Absence deemed a resignation

Absence deemed a resignation

Matter of Johnson, 41 NY2d 106l

In Johnson the Court of Appeals held that the provisions of Section 5.3(d) of the (State) Civil Service Rules were invalid as being in conflict with Section 75 of the Civil Service Law as the rule permitted an unexplained absence of an employee for more than ten days to be deemed a resignation.

In contrast, the Court of Appeals has held that where there is a contract provision negotiated pursuant to the Taylor Law providing that an unauthorized leave constituted a resignation, the employee is bound by that provision. The collective bargaining agreement expressly provided that an unauthorized absence for ten consecutive workdays would be deemed to constitute a resignation.

The Court was unsympathetic with the employee’s claim to relief, pointing out the availability of the contract grievance machinery he failed to use. The Court also indicated that this decision was not in conflict with Johnson as the issue of the parallel provision in a contract was not reached in that case. The effect here is identical to earlier decisions holding that the union and employer can bargain for something that if provided by law, rule or regulation might be struck down as unconstitutional or unlawful. (Port Authority of New York and New Jersey v. Port Authority Police Benevolent Association, Inc.).

Termination pay permitted

Termination pay permitted

Op. St. Comp 642

The State Comptroller advised a school district that it may negotiate a contract provision with the teacher union involved providing for a lump sum termination payment upon resignation.

The provision in question apparently provided for such payment when a teacher having fifteen or more years of service resigned. However it would appear that such a payment could be authorized by the contract regardless of the amount of service, in an amount mutually agreed upon. The parties, of course, could provide for a “sliding scale” based on the number of years of service with the district at the time of resignation.

Use of volunteer workers by the State

Use of volunteer workers by the State

9 NYCRR 141.0

In addition to employment in State service in a position in the Classified Service or the Unclassified Service, an individual serving as a volunteer may be deemed to be an “employee” of the State for certain purposes.

9 NYCRR 141.0 authorizes the use of volunteer workers by the State, declaring that it is “the policy of the State that the use of volunteer workers be consistent with the needs and requirements of sound and orderly administration of State government." 9 NYCRR 141.0 further provides that "It is also the policy of the State that the protection of workmen's compensation coverage be provided to all volunteer workers donating their services to the State.”

However, the use of volunteer workers by a State Department or agency is subject to the prior approval of the Director of the Budget. [see 9 NYCRR 141.1.]

The application submitted to the Director of the Budget for approval to accept the services of volunteers is to include the reasons why the use of volunteer workers is necessary, what will be accomplished by using volunteer workers and an estimate of the number of volunteer workers required.

Significantly, Public Officers Law §17* covers such “approved” volunteers, providing for their defense and indemnification in any civil action or proceeding “in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his [or her] public employment or duties” including actions alleging unlawful discrimination within the meaning of 42 USC 1981 and 42 USC 1983.

The duty to provide for a defense, however, is not available to the individual “where such civil action or proceeding is brought by or on behalf of the State.”

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* Public Officers Law §17, in pertinent part, provides that “the term ‘employee’ shall mean … a volunteer expressly authorized to participate in a state-sponsored volunteer program …” Similarly, Public Officers Law §18, which provides for the “Defense and indemnification of officers and employees of public entities,” includes within its definition of the term “employee,” an individual serving as “a volunteer expressly authorized to participate in a publicly sponsored volunteer program.”

Public officer refused reimbursement for legal costs

Public officer refused reimbursement for legal costs

Corning v. Laurel Hollow, 48 NY2d 348

Although initially represented by the County Attorney’s Office, public officials being sued in their personal rather than an official capacity for an act performed in connection with official duties dismissed the attorney provided by the County and engaged a private attorney to represent them. When they later sought reimbursement for their legal fees and expenses (they won the case) payment was denied on the basis that it would constitute an unlawful gift of public monies.

The decision also suggests that as the dispute was “private” the providing of a public staff attorney might not be in order.

In a dissenting opinion, the view that the legal expenses but not the attorney fees were reimbursable was expressed but this distinction was rejected by the majority. The majority view was that in the absence of a statute authorizing the Village to provide for a defense, the State Constitution prohibited it from reimbursing the officials for any expense incurred in defending themselves when sued in a personal capacity.

Tape recording of PERB hearing not permitted

Tape recording of PERB hearing not permitted

Town of Shelter Island v. PBA, Cases U-3538; 3569

A PERB Hearing Officer ruled that a PERB improper practice charge hearing could not be taped when a newspaper and television reporters came to the hearing at the invitation of the employer. On appeal, PERB found the employer’s reliance on the State’s Open Meetings Law “misplaced” as Section 103 of the Public Officers Law exempts quasi-judicial.

In contrast, the Court in People v. Ystueta, 99 Misc 2d 1105, held that the State Comptroller’s Opinion (78 Op St Comp 457) allowing local governments to prohibit the recording of its “regular meetings” on a tape recorder is not binding on the Court, indicating that such a prohibition violates public policy and the principles underlying Section 95 of the Public Officers Law.

Exclusion of the public from collective bargaining sessions conducted pursuant to the Taylor Law, however, is permitted (Section 100, Public Officers Law).

Concerning using a “one name” eligible list

Concerning using a “one name” eligible list

Matter of Horowitz, 70 AD2d 854

By Executive Order, the employer followed a “rule of one” in appointment from the appropriate eligible list instead of the more common “rule of three”.

After the agency obtained an “exemption” from the Executive Order which would have otherwise required the only passed candidate to be appointed, it told the eligible that he was not to be appointed because “he was not competent to perform the work demanded by the higher title position”.

The agency then appointed two employees who had taken but failed the test to the higher title provisionally.

As the reason for non-appointment was based essentially on alleged lack of competency, under the facts of this case the Court held that such a “passing over” stigmatized the employee and required a hearing in accordance with due process so that the candidate could be heard to refute the “charge of incompetence”.

Police officers receiving GML §207-c benefits not eligible to accrue leave credits unless such accruals are specifically provided for in the collective bargaining agreement

Police officers receiving GML §207-c benefits not eligible to accrue leave credits unless such accruals are specifically provided for in the collective bargaining agreement

Matter of Incorporated Vil. of Floral Park v Floral Park Police Benevolent Assn.. 2011 NY Slip Op 07840, Appellate Division, Second Department

A Village of Floral Park Police Officer was injured in the line of duty and was provided with benefits pursuant to General Municipal Law §207-c.

When the Village told the officer that he could not accrue any holiday or termination pay, or personal, sick, or vacation days during the disability period. the officer filed a grievance pursuant to the collective bargaining agreement between the Village and the Floral Park Police Benevolent Association.

The Village denied the grievance and the PBA filed a demand for arbitration contending that the underlying issue was a matter of contract interpretation. The Village then commenced an Article 75 proceeding seeking a court order to permanently stay arbitration.

Supreme Court ultimately granted the Village’s petition, which decision the Appellate Division affirmed.

The Appellate Division held that the benefits provided to a police officer pursuant to General Municipal Law §207-c are exclusive, and a collective bargaining agreement will not be construed to implicitly expand such benefits. Thus, said the court, “unless a collective bargaining agreement expressly provides for compensation or benefits to disabled officers in addition to those provided by General Municipal Law §207-c, there is no entitlement to such additional compensation.”*

Despite PBA's contention to the contrary, the Appellate Division found that the controlling collective bargaining agreement did not expressly provide that leave time accrues during the period that a disabled officer is not working and is receiving benefits pursuant to General Municipal Law §207-c. In the words of the court: “Had the parties intended to allow disabled officers to continue to accrue leave time during their period of disability, they could have inserted such language into Article XVI, Section 4, [of the collective bargaining agreement] but they did not do so. Under such circumstances, the dispute is not arbitrable.”

* Chalachan v City of Binghamton, 81 AD2d 973; 55 NY2d 989, considers a similar claim by Binghamton firefighters who were receiving disability benefits under Section 207-a of the General Municipal Law. The firefighters had contended that in addition to those benefits, they were entitled to vacation benefits under their collective bargaining agreement. The Appellate Division dismissed the claim holding that "if every benefit provided active fire fighters in the collective bargaining agreement was intended to include disabled firefighters covered by Section 207-a...the contract should contain language to so provide...(the) contention that they are members of their union...entitled to each and every fringe benefit for which active firefighters work daily is without merit. They do not work to earn vacation pay. They are already paid 52 weeks each year and their construction of the agreement to give them pay for 56 weeks (per year) is rejected".

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Provisional employee gets “name clearing hearing”

Provisional employee gets “name clearing hearing”

Matter of Brathwaite, Appellate Division, 70 AD2d 810

Although agreeing that provisional employees have no property right in a particular position and, therefore, are not entitled to a pre-termination hearing under the Civil Service Law, the Court ordered a “name clearing hearing” on the claim that the employee’s “good name, reputation, honor or integrity is at stake”. The reason given for the discharge, disclosing confidential material that the employer alleged was disseminated by the employer.

The employee, a teacher, denied the allegation but was nevertheless separated.

The Court held that the alleged dissemination adversely reflected on her record as a teacher and diminished her ability to secure similar employment. The opportunity to be heard was deemed essential to due process.

N.B. Should an individual prevail in a "name-clearing" hearing, all that he or she is entitled to is a "cleared name" and his or her success does not automatically result in his or her reinstatement to his or her former position.

Contracting for custodial services

Contracting for custodial services

Matter of Conlin, Court of Appeals, 49 NY2d 713

There is no Constitutional or Civil Service Law bar to contracting for the custodial care of schools if the contract was not merely to circumvent the Civil Service Law.

Limitations on sick leave

Limitations on sick leave

Economico v. Village of Pelham, 50 NY2d 120

Notwithstanding a contract provision providing for “unlimited sick leave with pay” for police officers unable to work due to non-service related disabilities, the State Court of Appeals held that a police officer so disabled could be terminated pursuant to Section 73 of the Civil Service Law. The Court distinguished this case (Economico v. Village of Pelham) from the Yonkers teacher case (Matter of Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268) where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement.

The State’s interest in maintaining the efficiency and continuity of its civil service was held a substantial one and Section 73 limits the employee’s right to be continued on the payroll without limitation if triggered by the sound discretion of the appointing authority, even in the face of a contract provision to the contrary. The Court, in another case decided the same day (Dolan v. Whalen) held that a hearing in connection with termination pursuant to Section 73 is required if there is “some factual dispute impacting upon the employer’s right to discharge” the employee.

Of course the police officer injured in the line of duty is entitled to unlimited sick leave under the General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases. In this latter case, the employee cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptroller’s Opinion noted that “a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his disability.”

Each school to have a principal of its own

Each school to have a principal of its own

Opinions of the Commissioner of Education 9994.

A school district proposal to have two elementary schools share a single principal who would divide his time between the two schools would not comply with the mandate of the Regulations of the Commissioner of Education (Section 100.3) which requires that each building of facility be under the supervision of a certified principal. 

Strict compliance with evaluation procedures excused in view of evidence attesting to the terminated probationary teacher’s poor performance in class

Strict compliance with evaluation procedures excused in view of evidence attesting to the terminated probationary teacher’s poor performance in class

Matter of Brown v Board of Educ. of the City School Dist. of the City of New York, 2011 NY Slip Op 07908, Appellate Division, First Department

A probationary teacher served with the New York City School System for three years and was terminated at the end of his third year. Consistent with a review procedure set forth in the collective bargaining agreement between the Board of Education and the teacher’s employee organization, the teacher appealed his temination to the Department of Education's Office of Appeal and Review [OAR].

The teacher’s principal and assistant principal were called as witnesses by the Department of Education at the OAR hearing during which they testified about the teacher’s poor performance in class management and engagement of students. Also introduced in the course of the hearing was the teacher’s Annual Professional Performance Review and Report on Probationary Service of Pedagogical Employee [APPR] that indicated a "U-rating."

In addition to cross-examining the DOE's witnesses, the teacher pointed out that the APPR report was deficient in several respects, namely that no documentation was annexed to the APPR as required by the Chancellor's rating handbook and that sections of the report were left blank. Ultimately the teacher was denied his Certification of Completion of Probation, whereupon he initiated an Article 78 proceeding challenging the determination to terminate him.

Supreme Court found that the Board of Education’s determination that resulted in the teacher’s unsatisfactory performance rating and his being discontinued from service was in violation of lawful procedure in that “the APPR report was not in strict compliance with the procedures set forth in the Rating Handbook promulgated by the Chancellor.”

The Appellate Division, however, unanimously reversed Supreme Court’s ruling “on the law” and reinstated the Board of Education’s decision to terminate the teacher.

The Appellate Division said that the teacher had failed to demonstrate that his termination as a probationary employee was arbitrary and capricious or was made in bad faith, noting that the teacher did not dispute that the evidence adduced at the hearing from the principal and assistant principal. That evidence, said the court,  provided "ample ground for his discontinuance."

The court said that the principal and the assistant principal described teacher's poor performance in class management and engagement of students, which descriptions were based on their personal classroom observations. Under these circumstances, said the Appellate Division, any deficiencies in the APPR report "do not render the determination to discontinue his employment arbitrary and capricious" as the hearing testimony provided ample grounds for terminating the teacher.

Reinstatement following layoff focuses on tenure rights

Reinstatement following layoff focuses on tenure rights

Chauvel v. Nyquist, 55 AD2 76, affd., 43 NY2 48)

Does “greater system-wide service” control situations involving layoff of teachers, or is it seniority in corresponding or similar positions that determines which person is to be offered an open teaching position first?

Where the performance of duties of the open position is unquestionably “similar” to those of the abolished positions, the teacher having the greater seniority in the performance area, not in the employing school district itself, is to receive the appointment.

Standards for such re-employment are more narrow than those dealing with layoff (Ward v. Nyquist, 43 NY2d 57) so as to prevent erosion of the tenure rights of the incumbents of abolished positions and means that the duties required to be performed in the vacant position must be similar to the duties performed by the person in his previous position before it was abolished. A test was stated in Matter of Elkins, 14 Ed Dept Repts 193, to the effect that if more than one-half of the functions to be performed by the incumbent of the new position are those which he performed in his old position, the positions are similar.

Tenured employee protected from political firing

Tenured employee protected from political firing

Branti v. Finkel, U.S. Supreme Court, 445 U.S. 507

The United States Supreme Court upheld a decision of the District Court, Southern District of New York, which ruled that two public defenders could not be removed from their positions because of their political affiliation. Both served in exempt class positions on a part-time basis. 

It was reported that both were Republicans, one having been appointed by a Republican while the other had been appointed earlier by a Democrat. Rejecting the argument that a necessary confidential relationship existed between the Public Defender and his assistants, and that such a relationship could not be had if the Public Defender was of a different political party than his assistants, the Court stated that the crucial point is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for effective performance. 

The decision in this case suggests that the Court’s views with respect to a political test for appointment might be the same as its views concerning removal from the public service. By indicating that performance was the significant consideration, the Court may well have limited the selection to the public service on the basis of merit and fitness in all but the rarest of situations.

Creating new positions

Creating new positions

Civil Service Employees Association v. Town of Harrison, 48 NY2d 66

There is only one way to create a new position, the way the controlling law requires.

The statutory imperatives of Section 22 of the Civil Service Law reflects such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an “alternative” to the provisions of Section 22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (Section 200 et seq, Civil Service Law).

Failing to comply with the mandates of Civil Service Law §22 is fatal and no new position can come into being unless it is created as prescribed by the section.

While the Court in its decision did not address the “status” of the incumbent of the “new position”, it would appear that the “status” of the individual is not dependent on the “existence” of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., Section 80, Layoff) would control if the incumbent of the “nonexistent new position” could no longer serve as a “position” for payroll purposes.