Freedom of information [FOIL] requests for information concerning health insurance plans

Freedom of information [FOIL] requests for information concerning health insurance plans
Passino v Jefferson-Lewis CSD, 277 A.D.2d 1028

A number of school districts participate in "a municipal cooperative health benefit plan" [SEHP] in order to provide health insurance benefits to the employees and retirees of the participating districts. The plan had been established pursuant to a municipal cooperation agreement.

Passino and another teacher covered under the health insurance plan demanded that SEHP provide it with certain information pursuant to the Freedom of Information Law [FOIL]. SEHP refused and the teachers sued. As it turned out, they won the battle but lost the war.

First the Appellate Division ruled that SEHP is an "agency" subject to FOIL requests because it was created to benefit public employers by allowing them "to share, in whole or part, the costs of self-funding employee health benefit plans; provide ... school districts and other public employers with an alternative approach to stabilize health claim costs; and enhance negotiating power with health providers by spreading such costs among a larger pool of risks" in accordance with Section 4701(a) of the Insurance Law.”

Because SEHP exists only to benefit public employers in their effort to provide health insurance to their employees, the court rejected SEHP's claim that it is "it is a private entity akin to a private insurance company."

However, said the court, the records demanded by Passino are exempt from disclosure under FOIL because SEHP "is a commercial enterprise,” and to permit disclosure of the records would "cause substantial injury to [its] competitive position," citing Encore College Bookstores v Auxiliary Service Corp., 87 NY2d 410.

Employee terminated for falsifying time cards

Employee terminated for falsifying time cards
Colon v Crew, App. Div., Second Dept., 278 A.D.2d 234

A disciplinary hearing officer found Supervisor of School Maintenance Workers Jose Colon guilty of falsifying information his time card on 236 occasions within a 14-month period. The penalty imposed: dismissal.

The Appellate Division rejected Colon's appeal, finding that the determination of the hearing officer was supported by substantial evidence.

As to the penalty imposed, termination, the court said that the penalty was not so disproportionate to the misconduct as to be shocking to one's sense of fairness, citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

Unemployment insurance benefits denied individual terminated for to follow employer's procedure

Unemployment insurance benefits denied individual terminated after failing to  follow employer's procedure
Cordova v Commissioner of Labor, 277 A.D.2d 623

Sonia Cordova's application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board after it determined that she was disqualified for benefits because she was terminated from employment for misconduct.

Cordova, the program director at a senior citizen center, was dismissed because she purchased furniture without soliciting bids from vendors or obtaining the requisite written approval for such purchases in violation of her employer's policies and procedures.

The Appellate Division sustained the Board's decision, commenting that "[g]iven [Cordova's] knowing disregard of the employer's purchasing policy and prior conduct, substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant engaged in disqualifying misconduct."

NYS Department of Civil Service announces lower employer contributions for health insurance by the State on behalf of certain of its officers, employees and its retirees to take effect October 1, 2011

NYS Department of Civil Service announces lower employer contributions for health insurance by the State on behalf of certain of its officers, employees and its retirees to take effect October 1, 2011

Source: NYS Department of Civil Service Employee Benefits Division

The New York State Department of Civil Service’s Employee Benefits Division has indicated that certain terms of recently negotiated collective bargaining agreements resulting in an increase in the percentages or ratios of employee contributions for NYSHIP premiums for individuals in those collective bargaining units will be imposed on State officers and employees designated managerial or confidential within the meaning of Article 14 of the Civil Service Law [the Taylor Law] and retirees of the State as an employer as well as certain other individuals in the Executive, Legislative and Judicial branches of State government effective October 1, 2011.

In response to this announcement, the Retired Public Employees Association, Inc. [RPEA] has written to the President of the Civil Service Commission and to the State Comptroller on behalf of all State retirees objecting to this action.

In essence the letter to President of the Civil Service Commission RPEA contends that the decreases in the ratios or percentages of the premium or costs of health insurance paid by the State as its “employer contribution” towards the cost of the retiree’s health insurance premium are improper insofar as present retirees are concerned and suggests an amendment to 4 NYCRR 73.3 applying these increases to state officers and employees retiring on or after October 1, 2011 while "grandfathering" the contribution ratios or percentages paid by the State as its employer contribution on behalf of state officers and employees retiring on or before September 30, 2011 as now mandated by §167.1 of the Civil Service Law. 

Click Here  to read RPEA’s letter to the President of the Civil Service Commission.

RPEA’s letter to the NYS Comptroller requests him not to implement any increases in deductions for retiree health insurance contributions from the retiree's Retirement Allowance that might otherwise be required as a result of the Department of Civil Service's action and sets out RPEA’s arguments in support of its request.  

Click Here to read RPEA’s letter to the State Comptroller.

Interpreting the provisions of a collective bargaining agreement

Interpreting the provisions of a collective bargaining agreement
Chemung County v CSEA, 277 A.D.2d 792

The Chemung County case makes the point that a Taylor Law agreement may contain a clause that could become a "landmine" if ignored by the arbitrator and ultimately result in a court's vacating an arbitration award issued pursuant to the agreement's "contract arbitration clause."

The case also provides an opportunity to explore a number of factors that could be involved in making this particular arbitration award in consideration of various provisions of the Civil Service Law.

The Decision

Section 2.04 of the collective bargaining agreement negotiated by Chemung County and the Civil Service Employees Association provided that the interpretation of its provisions were to be governed by the relevant provisions of the Civil Service Law and the County's local laws.

Finding that the arbitrator failed to consider this aspect of the agreement in resolving a contract dispute between the parties, the Appellate Division confirmed the lower court's vacating the arbitrator's award in favor of CSEA.

According to the decision, in September 1997 Brian Kennedy was appointed to the position of Social Welfare Examiner Trainee. Kennedy's appointment was subject to a 52-week probationary period. In April 1998, the Kennedy was promoted as a "Temporary Social Welfare Examiner."

Shortly before the expiration of the original 52-week probationary period, Kennedy was terminated. CSEA filed a contract grievance contending that summarily terminating Kennedy constituted a violation of Section 2.04 of the agreement, which concerned "probation upon promotion."

Kennedy, CSEA argued, could not be removed without notice and hearing because he had completed the twelve-week probationary period required in promotion situations as set out in the collective bargaining agreement.

CSEA filed a grievance on Kennedy's behalf. The arbitrator concluded that Kennedy's appointment in April 1998 constituted a promotion subject to a 12-week probationary period as provided for by the agreement. He ruled that Kennedy was wrongly terminated and directed his reinstatement.

The Appellate Division vacated the arbitrator’s award, explained its reasoning as follows:

The arbitration clause in the agreement provides that the arbitrator's award shall be final and binding except that "in the event either party determines that the arbitrator has varied the terms or illegally interpreted the terms of [the agreement] ... such aggrieved party shall have the right to submit that sole issue to the Court ... and the Court shall have jurisdiction of that particular issue".

The general rule applied in such cases is that "a contract should not be interpreted in such a way as would leave one of its provisions substantially without force or effect." Accordingly, said the Appellate Division, the arbitration clause of the agreement precludes an arbitrator from adding to, subtracting from or otherwise modifying the terms of the parties' agreement.

The Appellate Division held that the rules for the classified service adopted by the Chemung County/City of Elmira Regional Civil Service Commission [Commission] contains a provision which, on its face, appears to govern whether the appointment of Kennedy to a higher level position on a temporary basis prior to the expiration of his original 52-week probationary period constitutes a promotion which could trigger the replacement of the original probationary period.

The arbitrator, the court implied, failed to consider the impact of this provision in formulating the award.

Since Section 2.04 of the agreement required the arbitrator "to give due consideration to such civil service rules when rendering his interpretation," Section 2.04 constituted a specifically enumerated limitation on the arbitrator's power.

When, said the court, the arbitrator failed to recognize that his interpretation was controlled by the provisions of Section 2.04 of the agreement, the arbitrator effectively deleted that term in contravention of an express limitation on his power. In other words, the arbitrator's award must be consistent with the relevant provisions of the Civil Service Law and the controlling commission's relevant regulations.

Failing to do so was a fatal defect and the court ruled that vacating the award and remitting the matter to a new arbitrator for reconsideration was proper.

The Remand

What should the new arbitrator consider?

There are a number of elements that the arbitrator probably will have to explore.

The basic argument advanced by CSEA is that Kennedy attained tenure as a result of his having completed a 12-week probationary period after his promotion to "Temporary Social Welfare Examiner" implying that he had attained tenure by estoppel. Accordingly, the first issue to be resolved: what is Kennedy's status in the classified service?

Assuming that the characterization of Kennedy's appointment as "temporary" is correct, the position to which he was "promoted" was probably temporarily vacant because the permanent incumbent was on an authorized leave of absence.

Accordingly, Kennedy would have been appointed to the position in accordance with the provisions of Section 64 of the Civil Service Law. Section 64 authorizes a temporary appointment to be made to an encumbered position or to a vacant position that is expected to be eliminated within six months.

However, such an appointment would not mature into "tenured" status unless Kennedy was appointed to the position as a "contingent permanent" employee in accordance with the provisions of Section 64.4 of the Civil Service Law. It seems unlikely that Kennedy held a contingent permanent appointment since no mention of such his enjoying such a status is referred to in the decision.

As the Court of Appeals said in the Snyder case, the appointing authority must affirmatively act to effect a contingent permanent appointment [Snyder v Civil Service Commission, 72 NY2d, 981].

If, on the other hand, the position was wholly vacant, Kennedy was probably "appointed provisionally" to the position pursuant to Section 65 of the Civil Service Law. However, a provisional employee cannot attain tenure by estoppel in the position unless the specific requirements set out in Section 65.4 are satisfied.

Essentially Section 65.4 provides that if an individual whose name is on a nonmandatory eligible list is serving provisionally in the position and is continued in service beyond the mandatory period of probation otherwise required, he or she attains tenured status by operation of law [Roulette v Town of Hempstead Civil Service Commission, 40 AD2d 611].

In contrast, if the provisional employee is on a mandatory list, he or she cannot claim to have attained tenured status pursuant to Section 65.4 regardless of the duration of his or her appointment [Becker v NYS Civil Service Commission, 61 NY2d 252].

At this point, the arbitrator might well conclude that Kennedy has not attained any tenured status and thus remains a probationary employee. Does this mean that Kennedy may be summarily dismissed? Not necessarily. Some further inquiry by the arbitrator seems essential.

Probationary status

The arbitrator must determine if any rules promulgated by the Commission concerning probationary service apply in Kennedy's situation.

For example, Section 4.5(i) of the Rules of the Classified Service promulgated by the New York State Civil Service Commission [4 NYCRR 4.5(i)], which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, addresses the status of an employee who has not completed his or her probationary term when he or she is appointed on a temporary or provisional basis to a higher level position. Similar provisions have been adopted by many local civil service commissions.

Section 4.5(i), among other things, provides that:

The period of temporary or provisional service rendered by such [an] employee in such higher level position may, at the discretion of the appointing authority, be considered as satisfactory probationary service in his [or her] lower position and may be counted as such in determining the satisfactory completion of such probationary term.

The appointing authority is required to advise the individual in writing "whether or not service in such higher level position shall be considered as satisfactory probationary service." 4 NYCRR 4.5(i) further provides that "in the event of an adverse decision by the appointing authority, the probationer, at his or her request, is to be returned to his or her lower grade position for sufficient time to permit him or her to complete his or her probationary term in that position and the probationer is not to be terminated at the end of his or her probationary term on account of unsatisfactory service unless he or she shall have actually served in such position, in the aggregate, at least a period of eight weeks."

In a "leave situation" such as Kennedy's, unsatisfactory performance in a higher level position may not be considered in determining whether or not the probationer performed satisfactorily in his or her lower level position.

Among the elements that the arbitrator may have to consider are the following:

1. Has Commission adopted a rule similar to 4 NYCRR 4.5(i)?

2. If such a rule is in place, does the appointing authority have any discretion to consider Kennedy's employment in the higher-level position as counting towards his satisfying the probationary requirements of the lower level position and, if so, what was Kennedy told?

3. Assuming Kennedy's service in the higher level position was deemed unsatisfactory, do the Chemung County rules allow Kennedy the option of returning to his lower grade position "for sufficient time to permit him or her to complete his probationary term in that position?"

Assuming that the arbitrator determines that Kennedy has not completed the minimum period of probation required for the position of Social Welfare Examiner Trainee, what are the County's options?

In such situations the courts have ruled that if the appointing authority wishes to remove an individual who has not completed the minimum period of probation for the position, it must comply with the provisions of Section 75, or the disciplinary procedures set out in the collective bargaining agreement.

If, on the other hand, the employee has completed his or her minimum period of probation, he or she may be lawfully terminated without notice or hearing prior to the end of the maximum period of probation.

Notice of termination

Finally, when is the appointing authority required to tell an employee that he or she has not satisfactorily completed his or her probationary period and will be dismissed?

It is well settled that if a probationary employee is continued in service beyond the last day of the maximum probationary period and was not given a timely notice that he or she was to terminated at the end the probationary period or that his or her probationary period has been extended beyond the maximum period, the employee becomes "tenured" in the position and thereafter may only be removed for cause after notice and hearing. In other words, the employee has attained tenure by estoppel.

If a probationary employee is given his or her notice of termination on the last day of the employee's probationary period and the employee is continued on the payroll beyond the last day his or her probationary period has he or she attained tenure by estoppel?

In a word, No! As the Appellate Division held in Mendez v Valenti, 101 AD2d 612, as long as the termination is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position.

Although the effective date of the employee's removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before the end of his or her probationary period.

Recommendation of the hearing officer

Recommendation of the hearing officer
Spry v Delaware Co., 277 A.D.2d 779

Delaware County Countryside Care Center ward clerk Valentina Spry was charged with numerous specifications of “incompetence, insubordination, conduct unbecoming an employee, serious misconduct and unauthorized use of facility property” pursuant to Section 75 of the Civil Service Law.

The hearing officer found Spry guilty of a great many of the charges and recommended that she be demoted in grade and title. Countryside's administrator adopted the Hearing Officer's findings of guilt but rejected the recommendation as to penalty. The penalty imposed by the administrator: dismissal.

Spry appealed her termination. She, however, did not challenge the hearing officer's finding her guilty of certain charges. She, instead, complained that the administrator's rejection of the Hearing Officer's recommendation of the penalty to be imposed and his subsequent determination to terminate her employment instead is not supported by substantial evidence in the record.

The Appellate Division rejected Spry's argument. It held that the appointing authority "is free to disregard the recommendation of its Hearing Officer, to make new findings and to impose different discipline" and the penalty imposed will not be set aside unless it is found to be shockingly unfair within the meaning of the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

As to the appointing authority's making new findings, however, such findings must be based on substantial evidence in the record and the courts will uphold such determinations if there is a rational basis for the decision.

The Shurgin case [Shurgin v Ambach, 83 AD2d 665, affirmed by the Court of Appeals (56 NY2d 700)] explores this type of situation.

In Shurgin a Section 3020-a disciplinary panel imposed a reprimand as the disciplinary penalty. The panel found Shurgin, a teacher, guilty of "poor judgment" for showing "pornographic films" to his class.

The school district appealed to the Commissioner of Education, who found that a reprimand was disproportionately lenient for this "very serious offense" and directed that Shurgin be terminated instead.

The Court upheld the Commissioner's determination.