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.

======================

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

The Union's duty of fair representation

The Union's duty of fair representation

UFT Local 2 v NYC Board of Education, 34 PERB 4553

John Zito, a New York City teacher, was served with a notice of discipline pursuant to Section 3020-a of the Education Law while he was on an “extended sick leave” of absence without pay. He was told that he was to be suspended with pay pending resolution of the charges in accordance with Section 3020-a. The charges: excessive absenteeism and neglect of duty.

The problem: according to the decision, Zito refused to terminate his “leave of absence without pay for restoration of health,” a condition precedent to his being placed on leave with pay in connection with his being suspended in accordance with Section 3020-a. In the words of an internal union memorandum concerning the situation: “Zito wants to receive his salary while on a leave of absence without pay.”

Despite the union's position that there was no merit to Zito's seeking to have the Section 3020-a charges dismissed, he filed a grievance alleging the district's action violated various provisions of the collective bargaining agreement.

UFT Local 2, after consultation with its attorneys and others, had declined to process Zito's grievance seeking dismissal of the disciplinary charges to “Step 3”.* Local 2 concluded that insofar as relief sought by Zito -- restoration to the payroll while continuing on sick leave without pay -- “no contractual provision governed Zito's situation and that a grievance would, therefore, not be meritorious.” Zito response to the Local's decision: he filed charges with PERB alleging that the union had violated its duty of fair representation.

PERB's Administrative Law Judge [ALJ] Philip L. Maier ruled that the evidence did not demonstrate that the UFT acted in an arbitrary, discriminatory or bad faith manner when it refused to move Zito's grievance to Step 3. Further, said Maier, even if the UFT's decision not to process the grievance to Step 3 was incorrect, “this mistake would not in and of itself rise to the level of a violation of the [union's] duty of fair representation.” The test announce by the ALJ to be used to determine if a union has violated its duty of fair representation: A union violates its duty of fair representation if a charging party's interpretation of the merits of the grievance is “the only possible interpretation,” but the union nevertheless refuses to process the grievance, since such action amounts to arbitrary conduct.

Concluding that Zito's interpretation of the contract clauses he contended had been violation was not the only possible interpretation of the collective bargaining agreement, Maier dismissed the improper practice charge filed against Local 2.

* The collective bargaining permitted an employee to process a grievance at Steps 1 and 2; only the UFT could process a grievance to Step 3.

Concerning filing a timely Article 78

Concerning filing a timely Article 78

Budihas v Board of Education, 285 AD2d 549

Bonilla v Board of Education, 285 AD2d 548

When does the four-month Statute of Limitation to file a timely Article 78 petition begin to run? This critical issue involving the State's adjective law is explored in the Budihas and Bonilla cases.

The Budihas Case

On April 8, 1998, Stephen J. Budihas was told that his employment as a probationary principal would be terminated “as of the close of business on May 1, 1998”. Ultimately, the decision to terminate Budihas was sustained by the Chancellor of the Board of Education of the City of New York on April 8, 1999.

On July 30, 1999, Budihas filed a petition pursuant to Article 78 of the Civil Practice Law and Rules seeking to overturn the Chancellor's decision. The Appellate Division, Second Department, affirmed a Supreme Court decision holding that Budihas' petition was untimely.

The court pointed out that “a determination to terminate probationary employment becomes final and binding on the date the termination becomes effective,” citing Frasier v Board of Education, 71 NY2d 763. Accordingly, said the court, Budihas' petition, filed on July 30, 1999, is clearly time-barred.

Courts, usually in cases involving employee timeliness claims in civil rights litigation, have ruled that the Statute of Limitations commence to run when the decision to terminate an employee is communicated to the individual rather than the effective date of the termination. The leading case addressing this issue: Delaware State College v Ricks, 449 US 250.

The Bonilla Case

 

The Bonilla case, however, in addition to the issue of the “timeliness” of an Article 78 challenging an employee's dismissal, concerned the timeliness of an appeal from an administrative decision affirming the unsatisfactory performance evaluation underlying the employee's termination.

On June 26, 1998, New York City teacher Carmelo Bonilla was terminated from his position as a provisional [sic] science teacher. Bonilla had received an unsatisfactory rating of his teaching performance.

However, the final decision sustaining Bonilla's unsatisfactory performance rating was not issued by the Chancellor of the Board of Education until March 25, 1999. On July 20, 1999, Bonilla filed an Article 78 petition seeking to have his unsatisfactory rating annulled and an order directing his reinstatement to his former position with back pay and benefits.

The Supreme Court dismissed Bonilla's petition in its entirety as time-barred, ruling the Statute of Limitations began to run on the date Bonilla's employment was terminated in June 1998. The Appellate Division disagreed in part with this ruling, holding that the “Supreme Court erred in dismissing the entire proceeding on the ground that it was barred by the Statute of Limitations.”

Clearly, said the court, an Article 78 proceeding against a public body or officer must be commenced within four months after the determination to be reviewed becomes final and binding. Thus that part of Bonilla's Article 78 petition seeking a review of determining to dismiss him effective June 26, 1998, is barred by the four-month Statute of Limitations because this determination became final on the effective date of his discharge.

In contrast, said the court, that part of Bonilla's Article 78 petition challenging the March 25, 1999 determination by the Chancellor, sustaining Bonilla's unsatisfactory rating was not time barred.

Bonilla, explained the Appellate Division, had a right to administrative appeal his unsatisfactory evaluation as well as a hearing to test that determination. The hearing panel's recommendation did not become final until the Chancellor issued a decision acting upon it. Accordingly, the determination that Bonilla's teaching performance was unsatisfactory did not become final and binding until the Chancellor denied his appeal and sustained the rating.

The court annulled Bonilla's unsatisfactory rating “since the [Board of Education conceded] that it was not preceded by an inspection of [Bonilla's] work and a consultation with him by the appropriate official.”

As Bonilla's Article 78 attack on the Chancellor's determination has survived [and assuming his was a probationary, in contrast to holding a provisional appointment], he may ultimately prevail in his quest for reinstatement if he can demonstrate that the performance evaluation underlying his termination was arbitrary or capricious or was otherwise materially defective.

If, on the other hand, Bonilla was, in fact, appointed as a provisional employee, presumably any further proceeding would be solely in the nature of a “name-clearing” hearing.

Union's right to obtain information

Union's right to obtain information

Schuyler-Chemung-Tioga Educational Asso., 34 PERB 3019

The Public Employment Relations Board concluded that it was an improper practice for the Schuyler-Chemung-Tioga BOCES to refuse to provide the Educational Association with information it said it required in connection with its investigation of a possible grievance.

Although PERB noted that it had ruled that a refusal to provide information may result in a charge alleging “a refusal to negotiate” under Section 209-a.1(d) of the Taylor Law, such a refusal may also constitute a violation of Section 209-a.1(a) of the Act.

In the words of PERB “[t]he [employer's] denial of a reasonable demand for information which is relevant to collective negotiations, grievance adjustment, the administration of a collective bargaining agreement, or the resolution of an impasse ... impairs the union's ability to effectively represent the interests of employees in the unit.

The duty of the employer to provide the union with such information is not unlimited, however. The duty to provide information in the context of a grievance procedure is circumscribed by the “rules of reasonableness,” including the burdensomeness of the request, the availability of the information through other sources, the relevancy of the information and its necessity.

Dismissal of correction officer found guilty of failure to act in situation involving an inmate-on-inmate assault recommended

Dismissal of correction officer found guilty of failure to act in situation involving an inmate-on-inmate assault recommended

Dep’t of Correction v. Connell (in PDF), OATH Index No. 1598/11

OATH Administrative Law Judge Tynia Richard found that a correction officer assigned to a mental observation unit permitted an inmate-on-inmate assault inside a cell, passively stood by as inmates entered and exited the cell, failed to properly perform lock-in/lock-out procedures, failed to report the assault, and failed to obtain medical attention for the injured inmate.

ALJ Richard found “convincing video evidence also showed the officer participating in the assault, although he did not strike the inmate.”

ALJ Richard recommended termination of employment, in part due to the failure of the officer, a long-term employee, to testify and offer an explanation for his actions or any mitigation evidence.

Filing an election of a retirement option

Filing an election of a retirement option

Matter of Leisten, 285 AD2d 897, Motion to appeal denied, 97 NY2d 605

If nothing else, the Leisten decision serves as a reminder that it is the responsibility of the member of the retirement system to file the form designating his or her beneficiary and the form required for the selection of the retirement option he or she desires with the retirement system.

Faced with a terminal illness, David Leisten filed a request for an estimate of retirement benefits which would be payable under the joint allowance-full option, naming his wife, Pearl Leisten, as his intended beneficiary. In response to his request, the New York State Employees' Retirement System [ERS] sent Leisten an estimate of amounts payable under the various retirement options together with a blank option election form that was to be completed and filed with ERS within a specified time. The form specifically noted that if an option election is not timely filed, “the law requires that you be retired under the cash refund contributions option”.

The joint allowance-full option Leisten indicated he wished to elect in his request to take early retirement would have entitled his widow to monthly payments of $880 for the remainder of her life. ERS, however, could not find a completed option election form in its files. Accordingly, ERS told Pearl Leisten that it was bound to apply the cash refund-contribution option, entitling her to receive only a full ordinary death benefit: $49,000.

The court said that “while an employee is authorized to elect from several retirement payout options ... such election must be received and filed prior to the retiree's death to be effective.” As the record contained testimony highlighting the difference between the naming of an intended beneficiary in an early retirement request and the designation of a beneficiary in a legally effective option election, the Appellate Division sustained ERS's decision that Pearl Leisten was only entitled to an ordinary death benefit as supported by substantial evidence.

The lesson here: members must make certain that a timely designation of beneficiary and the benefit option the member wishes upon retirement is on file with the retirement system.