Legislation proposed to provide for a new procedure for determining suspensions and demotions of members of certain police agencies upon abolition or reduction of positions

Legislation proposed to provide for a new procedure for determining suspensions and demotions of members of certain police agencies upon abolition or reduction of positions


In the Assembly April 20, 2012 [A9887-2011]; In the Senate April 27, 2012  S7075-2011

This bill seeks to amend §80 of the New York State Civil Service Law as it applies to members of any police agency in the State other than those police agencies already subject to the provisions of subdivisions 1-a through 1-d of §80.

The proposed amendment, if signed into law would use seniority for the purposed of demotions and,or,  reductions in force on the basis of time in grade or title in contrast seniority based on service in the classified service.

The bills sponsor state that “This amendment would address a longstanding problem in the police community, as witnessed by the fact that 4 police agencies (the City of Buffalo Police and Fire Departments, employees of secure detention facilities in the State of New York, sworn employees of the Monroe County Sheriff's Department, and the Nassau County Police Department) have already obtained passage of existing subdivisions 1-a through 1-d changing the measure [seniority for the purposes of layoff] from time in the classified service to time in grade or title.”

The sponsors offer the following justification for this amendment to the Civil Service Law:

“Under the current law, suspensions or demotions in the Civil Service upon the abolition or reduction of positions must be made based upon seniority, with demotions or reductions in force to be made in "inverse order of original appointment on a permanent basis in the classified service" (CSL, §80.1). The spirit of the law is to safeguard the employment of those employees with the most time in the system, with the general principle being "last in - first out". In the uniformed services, this law can have a reverse effect essentially retaining employees with shorter tenures in the civil service rank while demoting those with longer tenures in rank. For example, a police officer with ten years in rank as a Sergeant would have to be demoted before a police officer with 1 year in rank as a Sergeant if the latter had more time in the classified service.* As mentioned above, several uniformed services operations have recognized this inequity and obtained individual legislative amendments to §80 of the New York Civil Service Law requiring said demotions and reductions to be made by "inverse order of original appointment on a permanent basis in the grade or title". We believe that this is the preferred and equitable method to handle these issues within the context of the police community and that it should be adopted state-wide, which this bill would do.”**

The text of Assembly 9887, Senate 7075 is set out below:

AN ACT to amend the civil service law, in relation to the calculation of seniority for purposes of layoffs or demotions

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

[Matter in ITALICS underscored is new; matter in brackets [ ] is old law to be omitted].

Section  1. Section 80 of the civil service law is amended by adding a new subdivision 1-e to read as follows:

 1-e. Notwithstanding the provisions of subdivision one of this section, the sworn members of any police agency as defined in section eight hundred thirty-five of the executive law, other than police agencies referred to in subdivisions one-a through one-d of this section shall be subject to the following procedure. Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the grade or title in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made. Notwithstanding the provisions of this subdivision, however, upon the abolition or reduction of positions in the competitive class, incumbents holding the same or similar positions who have not completed their probationary services shall be suspended or demoted, as the case may be, before any permanent incumbents, and among such probationary employees the order of suspension or demotion shall be determined as if such employees were permanent incumbents.

S 2. This act shall take effect immediately.

*This rationale could be applied to all positions in the classified service.

** Presumably the seniority provisions of Section 80.2 defining "continuous service" applies with respect to such an individual's rights with respect to "bumping," "displacement" and placement on a Section 81 preferred list for reinstatement.

=========================
The Layoff, Preferred List and Reinstatement Manual - a 645-page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

 =========================

From the Office of New York State Comptroller Thomas P. DiNapoli -Selected audits and reports issued during the period April 23-29, 2012

From the Office of New York State Comptroller Thomas P. DiNapoli -Selected audits and reports issued during the period April 23-29, 2012

Please click on the caption to access report posted on the Internet.

DiNapoli Announces Audits of Troubled Central New York Developmental Disabilities Services Office

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office will examine whether the Office of People With Developmental Disabilities’ (OPWDD) Central New York Developmental Disabilities Services Office has taken action to end the numerous criminal and ethical violations exposed in previous Comptroller’s audits. Auditors will undertake three audits to determine if OPWDD has acted on the recommendations of prior reports.


DiNapoli: School District Tax Levy Growth Averages 3 Percent Statewide Under New Limits

School district tax levies in the 2012-13 school year are limited to average increases of 3 percent under a new property tax cap law, in addition to any further increases approved by voter overrides of the cap, according to a preliminary analysisof data released Monday by State Comptroller Thomas P. DiNapoli’s office.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:
the Town of Duanesburg;

the Village of Endicott;

the Village of Herkimer;

the Village of North Collins;

the Village of South Blooming Grove; and

the Spencerport Fire District.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:

the BOCES’ Non–Instructional Services; and

the Monroe–Woodbury Central School District.

Court’s review of an administrative disciplinary action is limited to determining if the decision is supported by substantial evidence

Court’s review of an administrative disciplinary action is limited to determining if the decision is supported by substantial evidence
 

The Commissioner of the Dutchess County Department of Social Services adopted the finding and recommendation of a hearing officer as to the employee’s being guilty of a certain charge of misconduct after a §75 disciplinary hearing and terminated the individual's employment.

The Appellate Division confirmed the Commissioner’s determination, denying the former employee’s petition “on the merits, with costs.”

The court explained that a court's review of administrative determinations in employee disciplinary cases made after a hearing under Civil Service Law §75 is limited to a consideration of whether the determination was supported by substantial evidence in the record of the hearing. In this instance, said the court, there was substantial evidence in the record to support the determination that the employee was guilty of misconduct

Further, the court found that the penalty of termination “was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02882.htm

A reviewing body may not ignore evidence in the record in making its determination

A reviewing body may not ignore evidence in the record in making its determination

The Appellate Division granted the disability retirement applicant’s petition to annul the decision denying his request to amend his application for accidental disability retirement (ADR) benefits and remanded the matter with the direction that individual be permitted to amend his application to include a heart-related disability.

The court said the Retirement Board's determination was arbitrary and capricious and an abuse of discretion as at the time it denied application for ADR benefits based on an orthopedic condition, a member of the Board was aware that the applicant had suffered a heart attack, was incapacitated, and might wish to amend his application to include a claim under the Heart Bill [see Retirement and Social Security Law §363-a.].

The Appellate Division also noted that the record showed that the applicant’s heart condition predated his retirement, but was not diagnosed until after he retired.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02945.htm

A party’s failure to have an arbitration award confirmed is not a ground for vacating the award

A party’s failure to have an arbitration award confirmed is not a ground for vacating the award 

The Appellate Division succinctly ruled that the application to vacate the arbitration award filed pursuant to Article 75 of the Civil Practice Law and Rules was made more than 90 days after the award was delivered to the individual and is therefore untimely.

The court also noted that although CPLR Article 75 provides a mechanism by which a party may obtain judicial confirmation of an arbitration award, the failure to have an award confirmed is not a ground for vacating the award, citing CPLR §§7510 and 7511[b][1].

Addressing another claim by the individual – that the arbitration award should be vacated under CPLR §751l(b)(1)(iv), “failure to follow the procedure,” the Appellate Division explained that subdivision (iv) address vacating the award because of a "failure to follow the procedure” set out in Article 75. 

However, said the court, if a party applying to vacate the award pursuant to subdivision (iv) continued with the arbitration with notice of the defect and without objection, the award may not be vacated for that reason.

In this instance, said the court, the party seeking to vacate the award under color of §751l(b)(1)(iv) participated in the arbitration without objection as to the procedure employed and thus the award could not be vacated as otherwise permitted by subdivision (iv).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02949.htm

State of Maryland bill prohibiting employers from requiring job applicants to reveal Internet passwords pending approval by the Governor

State of Maryland bill prohibiting employers from requiring job applicants to reveal Internet passwords pending approval by the Governor

The Maryland legislature's has passed a bill [Senate 433; House 964] prohibiting, among other things, employers from 1) requesting or requiring a job applicant to disclose user names or passwords for a personal electronic service; 2) refusing to hire an applicant for not providing access to such information; and 3) terminating or disciplining an employee for refusing to provide this information.

The provision is pending action by the Governor and if signed into law would take effect October 1, 2012.

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

http://mlis.state.md.us/2012rs/bills/sb/sb0433t.pdf

The employee’s refusal to participate in a disciplinary hearing does not mean that the employee was denied administrative due process

The employee’s refusal to participate in a disciplinary hearing does not mean that the employee was denied administrative due process  

The Appellate Division rejected the employee's arguments seeking to vacate or modify a disciplinary action determination on grounds that included allegations that the hearing officer was biased and exceeded her authority in reaching a determination without affording the employee administrative due process.

The court said that the employee’s allegations were refuted by the record holding that the individual “was afforded every opportunity to present a defense and she acknowledges intentionally attempting to stonewall the proceedings by not appearing for and/or not participating on many of the hearing dates.”

Holding that the award was made in accord with due process, was supported by adequate evidence, and was rational and was not arbitrary and capricious, the Appellate Division noted that the employee failed to meet her burden of showing, by clear and convincing evidence, that the hearing officer was partial in her consideration of the evidence and ultimate determination.

Concluding that the penalty imposed, six months suspension without pay, was neither shocking to the court’s sense of fairness nor disproportionate to the multiple offenses for which she was found guilty, the court dismissed the employee’s petition.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02948.htm

 

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

The Appellate Division affirmed the Unemployment Insurance Appeal Board’s decision that disqualified an applicant for unemployment insurance benefits based on its finding that, among other things, the applicant for such benefits had left his employment following misconduct unrelated to his work.

The applicant had resigned form his position "in lieu of termination" following his arrest on multiple counts of aggravated harassment* in connection with his allegedly having made harassing phone calls to various women in the course of activities “unrelated to his employment."

The Appeal Board had rejected the applicant’s claim that he was entitled to benefits because his termination “stemmed from activity unrelated to his employment.”

The Appellate Division ruled that "[m]isconduct committed during nonworking hours, which raises serious questions as to a worker['s] integrity, bears a relationship to his [or her] work within the meaning of . . . the Labor Law."

* The applicant ultimately entered a plead guilty to two of the charges filed against him, which were later reduced to harassment in the second degree.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02934.htm

OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA has posted a new enforcement memo online focusing on "Employer Safety Incentive and Disincentive Policies and Practices".

According to the HRTraniningCenter.com, OSHA views as suspect any incentive or disciplinary programs linked to worker accidents resulting in injury or illness. In addition, OSHA may prosecute employers whose programs violate worker whistleblower rights under Section 11(c) of the Occupational Safety & Health Act of 1970.

A 90-minute training session via on the new rules via Audio Conferencing is being offered by HRTrainingCenter.com on April 24, 2012 from 1:00 to 2:30 p.m., Eastern Standard Time.

Additional information concerning this training session is available on the Internet at: http://hrtrainingcenter.com/showWCDetails.asp?TCID=1010681&RID=1010687

Disclosure of public information or records to one is disclosure to all

Disclosure of public information or records to one is disclosure to all

The basic rule when considering a Freedom of Information Law [FOIL] request is that the theory underlying FOIL is that all public documents are subject to disclosure.

The release of some public records, however, may be limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

However, the custodian of the records may elect to deny access to documents otherwise subject FOIL absent a FOIL request or if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

Significantly, there is no bar to providing information pursuant to a FOIL request, or otherwise, even if it falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Indeed, a FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization world be required to file a FOIL request to obtain the information or record.

Further, it appears that once the information or record sought is provided to one party, it may not be denied to another party.

On this point the State’s Committee On Open Government advised a Town’s attorney that there was no legal basis to withhold the information requested pursuant to a newspaper’s FOIL request after it was disclosed to another newspaper.

In this instance Robert Freeman, the Committee’s Executive Director, stated that, in his view, “If a record is disclosed to one news media organization [by the custodian of the record]…it should be disclosed to any news media or for that matter any person requesting it.” Notwithstanding this advisory opinion, the Town’s attorney refused to supply the document demanded in the FOIL request submitted to the Town’s clerk.

Once possible exception: if the document demanded was provided pursuant to a court order or a subpoena, this may not constitute “disclosure” within Mr. Freeman’s meaning.

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012

Please click on the caption to access report posted on the Internet.

DiNapoli: Syracuse Woman Sentenced for Stealing from the New York State Retirement System

Syracuse resident Kathleen Prince was sentenced last week in Onondaga County Court for stealing more than $29,000 from the New York State and Local Retirement System, marking the end of a joint investigation by State Comptroller Thomas P. DiNapoli and Onondaga County District Attorney William J. Fitzpatrick.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:

The Town of Batavia;

The Town of German Flatts;

The Village of Hammondsport;

The Village of Hempstead;

The Village of Ilion;

The Town of Lewisboro;

The Town of Orangeville;

The Round Lake Hose Company No. 1, Inc.; and,

The Town of Waverly.

The five most visited NYPPL posts during the week of April 13 through April 20, 2012 Click on title to access item.

The five most visited NYPPL posts during the week of April 13 through April 20, 2012

Click on the web site indicated to access item.


1. Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

http://publicpersonnellaw.blogspot.com/2012/04/individuals-employed-by-governmental.html

2. A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer

http://publicpersonnellaw.blogspot.com/2012/03/member-of-board-testifying-at-civil.html

3. If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

http://publicpersonnellaw.blogspot.com/2012/04/individuals-employed-by-governmental.html

4. Some procedural defects that bar the vacating of the arbitrator’s award

http://publicpersonnellaw.blogspot.com/2012/04/some-procedural-defects-that-bar.html

5. Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

http://publicpersonnellaw.blogspot.com/2012/04/former-employees-law-suit-alleging.html

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency

Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

Filarsky v. Delia, USSC, No. 10–1018

Is an individual hired by a government agency to do its work ineligible to claim a qualified immunity in the event he or she is sued for some act or omission related to the service he or she is providing the government agency solely because he or she serves with the agency other than on a permanent or full-time basis?

The Court of Appeals for the Ninth Circuit concluded that a “private attorney,” because he or she was not a City employ­ee, was not entitled to claim the protection of a qualified immunity. The United States Supreme Court disagreed.

In this case, said the court, there was no dispute that qualified immunity was available the individuals employed by the jurisdiction as an employer and the 9th Circuit Court of Appeals granted this protection to the jurisdiction’s employees. It, however, denied such protection to the “private attorney” working with the public officials “because he was not a public employee but was instead a private individual ‘retained by the City to participate in internal affairs investigations.’”

The court said that in de­termining whether this distinction is valid, it considered the “general principles of tort immunities and defenses” appli­cable at common law, and the reasons the court earlier afforded such protection from lawsuit under 42 USC §1983.

The Supreme Court’s conclusion: While not a public em­ployee, Steve A. Filarsky, Esq., the private attorney, was retained by the City to assist in conducting an official investigation into potential wrong­doing. The court said that there was no dispute that government employees performing such work were entitled to seek the protection of qualified immunity. The common law does not draw any distinction between a public employee and a private attorney in this regard.

Noting that New York City has a Department of Investigation staffed by full-time public employees who investigate city personnel, and the resources to pay for it, the Supreme Court said “The City of Rialto [California] has neither, and so must rely on the occasional services of private individuals such as Mr. Filarsky. There is no reason Rialto’s internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York.”*

Justice Ginsburg, in her concurring opinion cautioned that the claim of "Qualified immunity may be overcome, however, if the defendant knew or should have known that his [or her] con­duct violated a right ‘clearly established’ at the time of the episode in suit," citing Harlow v. Fitzgerald, 457 U.S. 800.

The Supreme Court revered the 9^th Circuit’s judgment denying qualified immunity to Mr. Filarsky.

*N.B. Citing Richardson v. McKnight, 521 U. S. 399, the Supreme Court noted that “This does not mean that a private individual may assert qualified immunity only when working in close coordina­tion with government employees.” Such immunity also available to others acting on behalf of the government and similarly serves to “ensure that talented candidates [are] not de­terred by the threat of damages suits from entering public service.” However, Justice Sotomayor, in her concurring opinion, commented “… it does not follow that every private individual who works for the government in some capacity necessarily may claim qualified immunity when sued under 42 U.S.C. §1983. Such individuals must satisfy [the court’s] usual test for conferring immunity.”

The decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/10-1018.pdf

Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

The Appellate Division held that an arbitration award that resulted in the termination of the employee was made in accordance with due process; was supported by adequate evidence; and was rational and not arbitrary and capricious.

Citing Gray v Adduci, 73 NY2d 741, the court noted that "[h]earsay evidence can be the basis of an administrative determination." 

In addition, the Appellate Division said that unsworn testimony by witnesses to the incidents that led to the filing of disciplinary charges and the employee’s own testimony acknowledged the incidents, while offering differing exculpatory accounts thereof, supported the hearing officer’s determination.

As to the penalty imposed, termination, the court said that it did not find dismissal “so disproportionate to the multiple specifications upheld [the employee] with verbal and physical abuse of students and faculty members as to shock our sense of fairness, even considering the mitigating factors of [the employee’s] recurrent health issues.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02802.htm

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

This decision by the Appellate Division demonstrates that administrative due process applies in cases where a prisoner is charged with alleged misconduct and a disciplinary proceeding is conducted.

In this instance a prisoner was found guilty of certain alleged offences and a penalty of 90 days in solitary confinement and restitution of $100 was imposed. The individual appealed.

The Appellate Division, reversing a lower court’s ruling to the contrary, granted the prisoner’s petition and [1] annulled the determination of the hearing officer, [2] dismissed the charges against the individual and [3] directed the New York City Department of Correction “to expunge all references to the charges from [the individual’s] institutional records.”

The court found that hearing officer failed to provide accused with a written statement summarizing the testimony of three witnesses who testified in his favor and failed to state her reasons for rejecting the testimony of those witnesses and of the accused, in violation of relevant directives of the New York City Department of Correction. The Appellate Division said that the agency “is required to comply with its own regulation.”

Considering a procedural issue, the Appellate Division held that although the Department contended that the prisoner had failed to exhaust his administrative remedies, it would not consider that defense because the Department had failed to raise that claim it its answer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02947.htm