Statement from director of state operations Howard Glaser on PEF vote rejecting the negotiated agreement between the State and the Public Employees Federation [PEF]

Statement from director of state operations Howard Glaser on PEF vote rejecting the negotiated agreement between the State and the Public Employees Federation [PEF]

In a press release issued by the Executive Chamber on September 28, 2011, Director of State Operations Howard Glaser said:

"Today's vote [in which the membership rejected the proposed negotiated agreement] represents a failure by PEF's leadership to effectively communicate the benefits of the contract to its members as CSEA's leadership did. Layoffs could still be avoided if PEF clearly articulates to its members the benefits of the contract as well as the consequences of rejection and schedules a revote. We spent months working with PEF's leadership and reached an agreement. We now find out that they do not truly represent their membership.

”Members of the Civil Service Employees Association (CSEA), who agreed to a layoff protection as part of their ratified collective bargaining agreement, will not be subject to the approximately 3,500 layoffs that will begin today."

With respect to the ratification process of a proposed Taylor Law contract reflecting the agreements and understanding between the negotiators representing the employer and the employees in the unit, in Matter of Copaigue Union Free School District, 23 PERB 3046, PERB addressed the duty of negotiators to recommend ratification of a proposed agreement and held that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support."

Section 75 of the Civil Service Law limits suspension without pay to thirty days notwithstanding the individual’s being found guilty of the charges

Section 75 of the Civil Service Law limits suspension without pay to thirty days notwithstanding the individual’s being found guilty of the charges
Vargo v Safir, App. Div., First Dept., 291 A.D.2d 268

Although the Appellate Division did not have any difficulty in affirming New York City Police Commissioner Howard Safir's imposing the penalty of dismissal after finding police officer guilty of misconduct, it did find that there was a question as to whether the officer was entitled to back pay.

The court said that it appeared that the officer had been suspended without pay for more than 30 days after he was served with disciplinary charges filed against him.

Civil Service Law Section 75.3-a, in pertinent part, provides that a New York City police officer may be suspended without pay for thirty days pending the determination of disciplinary charges.

Accordingly, said the court, and the Department agreed, it was necessary to remand the matter to the Department to determine if the police officer was entitled to back salary for any period of suspension without pay in excess of 30 days.

CSL Section 75.3-a further provides that if a New York City police officer is found guilty of the charges, the Commissioner "may punish the police officer pursuant to the provisions of Sections 14-115 and 14-123 of the Administrative Code of the City of New York."

The Appellate Division sustained the Commissioner's determination that Vargo was guilty of being the driver of a motor vehicle involved in "a hit-and-run" while off duty and that he used illegal drugs. Under the circumstances, said the court, "[t]he penalty of dismissal does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32, in support of its ruling.

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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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Conflicting medical opinions

Conflicting medical opinions
Buczynski v NYSERS, 291 AD2d 630

Daniel Buczynski, a marketing specialist for the State's Lottery Division, filed an application for disability retirement benefits in January 1997. The basis for his application: anxiety and depression.

Buczynski had stopped working in May 1996 for what was ultimately diagnosed as panic attacks and depression. Buczynski claimed that his condition was the result of increased work and he developed Bell's palsy.

His psychologist said that Buczynski:

1. "continued to exhibit significant cognitive deficits despite several years of therapy and medication" and

2. "was permanently disabled from performing his duties."

The Retirement System's psychiatrist who examined Buczynski in July 1997 "opined that [Buczynski] had suffered a major depression in 1996 that left him unable to perform his duties but that [Buczynski's] condition had improved, that he had no cognitive deficiency and that, with further treatment, he should be able to return to the type of work he had been doing."

In other words, the System's psychiatrist concluded that Buczynski was not permanently disabled from the performance of his duties. Based upon the psychiatrist's opinion, the System denied Buczynski's application for disability retirement.

In response to Buczynski's appeal, the Appellate Division held that there was no merit to Buczynski's claim that the psychiatrist's opinion was insufficient to provide the necessary substantial evidence to support the Comptroller's determination.

The court said that "[w]here, as here, the Retirement System's expert provides an articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records, the expert's opinion generally will not be considered so lacking in foundation or rationality as to preclude the Comptroller from exercising the authority to evaluate conflicting medical opinions...."

Protected union activity

Protected union activity
CSEA Local 861 and Wyoming County, 34 PERB 3042
Local 814 and Town of Poughkeepsie, 34 PERB 3043

Where the employer's reason for dismissing a probationary employee is rejected by PERB as pretextual because the employee was not disciplined for the misconduct claimed as the basis for the dismissal, the inference that the employer retaliated against the employee for pursuing a grievance in violation of Civil Service Law Sections 209-a.1(a) and 209-a.1(c) has not been rebutted by the employer.

Similarly, in the Town of Poughkeepsie case, PERB held that the Town terminated an employee because of union organizing activities in violation of Civil Service Law Sections 209-a.1(a) and 209-a.1(c), finding that the reasons given by the Town justifying its action were pretextual because the employee had not been served with disciplinary charges for his alleged misconduct prior to his dismissal.