Aggrieved individual’s request for reconsideration of an administrative decision does not toll the running of the statute of limitations

Aggrieved individual’s request for reconsideration of an administrative decision does not toll the running of the statute of limitations

Matter of Cowan v Kelly, 2011 NY Slip Op 08294, Appellate Division, First Department

It is “black letter law” that an individual seeking to file a petition pursuant to CPLR 78 proceeding against a body or officer challenging an administrative decision must file the petition within four months after the determination to be reviewed becomes final and binding upon the aggrieved individual. When does such a determination become final and binding on the individual? When, said the Appellate Division citing Yarbough v Franco, 95 NY2d, the individual has received notice of the administrative determination and “has been aggrieved thereby."

Supreme Court rejected Richard Cowan’s 78 petition challenging an administrative decision, holding it was untimely as it had been filed more than four months after the decision had become “final and binding” on him. The Appellate Division agreed and dismissed his appeal from the Supreme Court’s ruling.

Cowan, said the court, “became aggrieved by and received notice of the [Kelly’s] determination” and had to file his petition within four months of that date, which he failed to do.

The Appellate Division rejected Cowan’s argument that had not become aggrieved until he failed to receive a response to a memorandum he had sent seeking to have the administrative determination changed. The court explained that his memorandum “constituted nothing more than a request for reconsideration of [Kelly’s] determination of his status, and therefore, did not toll or revive the statute of limitations.”

Sometimes there is a question concerning the “service” of a final administrative decision with respect when the statute of limitations commences to run. This was the underlying issue in Kalinsky v SUNY at Binghamton, 214 A.D.2d 860. The general rule is that:

1. If an individual is not represented by an attorney, the statute of limitations begins to run when the individual is served with the administrative determination.

2. If an individual is represented by an attorney, the administrative body may send a copy of the determination to the individual but the statute of limitations begins running upon service of the individual’s attorney.

3. If the individual is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the individual to start the statute of limitations running.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08294.htm

Termination of an employee during the probationary period

Termination of an employee during the probationary period

Matter of Matter of Deitch v City of New York, 2011 NY Slip Op 09322, Appellate Division, Second Department

Terence J. Deitch, a probationary police officer, was terminated from his position without a hearing. Deitch sued and Supreme Court directed the New York City Police Department to “reinstate [Deitch] and directed a hearing on the issue of the [Deitch’s] damages” that resulted from his dismissal from his position.

The Appellate Division reversed the lower court’s determination and denied Deitch’s petition.

The Appellate Division explained that "A probationary employee may be discharged without a hearing and without a statement of reasons in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Further, said the court, the individual ”bears the burden of establishing bad faith or illegal reasons by competent evidence."

Finding that Deitch failed to establish that his termination was made in bad faith or was otherwise illegal or arbitrary and capricious, the Appellate Division ruled that the Supreme Court should have denied Deitch’s petition and confirmed the Department’s decision to terminate him.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09322.htm

Individual’s letter of resignation and settlement agreement contingent on appointing authority’s approval may be rescinded while such approval is pending

Individual’s letter of resignation and settlement agreement contingent on appointing authority’s approval may be rescinded while such approval is pending

Matter of Civil Serv. Empls. Assn. Inc., A.F.S.C.M.E., Local 1000, A.F.L.-C.I.O. v Baldwin Union Free School Dist., 84 AD3d 1232

Francesco Pignataro filed an Article 78 petition seeking a court order allowing him to revoke his letter of resignation from his position of school custodian and the settlement agreement he submitted to his then former employer, the Baldwin Union Free School District.

The agreement, in pertinent part, stated that: (1) it was in settlement of the grievance for available leave accruals; (2) Pignataro would be paid $50,000 for accumulated leave days from October 1, 2007; and (3) Pignataro "shall" submit a letter of resignation for purpose of retirement, to be effective as of the close of business on August 12, 2009.

Significantly, the agreement also stated that it was subject to Board approval and in the event the Board "does not approve this agreement, such resignation shall be deemed withdrawn, and Mr. Pignataro shall remain an employee of the District.*

Prior to the Board’s approving the agreement Pignataro sent a letter to the district stating that he rescinded his resignation and the "proposed settlement". Notwithstanding this, the Board, by its President, signed the settlement agreement, and thereby refusing to permit Pignataro to “withdraw his resignation”** and repudiate the settlement agreement.

Supreme Court ruled that the settlement agreement was binding on Pignataro and under its terms he was not able to repudiate the settlement, rescind his resignation nor revive his employment with the District.

The Appellate Division disagreed, holding that “[c]ontrary to the Supreme Court's holding, the settlement agreement was not binding on Pignataro when he sought to withdraw his resignation and to reject the settlement.”


The court explained that "[a]s Pignataro withdrew his resignation and rejected the terms of the settlement agreement before the Board had accepted the terms of the settlement, there was no enforceable settlement agreement and Pignataro … was entitled to revoke his offer to settle his grievance.”

Accordingly, Pignataro’s revocation of the offer to settle prior to the Board’s approval of the settlement agreement terminated the Board's power to accept it. Thus, said the court, Pignataro effectively revoked the settlement and rescinded his resignation and thus he is entitled to reinstatement to his former position with the school district.

* The agreement provided that in the event the Board rejected the agreement, Pignataro's leave entitlements would be restored to him, "retroactive to July 17th 2009"; the District, Board, and its employees would be released from "all actions, suits, charges, claims, grievances, etc.,” and all pending arbitrations and grievances filed on behalf of Mr. Pignataro shall be withdrawn with prejudice."

** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule. 

Failure to preserve “First Amendment” argument in the course of arbitration bars appeal on that ground

Failure to preserve “First Amendment” argument in the course of arbitration bars appeal on that ground

Matter of Adolphe v New York City Bd. of Educ., 2011 NY Slip Op 08203, Appellate Division, First Department

           

The Appellate Division ruled that Marsiste Adolphe improperly raised his First Amendment argument for the first time in his petition appealing an arbitration award before the court because he failed to preserve his First Amendment claim in the arbitration proceding. Further, said the court, were it to consider his First Amendment argument, “we would find it without merit.”

As to Adolphe’s claim that the hearing officer's decision was based on mistakes of law and a disregard of the evidence, the Appellate Division held that such an argument “is unavailing,” as these are not grounds for vacating an arbitration award set out in Article 75 of the CPLR.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08203.htm

Concerning politically motivated termination

Concerning politically motivated termination

Martin Gordon, et al., v County of Rockland, 110 F.3d 886

Allegations that an employee was dismissed because of political affiliation -- or lack thereof -- has generated many lawsuits.

The Gordon case is instructive because it sets out the views of the U.S. Court of Appeals for the Second Circuit, which includes New York State, concerning the standards to be applied in determining if a politically motivated termination violates the constitutional rights of the individual. 

The case arose after Rockland County fired three Assistant County Attorneys -- S. Martin Gordon, Eric Ole Thorsen, and Joel J. Flick. Alleging that their terminations violated their First Amendment rights to political affiliation, the three sued in an effort to win reinstatement to their former positions. A U.S. District Court jury ruled in their favor and the County appealed.

The U.S. Circuit Court of Appeals found an error in the lower court's procedure and initiated a de novo review of the constitutionality of the dismissals. A review de novo is, in effect, "a new trial" of the matter.

The key issue was whether or not the Rockland County attorneys' were sufficiently non-political to entitle them to First Amendment protection from partisan political termination.

Courts, including the U.S. Supreme Court, have ruled that certain policy-making and confidential employees are exempt from First Amendment protection and can be lawfully fired because of their political beliefs.

Two seminal cases on the legality of politically motivated dismissals are:

1. Elrod v Burns, 427 US 347. In Elrod the U.S. Supreme Court concluded that the politically motivated dismissals of employees in the Cook County (Illinois) Sheriff's Office was an unconstitutional interference with the employees' First Amendment freedoms of political belief and political association because the individuals terminated were not incumbents serving in "policymaking positions;" and

2. Branti v Finkel, 445 US 507. The high court said that the exemption allowing politically motivated dismissals extended to confidential employees as well as policymakers. But because Branti was neither a policymaker nor a confidential employee, he was entitled to First Amendment protection. The high court said that in evaluating whether it is permissible to dismiss an employee on the basis of political affiliation, "The focus ... should be not on the policymaking aspect of a plaintiff's employment, but rather on whether "party affiliation is an appropriate requirement" for effective job performance.

In the Rockland case, the Circuit Court of Appeals examined the nature of the attorneys' jobs and whether or not party affiliation was an appropriate requirement for job performance.

The Court considered whether its assessment of job duties should be based on the men's written job descriptions or the duties actually performed. Citing several supporting decisions, the Circuit Court said the assessment should be based on the power vested in the individual by law and the power that is inherent in the office. In other words, the job description is what counts in determining whether an employee has First Amendment protection against politically motivated dismissals.

Gordon specialized in real property law, and handled Sewer Commission affairs; Thorsen provided general legal services to the Highway Department and gave legal advice to the County's Planning and Parks Agencies; and Flick was an attorney in the Office of Community Development who advised municipal governments within the County as to whether their actions were in compliance with federal law.

The Court found all three positions encompassed serving as a legal advisor to a particular segment of county government, and representing the County in that capacity. This suggested they were policy-makers. The Court also analyzed whether the jobs were inherently political, using these questions as tests:

a. Is there rational connection between shared ideology and job performance?

b. Is the employee in an exempt position and thus not subject to "civil service protection" under Section 75 of the Civil Service Law? [The Court cautioned that it does not presume employees are not entitled to First Amendment protection just because they are exempt from civil service protection. Also, it should be remembered that Section 75 covers many public employees serving in exempt or noncompetitive class positions who are honorably discharged veterans who served in time of war or who are certified as "exempt volunteer firefighters."]

c. Does the individual exercise technical competence or expertise that permits them to make independent judgment on policy matters?

d. Does the individual control or supervise others?

e. Is the individual authorized to speak in the name of policymakers?

f. Is the individual is perceived as a policymaker by the public?

g. Does the individual influence government programs?

h. Does the individual have contact with elected officials?

i. Is the individual responsive to partisan politics and political leaders?

The Court said a factor supporting a ruling that the three were protected by the First Amendment was that each was not in charge of a large group of employees. But, the Court also noted, Gordon, Thorsen, and Flick all had technical competence or expertise and each was a consultant to a specific policymaking board. Also influencing the decision was the Court's view that "the Legislature, which has perhaps the best knowledge of the responsibilities involved in the positions it created, designated these positions both as 'policymaking' and as exempt from civil service status." Of primary importance to the Court in resolving the issue, however, the fact that each of the three attorneys was empowered to act and speak on behalf of a policymaker, especially an elected official.

Another aspect of the Rockland County case concerned the fact that the County Attorney was not elected but rather appointed by the Legislature, which is itself elected.

In the words of the Court, "all three plaintiffs advised the Legislature or Commissions set up by the Legislature or County Executive, both of which are elected." The Court concluded that each of the attorney's "advice to and representation of top policymaking officials in the County" justified their dismissal for political reasons.

Why? The Court said that "it is difficult to fathom how such responsibilities can be undertaken and done well without their "political or social philosophy [making] a difference in the implementation of programs."

Although the three attorneys contended that did not make policy, the Court concluded that this factor was outweighed by the evidence that they can act in the stead of the County Attorney. Further, the Court said that their claim that they "only gave legal advice" had been earlier rejected as justification for an employee coming within the Branti exception, citing the Third Circuit's ruling in Ness v Marshall, 660 F2d 517.

In Ness the Circuit Court decided that the positions of City Solicitor and Assistant City Solicitor were not protected by the First Amendment despite the solicitors' argument that they performed only "purely technical legal work." The Court said that the duties the solicitors could perform -- "rendering legal opinions, drafting ordinances, [and] negotiating contracts -- define a position for which party affiliation is an appropriate requirement."

A fair conclusion, according the Gordon ruling, is that these Assistant County Attorneys, "because of the discretion with which they are charged, and because of their authority to act on behalf of the County, are politically accountable to the Legislature and the County Executive such that their loyalty helps ensure that the mandate of the electorate is effectively carried out." The Court reversed the jury's decision in Gordon, Thorsen, and Flick favor, holding the three exempt from First Amendment protection against politically motivated dismissal.

Out of title work

Out of title work

Rausch v Pellegrini, Appellate Division, 237 A.D.2d 771

Muzzillo v Mt. Vernon Civil Service Commission, 238 A.D.2d 424

Muzzillo v Mt. Vernon City School District, 238 A.D.2d 425

From time to time an employee will complain that he or she is performing out-of-title work. Typically an individual who is working out-of-title, except in situations constituting a "temporary emergency," must be compensated at the appropriate salary or grade level or the out-of-title work assignment discontinued. The Rausch and Muzzillo cases involve allegations of out-of-title work.

The Rausch Case

To handle out-of-title work complaints expeditiously, the collective bargaining agreement between the State of New York and the Civil Service Employees Association includes a grievance procedure for resolving out-of-title work complaints.

Henry Rausch, an employee of the State Department of Correctional Services [DCS], complained that although he was being paid the salary of a Correctional Facility Food Administrator I [FFA I], as the result of a reorganization of DCS's food service system he was actually performing the duties of an FFA II. He filed an out-of-title work grievance, contending that he should be paid at the salary grade of the higher level position.

Rausch's grievance was ultimately rejected by the Governor's Office of Employee Relations on the grounds that his duties had been modified in connection with the reorganization of the food service operations in Correctional Services. He brought an Article 78 action challenging the administrative decision denying his grievance.

A State Supreme Court judge annulled the administrative determination, holding that Rausch had been required to perform out-of-title duties and the State, in turn, appealed.

Commenting that assignment of out-of-title work, other than on an emergency basis, is clearly prohibited by the Civil Service Law Section 61.2, the Appellate Division affirmed the lower court's ruling.

Section 61.2 provides that "no person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position" in accordance with the Civil Service Law and the rules adopted thereunder.

Although the State contended that Rausch's duties had been modified and thus he could not be viewed as working out-of-title, the Appellate Division essentially found that Rausch was performing the duties that had been the responsibility of his former supervisor, a Correction Facility Food Administrator II, [FFA II].

The decision notes that while an FFA I is responsible for food service operations for an assigned shift, Rausch was made responsible for all food service operations at the Greene Correctional Facility, duties typically those of an FFA II, after his former supervisor was reassigned to another facility in 1991.

The Court concluded that the extension of Rausch's duties to encompass responsibility for the entire food service operation at the facility, i.e., responsibility for all food service on all shifts, seven days a week, constituted out-of-title work.

The Muzzillo Case

Muzzillo and three co-workers, employed as stenographers by the Mt. Vernon City School District, complained that they were performing out-of-title work. The Mt. Vernon Civil Service Commission agreed, ruling that the duties the four were assigned justified the reclassification of their respective positions to senior stenographer.

When the District declined to reclassify their respective positions, Muzzillo and her co-workers sued.

In one action Muzzillo sought a court order directing the District to comply with the Commission's determination and reclassify their positions to Senior Stenographer or, in the alternative, to desist from requiring them to perform out-of-title work. In a second action, Muzzillo attempted to obtain a court order compelling the Commission to "enforce its determination" regarding the reclassification of their respective positions.

The Appellate Division sustained lower court rulings dismissing the petitions in both actions.

As to their law suit against the District, the Appellate Division found that the School Board, by resolution, had directed the District "to cease and desist from using [the stenographers] to perform duties inappropriate to their title." This would appear to have provided appropriate redress concerning the issue of District's assigning "out-of-title work" to the stenographers.

However, even if the Board's action did not resolve the matter to the satisfaction of the four, the Appellate Division ruled that their complaint was properly dismissed by the lower court. The Appellate Division commented that the four had failed to exhaust their administrative remedy, noting that they had not "availed themselves of the grievance procedure set forth in their collective bargaining agreement."

As to the action brought against the Civil Service Commission, the Appellate Division ruled that the School Board had acted appropriately by adopting a resolution directing the District to refrain from having the four stenographers perform out-of-title work.

The Appellate Division said that Muzzillo failed to show that the Commission is under a legal duty to enforce compliance with its determination that the four were performing senior stenographer duties. In other words, the Commission did not have any obligation to require the District to reclassify the positions merely because it found that the incumbents had been assigned to perform out-of-title work.

Although the School Board could have elected to provide for such reclassification, the Court action signals its view that discontinuing the assignment of out-of-title work is an appropriate alternative to reclassification of the positions.

The Appellate Division commented that although the Commission had urged the Board to reclassify their positions to senior stenographer, it was not required to compel the District to do so. In this regard, the Commission could exercise its discretion as to the action it would take to resolve the matter. In other words, the Commission had no legal duty to compel the reclassification of the positions in question and the fact that the School Board had acted to bar future out-of-title work constituted an appropriate resolution of the complaint.

On another point, Muzzillo had cited Sections 100.1.a and 102.3 of the Civil Service Law in support of her efforts to have the Commission act. Section 100.1.a deals with the certification of payrolls and bars the payment of salary or compensation were the responsible commission determines that an individual has been employed in violation of law. Section 102.3 authorizes the appropriate commission to sue to enjoin "any violation of the Civil Service Law."

Assuming, without deciding, that these provisions are relevant in these cases, apparently the Appellate Division decided that the action by School Board to prohibit further out-of-title work by the stenographers resolved the underlying issues involved.

Public policy considerations affecting arbitration

Public policy considerations affecting arbitration

Sullivan County v Sullivan County Employees Asso., 235 A.D.2d 748

One of the issues in this appeal heard by the Appellate Division concerned Sullivan County's claim that the arbitration of a grievance as demanded by the Sullivan County Employees Association violated of "public policy considerations" and should be stayed.

The Association had demanded arbitration when the County denied a grievance based on the Association's claim that its action modifying a Taylor Law contract with another collective bargaining unit had triggered the "parity clause" in its agreement. The "parity clause" provided that if another bargaining unit negotiated a salary increase, those increases would be operative for employees covered by the agreement.

The Appellate Division said that to invoke a violation of public policy as justification for staying arbitration, "the violation must amount to the equivalent of a gross illegality." Although Sullivan County claimed that "parity clauses" were illegal, the Appellate Division noted that "such clauses are not per se invalid but require a case-by-case analysis."

The Courts indicated that the matter was not yet ripe for judicial consideration, commenting that if "the arbitrator's interpretation of the agreement may offend public policy, such a potential does not mandate a stay of arbitration." Rather, said the Court, if that turns out to be the case, the remedy is vacatur (reversal) of the award.