioner disagrees with the board’s determination to terminate her from her position, petitioner has failed to present any evidence that the reason for the board’s denial of tenure was in violation of any statute or the constitution.  Accordingly, having determined that the decision and order in Dickinson I had no effect on petitioner’s tenure claims raised in Dickinson II, I hereby affirm and adopt the findings and determination in Dickinson II in its entirety for the reasons set forth therein and in this decision.

THE APPEAL IS DISMISSED.

[1] The facts and procedural history are set forth in the original decision. 
[2] As ordered by Supreme Court, the sole issue for consideration is the effect of the determination in Dickinson I on petitioner’s tenure claims raised in Dickinson II.  To the extent the parties attempt to introduce arguments not directly relevant to the tenure issue, I have not considered them.
[3] By letter dated April 8, 2011, my Office of Counsel notified each party of the opportunity to submit additional affidavits and memoranda of law on the sole issue of the effect of Dickinson I on petitioner’s tenure status.  Petitioner did not submit any further papers or memorandum.

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing
Matter of Martin v Board of Trustees of the Vil. of Pelham Manor, 2011 NY Slip Op 06106, Appellate Division, Second Department

The Village of Pelham Manor found Robert Manor, a Village police officer guilty of a number disciplinary charges filed against him including excessive use of paid sick leave and insubordination. The penalty imposed, termination.
 

Manor appealed, contending that the Village’s determination was not supported by substantial evidence in the record. The Appellate Division disagreed, sustaining the Village’s findings and the penalty it imposed.

The court explained that the standard of review in an administrative determination made after a hearing is limited to considering whether the determination was supported by substantial evidence. In contrast, the Appellate Division said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which evidence to accept or reject.”

Accordingly, where there is conflicting evidence and, or, testimony, it is the administrative tribunal, not the court, that weights the evidence and the determines credibility of the witnesses testifying at the hearing.

As to the penalty imposed, dismissal from his position, the Appellate Division, applying the so-called Pell test {[Pell v Board of Education, 34 NY2d 222], held that “the penalty of termination of employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” 

An appointing authority does not have the authority to take unilateral action to dismiss an individual because of alleged pre-employment misconduct

An appointing authority does not have the authority to take unilateral action to dismiss an individual because of alleged pre-employment misconduct

Umlauf v Safir, 286 AD2d 267

Clearly, an employee may be subjected to disciplinary action for his or her off-duty misconduct that adversely affects his or her employer. If the employee is found guilty, any one of a number of penalties, including termination, may be imposed. The Umlauf case raises a related issue: what action, if any, may the appointing officer take in consideration of an employee's “pre-employment” misconduct.

In this instance the employee sued the City of New York following the Police Commissioner's dismissing him from his position without a hearing. Although the employee's petition seeking to annul the Commissioner's action was dismissed by State Supreme Court Justice William Davis, the Appellate Division reversed Justice Davis' decision “on the law.”

The Appellate Division ordered Commissioner Safir to reinstate the individual to his former position. If the Commissioner wished have the employee terminated, said the court, Safir would have to submit a request for such action in accordance with the provisions of Civil Service Law Section 50.4.

Section 50.4 provides for the disqualification of applicants or eligibles by the state civil department or responsible municipal civil service commission for a variety of reasons. The court's decision indicates that the relevant provision in this case is Section 50.4(d). Paragraph (d) authorizes the disqualification of an individual who has been guilty of a crime.

Section 50.4 further provides that “[n]o person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The court found that Safir had terminated the employee because of the individual's pre-employment conduct. This, said the Appellate Division, was improper -- an appointing authority does not have the authority to take such unilateral action. The court pointed out that in this instance Section 50.4 of the Civil Service Law vests the authority to disqualify or remove the individual in the head of New York City's Department of Citywide Administrative Services, not the head of a City department or agency.

Further, the individual may neither be disqualified nor terminated, as the case may be, unless he or she is provided with a written explanation of the reasons for the proposed action and given an opportunity to submit an explanation and facts opposing such action prior to his or her disqualification for, or termination of, employment.

Where the appointing authority seeks to have an individual disqualified or employee terminated for one or more reasons set out in Section 50.4, it should so advise the State Department of Civil Service or the responsible municipal civil service commission, as the case may be, setting out its reasons for seeking the disqualification or termination of the individual.

Is the individual who is to be disqualified or terminated pursuant to Section 50.4 entitled to a hearing before the department or municipal commission? In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals ruled that no “Section 50.4 hearing” is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

Another element in this case -- the employee had also claimed that he was entitled to a name-clearing hearing. The Appellate Division, citing Swinton v Safir, 93 NY2d 758, agreed. The court said that the worker “has sufficiently raised the issues of the partial falsity and overall characterization of information included in his personnel file, the dissemination of such information, both past and future, as well as the presence of 'stigma plus' -- in this case governmental defamatory action in conjunction with loss of employment” 

Discontinuing General Municipal Law Section 207-c benefits

Discontinuing General Municipal Law Section 207-c benefits

Dacey v Dutchess County, 121 AD2d 536

An individual is receiving benefits pursuant to Section 207-a or Section 207-c of the General Municipal Law and is absent on disability leave. While on disability leave and while still receiving benefits, the individual served with disciplinary charges alleging off-duty misconduct that occurred while he or she was on such leave. This was the fact pattern underlying a question raised by a reader. The question: What happens to the Section 207-c benefits if the individual is found guilty following a disciplinary hearing and the penalty imposed is termination?

The Appellate Division's decision in the Dacey case indicates that Section 207-a and Section 207-c benefits cease upon the termination of the employee.

Dacey, a Dutchess County corrections officer, was injured in the line of duty and was granted disability benefits pursuant to Section 207-c. While on disability leave she was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Found guilty of the charges, she was terminated. The County discontinued her Section 207-c benefits when she was dismissed. Claiming that she could not be deprived of her disability benefits solely on the basis of her termination following disciplinary action, Dacey sued.

The Appellate Division said that Section 207-c of the General Municipal Law must be read together with Section 75 of the Civil Service Law. Its conclusion: Dacey was entitled to receive her Section 207-c benefits only until she was terminated following her being found guilty of misconduct in the disciplinary action.

May the employer discontinue the payment of Section 207-a or Section 207-c whenever the employee is lawfully removed from the payroll rather than solely upon his or her “termination of employment” such as the 30-day suspension without pay authorized by Civil Service Law Section 75 or pursuant to the terms of a collective bargaining agreement?

Noting that prior to a final determination in the disciplinary action, Section 207-c benefits could not be suspended without a prior evidentiary hearing, the Appellate Division advised that such benefits had to be continued until a “final determination ... which would justify her removal from the payroll” was made. However, this does not suggest that the employee subject to disciplinary action must be continued in Section 207-a or 207-c status pending a final determination in the administrative disciplinary procedure if there is some lawful basis to otherwise discontinue such payments.

It would seem that the courts would not hold the payment of Section 207-a and Section 207-c benefits absolute and agree that they may be discontinued for the duration of any Section 75 or contract disciplinary action involving a lawful “suspension without pay” such as the 30-day period of suspension pursuant to Section 75.3 pending a determination of disciplinary charges; when the individual would otherwise be removed from the payroll such as approval of the accused individual's request to adjourn a scheduled hearing date; or as a result of the imposition of a disciplinary penalty of a suspension without pay for a specified period.