Police may not use GPS device to track suspects without a court order - is a court order required to acquire and use GPS evidence in an administrative disciplinary action?

Police may not use GPS device to track suspects without a court order - is a court order required to acquire and use GPS evidence in an administrative disciplinary action?

United States v. Jones, Certiorari To The United States Court of Appeals for The District of Columbia Circuit. No. 10–1259

The U.S. Supreme Court has unanimously ruled that “The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.”

The Court said that the government violated the Fourth Amendment, which protects individuals from unreasonable searches, when it afixed a global positioning [GPS] device to Antoine Jones’s car and tracked his movements continuously for a month. The Court rejected the argument advanced by the Government that Jones had no “reason­able expectation of privacy.”

Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, joined. Justices Sotomayor filed a concurring opinion, as did Justice Alito, in which Justices Ginsburg, Breyer, and Kagan joined.

Earlier New York’s highest court, the Court of Appeals, ruled that the warrantless installation of a GPS device to track an individual suspected of criminal activity was barred by New York State’s Constitution [see People v Weaver, 12 NY3d 433,].

The Weaver Court noted that Article 1, §12, of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides: "The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof."

The Court of Appeals reasoned that:

1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.

2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.

The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”

A number administrative disciplinary actions taken against employees were initiated as a result of information obtained using global positioning equipment installed in the employer’s vehicle or in the employee's employer-issued cell phone.

The decisions in Jones and in Weaver case may have an impact on the future use of such GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.

Among the unresolved questions:

1. Will a court order be required to obtain GPS evidence for use in an administrative disciplinary action if the administrative charges and specifications would also serve as a basis for filing a criminal complaint against the employee?

2. Will a court order be required to obtain GPS evidence for use in an administrative disciplinary action if the administrative charges and specifications could not be a basis for filing a criminal complaint against the employee?

For the present, however, the following appears to control with respect to the use of GPS evidence in an administrative disciplinary action.

1. PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining. In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, PERB’s Administrative Law Judge dismissed a charge alleging that the County violated the Taylor Law by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis. [See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08]

2. In Cunningham v New York State Dept. of Labor, 88 AD3d 1347 the court held that evidence obtained using a global positioning device [GPS] was permitted in administrative disciplinary hearing.

Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.

The Appellate Division noted that in a case decided after Office of the Inspector General [OIG] had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”

Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.

The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth." As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”

The Appellate Division decided that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the court ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”

Under the circumstances the Appellate Division concluded that neither OIG nor Department of Labor had acted unreasonably.

3. In Halpin v Klein, 62 AD3d 403, the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the GPS installed in his Department-issued cell phone.

The Weaver decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2009/2009_03762.htm

The Cunningham decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htm

The Halpin decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm

The Jones decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Videotape admitted as evidence in a disciplinary hearing alleging fighting on the job

Videotape admitted as evidence in a disciplinary hearing alleging fighting on the job

NYC Dept. of Homeless Services v Murray, OATH Index #2149/11

A dispute at the entrance of a homeless shelter led to disciplinary charges being filed against a New York City Department of Homeless Services employee.

The employee, a special officer who was stationed at the shelter’s security screening checkpoint, got into a physical altercation with her partner, another special officer, in view of clients.

A videotape showed that the officer and her partner exchanging words. The officer threw latex gloves at her partner, who threw a punch at her. The Officer than charged her partner, and had to be restrained by a third officer.

OATH Administrative Law Judge Kevin F. Casey found that the officer’s use of offensive language in front of clients and co-workers was misconduct. He also found the fight to be misconduct because it could have been avoided, but that the provocation did mitigate the penalty he would have otherwise recommended.

Noting that “[f]ighting with a colleague at the workplace is misconduct, even if there is provocation.” ALJ Casey said that “workplace fight between colleagues is misconduct by both employees regardless of who starts the fight, as long as both parties demonstrated a willingness to participate.”

As to a participants claim of “self-defense, self-defense can justify participation in a fight only if the employee had no reasonable means to avoid the altercation said the ALJ.

Judge Casey, sustaining two of the charges filed against the officer, recommended a 30-day suspension without pay as the penalty to be imposed.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2149.pdf

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

Kalyanaram v New York Inst. of Tech., 2012 NY Slip Op 00309, Appellate Division, First Department

The Appellate Division rejected a party to the arbitration assertion that disputes concerning the performance of the remedy provisions of the arbitration award should be determined by the arbitrator as being without merit in this instance.

The court explained that “Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 AD3d 418 [2010], lv denied 17 NY3d 712 [2011]), a judgment enforceable by the courts has been entered (see CPLR 7514),” the arbitrator is functus officio, “without power to amend or modify the final award.”

Functus officio means "having performed his office." Where, as here, there has been a final judicial determination concerning the matter, the arbitrator no longer has jurisdiction.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00309.htm

Application seeking the removal of a school official must give the official notice of the application being filed

Application seeking the removal of a school official must give the official notice of the application being filed

Application of Donald B. Oglesby regarding an election, and application for the removal of Superintendent Lisa Wiles, board members Karin Osterhoudt and Phillip Mattracion, and teachers Denise Moore, James Pidel and Ann Beukelman, Commissioner of Education Decision #16,311

The Commissioner viewed Donald B. Oglesby’s applications as challenging an election to select members of the school board and to remove the school superintendent and certain board members and teachers from their respective positions.

As to the application for removal of the school officials and teachers, the Commissioner said that it must be denied because the notice of petition is defective.  

Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, Oglesby failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.”

Further, the Commissioner rejected Oglesby’s application to remove certain teachers from their positions, indicating that tenured teachers are school district employees, not school officers, and are thus not subject to removal under Education Law §306.

Other technical and substantive issues addressed by the Commissioner in considering Oglesby’s application included:

Verification of the application: §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified; Oglesby’s reply was not verified in violation of §275.5 and not considered by the Commissioner.

The Commissioner declining to consider material submitted in unsworn documents from Oglesby, noting that additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner.

The failure of Oglesby to serve the named individuals in his application with copies of tape recordings or video tapes that were “were alleged to be attached as exhibits to the petition” as otherwise required by §275.8(a) of the Commissioner’s regulations -- a “copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers . . . shall be personally served upon each named respondent . . . .” 

As to newspaper articles submitted by Oglesby, the Commissioner said that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”

The Commissioner rejected school districts claim that certain of the act complained of were untimely. The Commissioner held that it would be “unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election” complaint. In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election [citations omitted].

Finally, the Commissioner said that to the extent that Oglesby raised claims that do not arise under the Education Law, such as defamation and slander, he lacked lack jurisdiction over such claims.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16311.html

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits
Matter of Brunner v Bertoni, 2012 NY Slip Op 00167, Appellate Division, Third Department

A police officer sustained serious injuries in an off-duty motorcycle accident. Upon his return to work with the Village of Endicott Police Department, he undertook mandatory firearms training that involved repeatedly firing his sidearm with his left hand. He could not complete the training due to pain in his left thumb and, as a result, stopped working for eight months until learning how to shoot his weapon with his right hand.

The police officer had applied for benefits pursuant to General Municipal Law §207-c. His application was ultimately denied by the Mayor and the officer filed an Article 78 petition seeking a court order directing the Village to provide him with §207-c benefits.

The Appellate Division sustained the Supreme Court’s dismissal of the petition explaining that although "[p]reexisting non-work-related conditions [would] not bar recovery . . . [if the police officer’s] job duties were a direct cause of the disability," substantial evidence in the record amply supported the Mayor’s finding that “they were not a direct cause” in this instance.

General Municipal Law §207-c provides eligible law enforcement personnel with benefits, including full wages, in the event they are injured in the performance of their duties. Such individuals, however, must "prove a direct causal relationship between job duties and the resulting illness or injury" in order to be entitled to such benefits.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00167.htm

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Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Source: Office of the Governor

In his 2012-2013 Executive Budget and Reform Plan, Governor Cuomo stated that in  2011-12 the State started the process of merging and consolidating State agencies to achieve efficiencies and reduce redundancies.

The Governor indicated that “This process continues ... with consolidations, ... resulting in better, streamlined services." 

Among the proposed mergers set out in the 2012-2013 proposed budget: merging the Department of Civil Service and the Governor’s Office of Employee Relations "to provide the State with a single entity responsible for a strategic approach to workforce management, including recruiting, training, promoting, and developing a best in class workforce for the people.”

The Governor's 2012-2013 Executive Budget and Reform Plan is posted on the Internet at:

http://publications.budget.ny.gov/eBudget1213/fy1213littlebook/BriefingBook.pdf

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Rogan v Nassau County Civ. Serv. Commn, 2012 NY Slip Op 00217, Appellate Division, Second Department

A candidate in Nassau County”s Police Officer Examination No. 7000 failed to attain a passing score on the physical fitness screening test.

The candidate sue, contending that the Commission acted irrationally or arbitrarily and capriciously in relying upon a proctor's assessment that the candidate failed to complete the number of sit-ups required to pass the physical fitness screening test promulgated by the State’s Municipal Police Training Council.

Supreme Court denied his petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division, noting that “An appointing authority* has wide discretion in determining the fitness of candidates,” explained that such discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

A court, said the Appellate Division, “may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, [it] may not annul it.”

* Although this decision may give the reader the impression that the Commission was the appointing authority with respect to police officers, a Civil Service Commission is the agency responsible for determining the eligibility of candidates seeking appointment to positions in the competitive class of the classified service by examination and then certifying those found eligible and qualified to the appointing authority for selection for appointment to the position. [People v Gaffney, 201 NY 535]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00217.htm

Will the next NYSERS retirement tier be based on defined contributions?

Will the next NYSERS retirement tier be based on defined contributions?

A NYPPL comment*

It is expected that there will be yet another “membership tier” grafted onto the New York State Employees’ Retirement System [ERS] and possibly the New York State Teachers’ Retirement System [TRS]. The question to be resolved is whether the next “Tier” will be a modification of the existing model – i.e., a defined benefit plan -- or whether the legislation will go in a new direction and provide that this new tier will be a Defined Contribution Plan [DCP].

The key elements of a viable DCP plan would provide that:

1. All new members would join a DCP;

2. Employer and employee contributions would be negotiated through collective bargaining;

3. Employees would “vest” immediately;

4. Current members of a public retirement system would be permitted to elect to become members of the appropriate DCP; and

5. ERS and TRS, respectively, would administer their DCP plans by essentially expand the existing “employee contribution” operations of the Systems, with, perhaps, a variable annuity option made available to interested members.

Since 1965 the State University’s Optional Retirement Plan, a retirement plan based on defined contributions rather than defined benefits, has been available to certain employees of the State University of New York, the Statutory Contract Colleges at Cornell and Alfred Universities, and the community colleges.** Further, since 1968 the City University of the City of New York has offered certain of its employees the opportunity to elect to participate in an optional DCP retirement program as well.***

The model for such legislation may well be the State University’s DCP, which is set out in Education Law §390, et seq. The State Education Department Optional Retirement Program is set out in §180 of the Education Law.

* GOVERNOR CUOMO'S 2012-13 EXECUTIVE BUDGET, presented on January 17, 2012, included the following proposal:

Enact pension reform: Next to Medicaid, pension costs are the most significant burden on local governments. The Governor called for a new tier in the State pension system that will save the State and local governments outside of New York City $83 billion and New York City $30 billion over the next 30 years. The new pension plan would have progressive contribution rates between 4% and 6% with shared risk/reward for employees and employers to account for market volatility. It includes a voluntary option for Defined Contribution following the TIAA-CREF model. Employees taking this Defined Contribution will vest in this system after one year. This option will be portable. No current employees will be affected by the Governor's pension reform plan. 

** Since 1968 the State Department of Education has offered its DCP Optional Retirement Program to eligible employees.

*** See Article 125-A of the Education Law

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

Clark v Schriro, 2012 NY Slip Op 00118, Appellate Division, First Department

Jesse Clark filed a CPLR Article 78 petition “in the nature of mandamus” seeking to compel the New York City Office of Administrative Trials and Hearings [OATH] to hold a disciplinary hearing on charges that had been filed against him by the NYC Department of Correction. Supreme Court dismissed Clark’s petition and the Appellate Division affirmed the lower court’s decision.

In the words of the Appellate Division, “Supreme Court properly found that since respondents were not required to provide [Clark] with a hearing within a specifically prescribed period, but only within a "reasonable time" (New York City Charter §1046[c]), their failure to do so for more than a year after charging [Clark] with misconduct did not constitute failure to fulfill a nondiscretionary duty or perform a purely ministerial act.”

Should an employee be suspended from his or her position without pay upon his or her being served with disciplinary charges, however, typically the individual must be restored to the payroll after a specified period of time if such action is mandated by law [see, for example, Civil Service Law §75.3] or as required by a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00118.htm

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record 

Rauschmeier v Village of Johnson City, 2012 NY Slip Op 00158, Appellate Division, Third Department

The Village of Johnson City filed disciplinary charges against an employee pursuant to Civil Service Law §75. Following a disciplinary hearing, the Hearing Officer recommended that employee be found not guilty of the charges filed against him and that he be reinstated to his position with full back pay, benefits and seniority.

The Mayor of the Village, with support of the Village Board of Trustees, rejected the Hearing Officer's recommendation, found the employee guilty of misconduct and dismissed the employee from service.

Contending that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, the employee sued, seeking, among other things, an annulment of the penalty imposed by the Mayor. 

Although Supreme Court rejected the employee’s claim that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, a determination sustained by the Appellate Division,* another issue, whether the Mayor’s decision to reject the Hearing Officer's recommendation was supported by substantial evidence, was referred to, and considered by, the Appellate Division.

Addressing the Mayor’s decision to reject the Hearing Officer's recommendation, the Appellate Division said that its review of such a determination was limited to whether it is supported by substantial evidence.

When, however, the appointing authority, rejects a disciplinary recommendation made by a hearing officer after a hearing, the appointing authority must set forth in its decision "findings of fact based on competent proof contained in the record and then employ those findings to arrive at conclusions that are supported by substantial evidence."

The Appellate Division said that the Mayor, in rejecting the Hearing Officer's recommendation, referred to testimony of certain witnesses given at the hearing, but did not specify what in their testimony supported his conclusion.

More is required said the court, “especially since the other evidence introduced at the hearing – all of which is uncontradicted and not in dispute — supports the Hearing Officer's determination.”

Accordingly, the Appellate Division ruled that the Mayor’s “conclusion to the contrary was not supported by substantial evidence,” and thus his determination must be annulled and the employee reinstated to his position with full back pay and benefits.

* The Appellate Division also rejected the employee’s contention that the Mayor acted beyond his legal authority, pointing out that Civil Service Law §75(2) provides that an employee disciplinary proceeding shall be conducted "by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose" and where such a designation is made, the person so designated is to make a record of the hearing  and a recommendation as to the penalty to be imposed in the event the individual is found guilty of one or more charges. The record of the hearing and the recommendation is then to "be referred to [the appointing authority] for review and decision."

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

Levy v Plainview Fire Dept., 89 AD3d 1331

Danny Levy, a member of the Plainview Fire Department, submitted a volunteer firefighters' claim for benefits based upon injuries allegedly sustained while assisting the City of New York Fire Department at the World Trade Center disaster in September 2001.

The Workers' Compensation Board awarded claimant benefits, finding dual liability between the Plainview Fire Department and the self-insured employer, the City of New York, on the ground that Levy's activities at ground zero were directed and controlled by both entities. Rejecting the City’s appeal, the Appellate Division affirmed the Board’s ruling.

The court noted that the General Municipal Law §209-i 1) provides that "Whenever a volunteer [firefighter] is within this state, but outside the area regularly served by the fire company or fire department of which [the volunteer] is a member and has knowledge of a fire or other emergency at or near the place where [the volunteer] is for the time being, such volunteer . . . may report to the officer in command of the paid or volunteer fire company or paid or volunteer fire department, or in command of one of the paid or volunteer fire companies or one of the paid or volunteer fire departments, engaged in the handling of any such fire or other emergency and, on an individual basis, offer his [or her] services to assist such fire company or fire department. After [the volunteer's] services are so accepted, the volunteer . . . shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer [firefighers] during the time such services are rendered, in the same manner and to the same extent as if [the volunteer] were a volunteer member of the fire company or fire department which he [or she] is assisting, including benefits under the volunteer [firefighters'] benefit law."

The Appellate Division said that the record establishes that Levy initially volunteered on his own at ground zero on September 11, 2001. Thereafter, on September 12, 2001, claimant reported to the Plainview fire house where the fire chief requested volunteers to assist in the rescue and recovery efforts at ground zero. Levy testified that over the course of the next two weeks, he reported to the City's headquarters with other Plainview firefighters who volunteered and that their activities were then directed and controlled by the City.

Accordingly, the court held that substantial evidence supported the Board's factual conclusions regarding Levy’s dual employment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08514.htm

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli’s office announced that the New York State Employees’ Retirement System is recalculating the pension of a former director at the state Department of Correctional Services (DOCS) after an investigation by his office found that he took Fridays off for 17 years at taxpayer expense.

Howard Dean, 66, of Locke, N.Y., pleaded guilty last year to second degree grand larceny and is awaiting sentencing by Oneida County Judge Barry Donalty. On Tuesday, Judge Donalty postponed Dean’s sentencing to May 10. The case is being prosecuted by Oneida County District Attorney Scott D. McNamara.

Meanwhile, the Comptroller’s office has cut Dean’s annual state retirement benefit by nearly $4,000 and is seeking recovery of $13,500 in pension payments made since his 2008 retirement, based on his admission that he was paid for 17 years of Fridays that he did not work.

“This recalculation and the prosecution sends a key message to any abuser entrusted with public funds: we will find you, we will hold you accountable and we will make you pay,” DiNapoli said. “My office will not tolerate abuses of the state pension system. When a person commits fraud which boosts their pension benefits, we will aggressively seek to cut their payments to account for their theft to the full extent of the law.”

DiNapoli is pushing proposed legislation to elevate official misconduct to a felony and force public officials to pay penalties of up to twice the amount gained by their crimes.

An investigation and audit by DiNapoli and the State’s Inspector General’s office found that Dean defrauded the state of nearly $500,000 in unearned salary and improper perks while serving as director of the DOCS Food Production Center in Rome, N.Y.

Dean freely admitted to auditors that he did not work Fridays for 17 years and the investigation concluded that he had the support of senior management in many of his improprieties. Since then, DOCS has indicated that it has improved internal controls and trained staff to identify fraud and abuse.

The State Comptroller encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud, corruption or abuse of taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint by mail complaint by writing to: Office of the State Comptroller, Investigations Unit, 14th Floor, 110 State St., Albany, NY 12236 or online by e-mail at investigations@osc.state.ny.us .

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the relationship of the subject matter of the dispute to the general subject matter of the CBA

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the  relationship of the subject matter of the dispute to the general subject matter of the CBA

Matter of Haessig (Oswego City School Dist.), 2011 NY Slip Op 09723, Appellate Division, Fourth Department

In this CPLR Article 75 action the president of the Oswego Classroom Teachers Association, Brian Haessig, sought a court order to compel the arbitration of a grievance filed after the school district assigned an additional instructional class to teachers for the 2010-2011 school year. The school district, on the other hand, asked for a stay of arbitration on the ground that the grievance was not arbitrable.

The Appellate Division affirmed Supreme Court’s granting Haessig’s petition while denying the school district’s cross-motion to stay the arbitration.

Citing Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division explained that when, as was here the case, the collective bargaining agreement [CBA] contains a broad arbitration clause, the court’s determination of arbitrability is limited to "whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.”

In addition, the Appellate Division said that notwithstanding the CBA provision that "the term grievance' shall not apply to any matter as to which (1) the method of review is prescribed by law, or rules or regulation having the force or effect of law…”the fact that the Commissioner of Education has promulgated regulations pertaining to teacher class loads (see 8 NYCRR 100.2 [i]),” such a provision “does not exclude that subject from the scope of arbitration under the CBA,” explaining that “although Education Law §310 permits any aggrieved party to appeal by petition to the Commissioner of Education, that statute does not mandate a particular method of review and does not preclude submission of disputes concerning teacher class loads to arbitration.”

In addition to rejecting other arguments raised by the school district in support of its position, the court noted that Association “did not abandon its right to arbitrate the [instant] grievance by filing a notice of claim with the Public Employment Relations Board concerning an improper practice charge.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09723.htm

Reopening an appeal decided by the Commissioner of Education

Reopening an appeal decided by the Commissioner of Education

Application to reopen the Appeal of Michael P. Thomas, Commissioner of Education Decision #16,322

8 NYCRR §276.8 [of the Commissioner’s regulations] address the procedures for submitting an application to reopen a prior decision by the Commissioner. The rule provides that such an application is considered solely to the discretion of the Commissioner and such applications will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made. 

Significantly, a reopening “may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal.”

The appeal that Thomas sought to have reopened had been dismissed as untimely. 

In his application for reopening, Thomas alleged that the Commissioner Steiner did not rule on his request for an order compelling the employer to cease certain actions. The Commissioner, however, said that as his appeal was found to be untimely, it was unnecessary address Thomas’ request in this regard.

Thomas, said the Commissioner, failed to demonstrated that the decision in his underlying appeal was rendered under a misapprehension of fact, nor has he presented any new and material evidence that was not available at the time the decision was made but was attempting to reargue the original application. However, the Commissioner explained, “It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening,” citing a number of earlier decisions including Application of Gillen, 50 Ed Dept Rep, Decision No. 16,112, and denied Thomas’ application to reopen the underlying appeal.

The Thomas decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16322.html

The Gillen decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16112.htm

Workers’ Compensation Benefits for injuries sustained in voluntary off-duty athletic event available if found to be a “work-connected”

Workers’ Compensation Benefits for injuries sustained in voluntary off-duty athletic event available if found to be a “work-connected”

Nichols v Hale Cr. ASACTC, 2012 NY Slip Op 00078, Appellate Division, Third Department

James A. Nichols, the Superintendent of Hale Creek Correctional Facility in Fulton County, was injured while coaching an employee volleyball team preparing to compete in the "Department of Correction Olympics."

Corrections and its insurer, the State Insurance Fund [SIF], controverted Nichols’ claim, arguing that he had not suffered the injury in the course of his employment.

The Workers’ Compensation Board ruled in Nichols favor and SIF appealed.

The Appellate Division affirmed the Board’s ruling. Although Workers' Compensation Law §10(1) provides that an injury is not compensable when it is sustained during voluntary participation in an off-duty athletic activity that does not constitute part of an employee's work-related duties, in this instance the record indicated that Nichols “was given specific direction to improve staff morale, and his encouragement of employee participation in the Olympics and his active role in coaching the volleyball team were in furtherance of that edict.”

In addition, testimony by Nichols supervisor that “there is an expectation that superintendents be involved with as many facility-related events as possible,” said the court.

Accordingly, said the court, “we decline to disturb the Board's factual determination that [Nichols’] injury arose out of and in the course of his employment.”

In contrast, in Koch v Rockland Sheriff’s Department, 289 A.D.2d 865, Motion for leave to appeal denied, 98 N.Y.2d 601, the Appellate Division sustained the Workers' Compensation Board rejected Koch’s application for benefits after determining that the injury "was not job related.

Koch, said the Board, suffered his injury while participating in a union-sponsored softball game between employees of the Sheriff's Department's correction division and employees of its patrol division.

Where, as here, said the Appellate Division, an employee is injured in a voluntary athletic activity that is not part of the employee's work-related duties, §10.1 of the Workers’ Compensation Law bars an award of workers' compensation benefits unless one of three conditions is met.

The three exceptions: The employer (a) requires the employee to participate in such activity, (b) compensates the employee for participating in such activity or (c) otherwise sponsors the activity.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00078.htm

Declining to avail one’s self of an administrative remedy triggers the running of the statute of limitations to challenge the administrative decision

Declining to avail one’s self of an administrative remedy triggers the running of the statute of limitations to challenge the administrative decision
Goldstein v Teachers' Retirement Sys. of the City of New York, 89 AD3d 501

The New York City Department of Education advised Leslie Goldstein that the New York City Teachers’ Retirement System had improperly included prior employment in calculating his service credit with the New York City Department of Education.

Although Goldstein was offered an administrative remedy that would have allowed him to obtain the service credit he wished, he declined that remedy. The Appellate Division ruled that the four-month Statute of Limitations to challenge the calculation of his service credit commenced running on the date he declined the administrative remedy offered.

The Appellate Division noted that when the Retirement System ascertained that Goldstein actually had less service credit that it preliminary evaluation indicated, it was required by Education Law §525 to correct the error.

Further, said the court, “The doctrine of estoppel may not be applied to prevent [the Retirement System] from doing so,” citing E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 369 and Matter of Scheurer v New York City Employees' Retirement Sys., 223 AD2d 379

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07925.htm

Resignation in anticipation of being served with disciplinary charges

Resignation in anticipation of being served with disciplinary charges

Claim of Cohen (Town of Brookhaven--Commissioner of Labor), 2012 NY Slip Op 00068, Appellate Division, Third Department

The decision explores the eligibility of an individual who resigned from his position when threatened with disciplinary action.

Citing Matter of Jimenez [New York County Dist. Attorney's Off. —Commissioner of Labor], 20 AD3d 843, the Appellate Division said that "A claimant 'who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct."

In this instance Brookhaven was preparing to file Civil Service Law §75 disciplinary charges against the employee unless some type of negotiated resolution was agreed upon or the employee resigned from the position.*

The employee resigned and applied for unemployment insurance benefits claiming that he felt he had no option but to leave his employment since disciplinary charges were imminent, that he did not believe he could prevail at a hearing and that he could lose his medical benefits.

The Unemployment Insurance Appeal Board ruled that employee was entitled to receive benefits provided that he did not engage in disqualifying misconduct and remanded the matter to the Unemployment Insurance Administrative Law Judge for “a further hearing on the misconduct issue.”** 

The Appellate Division sustained the Board's determination. Although the employer never actually filed before the employee resigned, the court ruled that “under the circumstances presented,” this does not establish that [the employee] voluntarily left his employment without good cause and thus was ineligible for unemployment insurance benefits."

* In some instances an employee threatened with disciplinary action unless he or she resigns does, in fact resign only to subsequently attempt to rescind his or her resignation claiming that it was coerced. In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals sustained the appointing authority’s refusal to allow Rychlick to withdraw his resignation that Rychlick claimed had been obtained under duress -- the threat of disciplinary action unless he resigned -- ruling that threatening to do what one had the legal right to do -- file disciplinary charges against an employee -- does not constitute unlawful duress.

** 4 NYCRR 5.3, which applies to officers and employees of the State as an employer, provides that in the event charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation. Many local civil service commissions have adopted a similar rule with respect to public employees under their respective jurisdictions.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00068.htm

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism

Employee who was arrested and was absent from work for 10 months because he failed to “make bail” terminated for absenteeism

Dep’t of Transportation v. Pierrteeisme (in PDF), OATH Index No. 2112/11 (Oct. 3, 2011), adopted, Comm’r Dec. (Oct. 24, 2011)

A New York City assistant highway repairer was arrested. Unable to make bail, he was absent from work for 10 months.  

The New York City Department of Transportation filed disciplinary charges against the individual, alleging excessive absenteeism and absence without authorization, as well as conduct prejudicial to good order based on the arrest. 

OATH Administrative Law Judge Faye Lewis sustained the absenteeism charges on an incompetence theory, finding that his lengthy absence, with no showing he would return soon, rendered him incompetent to perform the duties of his position. 

Judge Lewis, however, recommended dismissal of the “conduct prejudicial to good order based on the arrest” charge, noting that an arrest, without any evidence of the underlying misconduct, amounts to an accusation only. 

As to the penalty to be imposed based on the employee’s being found guilty of the absenteeism, Judge Lewis recommended the individual be terminated from employment.

Concerning Practice and Procedure before the NYC Office of Administrative Trials and Hearings

Concerning Practice and Procedure before the NYC Office of Administrative Trials and Hearings

Health and Hospitals Corp. v Chime, OATH Index #2969/09


OATH Administrative Law Judge Tynia D. Richard denied a request made by a former City hospital employee to reopen her disciplinary case and vacate a stipulation of settlement that she entered into in 2009

The settlement, the terms of which were confirmed on the record by the individual, included her agreement to resign from her position.

Although represented by counsel at the time of settlement, the employee claimed she was coerced into the agreement.

ALJ Richard found that the stipulation concluded the matter and that OATH no longer had jurisdiction. Moreover, Judge Richard said that OATH must receive a designation from appointing authority to hear the matter, and the hospital did not consent to reopen the case.

As OATH is not a “court” under state law with general jurisdiction to hear matters brought by individuals, the Law Judge noted that “A challenge to the validity of an executed stipulation is a contract claim more appropriately asserted in state court.”

An appointing authority may designate another individual to review a disciplinary hearing officer’s report and make the final determination

An appointing authority may designate another individual to review a disciplinary hearing officer’s report and make the final determination

Guynup v County of Clinton, 2011 NY Slip Op 09243, Appellate Division, Third Department

A lieutenant employed by the Clinton County Sheriff's Department, Terry Guynup was served with four charges alleging various acts of misconduct, incompetence and insubordination in violation of Department rules and regulations.*

A Civil Service Law §75 Hearing Officer found Guynup guilty of two of the charges filed against him but dismissed the remaining two charges. As to the penalty to be imposed, the Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.

David Favro, the Clinton County Sheriff, disqualified himself from the proceeding and designated the Clinton County Administrator, Michael E. Zurlo, to review the Hearing Officer’s findings and recommendations.**

Zurlo accepted the Hearing Officer’s findings but, in addition, found Guynup guilty of one additional charge. Zurlo, however, rejected the Hearing Officer’s recommendation as to the penalty to be imposed and ruled that Guynup should be terminated from his position with the Sheriff’s Department.

Subsequently Zurlo's determination that Guynup was guilty of the additional charge was set aside by the Appellate Division [see Guynup v. County of Clinton, 74 A.D.3d 1552] and the matter remitted to Zurlo for a new determination as to the penalty to be imposed on the surviving two charges. Zurlo again decided that Guynup should be terminated from his position and again Guynup appealed.

The Appellate Division, noting that its review of such an administrative determination is "limited to whether the penalty is so disproportionate as to be shocking to one's sense of fairness" said that Guynup’s conduct, especially when committed by an individual who occupies a senior position in law enforcement, was "clearly at odds with the strict discipline necessary to effectively operate a [Sheriff's Department]" where he is employed and supports the decision imposing termination as his penalty” and sustained Zurlo’s decision to terminate Guynup.

* One of the charges alleged that Guynup was guilty of incompetence because he could not carry a firearm and thus “could not faithfully execute his official responsibilities as an officer within the Department.”

** If a conflict exists that may implicates the appointing authority's ability to be fair and impartial, a third party with “supervisory authority over that particular employee” may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status” [Gomez v Stout, 13 NY3d 182].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09243.htm

Unpaid employer's retirement contributions for its employees plus accrued interest must be paid to the NYS Employees’ Retirement System

Unpaid employer's retirement contributions for its employees plus accrued interest must be paid to the NYS Employees’ Retirement System

DiNapoli v Town of New Scotland, 2011 NY Slip Op 09247, Appellate Division, Third Department

When Walter Myers, then an employee of the Town of New Scotland, applied for service retirement benefits from the Retirement System [ERS], ERS discovered that New Scotland had not paid certain employer contributions due the System on behalf of Myers for the period September 1, 1972 through March 31, 1973.*

ERS sent the Town its annual invoice determination for employer contributions in which included a charge in the amount of $10,310 for "prior years adjustment," reflecting the cost of Myers' service credit for the disputed period, plus interest. New Scotland declined to pay the “prior years adjustment” and ultimately ERS sued the Town to recover the amount it alleged it was due pursuant to Retirement and Social Security Law §17(e).

Supreme Court ruled that ERS’ claim was subject to the six-year Statute of Limitations set out in CPLR §213. It then granted ERS’ motion for summary judgment finding that its petition demanding the “prior years adjustment” was timely filed. The Appellate Division agreed with Supreme Court that the six-year Statute of Limitations controlled and that whether ERS’ action was timely “turns on when the cause of action against [the Town] accrued.”

Noting that RSSL §17 requires ERS to annually "determine the amount which each participating employer is required to pay to the [R]etirement [S]ystem to discharge its obligations" for the fiscal year, which amount shall include "any additional obligation, plus interest on such amount, for fiscal years preceding the current fiscal year," the Appellate Division explained that as there is “no limit is placed on how far back in time [ERS] may bill for such obligation.”

As ERS sent the Town its annual invoice in November 2007, in which it included the “prior year's adjustment” at issue, ERS’ cause of action accrued on or about February 1, 2008 when the Town failed to make the payment reflecting the cost of Myers' service credit as required by law.

Accordingly, said the Appellate Division, ERS’ action was timely and while payment of ERS’ assessment has “potentially significant fiscal effects” on the Town due to the unanticipated obligation to pay interest computed over such a lengthy period of time, the Retirement and Social Security Law clearly “requires that such interest be assessed.”

Finding that ERS established a prima facie entitlement to judgment as a matter of law and that the Town failed to raise any questions of fact, the Appellate Division held that Supreme Court properly granted summary judgment to ERS.

* Myers had been initially employed by the Town on September 1, 1972. He then applied for membership in ERS on March 31, 1973.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09247.htm

School district not required to provide tuition-free education to certain nonresident children

School district not required to provide tuition-free education to certain nonresident children

Board of Education of the Garrison Union Free School District v Greek Archdiocese Institute of St. Basil, 2012 NY Slip Op 00023, Court of Appeals.

In this appeal the Court of Appeals was asked to determine if a school district was obligated to pay for the educational costs of the children living in a child care institution located within the district's boundaries.

The court ruled that a school district is not obligated to provide a tuition-free education to those children determined to be nonresidents of the school district.

The Court of Appeals, citing Education Law §3202[6], explained that "St. Basil is an 'institution for the care, custody and treatment of children' and the Education Law specifies that children living in such institutions are not deemed residents of the school district in which the institution is located purely by reason of their presence in the institution". Further, said the court, "The issuance of a license to operate a child care institution does not change the residence of the children living there."

The text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00023.htm

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

Exhausting one's administrative remedy

Exhausting one's administrative remedy

Sabino v DiNapoli, 2011 NY Slip Op 09244, Appellate Division, Third Department

Anthony J. Sabino, an attorney, provided legal services to a number of political subdivisions of the State including serving with the Town of Oyster Bay, and Bethpage Water District. Both Oyster Bay and Bethpage had reported Sabino as an employee to the New York State Employees’ Retirement System [ERS].

In 2008, Comptroller promulgated regulations to provide guidance to the ERS as to whether individuals providing professional services such as those provided by Sabino should be deemed employees or as independent contractors. Significantly, independent contractors were not eligible for member service credit for the services provided to a public employer as an independent contractor.

After reviewing Sabino's status with the Water District, ERS determined that Sabino was an independent contractor and revoked a portion of his service credits in the Retirement System. Sabino was advised he was entitled to an administrative hearing if he wished to contest ERS' determination revoking such member service credit with the System.

In addition to requesting such a hearing,  Sabino filed a petition pursuant to CPLR Article 78 seeking a court order annulling ERS’ determination. Sabio contended that ERS had violated his rights under Article V, § 7 of the New York State Constitution and the 14th Amendment to the US Constitution by retroactively applying new standards and factors that were not in effect at the time he became a member of the Retirement System.

ERS moved to dismiss Sabino’s petition contending that he had failed to exhaust his administrative remedies. Supreme Court granted ERS’ motion, rejecting Sabino’s argument that “he was excused from the exhaustion requirement” because he had raised constitutional issues and that pursuing the available administrative remedy would be futile because he could not factually dispute the factors enumerated in support of ERS' determination. Sabino appealed the Supreme Court’s ruling.

Affirming the lower court’s decision, the Appellate Division said that “It is well settled that a party seeking to challenge the action of an administrative agency must first exhaust available administrative remedies.” 

Noting that in some instances a party may be excused from comply with the exhaustion requirement, such as when “a party asserts a constitutional challenge to an agency's action” or "when resort to an administrative remedy would be futile," the Appellate Division said that merely asserting that a constitutional right is involved will not excuse an individual's failure to pursue established administrative procedures that can provide adequate relief.

In this instance, said the court, there was a factual issue as to whether the regulation represents a meaningful and substantial change in ERS’ policy or was it merely the codification of existing policy. Such a determination, explained the Appellate Division, involves interpretation of the Retirement System's own regulations and should be left, in the first instance, to the administrative agency "so that a clearer formulation of and the rationales for agency policy may be fully aired."

As there was nothing in the record "which clearly indicates that [ERS has] predetermined the issue . . . or [has] construed the relevant regulation in a way that would dictate an adverse result of an administrative hearing,” the court concluded that Sabino has “failed to make the requisite showing that pursuit of administrative remedies would be futile" and thus Supreme Court properly granted ERS' motion to dismiss the petition, without prejudice.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09244.htm 

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.