DiNapoli’s Office Completes School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits: the Central Islip Union Free School District; the Eden Central School District; and, the Fonda-Fultonville Central School District..

In addition, Comptroller DiNapoli posted his completed audits of the City of Binghamton; the Town of Elma; the Elmont Fire District; the Town of Farmersville; Orange County; the Town of Orange; the Village of Penn Yan; and, the Village of Sherman.

These audits have been posted on the Internet and may be accessed by clicking on the name of the school district or municipality.

And the winner is….

And the winner is….

Goggle statistics

Goggle Statistics reports that as of August 1, 2011 “Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively” the most read item posted on NYPPL.

Originally posted on July 13, 2010, it is found at: http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html

Public policy voids arbitrator’s award

Public policy voids arbitrator’s award

City of New York v. Uniformed Firefighters Assn, 87 AD2d 255, [Revs'd on other grounds, 58 NY2d 957]

When New York City announced it would establish positions of (civilian) Fire Inspection Inspectors, the Firefighters Union objected.

An arbitrator ruled that assigning civilians to perform inspection and fire prevention duties previously performed by uniformed firefighters violated the Taylor Law contract between the City and the Firefighters Union and ordered the City not to make any further such assignments.

The City appealed the arbitrator’s award in favor of the Union to the Court (see Article 75, Civil Practice Law and Rules which sets forth limited grounds for challenging the award of an arbitrator). The Appellate Division ruled that “if an (arbitrator’s) award, such as the award in this case, contravenes the statutory mandate, it violates public policy and the court is required to set it aside....”

The decision noted that the City’s Administrative Code provided that the City determine the “methods, means and personnel by which government operations are to be conducted.” The opinion implies that where the arbitrator fashions an award which violates the mandate of a statute, the arbitrator has exceeded his authority and the award will not be enforced by the court. 

Temporary assignment not the same as appointment to a “position”

Temporary assignment not the same as appointment to a “position”

Miller, et al, v. Braun, Sheriff of Erie County, 89 A.D.2d 787

A number of Criminal Deputy Sheriffs with the Erie County Sheriff’s Department, a position in the competitive class, were “appointed” to the “position” of Special Deputy.

The Erie County Charter permitted the Sheriff to make “temporary assignments” as “Detective Deputy and Special Deputy.” The County eliminated the “Special Deputy” and established a competitive class position of Sergeant.

When former “Special Deputies” failed the test for Sergeant, they were returned to their regular Criminal Deputy positions. They then sued.

With respect to Miller’s claim that a “local law” was required to “reclassify” the position of “Special Deputy” to Sergeant, the Appellate Division ruled that the County had not created the position of “Special Deputy” but merely authorized the Sheriff to make a “temporary assignment” to that status.

The court then concluded “reclassification of the position of Special Deputy to make it competitive...does not effect an abolishment of or change in a position created by the Charter.”

It seems that there was some confusion between the creation of a “position” and the status of a person given a special title while in a position. Under traditional Civil Service classification concepts, the “position” of “Special Deputy”, if properly established, could have been “reclassified” to Sergeant.

In any event, the former “Special Deputies” would not appear to have a claim to permanent status in the Sergeant positions unless they were “permanently appointed” in accordance with law. (See CSEA v. Harrison, 48 NY2 66.)

Discipline to proceed despite pending criminal action involving the same event

Discipline to proceed despite pending criminal action involving the same event

Matter of Mountain, ___ AD2 ___, {1982]

From time to time an agency is faced with the question of what it should do when an employee has been given a notice of discipline and there are criminal charges involving the same event pending in the Court. In Matter of Mountain, the District Attorney, Schenectady County, attempted to get a court order to stop a disciplinary proceeding based on the same facts instituted against Mountain by the City of Schenectady.

The Appellate Division rejected the District Attorney’s argument that a premature disclosure of the testimony of witnesses would imperil the criminal proceeding against Mountain. The Court also noted that a criminal defendant did not have any right to stop a disciplinary proceeding pending the outcome of the criminal trial and the “prosecution has no greater right to protect its case.”

The courts appear to agree that the disciplinary action should not be influenced by the fact that the employee is also facing criminal action as a result of the same event.

Not every criticism is a reprimand

Not every criticism is a reprimand

Port Jefferson Union Free School District v. United Aids and Assistants, PERB decision U-5713

PERB rejected the Unions argument that every written criticism of an employee is a “reprimand” and therefore can only result from “disciplinary action.”

The case arose when, in response to an inquiry from the School Superintendent, the school principal made a number of recommendations including one that suggested “the Association ought not be brought in unless the immediate supervisor cannot or will not resolve the (grievance) problem.” This was viewed as a criticism of an employee.

The PERB decision is consistent with opinions issued by the Commissioner of Education and the Courts to the effect that letters in an employee’s personal file commenting on the employee’s conduct or performance the employer found unsatisfactory is not discipline.

No automatic appointment for substitute teachers

No automatic appointment for substitute teachers

Matter of Susan Daniels, Decisions of the Commissioner of Education #10918

When the incumbent for whom she was substituting died, the School Board, at the request of the Union to fill the position in accordance with the terms of the collective bargaining agreement, granted the substitute teacher a “temporary appointment.”

The Contract provided that a temporary appointment was to be made when the employment as a substitute was to be for more than 40 consecutive days.

When the substitute was notified that she was not under consideration for permanent appointment, she sued claiming that she should be deemed to be a probationer in the vacant position “by operation of law.”

Accordingly, she argued, she could not be removed unless the provisions of Section 3020-a of the Education Law were met.

Following a series of administrative and Court proceedings, the question was returned for consideration by the Commissioner of Education.

After finding the appeal untimely. the Commissioner dismissed the appeal on the merits, indicating that although the Board has no authority to make other than probationary appointments to fill permanent vacancies, a teacher may waive the statutory entitlement.

The Commissioner then found that the bargaining agreement provision (with which the Board had complied at the request of the Union) constituted such a waiver and Daniels could not now challenge that action by the School Board.

Unit determinations and substitute teachers

Unit determinations and substitute teachers

In the Matter of North Syracuse Central School District, PERB Decision C-2367

The 1981 amendment to the Taylor Law providing for representation of per diem substitute teachers (Chapter 814, Law of 1981) has required PERB to consider a number of “unit” questions.

The Board ruled that per diem substitutes whose employer gives them reasonable assurance of continuing employment should not be placed in “fractionalized units” within a school district depending on the frequency or infrequency of their employment.

PERB indicated that the authors of amendment “saw no difficulty in multiple representation of (such) per diem substitute teachers who hold ... substitute teaching positions” with a number of school districts.

Finally, the decision indicates that “the status of per diem substitutes who did not receive a reasonable assurance of continuing employment was not changed by the 1981 amendment. (See Section 201.7(d) of the Civil Service Law.)

An alternative to a principal for each school

An alternative to a principal for each school

Matter of Mennella, Decisions of the Commissioner of Education #10851

Although the Regulations of the Commissioner of Education provide that each school in a District shall have a qualified principal assigned to it, waivers may be obtained (8 NYCRR 100.3).

An example of this is found in the Commissioner’s decision in Mennella.

One issue in this appeal to the Commissioner of Education was Mennella’s attempt to obtain an order to restore funds for an abolished position of principal. The District had decided to administer its two smallest elementary schools by assigning one principal and two assistant principals to them.

The Commissioner rejected the claim that the District could not do so, noting the he had earlier granted the District the required exemption. Both of the Assistant Principals held valid elementary principal certificates and were qualified to perform the duties assigned to them according to the determination.

Employer must reinstate employee absent on Workers’ Compensation Leave upon the certification by civil service commission’s medical officer that the individual is fit to perform the duties of his or her position

Employer must reinstate employee absent on Workers’ Compensation Leave upon the certification by civil service commission’s medical officer that the individual is fit to perform the duties of his or her position

Matter of Lazzari v Town of Eastchester, 2011 NY Slip Op 06125, Appellate Division, Second Department

Richard Lazzari, the Town of Eastchester’s Assistant Building Inspector and Deputy Building Inspector was on Workers’ Compensation Leave pursuant to §71 of the Civil Service Law. A medical officer appointed by the County of Westchester Department of Human Resources certified that Lazzari was physically and mentally fit to perform the duties of his former positions.

Supreme Court denied the Town’s petition seeking a copy of the medical officer’s report and directed the Town to reinstate Lazzari to his position with back salary.*

The Appellate Division held that Supreme Court properly determined that the County of Westchester Department of Human Resources (hereinafter the DHR) fully complied with Civil Service Law §71 in directing the Town of Eastchester to reinstate Lazzari to his former positions.

The court noted that §71 provides that an employee “who has been "separated from the service by reason of a disability resulting from occupational injury or disease as defined in the workmen's compensation law," may be reinstated to his or her former position if, after an independent medical examination conducted by a medical officer selected by the municipal commission "having jurisdiction over the position last held by [the employee]," such medical officer certifies that the employee is "physically and mentally fit to perform the duties of his or her former position."

The court rejected the Town’s contention that the Westchester Human Resources had to first provide it with the medical officer's certification that Lazzari was medical fit or the medical report on which the medical officer based the certification.

In addition, the Appellate Division held that Supreme Court was also correctly determined that Lazzari was entitled to back pay, retroactive to December 18, 2007, pursuant to Civil Service Law §77.

* In addition, the court awarded Lazzari and Paula Redd Zeman, as Commissioner of the Westchester County Department of Human Resources, the Westchester County Department of Human Resources, and the County of Westchester, one bill of costs payable by the Town of Eastchester and the Town Board of the Town of Eastchester.

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The Spring 2011 issue of Municipal Lawyer, Vol. 25, No.2, published by the New York State Bar Association’s Municipal Law Section, contains an article entitled Leaves of Absences for Disability Pursuant to Civil Service Law Sections 71 and 72.  To order a copy telephone the Bar Association at 518 487-5671 or 518-487-5672 or via  E-mail at newsletters@nysba.org