ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

October 05, 2011

Individual disciplined for off-duty misconduct

Individual disciplined for off-duty misconduct
Mahadio v Kerik, 298 A.D.2d 305

New York City police officer was served with disciplinary charges that alleged that while he was off-duty, he "wrongfully and without just cause displayed his weapon while making a threatening remark to a civilian" ... and that he addressed persons ... in an ethnically offensive manner.

Found guilty, Police Commissioner Bernard B. Kerik imposed the penalty of a forfeiture of 25 vacation days. The officer appealed, only to have the Appellate Division unanimously confirmed the Commissioner's determination.

The court said that substantial evidence supported the Commissioner's decision and that there was no basis to disturb his determination concerning the credibility of the witnesses testifying. As to the penalty imposed, the Appellate Division said that the forfeiture of 25 days of leave did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32.

Determining member service credit for retirement


Determining member service credit for retirement
Panigrosso v McCall, 298 A.D.2d 797

The Panigrosso case concerned determining the eligibility of a disabled individual for ordinary disability retirement benefits.

Vincent A. Panigrosso, Jr., was employed in the Putnam County Highway Department as a mechanic's helper. In November 1996, while attempting to remove a tire, another tire, which had been leaning against a wall, began to fall toward him. Panigrosso attempted to catch the falling tire and in so doing he injured his back to the extent that he required surgery.

On June 24, 1997, while again attempting to remove a tire from its rim, Panigrosso experienced pain in his back, left work and never returned. He filed an application for accidental disability retirement benefits contending that he was permanently disabled as a result of his November 1996 and June 1997 "accidents."

Panigrosso subsequently filed a second application, this time seeking ordinary disability retirement [ODR] benefits. He claimed eligibility for ODR benefits because he said that he had completed 10 years of service credit and thus was not required to show that he was disabled as the result of a job-related accident.

Ultimately both applications were rejected. The Retirement System decided that:

1. Both of Panigrosso injuries occurred while he was performing the customary duties of his employment and, hence, the underlying incidents could not be deemed "accidents" within the meaning of Retirement and Social Security Law Section 605(b)(3); and

2. Panigrosso had not accumulated the required ten years of member service credits to be eligible for ordinary disability retirement. [Also, it should be noted that Panigrosso was not actually "in service" at the time he applied for ODR benefits.]

As to Panigrosso's accidental disability claim, the Appellate Division ruled that the November 1996 and June 1997 incidents did not constitute "accidents" within the meaning of Section 605(b)(3). In the words of the court:

An "accident" is a sudden, fortuitous, out of the ordinary and unexpected event that does not result from an activity undertaken in the performance of ordinary employment duties. Here, the record reveals that ... both incidents in question occurred while [Panigrosso] was performing his usual employment duties.

As to Panigrosso's eligibility for ODR claim, the court said that the record clearly indicated that Panigrosso did not accumulate 10 years of service credit with the Retirement System.

Panigrosso had begun his employment with Putnam County in January 1990 and was removed from the payroll in August 1997. Once petitioner was off the payroll, he stopped accumulating service credit. Not having at least 10 years of member service credit, the Appellate Division ruled that he was clearly ineligible for an ordinary disability retirement allowance.

Union animus


Union animus
CSEA Local 1000 and Town of North Hempstead, 35 PERB 3027

PERB rejected its Administrative Law Judge's conclusion that the Town of North Hempstead was guilty of union animus based on a finding that "but for" the union's president using "union business" release time, he would not have been involuntarily transferred to another unit because the Town's explanation for the transfer -- the need to reorganize a department -- was "largely unrebutted by the Union" and thus there was no basis to hold that the transfer was the result of improper motivation on the part of the Town. 

October 04, 2011

Basis for workers' compensation award


Basis for workers' compensation award
Scofield v City of Beacon Police Dept., 290 A.D.2d 845

A police officer is awarded a "scheduled loss" by the Workers' Compensation Board. As the Scofield decision demonstrates, under certain circumstances the employer may be entitled receive all or a portion of the award granted to the police officer in consideration of the salary payments it made to the officer as a result of his or her injury.

City of Beacon police officer Glenn Scofield suffered a work-related injury to his left knee. A year later he injured the same knee at work. In both instances he was "paid his regular wages pursuant to Section 207-c of the General Municipal Law" [GML].

The two relevant statutes in Schofield's case: GML Section 207-c and Section 30 of the Workers' Compensation Law [WCL].

GML Section 207-c provides for the continuation of a police officer who is injured in the line of duty on the payroll at full salary. WCL Section 30 provides that "(3) ... any salary or wages paid to, or the cost of any medical treatment or hospital care provided ... pursuant to [GML Section 207-c] shall be credited against any award of compensation ... under this chapter."

This provision, said the court, was added to the WCL to avoid any duplication of benefits paid to an injured police officer, as the combined total of GML and WCB benefits might exceed the salary the officer would have received for the period had the injury not occurred.

Following the second injury, the Workers' Compensation Board granted Schofield a 15% schedule "loss of use award" for the injury to his left leg. Beacon, citing WCL Section 30, asked for reimbursement from Schofield's schedule award for the compensation it had paid to Schofield after both injuries.

Although the award was based on Schofield's physician's opinion that his second injury "was caused entirely by the first injury," Schofield argued that Beacon's right to reimbursement from the award was limited solely to the wages Beacon paid to him prior to his second injury.

The Workers' Compensation Board disagreed. It said that the second injury was a consequence of the initial injury, not a new injury, and therefore, the two files should be combined. As a result, Beacon was held entitled to Section 30 reimbursement for all the wages it paid to Schofield "on the combined files."

The Appellate Division affirmed the Board's determination since "[w]hether a second injury is a consequence of an earlier one is a factual issue for the Board to resolve."

The court said that while a finding of consequentiality does not necessarily resolve the issue of reimbursability, "where, as here, both injuries were directly related to the impairment upon which the schedule award was based, full reimbursement is appropriate."

Random drug test administered pursuant to a settlement agreement of a disciplinary action


Random drug test administered pursuant to a settlement agreement of a disciplinary action
Gluck v Suffolk County Community College, Supreme Court, Ia Part 26 [Not selected for publication in the Official Reports]

An individual was terminated from his position of laborer by the Suffolk Community College [SCCC]. He sued, seeking reinstatement with full back pay and benefits.

The court noted that in connection with an unrelated matter, and the individual and SCCC entered into a stipulation in lieu of a disciplinary proceeding that provided as follows:

The employee will receive a (12) twelve month period of probation beginning upon the full execution of this agreement. During the period of probation the employee shall be subject to random drug and alcohol testing, wherein should the employee test positive on a drug/alcohol test, he shall be immediately terminated without the benefit of a hearing or any other protection afforded under Civil Service law or the Collective Bargaining Agreement.

The settlement agreement also provided that the employee's probationary period would begin upon his return to work in a full duty capacity. The employee reported for work on April 3, and was asked to submit to a drug and alcohol test. According to the ruling, the employee's urine specimen registered a temperature that was "out of range." He was asked to provide another urine sample for testing.

The employee was told that his refusal to take the test would be considered an automatic positive test result, which in turn would bring about his immediate suspension without pay. He agreed to provide a second urine specimen. However, he did not allow his supervisor to witness his providing the sample. The second sample was also "out of range" and the employee left the laboratory.

SCCC argued that the employee's failure to provide a witness-validated urine sample constituted a failure to cooperate with the sample collection procedure. This, SCCC said, was tantamount to the employee's refusal to submit to the test and the employee had been warned that his refusal to submit to the test would be deemed a positive test and would result in his immediate suspension without pay. Ultimately SCCC terminated the employee.

The employee sued, contending that he willingly gave both samples and was told by laboratory personnel that he was free to leave. He claimed that he had "no qualms about giving the samples because he had no history of drug use and does not abuse alcohol" and thus SCCC's decision to terminate him was arbitrary and capricious.

The court decided that “the record here, which must include the federal guidelines that apply to drug testing in the workplace,” demonstrates that SCCC's decision to terminate the employee was neither arbitrary nor capricious.

The employee, said the court, had agreed, as part of the disciplinary settlement stipulation he signed in February, to submit to random drug and alcohol testing. What happened on April 3, under the guidelines utilized by the laboratory facility conducting the test, was tantamount to a refusal to submit to such testing. As the employee was told what would happen under the circumstances, his conduct violated the terms of the stipulation.

The court's conclusion: there was a rational basis for SCCC's terminating the employee and his petition had to be dismissed.

Filing a notice of claim


Filing a notice of claim
Sangermano v BOCES of Nassau County, 290 AD2nd 498

Section 3813(1) of the Education Law requires that an individual who plans to sue a school district or a BOCES file a timely notice of claim with the entity he or she seeks to sue prior to initiating his or her lawsuit. Does this requirement apply to complaints alleging a violation of a human rights law?

Former Nassau County BOCES employee Michael Sangermano learned that sometimes the answer is yes, sometimes it is no, depending on the nature of the claim.

Sangermano sued the BOCES in an effort to recover damages for what he alleged constituted employment discrimination in violation of Executive Law Section 296, and violations of his right to due process pursuant to 42 USC 1983.

The Appellate Division said that the Supreme Court correctly granted BOCES' motion to dismiss Sangermano's claims alleging that the BOCES violated the Executive Law because he failed to file a timely Section 3813(1) notice of claim.

These claims alleged that Sangermano suffered constructive termination as a result of racial discrimination by the BOCES in violation of Section 296 of the Executive Law.

Citing Mills v County of Monroe, 59 NY2d 307, the Appellate Division deposed of this aspect of Sangermano's lawsuit when it held that:

Where a plaintiff seeks private relief, damages, or reinstatement for employment discrimination in violation of the Executive Law, the filing of a timely notice of claim is a condition precedent to [his or her filing] suit.

Sangermano's second claim alleging that he was forced to resign from his employment without having been afforded the "procedural safeguards and a right to be heard prior to termination" as guaranteed by a federal civil rights law, 42 USC1983, survived notwithstanding the fact that he had not filed a Section 3813(1) claim with the BOCES.

The court said that such a notice of claim requirement is inapplicable to claims filed pursuant to 42 USC 1983.

October 03, 2011

Historic documents concerning the Civil Service Employees Association, Inc. on file at SUNY at Albany

Historic documents concerning the Civil Service Employees Association, Inc. on file at SUNY at Albany
Source: Archives of Public Affairs and Policy – SUNY at Albany

For those involved in researching the history of public sector labor relations in New York State, the M. E. Grenander Department of Special Collections at State University at Albany offers a collection of materials concerning the Civil Service Employees Association, Inc., American Federation of State, County, and Municipal Employees Local 1000, on microfilm dating back to 1918.

All microfilm items in the manuscript group (with the exception of the Meeting Transcripts which were microfilmed by CSEA) were lent to the University Libraries, M.E. Grenander Department Special Collections and Archives, by the Civil Service Employees Association, Inc. (CSEA), AFSCME Local 1000, and subsequently microfilmed as a part of the Harry Van Arsdale, Jr., Labor History Project.

The original documents supplied by CSEA were returned to it after they were microfilmed. All other records were donated to the University Libraries between 2005 and 2010. 

Click here March for a sample publication from the collection.

The records were compiled by La Nina M. Clayton and revised by Sarah Cross, Devin Lander and Melissa McMullen. An index of the materials available is posted on the Internet at http://library.albany.edu/speccoll/findaids/apap015.htm

The library is located at 1400 Washington Avenue, Albany, New York 12222. For information concerning the collection, call the library staff at 518 - 437-3935

Available administrative appeal procedures must be exhausted before filing an appeal with the Commissioner of Education


Available administrative appeal procedures must be exhausted before filing an appeal with the Commissioner of Education
Appeal of Nayana Vyas from action of the New York City Department of Education, Superintendent Elena Papaliberios, and Principal Iris Blige regarding an unsatisfactory rating and other personnel matters. Decisions of the Commissioner of Education #16,306

Nayana Vyas served as a probationary mathematics teacher at Fordham High School for the Arts (“FHSA”) in the New York City School District. 

Although she was rated Satisfactory on her professional performance review and on the report of her probationary service during academic 2007-2008, the School District said that Vyas “had demonstrated difficulty in a number of areas.”

Although the School District said that Vyas “needed improvement in six areas.” She was rated satisfactory on her annual professional performance review and report on probationary service for academic 2008-2009.

During the 2008-2009 school year, petitioner also exclusively taught mathematics courses and was provided with professional development support.  On or about June 22, 2009, although petitioner received an S-rating on her annual review, she was also informed that she needed improvement in six areas. 

In September 2009, Vyas was assigned to teach remedial math, health and forensics and subsequently assigned to assist in an anatomy review course due to the unexpected resignation of the teacher assigned to that course. 

In April 2010, Vyas was offered the opportunity to enter into an extension of probation agreement because her performance had not improved, which put her at risk of being discontinued on probation. Vyas agreed to an extension of her probationary period through September 1, 2011.

In June 2010 Vyas was given “an overall U-rating on her annual review which included U-ratings in seven categories and ‘needs improvement’ ratings in four other categories.”

Asserting that her U-rating was the result of gross error, bad faith and malice by her supervisors, Vyas filed an appeal with the Commissioner of Education seeking a reversal of her U-rating and its removal from her personnel file; replacing the U-rating with an S-rating and that she be granted tenure retroactive to September 2010. She simultaneously filed an administrative appeal with the New York City Department of Education.

The Commissioner dismissed all of Vyas’ appeals except her challenge to her June 28, 2010 U-rating as either as untimely, moot or both, noting that an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.

Thus Vyas’ only surviving claim was her challenge to her June 28, 2010 U-rating. 

Rather than being untimely, the Commissioner, in effect, ruled that this claim was premature as Vyas had not yet exhausted her administrative remedies at the time she had filed her appeal to the Commissioner. The Commissioner noted that Vyas had appealed her U-rating through an administrative process for appealing unsatisfactory annual performance ratings “and the record does not indicate that the administrative review process has concluded.”

Accordingly, said the Commissioner, her appeal must be dismissed. 

The text of the Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume51/d16306.html

Appealing a final administrative decision


Appealing a final administrative decision
Diamond v Gallagher, 291 A.D.2d 404

The Diamond decision by the Appellate Division, Second Department, demonstrates the importance of filing a timely appeal challenging an administrative determination if the individual is unhappy with the ruling.

Suffolk County sent a letter to one of its police officers, Michael Diamond, notifying him of an administrative decision to terminate him from his position. About two years later Diamond filed a petition pursuant to Article 78 of the Civil Practice law and Rules [CPLR] challenging his dismissal from the Department.

Supreme Court rejected Diamond's petition as untimely and he appealed the court's ruling to the Appellate Division. Affirming the lower court's determination, the Appellate Division succinctly set out the basic rule for filing a timely appeal of an administrative decision as follows:

1. Section 217(1) of the CPLR provides that a proceeding pursuant to CPLR Article 78 against a body or an officer must to be commenced "within four months after the determination to be reviewed becomes final and binding upon the petitioner".

2. An administrative determination is final and binding when it has an impact upon the individual and when the individual knows he or she is aggrieved.

Finding that the challenged determination became final on the effective date of Diamond termination, and that he was informed of his termination and that he acknowledged it on that date, the Appellate Division said that "the Supreme Court correctly dismissed the proceeding commenced over two years later as untimely."

Qualifying for promotion examination


Qualifying for promotion examination
Liebe v Nassau County CSC, 291 A.D.2d 451

Richard Liebe asked the Nassau County Civil Service Commission to add his name to the list of eligible candidates for the position of Sanitary Engineer IV. The Commission said no, it would not do so and Liebe sued.

The Appellate Division said that the Commission's refusal to add Liebe's name to the promotion list of individuals qualified for the promotion to the position of Sanitary Engineer IV was neither arbitrary nor capricious.

The court noted that Section 52.1 of the Civil Service Law provides that vacancies in the competitive class shall be filled, as far as practicable, by promotion of persons holding lower grade positions in the direct line of promotion. According to the decision, Liebe simply "did not hold a position in the direct line of promotion."

Who determines if a position is in the "direct line of promotion or not?" Section 52.1 states that the State Department of Civil Service or the Civil Service Commission having jurisdiction makes that determination.

The decision also notes that Liebe made no showing that it was impracticable or that it was against public interest for the Nassau County Civil Service Commission to limit eligibility for the promotion examination for Sanitary Engineer IV to employees in positions in the direct line of promotion.

However, there are a number of exceptions to the general rule concerning promotion from within via the direct line of promotion.

CSL Section 51.1 permits the State Department of Civil Service or a municipal commission to conduct an open competitive examination to fill a vacancy normally filled by promotion examination.

In such cases, however, any employee who believes that a promotion examination should be held to fill the vacancy may submit his or her request to the Department or appropriate municipal commission, stating the reasons why he or she believes it to be practicable and in the public interest to fill the vacancy by promotion examination.

Further, where there are less than three persons eligible for promotion in the promotion unit or department where the vacancy exists, the department or municipal commission may conduct an open competitive examination or an employee may be nominated for a noncompetitive promotion examination in accordance with the provisions of CSL Section 52.7.

Under certain circumstances the Department of Civil Service may authorize a "noncompetitive open-competitive examination" to fill the vacancy in `State Departments and Agencies' consistent with the requirements set out in the Rules for the Classified Service, 4 NYCRR 4.2(b).

A relatively rarely used type of noncompetitive examination is authorized by CSL Section 70.4. A Section 70.4 examination may be authorized in situations involving the transfer of an employee to a position in a similar grade where there is a title change. In such cases, a permanent employee in the competitive class who meets all of the requirements for a competitive examination and who is found otherwise qualified by the State Civil Service Commission or the responsible municipal civil service commission may be given a non-competitive examination to the "different position classification."

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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