Nontenured policymaker in the public service ineligible for unemployment insurance benefits if he or she is terminated by the appointing authority

Nontenured policymaker in the public service ineligible for unemployment insurance benefits if he or she is terminated by the appointing authority

Matter of Matter of Briggs (Commissioner of Labor), Decided on December 22, 2011, Appellate Division, Third Department

Daniel L. Briggs was appointed the County Manager for Sullivan County in 2000. When, in 2005, the County Legislature terminated his employment, Briggs filed a claim for unemployment insurance benefits.

Ultimately the Unemployment Insurance Appeals Board ruled that Briggs was ineligible for unemployment insurance benefits and Briggs appealed.

Citing Labor Law §565.2(e), the Appellate Division affirmed the Board’s ruling, pointing out that a claimant is ineligible to file a claim for unemployment insurance benefits when he or she is employed by a governmental entity in a "major nontenured policymaking or advisory position."

The court concluded that Briggs employment as County Manager was as a nontenured policymaker or advisor as his duties included appointing and supervising department heads, developing policy and procedural recommendations for the County Legislature, performing advisory oversight of the County Auditor and preparing the operating and capital budgets for the employer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09224.htm

Agency's decision annulled because it failed to follow its own rules requiring notice to be given to the parties that could be affected by the ruling

Agency's decision annulled because it failed to follow its own rules requiring notice to be given to the parties that could be affected by the ruling

City of Saratoga Springs v City of Saratoga Springs Civ. Serv. Commn., 2011 NY Slip Op 09246, Appellate Division, Third Department

When the Mayor of the City of Saratoga Springs initiated the reorganization of the City’s Building Department, the City of Saratoga Springs Civil Service Commission approved the Mayor's request to [1] revise the job description of Assistant Building Inspectors (ABI) to include permitting the incumbents to issue building permits when so assigned to do so by the Mayor and [2] reclassify the vacant position of building inspector to Zoning and Building Inspector (ZBI).

When the Mayor failed to appoint anyone to the ZBI position the Commission unilaterally reversed its earlier action and abolished the ZBI title. In addition, the Commission removed the Mayor's power to assign ABIs authority to issue building permits and limited the ABIs’ authority to assume the duties of the building inspector to a temporary basis for a period of not to exceed three months.*

The City of Saratoga Springs reclassified the position of Building Inspector and changed the title of that position to Zoning and Building Inspector (ZBI) based a request submitted by the Mayor of the City of Saratoga Springs.

When the Mayor failed to fill the ZBI position, the Commission unilaterally reversed its earlier action and abolished the ZBI title. The Commission also removed the Mayor's power to assign ABIs authority to issue building permits and it limited the ABIs’ to performing the duties of the building inspector on a temporary basis, not to exceed three months in duration.

The City filed a petition pursuant to CPLR Article 78 and an action for declaratory judgment seeking to annul the changes that Commission made to the positions of ZBI and ABI. The Commission opposed the City’s action, contending that the City [1] had violated Civil Service Law §61(2) by requiring ABIs to perform the functions of the building inspector which the Commission said constituted out-of-title work.

Supreme Court said that while the Commission “did not technically reclassify the positions of ABI or ZBI,” its actions nonetheless should be annulled because they were taken without providing notice to the appointing authority — the mayor — and the incumbent ABIs.

In addition, the court dismissed Commissions out-of-title claim, finding that City had acted “within its authority in having ABIs perform the functions of the building inspector” and that the Commission “lacked standing to assert a violation of Civil Service Law §61(2).”

The Appellate Division sustained the lower court’s ruling, holding that “regardless of the appropriate nomenclature, the material changes that [the Commission] made to these positions required notice,” pointing out that the Commission’s rules provide that it "shall give reasonable notice of any proposal or application for a change in classification to the appointing officer and to the employee or employees affected thereby."

As the Commission had unanimously voted to approve a motion to "classify" the position of ZBI, the Appellate Division ruled that when decided to eliminate that position, such action constituted a "change in classification" requiring notice.

The same, said the court, was true with respect to ABI positions.

Rejecting the Commission’s argument that the notice provisions are applicable only when a position is moved from one class to another, as opposed to where, as here, the duties of a position are materially changed, the court said that “Supreme Court properly granted the petition and annulled [the Commission’s] actions in abolishing the ZBI position and revising the ABI job specifications.”

As to the Commission’s out-of-title claim, the Appellate Division said that such a violation of Civil Service Law §61(2) exists when "an employee has been assigned to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time." However, noted the court citing Haubert v Governor's Off. of Empl. Relations, 284 AD2d 879, "[n]ot all additional duties constitute out-of-title work but, instead, the question is whether the new duties are appropriate to [the employee's] title and/or are similar in nature to, or a reasonable outgrowth of, the duties listed in [the employee's] job specifications."

The opinion then observes that  "Significantly, an employee's performance of overlapping functions of an absent supervisor has not been found to establish a violation of Civil Service Law §61(2) where such functions were substantially similar to those detailed in his or her job description."

* §64 of the Civil Service Law permits temporary to be made for a period not exceeding three months when the need for such service is important and urgent. A temporary appointment may be made for a period exceeding three months under special circumstances as set out in the statute.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09246.htm

A school district may required a teacher suspected of being medically unfit to perform assigned teaching duties to report for a medical examination

A school district may required a teacher suspected of being medically unfit to perform assigned teaching duties to report for a medical examination

Seraydar v Three Vil. Cent. School Dist., 2011 NY Slip Op 09336, Appellate Division, Second Department

A teacher employed by the Three Village Central School District was relieved of her teaching duties and directed to submit to a medical examination pursuant to Education Law §913 but the teacher neither appeared for the examination as scheduled nor for a rescheduled examination.Instead the teacher filed an Article 78 petition seeking judicial review the District's determination to require the teacher to submit to a §913 examination. 

Supreme Court dismissed the teacher’s petition, ruling that the District's directive requiring the teacher to undergo the examination was not arbitrary and capricious, an abuse of discretion, or unreasonable.

The Appellate Division affirmed the Supreme Court’s ruling explaining that "Teachers in this State are generally required to submit to an examination to determine their physical and mental fitness to perform their duties.”

The court said that school districts have "an interest in seeing that [their] teachers are fit," and "it is not unreasonable to require teachers to submit to further testing when school authorities have reason to suspect that they are currently unfit for teaching duties."

Finding that there was “there is ample evidence in the record” providing the District with reason to suspect that the teacher may be unfit for to perform assigned teaching duties, the Appellate Division said that the §913.examination should be scheduled on notice to the teacher.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09336.htm