Disciplinary suspension without pay

Disciplinary suspension without pay
Wachtmeister v Andrus, 279 A.D.2d 82

Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without for up to thirty days pending a resolution of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.

In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeister on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.

On April 2, 1998, however, Wachtmeister was again removed from the payroll, this time in accordance with the terms of her signed “release.” The release provided that Wachtmeister agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.

As the Wachtmeister decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.

In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.

Wachtmeister, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeister sued for her back pay for the period she was suspended without pay in excess of thirty days.

The Appellate Division rejected Wachtmeister claim for back pay for this period as she had been removed from the payroll consistent with the terms of the “release.” It had no difficulty with concept of suspending the employee without pay under such circumstances.

The court also rejected Wachtmeister's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.

Further, the court rejected Wachtmeister's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeister's] misconduct.”

Qualifying for appointment to a position

Qualifying for appointment to a position
Thorsen v Nassau County Civil Service Commission, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Thorsen decision set out the proposition that a Civil Service Commission will be bound by its determination concerning the duties that are properly performed by the incumbent of any given title. This could be significant if its subsequent rulings are inconsistent with its earlier decision concerning the duties of the position in question as the Thorsen decision demonstrates.

George C. Thorsen was appointed to the non-competitive position of Assistant to the Director of Probation of the Nassau County Department of Probation on May 10, 1996 following a series of promotions within the Nassau County Department of Probation.

In 1997, while Thorsen was serving as Assistant to the Director of Probation, the position was reallocated two grades higher based on his performing duties that “encompasses both the areas of law enforcement management, administration, liaison, planning and research.” 

The Nassau County Civil Service Commission was notified of the reallocation and voiced no objection to the change in either the duties of the position nor the salary grade -- two grades higher -- to which the position was reallocated.

As to the authority of a municipal civil service commission in this area, Section 20.1 of the Civil Service Law provides that such a commission “shall prescribe, amend and enforce suitable rules ... including rules for the jurisdictional classification of the offices and employments in the classified service under its jurisdiction, [and] for the position classification of such offices and employments....” 

Section 2.11 of the Civil Service Law defines the term “position classification” to mean “a grouping together, under common and descriptive titles ... and scope of their duties and responsibilities and in the qualification requirements therefore;”

A municipal commission, however, does not have statutory authority to allocate positions subject to its jurisdiction to a salary grade as Section 20.1 also provides that “[n]othing in this chapter ... shall be construed to require that ... the salary grade to which a position in any jurisdictional class is allocated be specified in such rules.”

In August of 1999 the noncompetitive class position of Nassau County Director of Probation became vacant. The Nassau County Executive, Thomas Gulotta, nominated Thorsen for permanent appointment to the Director vacancy and certified his name to the Commission for approval.

The Commission disapproved the appointment on the grounds that Thorsen “lacked managerial experience” and was therefore unqualified for the position. Thorsen's appeal was rejected by the Commission on the grounds that Thorsen “does not posses the five years of managerial experience required for the [Director] position.”

The Commission's rationale:

The defined duties of the title “Assistant to the Director of Probation” do not include the defined managerial experience set forth in the training and experience requirements of the title “Director of Probation”.

State Supreme Court Justice Bruce D. Alpert decided that the Commission's position “is untenable in light of its failure to challenge the 1997 upgrade of [Thorsen's] position as Assistant to the Director of Probation which delineated the position's attendant defined duties and justification.”

By failing to challenge the upgrade, said the court, the Commission “tacitly recognized that the position of Assistant to the Director of Probation encompassed the areas of law enforcement management, administration, liaison planning and research in the administration of the Probation Department. Accordingly, it cannot now, in good faith, argue that [Thorsen's] managerial responsibilities and experience as set forth hereinabove were accomplished “out-of-title”, as that term is defined in Civil Service Law Section 61.2.”

Justice Alpert ruled that the Commission's determination that Thorsen was not qualified for appointment to the position of Director of Probation due to a purported lack of sufficient managerial experience was “without justification, factual predicate or sound basis in reason, and, thus, was both arbitrary and capricious.” The remedy: Justice Alpert directed the Commission to process Thorsen's application for appointment to the Director position.

Performing light duty may impact on eligibility for disability retirement

Performing light duty may impact on eligibility for disability retirement
Perez-Dunham v McCall, 279 AD2d 884

In June 1996, police officer Magarita Perez-Dunham applied for performance of duty disability retirement benefits based upon an injury sustained in November 1993.

The application was rejected on the ground that although Perez-Dunham's disability prevented her from performing the full duties of a police officer, she was not disabled from performing the light duties that she had been performing for more than two years prior to her application.

The Appellate Division pointed out that in the event an applicant for disability retirement benefits is serving in a light-duty assignment, the application must be determined on the basis of the applicant's ability to perform a full-duty assignment unless the applicant has served in a light-duty assignment for two years or more prior to the date on which the application was filed.

If the applicant has performed light duty for two or more years, his or her application must be reviewed on the basis of his or her ability to perform the light-duty assignment.

The Appellate Division ruled that the testimony of the police surgeon that Perez-Dunham was assigned to light duty following her injury provided substantial evidence to support the conclusion that she performed light duties for more than two years prior to her filing her application. While the surgeon conceded that petitioner might have returned to full duty briefly, this was consistent with Perez-Dunham testimony that before being assigned to light duty, she returned to full duty for about six months.

Finding that Perez-Dunham had been assigned and performed light duty for two or more years, the Appellate Division dismissed her appeal from the Comptroller's determination.

Enforcing a PERB order

Enforcing a PERB order
PERB v Westchester County, 280 A.D.2d 849

The Westchester County decision addresses a somewhat rare situation -- a party's claim that it is unable to comply with a PERB order on the grounds of impossibility.

The Public Employment Relations Board [PERB] concluded that Westchester County committed an improper employer practice -- subcontracting nursing services to a private entity. PERB ordered “the unlawfully terminated nurses be restored to the status quo ante and paid lost compensation.”

Westchester did not appeal PERB's ruling within the 30-day limitations period set out in Section 213 of the Civil Service Law. Neither did it take any action to comply with PERB's order. PERB eventually initiated legal action against Westchester seeking a court order enforcing its order.

Westchester asked the court to dismiss PERB's petition, contending that PERB's order was unenforceable “because the facility employing the nurses was removed from [Westchester's] control and replaced by a public benefit corporation.”

The Appellate Division sustained a State Supreme Court's dismissal of Westchester's motion, pointing out that in cases where PERB initiates an enforcement action after the expiration of the 30-day window for review of the merits of a final agency determination, courts are not at liberty to consider “either the determinative or the remedial provisions of the PERB orders.”

Thus, said the court, a party's ability to comply with a PERB order is irrelevant in an enforcement proceeding.

According to the Appellate Division's decision, a party's ability to comply with a PERB order is immaterial to a court's consideration of an enforcement petition, as the facts surrounding a party's failure or inability to comply with the order is a subject to be addressed not during the enforcement proceeding, but during a subsequent contempt proceeding, should one be initiated.

Independent contractors

Independent contractors
Viniotis v Town of Islip, 280 A.D.2d 731

Designating an individual an “independent contractor” does not automatically result in such status as the Town of Islip discovered in the Viniotis case.

Mary C. Viniotis signed a contract with the Town that stated that she was an independent contractor engaged to provide part-time housekeeping services under the Town's expanded in-home services program for its elderly residents.

Viniotis was paid at an hourly rate and submitted “requisition forms” supplied by Islip for the payment of her compensation. The Town set her work schedule and designated the chores to be done for the clients.

The court commented that Viniotis was given a written evaluation of her performance every three months and was issued an identification card indicating that she was a Town employee. Also noted was the fact that Viniotis was required her to take her “mandatory vacation as directed by the Town.”

The Appellate Division sustained the Unemployment Insurance Appeal Board's ruling Viniotis and others “similarly situate” were Town employees and that Islip had to pay unemployment insurance contributions based upon the compensation it paid to these home care providers.

The court, in effect, decided that under the facts of this case, the Town could not disclaim these individuals as town employees simply on the basis of a signed a contract indicating that they served as independent contractors.

As Islip's home care providers are not independent contractors, it appears that the positions must now be classified and appointments made consistent with the controlling provisions of the Civil Service Law. 

N.B. A new position in the Classified Service is automatically in the competitive class unless placed in a different jurisidictional classification by law or by actions of the responsible Civil Service Commission.

Extending work-hour assignment

Extending work-hour assignment
Mt. Vernon PBA v City of Mt. Vernon, App. Div., Second Dept., 279 A.D.2d 561

The Appellate Division ruled that Mt. Vernon violated Section 971(a) of the Unconsolidated Laws when it required members of the City of Mount Vernon Police Department to work more than one eight-hour shift in a consecutive 24-hour period when there was no emergency situation within the meaning of the statute to justify such assignments.

Filing a timely administrative appeal

Filing a timely administrative appeal

Matter of Friedman v New York State Div. of Human Rights, 2011 NY Slip Op 32313(U), Supreme Court, New York County, Docket Number: 104301/11, Judge: Donna M. Mills [Not selected for publication in the Official Reports]

In this special proceeding Moshe Friedman challenged the dismissal of his complaint of alleged unlawful discrimination by the New York State Division of Human Rights (DHR). Friedman had charged that his former employer’s decision to terminate his employment was based on age, creed and gender in violation of the New York State Human Rights Law, Executive Law §296. The Division had dismissed the complaint after finding that it had been “untimely filed.”

Executive Law §297 sets out the procedures for the filing and resolution of complaints of unlawful discrimination by the DHR and prescribes the time period within which an aggrieved party must file a verified complaint in writing, e.g., “…within one year after the alleged unlawful discriminatory practice.”

Friedman contended that the “date of filing” should be the date his complaint was notarized or postmarked, which date would have otherwise been timely*. DHR, on the other hand, said that the date on which it received Friedman’s complaint controlled and it did not receive it until four days after the one-year period for filing such complaints ended.

Judge Mills ruled that New York courts construed this one-year limitations period as mandatory and thus Friedman failed to comply with this mandate, citing Bd.of Educ. of Farmingdale Union School Dist.v New York State Div. of Human Rights, 56 NY2d 257 in support of its ruling.** In the words of the court, Friedman did not meet the time limitation set out in Executive Law §297, “which must be strictly construed” as there is nothing in the statute or its implementing regulation indicating that the timely mailing of an application or a hearing is sufficient. Thus “the timeliness of such a filing must be measured by the date it was [received by] DHR rather than the date it was mailed.”

Accordingly, said Judge Mills, Friedman’s complaint which was received four days after the one-year limitations period expired, was untimely.

In McLaughlin v Saga Corporation, 657 NYS2d 784, a case involving an appeal filed with the Workers' Compensation Appeals Board [WCB], the Appellate Division initially took the position that a notice of appeal is untimely if it physically received by the appellate body after the Statute of Limitations had passed.

In Saga's case, although the appeal was mailed within the 30-day period allowed for filing the application, WCB did not physically receive it until eight days after the statute of limitations had expired. When Sega asked for permission to appeal its rule, the Appellate Division elected to reconsider its decision. It then reversed its initial ruling, holding that it is the date of mailing, rather than the date of receipt, that controls in determining the timeliness of an administrative appeal.

The rationale underlying the revised ruling: If a person has a statutory right to make a decision, which may be then filed by mail, this period would necessarily be shortened if the appellate body could insist that it physically receive the mailed notice no later than the last day of the period of limitation. In effect the Court concluded that the method of service of a notice of appeal, mail or personal delivery, should not determine the time period available to the party to decided whether or not to appeal an administrative ruling.

On occasion law, rule and regulation set out the criteria regarding “timely fillings.” For example, Chapter 245 of the Laws of 1992 provided that the timely mailing of an application to qualify for service credit or benefits by the deadline date established is sufficient to meet a deadline, provided mailing is actually received by New York State Teachers' Retirement System. If, however, the System never "actually received" the application, the court would probably have required that the applicant submit "proof of mailing within the limitations period" in order to have the filing declared timely. Accordingly, it would be prudent to send appeals filed using the U.S. Postal Service by certified or registered mail, "return receipt request" notwithstanding the provisions of Chapter 245 type provision to the contrary.

* N.B. In such cases both the execution of the required notarization and the physical mailing must be timely.

** See, also, City of Cortland v White, 114 A.D.2d 64. In Cortland the Appellate Division, 3rd Department, ruled that an appeal from a determination of the Commissioner of Human Rights must have been actually received by the court, in contrast to having merely been mailed on or before the last day on which it may be filed to be timely. Although the Cortland claimed that it had mailed its petition to the court within the 60-day time limit permitted, the Appellate Division ruled that it was the date of receipt, not the date of the mailing, which controlled in determining if an appeal is timely filed. Although the Human Rights Law is silent as to the manner and effective date of commencing an appeal from a determination by the Commissioner of Human Rights (or a DHR regional director), the Appellate Division noted the "considerable body of precedential law" in support of its ruling, citing People v Dimmie, 15 NY2d 578.

Seeking an alternate remedy may not stay the running of Article 78's statute of limitations

Seeking an alternate remedy may not stay the running of Article 78's statute of limitations
Brignoni v Abramson, 278 AD2d 565

Critical to consideration of any grievance or lawsuit is that the complaint be timely filed, typically referred to as satisfying the statute of limitations. The Brignoni case demonstrates the importance of a timely filing of any such actions.

New York State correction officer Obdulio Brignoni, Jr. held a temporary appointment as a correction sergeant. He later learned that it was unlikely that he would ever be given a permanent position of correction sergeant.

The union, Law Enforcement Officers Union, District Council 82, [DC-82] sued the Department of Correctional Services [DOCS] on behalf of Brignoni and other “temporary sergeants,” contending that such temporary appointments were unlawful, unconstitutional and an abuse of discretion.

Initially DOCS offered to settle the action on terms that would have resulted in Brignoni being given a permanent appointment. DC-82, however, rejected the offer. Ultimately, DC-82 and DOCS settled the lawsuit. The terms of the settlement “excluded” Brignoni and he did not receive a permanent appointment as a correction sergeant.

While the settlement discussions were taking place Brignoni filed a grievance challenging his temporary appointment. The Governor's Office of Employee Relations [GOER] determined that Brignoni's complaint was not grievable.

To “protect his employment,” Brignoni applied for and received a voluntary demotion to correction officer.

He later filed an improper practice charge against DC-82 with the Public Employment Relations Board (PERB), alleging that DC-82 had breached its duty of fair representation by settling the class action with DOCS in a manner detrimental to his interests.

In addition to dismissing Brignoni's charge as untimely, PERB also indicated that he “failed to establish that the Union had breached its duty of fair representation.” Brignoni filed a petition pursuant to Article 78 seeking to overturn PERB's decision.

Among the reasons given by a Supreme Court judge for dismissed Brignoni's petition was that it was untimely.

The Appellate Division affirmed the lower court's ruling, indicating that “[a] proceeding which seeks to review the determination of a body or officer must be commenced within four months after the determination becomes final and binding.”

Since Brignoni did not file his petition with in four months of PERB's final determination, he was barred from proceeding.

Brignoni attempted to persuade the court that his Article 78 petition was timely on the basis that the statute of limitations “was tolled during the pendency of his grievance proceeding against DOCS.”

The court decided that there was “no merit to this argument since the pursuit of an unavailable grievance procedure does not operate to toll the Statute of Limitations.” Pointing out that Brignoni's grievance was dismissed by GOER as “not grievable” and he did not challenge that determination within the four months period available to him for such purpose, this was yet another reason for holding Brignoni's Article 78 action untimely.

Equally unsuccessful was Brignoni's argument that his filing of an unfair labor practice charge with PERB tolled the Statute of Limitations. This Appellate Division said that this argument “is equally unavailing” since DOCS was not a party to that proceeding and, in any event, it did not impinge upon [Brignoni's] right to commence a timely Article 78 proceeding against DOCS.

Public policy and arbitration

Public policy and arbitration
NYC Transit Authority v Transport Workers Union, 279 AD2d 474

A New York City Transit Authority [NYCTA] employee was charged with failing to follow the proper procedure in applying the brakes on the subway train he was operating. This resulted in an accident and the derailment of the train. Dismissed from his position, the individual filed a grievance challenging his termination.

A Tripartite Arbitration Board denied the employee's grievance but imposed a lesser penalty -- demotion for not more than six months. NYCTA filed an Article 75 petition seeking to vacate the penalty imposed by the Board on the grounds the modification “was against public policy.”

The Appellate Division reversed a lower court's decision affirming the arbitration award that specifically vacated “so much of the arbitration award as reduced the penalty imposed from dismissal to demotion.”

Clearly an arbitration award may not be vacated unless it is violative of a strong public policy, is irrational, or clearly exceeds a specific limitation on an arbitrator's power. Here, however, the court concluded that the panel's changing the penalty imposed on the employee from dismissal to demotion was contrary to public policy.

The Appellate Division explained that the NYCTA “has an important statutory duty to operate the transit system for the safety of the public.” Requiring NYCTA to reinstate an employee who has been found to be a threat to public safety is both contrary to public policy and to NYCTA's statutory duty to operate the transit system safely. The decision also noted that the employee involved had two prior operational suspensions.

Management prerogatives - nonmandatory subjects of negotiations

Management prerogatives - nonmandatory subjects of negotiations
City of Niagara Falls v Niagara Falls Police Captains and Lieutenants Association, 33 PERB 3058

Niagara Falls filed an unfair labor practice charge with PERB contending that the Niagara Falls Police Captains and Lieutenants Association included two proposals that were nonmandatory subjects of negotiation in its petition for interest arbitration.

One proposal involved “qualifications” for appointment [proposal 1]; the second, proposal 13, concerned retirement benefits. PERB agreed with its Administrative Law Judge that both proposals were nonmandatory or prohibited subjects of collective bargaining and thus constituted excluded subjects for the purposes of compulsory interest arbitration.

The first proposal contained two basic elements.

The first element addressed qualifications for appointment to a position. PERB said that “qualifications for a position are a management prerogative and, thus, a nonmandatory subject of bargaining.”

However, coupled with this demand was a proposal setting out a procedure in which an appointment to a vacant position would be made by selecting the appointee from among the three most senior officers.

PERB said that it had previously held that “procedures to be used to fill a position, e.g., seniority, are a mandatory subject of negotiations.

However, coupling a mandatory demand with a nonmandatory demand results in both being deemed nonmandatory. PERB, citing it ruling in Matter of Police Benevolent Association of the City of White Plains, 33 PERB 3025, said:

“We have held that where a bargaining proposal contains two or more inseparable elements, i.e., a unitary demand, at least one of which is nonmandatory, the entire proposal is deemed nonmandatory.”

As to the second item objected to by Niagara Falls, proposal 13 provided that “[i]n the event the New York State Legislature authorizes the elimination of any restrictions on Tier II employees, the City will eliminate such restrictions.”

The Association argued that the ALJ incorrectly held that its proposal 13 involved additional Retirement and Social Security Law Section 443(f) pension benefits. PERB rejected the Association's characterizing proposal 13 as a non-retirement item.

PERB decided that the demand, in fact, was a retirement matter and that Section 443(f) benefits are not subject to compulsory interest arbitration.