Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Informal Opinions of the Attorney General; 2011-9

Concluding that the Independent Livery Drivers Fund was not a public entity, the Attorney General said that benefits available to officers and employees set out in Public Officers Law §18,* providing for the representation and indemnification of public officers and employees, could not be claimed by members of the Fund’s Board of Directors.

§18, explained the Attorney General, provides that a public entity may adopt a local law, by-law, resolution, rule or regulation to indemnify and save harmless its employees from liability in the event there is a judgment against them resulting of an act or omission as a result of the individual acting within the scope of his or her public employment or duties.

However, a public entity, for the purposes of §18, means a county, city, town, village or any other political subdivision or civil division of the state, a school district, a BOCES or other entity operating a public school, a college, community college or university, a public improvement or special district, a public authority, commission, agency or a public benefit corporation. It also includes “any other separate corporate instrumentality or unit of government.” The Fund, said the Attorney General, was not such a public entity.

* §17 of the Public Officers Law provides similar protections for officers and employees of the State as the employer.

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

Ronkese v. Highland Central School District, 82 A.D.2d 1011

A school bus driver was disciplined pursuant to Section 75 of the Civil Service Law for unsafe driving.

Found guilty of seven incidents of unsafe driving, the employee was dismissed.

On appeal the Appellate Division held repetition of unsafe acts endangering the safety of school children cannot be diminished because no accident or injury occurred.

The decision noted that Ronkese had received a number of reprimands for such conduct previously and the punishment was not shocking to one’s sense of fairness.

The driver’s claim that the Section 75 determination was based on a large measure of hearsay evidence was rejected as compliance with the technical rules of evidence was not mandated by Section 75. The court then determined that the record contained sufficient evidence to support the appointing authority’s determination.

Dismissal of an employee for “disloyalty” upheld

Dismissal of an employee for “disloyalty” upheld

Thomas v. New York Temporary State Commission on Regulation of Lobbying, 83 A.D.2d 723

An employer is sometimes confronted with a situation in which an employee’s duty of loyalty to the employer is called into question or there appears to be a conflict of interest with respect to the employee’s performance.

In Thomas the employee sued when the Commission discharged him for disloyalty and conflict of interest.

At the time of his discharge, Thomas was an associate counsel to the Commission. The Commission claimed that while an employee, Thomas was also actively assisting one of the lobbying organizations that the Commission was established to regulate.

Noting that the employee was not covered by Civil Service Law Section 75, The Appellate Division rejected Thomas’ argument that his termination reflected adversely on his reputation and position as an attorney as well as his claim that his dismissal had violated his First Amendment rights.

Administrative hearings must be fundamentally fair

Administrative hearings must be fundamentally fair

Higgins v. Solomon, 82 A.D.2d 998

Although the employer said that she was unable to attend a hearing concerning her claim for unemployment insurance benefits because of her physical condition and presented a physician’s statement to that effect, the hearing officer refused to accept her affidavit as “primary evidence.”

When asked for advice by her attorney, the hearing officer replied “I can’t help you, I don’t make house calls.”

In this instance the Appellate Division ruled that the hearing officer’s action was a denial of fundamental fairness and reversed the decision, indicating that alternative means of securing admissible evidence must be investigated.

Agency heads are sometimes faced with a similar situation when an employee fails or refuses to attend a disciplinary action.

Courts have held that the employer may proceed with the disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.

Indeed, there is even case law stating that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the arbitration because it believed that Hall was not entitled to the arbitration. The court upheld the arbitrator’s award in favor of the employee.

Legislation pending before the Senate and the Assembly

Legislation pending before the Senate and the Assembly

Interested in reading the text of the budget bill submitted by the Governor for consideration by the Assembly and the Senate in their respective extraordinary sessions [Assembly 2 and Senate 2]?

The bill, among other things, amends the New York State Tax Law in relation to personal income tax rates, is posted on the Internet at:

http://assembly.state.ny.us/leg/?default_fld=&bn=A40002&term=&Summary=Y&Text=Y

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State
Source: Retired Public Employees Association press release

On December 7, 2011, the Retired Public Employees Association [RPEA] announced that it is commencing legal action against Governor Andrew M. Cuomo and the State of New York challenging the State’s attempt to make its retirees pay a larger portion of their health insurance premiums. According to RPEA, State officials are “administratively extending” the provisions of certain collective bargaining agreements between employee organizations representing employees of the State as the employer to retired employees of the State.*

RPEA Executive Director Alan Dorn said that the State is trying to balance its budget on the backs of its retirees who, unlike active employees of the State in a collective bargaining unit, have no ability to negotiate for “give backs or other benefits.” Dorn observed that the State has increased the retiree’s cost of such coverage by two percent and that “a 2% contribution for individual coverage is really a 20% increase.” 


Mr. Dorn's letter to Civil Service Commission President Patricia Hite concerning the increase of the retiree's contribution for his or her health insurance  is posted on the Internet at:

http://rpea.org/documents/commentsobjectEmergRule-10-20-11-2.pdf

The text of RPEA's complaint is posted on the Internet at:

http://www.scribd.com/doc/75054148/Retirees
 

* Civil Service Law §167.1(a) currently sets the percentage of contributions for State retirees who retired on or after January 1, 1983 and provides that such retirees are to pay: 10% of the premium for individual coverage and, where so enrolled, 25% of the premium for dependent coverage.

Four months to appeal an adverse disciplinary determination is the limit

Four months to appeal an adverse disciplinary determination is the limit

Bevins v. Brugher, 83 A.D.2d 66

When the employees were found guilty of misconduct, the penalty of dismissal “effective immediately” was imposed.

The employees were notified by letter dated December 31. On May 2 of the following year the employees sought to overturn their terminations. The Court dismissed their petitions as untimely, as it was brought more than four months after the effective date of the dismissal.

The Appellate Division rejected the argument that an appointing authority could “purposefully withhold notification of the determination, allowing the limitation to run” as ignoring reality in cases of dismissal.

Human Rights may assume jurisdiction after another administrative body acts

Human Rights may assume jurisdiction after another administrative body acts

Jainchill v. NYS Human Rights Appeals Board, 83 A.D.2d 665

After having her appeal that the examiners had improperly rated her oral test because of her sex denied by the Civil Service Commission, Jainchill filed the same complaint with the State Division of Human Rights.

After initially rejecting the complaint because she had previously commenced an administrative action relating to the same grievance, the Division decided that it had jurisdiction after all.

The Appellate Division agreed, stating that the Division cannot consider matters pending before another administrative body but could take jurisdiction once the other administrative agency proceeding was completed.

N.B. The court also noted that if Jainchill had commenced a proceeding seeking judicial review of the Civil Service Commission’s determination, there would have been a permanent barrier to her filing the same complaint with the Division of Human Rights thereafter.

Passing the test is not enough

Passing the test is not enough

Kirchgessner v. Hurlbut, 81 A.D.2d 958

Although number 3 on the eligible list for Senior Caseworker, Kirchgessner was disqualified because she did not have the specified training and experience required for the position.

When her appeal to the County Personnel Officer was denied, she sued to have her name restored to the eligible list.

Kirchgessner claimed experience as a Social Welfare Examiner satisfied the “social work” requirement for Senior Caseworker (See 18 NYCRR 680.14 for the qualifications).

The Appellate Division ruled that while the descriptions of Senior Caseworker and Senior Social Welfare Examiner (See 18 NYCRR 680.14) by broad interpretation could be viewed as “generally similar,” the Personnel Director was not arbitrary in his determination that Kirchgessner’s work experience did not fulfill statutory criteria and dismissed the appeal.

The court also noted that Hurlbut had consulted with the State Civil Service Commission to confirm his interpretation.

Challenging a disciplinary termination

Challenging a disciplinary termination
Matter of Matter of Roberts v Board of Collective Bargaining of the Off. of Collective Collective Bargaining, 2011 NY Slip Op 08807, Appellate Division, First Department

District Council 37, AFSCME, AFL-CIO, challenged the penalty of dismissal imposed on one of its unit member. The employee was terminated from his position following a hearing before the New York City’s Office of Administrative Trials and Hearings. The administrative law judge had found the individual guilty of certain charges and had recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

Although the employee appealed the appointing officer decision to the New York City Civil Service Commission, the Commission dismissed the appeal.

Noting that "The express provisions of Civil Service Law §§75 and 76 limit the appealability of a final agency determination to an article 78 proceeding or an appeal to the Civil Service Commission," the Appellate Division said that the employee failed to file a timely Article 78 “challenging that determination.”

The Appellate Division also sustained a ruling by the City’s Office of Collective Bargaining's Board of Collective Bargaining in which it declined to order the rescission and expungement of employee’s termination.

Although the challenge related only to the alleged improper charge of misuse of confidential information, the Appellate Division said that the employee’s termination was based on a number of sustained charges that were not found to be the product of improper anti-union practices.

The court held that the reinstatement of an employee in the context of an improper practice petition before OCB’s Board of Collective Bargaining “is only warranted where anti-union animus” was the “substantially motivating cause of [of the employee’s dismissal] and not merely one of the reasons therefor.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08807.htm

Individual has no right to have another position created should the program in which he or she served is discontinued

Individual has no right to have another position created should the program in which he or she served is discontinued

Niroomand v. St. Lawrence County Board of Legislators, 82 A.D.2d 939

When the County Laboratory System was discontinued, hospitals using the service were expected to obtain laboratory service elsewhere or provide their own.

The former Director of the County Laboratory was not hired by any of the hospitals. She then attempted to compel the County to grant her permanent Civil Service status, retroactively, and then appoint her to an appropriate position pursuant to Section 70 of the Civil Service Law, or place her on a preferred list (Section 80, CSL).

The Appellate Division decided that there was no transfer of functions that would serve to entitle the former employee to a Section 70 transfer, noting that the closing of the Laboratory was to save money and avoid a duplication of services.

Holding the question of granting permanent civil service status academic, the court observed that even if Niroomand held such status, she was neither entitled to employment by any of the hospitals nor to placement on a preferred list because “it is unlikely that a County Laboratory will be re-established and there is no one whom [Niroomand] can displace”.

Significantly, the court indicated that the hospitals involved do not have to create a position for her.

N.B. Placement on a preferred list flows from a right created by Section 80 of the Civil Service Law, not whether placement pursuant to Section 81 of such law is expected or materializes.

Supervisor terminated for staging plot to “fool” employees

Supervisor terminated for staging plot to “fool” employees

Keith v NYS Thruway Authority, ;517 N.Y.S.2d 334

What might start as a “practical joke” may result in disciplinary action being taken against a supervisor or an employee if the consequences of such a “joke” adversely affect employees or the agency. A recent ruling by the Appellate Division, illustrates just such a situation.

Bertram Keith, an employee of the NYS Thruway Authority, was overseeing the installation of a new heating system in a toll plaza when some employees were apparently exposed to asbestos. The employees were granted sick leave and Keith reprimanded for “failing to take proper safety precautions.”

Believing that the employees had fabricated their illness, Keith, with the aid of his subordinates, created the appearance that asbestos removal at another location had commenced without appropriate precautions having been taken. In fact, the removal work had not yet been started. His scheme succeeded, producing worker panic and union threats of pulling all toll workers off the job.

As a result, charges of misconduct were filed against Keith alleging he had led employees to believe that their health was in danger and his actions placed the Thruway in a position where its tollbooths would be unmanned. A hearing officer found Keith guilty of the charges and recommended his termination.

When the Authority adopted the findings and recommendation of the hearing officer, Keith appealed, arguing that he should not have been terminated as “nobody was in actual peril.”

The Appellate Division affirmed Keith’s dismissal

The Appellate Division found that there was substantial evidence that Keith orchestrated a plot to simulate asbestos removal and that the deception resulted in worker panic and nearly caused the employees to abandon their workstations.

“Such conduct by a public employee in a position of supervision cannot be countenanced or lightly disregarded” said the Court. The fact that no employee had been exposed to asbestos was of no concern to the court as “the alarming situation created was precisely the result sought by (Keith)” and it was for that action that disciplinary charges were filed.

The Court than refused to modify the penalty stating that “in light of the egregious nature of (Keith’s) actions and resulting hysteria which flowed naturally and foreseeable therefrom, we cannot say that the penalty imposed by the agency was inconsistent with the notions of fairness.”

More severe disciplinary penalty imposed by Commissioner Of Education sustained

More severe disciplinary penalty imposed by Commissioner Of Education sustained

Kloepfer v. Ambach 82 A.D.2d 974

A teacher having 11 years of satisfactory service was charged with being ineffective and incompetent following her transfer to another school. After an Education Law Section 3020-1 hearing, the hearing officer recommended that she be suspended for six months and placed in another school.

On appeal, the Commissioner of Education held the teacher should be terminated. When the teacher sued, the Court held the Commissioner could impose the penalty of dismissal.

Zero drug tolerance policy must be consistent with terms of the collective bargaining agreement

Zero drug tolerance policy must be consistent with terms of the collective bargaining agreement

Matter of Matter of Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, 2011 NY Slip Op 08703, Appellate Division, Third Department

The Civil Service Employees Association had filed a grievance challenging the dismissal of one of the employees in the collective bargaining unit it represented was terminated after failing a random test for drug and alcohol test. The issues that the parties jointly presented to the arbitrator were, "Did [the school district] violate Article IV of the Collective Bargaining Agreement [CBA] when it terminated [the employee]? If so, what shall the remedy be?"

The arbitrator determined that employee had tested positive for marijuana, but that the school district had violated the CBA by terminating her. As a remedy, the arbitrator directed that the employee be reinstate, without back pay, but required that she comply with follow-up drug and alcohol testing and an evaluation by a substance abuse professional.

Supreme Court granted the Shenendehowa Central School District’s Article 75 petition seeking vacate an arbitration award thereby “reinstating the employee’s termination.”

The Appellate Division disagreed, ruling that the award was not against public policy was rational, and in making the award the arbitrator did not exceed his powers, holding that “Supreme Court should have confirmed the arbitration award.”

The Appellate Division explained that “If a matter is submitted to arbitration, reviewing courts should not interpret substantive conditions of the agreement or delve into the merits of the dispute.” Citing Matter of Grasso, 72 AD2d 1463 [Leave to appeal denied, 15 NY3d 703], the court said that "Courts must give deference to an arbitrator's decision and cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted the law or facts, but a court may vacate an award" where it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, the Appellate Division stated that "[W]here an agreement is 'reasonably susceptible of the construction given it by the arbitrator, a court may not vacate the award," citing Matter of Albany County Sheriffs Local 775 of N.Y. State Law Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO [County of Albany], 27 AD3d 979.

Underlying the school district’s decision to terminate the employee was its assertion that it had “a zero tolerance policy concerning positive drug tests, thereby mandating discharge.” However, said the court, no such written policy was produced in evidence. Rather, the school district’s written drug testing policy states that a violation "shall be grounds for disciplinary action including, but not limited to, fines, suspension and/or discharge."

Here, said the Appellate Division, the arbitrator reasoned that the school district did not have a written zero tolerance policy. When read in conjunction with the CBA, the district’s policy “permitted either suspension without pay or discharge after a positive drug test result.”

The arbitrator, the court found, determined that school district had violated the CBA by refusing to consider the disciplinary options provided for in petitioner's own policy and the CBA, instead imposing the penalty of discharge as if it were mandatory.

According to the decision, if the school district intended to implement a zero tolerance policy, it could and should have negotiated with CSEA to include such mandatory language in the CBA. Not having done so, petitioner must abide by the language actually negotiated for and agreed upon with CSEA.

Having determined that the school district had violated the CBA, the arbitrator — who was permitted by the parties' statement of the issues to determine a remedy — then found the appropriate penalty for respondent to be reinstatement without back pay, which equated to a suspension of approximately six months without pay, a rational result and with the powers granted to the arbitrator.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08703.htm

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.