The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 2012 NY Slip Op 00623, Appellate Division, Fourth Department

David Zehner alleged that the Jordan-Elbridge Central School District had engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law §100 et seq.) with respect to its going into executive session. Supreme Court agreed.

Affirming the lower court’s ruling, the Appellate Division said that the Open Meetings Law [OML] provides that "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Section 105]" Here, said the court, the school district had violated the OML on three occasions.

Although the OML does allow a public body to go into executive session, the Appellate Division noted that “the topics that may be discussed [in such an executive session] are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.”

The problem underlying this action was that the school district “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.”  Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division explained that §105 is to be “strictly construed,” and the real purpose of an executive session will be carefully scrutinized "lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder."

Noting that the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party,” the Appellate Division said that it did not perceive any abuse by the Supreme Court, in it's exercise of its discretion, awarding attorney fees to Zehner.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00623.htm

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

Lynch v City of New York, Supreme Court, New York County, Justice Carol Edmead, Index 650822 [Not selected for publication in the Official Reports]

New York City currently pays “one half of the rate” of employee contributions for retirement that it had earlier assumed* on behalf of its Tier I and Tier II members of the New York City Police Pension Fund and the New York City Fire Department Pension Fund. The City had assumed making such contributions in order to provide such individuals with “increased take-home pay.”

The City, however, discontinued making “employee contributions” on behalf of police and fire personnel enrolled as Tier III members of those retirement systems effective July 1, 2009. Such enrollees were otherwise required to pay 3% of their annual compensation as an employee contribution for 25 years.

Justice Edmead ruled that the City of New York violated §480(b)(i) and (ii) of the Retirement and Social Security Law when it commenced to require New York City police officers and firefighters initially appointed on or after July 1, 2009 to pay the full employee contributions otherwise required to the New York City Police Pension Fund and to the New York City Fire Department Pension Fund, as the case may be, upon their enrollment as Tier III members of their respective retirement systems.

The court rejected the City’s claim that such police officers and firefighters were required to pay the statutorily required 3% of their annual compensation as their "employee contribution" toward retirement “for 25 years,” explaining that when the relevant provisions of law were initially enacted there was no expectation that eventually a Tier III [and additional Tiers] might be established by these Retirement Systems.

Finding that RSSL §480(b) is applicable to police officers and firefighters who are in Tier III, Justice granted the Patrolmen’s Benevolent Association of the City of New York, the Captain’s Endowment Association of the City of New York and the Uniformed Fire Officers Association motion for summary judgment.

* See RSSL §480(b)(i)

A copy of Justice Edmead’s decision is available from NYPPL. Send your request by e-mail to publications@nycap.rr.com .

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration
Mahinda v Board of Collective Bargaining, 2012 NY Slip Op 00636, Appellate Division, First Department

After an informal conference and "Step II" hearing, disciplinary allegations against Josephine Mahinda, a provisional employee, were sustained, and her employment with the New York City Department of Transportation was terminated.

Subsequently Mahinda failed to establish that her employee organization, the Organization of Staff Analysts, [OAS], breached its duty of fair representation by failing to advance to arbitration the grievance arising out of her termination. 

Although Mahinda argued that OSA should have processed her grievance to arbitration, the Appellate Division said that she had not established that an agreement providing for provisional disciplinary procedures had been negotiated pursuant to §65(5)(g)* of the Civil Service Law. §65(5)(g) authorizes the City and certain other public employers to enter such agreements in the course of collective bargaining..

After considering other theories advanced by Mahinda to support her argument that she was entitled to submit the matter to arbitration, the Appellate Division ruled that “there was no basis on which to grant [Mahinda’s] request….”

Nor, said the court, was there any basis for granting her request to review the City's underlying decision to terminate her. As a provisional employee, Mahinda could be terminated at any time, "without a hearing, for almost any reason, or for no reason at all," unless such action constituted an unconstitutional or unlawful action.

Finding that Mahinda failed to demonstrate that in terminating her employment the City violated Civil Service Law §65, which governs provisional appointments, or any other constitutional or statutory provision,"nor had  she demonstrated that her employment was terminated in bad faith or that the termination was arbitrary and capricious," the Appellate Division dismissed her appeal

* Civil Service Law §65.5(g) authorizes “The city of New York; and any other entities whose civil service and examinations are administered by the New York City Department of Citywide Administrative Services [DCAS] and an Article 14 [Taylor Law] employee organization, to enter into agreements to provide disciplinary procedures applicable to provisional appointees who have served for a period of 24 months or more in a position which is covered by such an agreement. Further, no such provisional employee is to be deemed to be permanently appointed, nor may such disciplinary procedures be deemed to preclude removal of an employee as a result of the establishment of and appointments from an appropriate eligible list or in accordance with any other provision of law. [N.B. Repealed December 31, 2014]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00636.htm

New York State's University Police, Park Police, EnCon Officers and Forest Rangers approve new collective bargaining agreement

New York State's University Police, Park Police, EnCon Officers and Forest Rangers approve new collective bargaining agreement
Source: Office of the Governor

On January 31, 2010 Governor Andrew M. Cuomo and Manuel M. Vilar, President of the Police Benevolent Association of New York State, announced the ratification of a contract agreement between the state and the labor union representing New York State's University Police, Park Police, EnCon Officers and Forest Rangers. The union reports more than 95% of their members voted to ratify the contract.

The ratified contract resolves outstanding wage and contractual issues dating back to 2005, ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for zero percent wage increases for 2011-2013, a 2% increase in 2014, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

The Agency Law Enforcement Services Unit (ALES) is composed of University police, Park Police, EnCon Officers and Forest Rangers. They have not had a contract since 2005 and were in arbitration for the years 2005-2007.

Key provision of the contract agreement include:

· Zero percent wage increases for 2011-2013, a 2% increase in 2014. 

· A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year. 

· Deficit Reduction Leave of five days this fiscal year and four days next fiscal year. 

· Retroactive payments that are scheduled to be paid in two installments -- one this fiscal year and one next fiscal year before the end of the calendar year. 

· Health insurance premium share increase by 6% for both individual and families, making the share 16% for individuals and 31% for family premiums. 

· Random drug testing and drug testing for probationary employees in addition to reasonable suspicion testing. 

· A labor/management committee to review all leave taken by officers, including annual, personal, sick, workers compensation, and the manner of such use. Recommendations will be made to the President of the Union and the GOER Director for implementation. 

· A health plan opt out so officers can opt out through a spouse/partner to a non-State health plan. Under the opt out, participants would receive $1,000 individual/$3,000 family . 

· Officers will receive broad layoff protection. Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

The provisions in a “memorandum of understanding” that are limited to applying to “employees” do not apply to a “retired employee”

The provisions in a “memorandum of understanding” that are limited to applying to “employees” do not apply to a “retired employee”

Derosa v Dyster, 2011 NY Slip Op 09363, Appellate Division, Fourth Department

Patricia Derosa, a retired employee the City of Niagara Falls, sued the City in an effort to compel it to provide her with “either post-employment health insurance coverage or opt-out payments in lieu of such coverage, contending that she was entitled to such benefits pursuant to the terms of a Memorandum of Understanding [MOU] between the City and the Union.

The Appellate Division ruled that Derosa, as a retired employee, was not eligible to elect the “opting out” provision, explaining that the MOU gave qualified employees a choice of either participating in the health care plan or opting out of that plan. However, said the court, although the MOU permitted retirees to participate in the health care plan upon retirement under the same terms and conditions as employees, it did not contain a similar "opt-out provision" for retirees.

Pointing out that the opt-out paragraph set out in the MOU specifically stated that qualified employees could elect to opt-out of the health care plan, the Appellate Division held that Derosa, as a retiree, and thus no longer an employee, was entitled to enroll in the health care plan at no cost to her but could not elect to "opt-out."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09363.htm

Agency or insurance carrier must provide substantial evidence to rebut presumptions set out in Volunteer Firefighters’ Benefit Law as to cause of death

Agency or insurance carrier must provide substantial evidence to rebut presumptions set out in Volunteer Firefighters’ Benefit Law as to cause of death
Machajewski v Town of Cambria, 89 AD3d 1175

Gerald A. Machajewski, a volunteer firefighter for the Town of Cambria, Niagara County, collapsed while responding to a call and died shortly thereafter.

It was determined that Machajewski suffered an acute coronary artery thrombosis, and the Workers' Compensation Board, applying the rebuttable presumptions contained in Volunteer Firefighters' Benefit Law §§44 and 61*, ultimately approved a claim for workers' compensation death benefits by Machajewski’s widow.

When the Town’s and its workers' compensation carrier’s appealed the Board’s determination, the Appellate Division said that there is no dispute that a heart or coronary artery condition caused Machajewski's death and thus his widow would entitled to death benefits if that condition "resulted from the duties and activities in which [decedent] was engaged" (Volunteer Firefighters' Benefit Law §61[1]).

As the record indicated that Machajewski had never been diagnosed with a heart condition and had been examined by his physician just weeks before his death and was found to be in good health, the Appellate Division ruled that “Inasmuch as that ‘evidence permits reasonable inferences to sustain the finding of the [B]oard that the death was due to unusual strain and effort’ attendant to [Machajewski’s] duties, the Town was obliged to provide substantial evidence to the contrary in order to defeat his widow’s application.

The court held that “the Board properly determined that claimant's demonstration of entitlement to death benefits had not been rebutted.”

* Presumptions regarding death or disability due to disease or malfunction of his or her heart or coronary arteries suffered by a volunteer firefighter alleged to have resulted from the performance of the duties and activities in which the volunteer fireman was engaged

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2011/2011_07765.htm

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

A party's demand to arbitrate a grievance must survive a two-prong test: is the subject of the dispute arbitrable and, if so, did the parties agree to do so

Arbitration between the Town Of Saugerties and the Town of Saugerties Policeman's Benevolent Assn., 2012 NY Slip Op 00458, Appellate Division, Third Department
 

The Town of Saugerties challenged the Supreme Court's denial of its CPLR 7503 petition to stay the arbitration of a grievance filed by the Town of Saugerties Policeman's Benevolent Association [PBA] concerning an order that required a police officer to work in excess of an eight-hour tour.

The Collective Bargaining Agreement (CBA) stated, among other things, that the Town "agrees to comply with the requirements of §971 of the Unconsolidated Laws of New York."*

Courts, said the Appellate Division, determine arbitrability according to a two-prong test:

1. May the parties arbitrate the dispute and, if so,

2. Whether the parties in fact agreed to do so.

The Town contended that demand to arbitrate fails both tests as the resolution of the dispute:

1. Requires the application or interpretation of the terms of a statute and public policy will not permit an arbitrator to apply or interpret a statute, and

2. The parties did not agree to arbitrate the application or interpretation of the statute at issue here.

The Appellate Davison decided that neither of the Town’s arguments had merit, explaining that the CBA incorporates §971 by reference, making the language of the statute a substantive provision of the CBA.

Further, said the court, the Town had identified any public policy that would preclude the arbitrator from interpreting such language set out in the CBA.

In addition, the court noted that the CBA defines disputes as "[a]ny grievance arising concerning the interpretation or application of the terms of this contract or the rights claimed thereunder and/or working conditions."

As the dispute underlying the PBA’s grievance concerns overtime, which is clearly a working condition, clearly one that the parties intended to arbitrate the Appellate Division concluded that Supreme Court correctly granted the PBA’s cross motion to compel arbitration and dismissed the Town’s petition.

* §971 of the Unconsolidated Law, in relevant part, provides that police officers shall not be assigned to tours of duty exceeding eight consecutive hours of each consecutive 24 hours, with certain exceptions. See, also,  Police Asso. of the City of Mt. Vernon v City of Mt. Vernon, 279 A.D.2d 561, posted on the Internet at: http://caselaw.findlaw.com/ny-supreme-court/1055483.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00458.htm

Enforcing disciplinary settlement agreements

Enforcing disciplinary settlement agreements
Lyons v Whitehead, 2 AD3d 638

The Appellate Division's decision in the Lyons case demonstrates the importance of making certain that the terms and conditions of a disciplinary settlement agreement clearly indicate the expectations of the parties.

An employee at the Letchworth Developmental Disabilities Service, and the Director of Letchworth, had entered into a disciplinary settlement agreement that provided that the employee would participate in a treatment program to treat her abuse of prescription drugs. The settlement required the employee to follow the program's attendance requirement, and to complete the program.

The agreement also provided that the employee would be placed on "general probation status" for one year, and that her employment could be terminated for a violation of her probation without any further hearing "except for time and attendance infractions".

The employee failed to attend a scheduled "medication course." The Director viewed this as a breach of the Settlement Agreement and terminated the employee's employment. Acting on behalf of the employee, the Civil Service Employee's Association, Inc., sued. They asked for a court order reinstating the employee to her position. CSEA argued that the employee’s failure to attend the medication course was a "time and attendance infraction" and thus she could not be summarily terminated under the terms of the Settlement Agreement.

Although the Supreme Court directed that the employee be restored to her employment, the Appellate Division reversed and remanded the case to the lower court to determine whether the employee’s failure to attend the "medication course" was a "time and attendance infraction" under the Settlement Agreement.

The Appellate Division ruled that "[b]ecause the Settlement Agreement is a contract between the parties, it must be construed according to ordinary contract law." Accordingly, the court must "determine the intention of the parties as derived from the language employed in the contract", and it "should strive to give a fair and reasonable meaning to the language used," citing Abiele Construction v New York City School Construction Authority, 91 NY2d 1.

It is clear that the appellant could terminate the employee's employment for a violation of her probation, "except for time and attendance infractions." Was employee’s absence from the "medication course" a breech of the Settlement Agreement?

The Director maintained that attending the medication course "was part of the treatment program" that the employee agreed to attend as part of the Settlement Agreement. CSEA, on the other hand, argued that it was "a mandatory course for all employees working at [the employee’s]salary grade and title for recertification to perform the duties of dispensing medication to patients" and thus her absence was a "time and attendance" problem excluded under the Settlement Agreement.

The court decided that the nature of the medication course could not be determined from the record and therefore it could not decide whether or not the employee’s failure to attend it was a "time and attendance infraction" or a breach of the disciplinary settlement agreement.

Thus, said the court, "the matter must be remitted to the Supreme Court, for a hearing on the question of whether the medication course was the same as the treatment program, and if not, whether the employee's  absence falls within the category of "time and attendance infractions." The Appellate Division said that the lower court "had to make a new determination" based on its answer to these questions.

The basic idea underlying the Lyons decision is that the court must interpret and apply the terms set out in a disciplinary settlement agreement precisely. The decision in Taylor v Cass, 122 A.D.2d 885, illustrates this point.

A former County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a six-month disciplinary probation.

The disciplinary settlement provided that the County could terminate the employee without any hearing if, in the opinion of the employee’s superior, the employee’s job performance was "adversely affected by his intoxication on the job during the next six months."

The employee, while serving this six-month disciplinary probationary period, was terminated without a hearing after what his supervisor described as the employee’s "failing to give a fair day's work" and "sleeping during scheduled working hours".

The employee challenged his dismissal and won reinstatement with back pay. Why? The Appellate Division decided that the employee’s dismissal was improper because he was not summarily terminated for the sole reason specified in the disciplinary settlement agreement: intoxication while on the job.