Appointment of hearing officer and due process

Appointment of hearing officer and due process

Alhmeyer v. Retirement System, 82 A.D.2d 954

An employee occasionally may challenge the results of a disciplinary action on the grounds that due process had been denied because the appointing officer designated the hearing officer to consider the disciplinary action.

In Alhmeyer v. Retirement System, 82 A.D.2d 954, the Appellate Division held that in the absence of a factual showing of some impropriety in the hearing process, the mere fact that the Comptroller appointed the hearing officer and the doctors who examined Alhmeyer on behalf of the Retirement System does not constitute a denial of due process.

It is believed that courts would apply the same standard with respect to the appointment of hearing officers in disciplinary actions pursuant to Section 75 of the Civil Service Law as well as in hearings required pursuant to Sections 71, 72 and 73 of the Civil Service Law and similar administrative proceedings.

Refusal to submit to mental examination leads to termination

Refusal to submit to mental examination leads to termination

Lucheso v. Dillon, Sheriff, 80 A.D.2d 988

The appointing authority directed an employee to undergo a mental examination pursuant to “Civil Service Law Section 72” and advised the individual that “noncompliance would subject the employee to disciplinary action.”

The employee refused and was charged with violating the County’s work rule that prohibited the refusal to follow job instructions.

A hearing pursuant to Section 75 of the Civil Service Law was held and the hearing officer found the employee had not kept the scheduled medical appointment, had been involved in progressive discipline, and recommended removal. On appeal, the Appellate Division found that the record supported the determination and that the penalty of dismissal in view of the circumstances reflected in the record was not excessive nor its imposition an abuse of discretion.

Salary adjustments due injured firefighters

Salary adjustments due injured firefighters

Drahos v. Village of Johnson City, 80 AD2d 100

In Drahos the court held that a firefighter injured in the line of duty and unable to return to work is entitled to the full amount of his regular salary until he returns, citing Section 207-a of the General Municipal Law.

This provision, according to the opinion, includes increases and adjustments received by firefighters in active status during the period of absence.

It is assumed that the Court would grant similar treatment to police officers injured in the line of duty and otherwise eligible for equivalent benefits pursuant to General Municipal Law§207-c.

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Employer held to have committed an unfair labor practice when it unilaterally discontinued certain pension benefits.

Employer held to have committed an unfair labor practice when it unilaterally discontinued certain pension benefits.

City of Erie [Pennsylvania] v Pennsylvania Labor Relations Board, Docket # 24 WAP 2010

The International Association of Firefighters, Local 293, AFL-CIO, the exclusive bargaining representative of a unit of firefighters and other personnel employed by the City of Erie, negotiated several previous collective bargaining agreements.

In this action the Local alleged that the City had violated the terms of a contract for the period from January 1, 2005 to December 31, 2007 when it unilaterally eliminated lawful firefighter pension benefits without first collectively bargaining with the firefighters' representative.

Pennsylvania’s Collective Bargaining by Policemen and Firemen Act requires negotiation over the modification or elimination of pension benefits.

Supreme Court found no applicable exception to this statutory mandate, reversing the order of the Commonwealth Court rejecting the Local’s claims.

The decision is posted on the Internet at:

http://statecasefiles.justia.com/documents/pennsylvania/supreme-court/24-wap-2010.pdf?1322273066

Employees cannot avoid competitive examination otherwise required

Employees cannot avoid competitive examination otherwise required

Bloomberg-Dubin v Board of Education, 82 AD2d 854, affd 56 NY2d 555

In a case involving the question of whether the New York City Board of Education could require certain teachers to be subject to appointment and licensing by competitive examination, the court stated that the Board could not be stopped from requiring that the competitive examination be held.

Although the teachers involved held “conditional certificates”, they were required to take the examination ordered by the Board.

Refusal to provide doctor’s note concerning absence from work

Refusal to provide doctor’s note concerning absence from work

Carr v. Ross, 81 A.D.2d 999

A teacher, absent for five days, was paid for three days of the absence alleged due to a back injury but the school district refused to pay for absence beyond the third day without a doctor’s note verifying an illness or injury.

The teacher refused to provide a doctor’s note and resigned “because of his employer’s insistence that he furnish a doctor’s note before he would be paid for two of the days he was absent”. He also stated that he belonged to a religious group that forbids the use of medical doctors except in life or death situations.

The Unemployment Insurance Appeals Board found that the educator had left employment for personal and non-compelling reasons and disqualified him for benefits.

Using time cards

Using time cards

Walker v. Washington, 657 F2d 541

An employee, claiming that his agency’s requirement that he fill out and sign a time card was demeaning, degrading and incriminating, sued the State of Washington. The Circuit Court of Appeals held that requiring an employee to complete a time card was not an “illegal search” and that the employer could properly ask an employee to account for the time for which he was being paid.

The Supreme Court declined to hear the appeal from the decision filed by Walker.