NYC police officer forfeited his pension benefits following his removal from his position pursuant to Public Officers Law §30.1(e)

A police officer was one of five committee members responsible for receiving applications and making recommendations to the New York City Police Department [NYCPD] Contract Administration Unit regarding contract bids submitted by entities seeking to care for retired NYPD horses.

Among the specification was one that required that the facility consist of at least 30 acres. A friend of the police officer was one of the entities that submitted a bid. However, although the bid filed by the police officer’s friend claimed that the facility had 35 acres of land, it, in fact, it had only 19 acres. The police officer recommended that his friend’s facility be awarded a contract and ultimately the Contract Administration Unit awarded a contract in the amount of about $2.5 million to the police officer’s friend.

Both the police officer and the bidder were arrested and both pled guilty to one count of Offering a False Instrument for Filing in the Second Degree, a Class A misdemeanor. (Penal Law §175.30). As a result, the police officer was terminated from his position by operation of law pursuant to Public Officers Law §30.1(e), Justice Stallman held that the police officer was (1) not entitled to a pre-termination hearing nor (2) was he was eligible to retire and collect his pension.

In the words of Justice Stallman: [The police officer’] conviction by guilty plea automatically caused his office to become vacant because his crime constituted a violation of his oath of office. [The Police Commissioner’s] recognition of {the officer’s] automatic termination was neither arbitrary nor capricious, nor in violation of law

Addressing another aspect of the police officer’s loss of his pension benefits, Justice Stallman noted that “formal departmental disciplinary charges” had been filed against the police officer and that the officer and the Department had agreed to a "Negotiated Settlement" which stated, in pertinent part:

"I understand that if this Negotiated Settlement is approved by the Police Commissioner, the penalty against me will be as follows:

I shall forfeit all time, pay, and benefits for the period while under suspension … and agrees to immediately file for SERVICE RETIREMENT. Respondent will not file for SERVICE RETIREMENT unless and until this Negotiated Settlement is approved by the Police Commissioner ….”

The Negotiated Settlement also contained the following statement: "NOTE: THIS AGREEMENT IS SUBJECT TO APPROVAL OF THE POLICE COMMISSIONER.”

Although the NYPD Department Advocate recommended approval of the negotiated plea agreement, which was endorsed by the Department’s First Deputy Commissioner, the Police Commissioner disapproved the negotiated plea.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22132.htm

Unilateral modification of a past practice

Unilateral modification of a past practice

Selected Rulings posted by PERB - Matter of the Board of Education of the City School District of the City of New York, Decision U-28706

PERB affirmed a decision of an ALJ finding that the Board of Education of the City School District of the City of New York violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) when it unilaterally modified a past practice by reducing the number of annual parking permits issued to Local 891-represented unit members, and by changing the method of distribution of the permits.

PERB held that free parking is a mandatory subject of negotiations because it is an economic benefit to the employees and that the distribution of parking permits is also mandatorily negotiable. It also affirmed the ALJ’s conclusion that the District unilaterally reduced the number of parking permits issued to Local 891-represented unit members and changed the existing practice of distributing parking permits upon request to unit members.

Termination without notice or hearing by operation of law

Termination without notice or hearing by operation of law

Supreme Court, New York County, dismissed an Article 78 petition seeking to annul the termination of New York City Department of Corrections correction officer without notice or hearing or, in the alternative, an order compelling the Corrections Department to conduct an evidentiary hearing. The Appellate Division unanimously affirmed the lower court’s ruling.

According to the decision, the correction officer had pleaded guilty in Pennsylvania to stalking, a first degree misdemeanor under Pennsylvania law. The Department of Corrections had terminated him pursuant to Public Officers Law §30(1)(e), deeming that the correction officer had been terminated “by operation of law” by reason of his conviction of the misdemeanor in Pennsylvania.

Public Officers Law §30(1)(e) provides that a public office automatically becomes vacant upon the officeholder's conviction of a felony, or a crime involving a violation of his or her oath of office.

The Appellate Division held that the correction officer’s Pennsylvania conviction involved a violation of his oath of office and thus his office automatically became vacant by operation of law pursuant to §30(1)(e), resulting in his lawful termination from his postion without notice and hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03871.htm

Employer has the burden of proof that a disability prevents the employee from reasonably performing the functions and duties of the position

Employer has the burden of proof that a disability prevents the employee from reasonably performing the functions and duties of the position
Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights, 57 AD3d 1057

New York State Correction Officer Edward J. Rice suffered a heart attack that resulted in the implantation of stents and a defibrillator in his chest. Although Rice was cleared for duty without restriction by his cardiologist, Corrections placed him on involuntary leave until November 2005, at which time it terminated Rice's employment on the basis that he "ha[d] been continuously absent" and "unable to perform the duties of his position for more than one year" as a result of a disability pursuant to Civil Service Law §73.

Rice filed a complaint with the State’s Division of Human Rights (SDHR), alleging that Corrections had engaged in an unlawful discriminatory practice by terminating his employment due to a disability.

Although a SDHR Administrative Law Judge determined that Rice had failed to establish that he was fit to perform the essential duties of a correction officer and, thus, Corrections had not improperly terminated his employment, the Commissioner of Human Rights concluded that Corrections had, in fact, engaged in an unlawful discriminatory practice by terminating Rice's employment.

The Commissioner awarded Rice back pay, as well as damages for emotional pain and suffering.

Corrections appealed, but the Appellate Division said that Corrections could not terminate Rice’s employment on the basis of his disability unless it proved that the disability prevented him from reasonably performing the functions and duties of a correction officer.

In support of the determination that Corrections had engaged in an unlawful discriminatory practice by terminating Rice's employment on the basis of his disability, SDHR relied upon, among other things, the reports of Rice's treating cardiologists, as well as the original report of the physician who performed an independent medical examination for petitioner, that Rice was capable of returning to work without any restriction.

In contrast, SDHR found that the reports of Correction's medical examiner that Rice was unable to function as a correction officer due to the possibility of a physical confrontation with an inmate damaging his defibrillator were insufficient to support the termination of his employment inasmuch as “the identified risk was speculative and hypothetical in nature.”

Finally, said the court, the fact that Rice's application for, and receipt of, Social Security disability insurance benefits subsequent to the termination of his employment does not, as a matter of law, preclude a finding that Corrections had unlawfully discriminated against Rice.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09517.htm

Characterizing a complaint as a violation of civil service rules does not avoid having to seek relief pursuant to the contract grievance procedure

Characterizing a complaint as a violation of civil service rules does not avoid having to seek relief pursuant to the contract grievance procedure
Montgomery County Deputy Sheriff's Assn., Inc. v County of Montgomery, 57 AD3d 1061

Cathy Anderson and Grace De Waal Malefyt each worked for a period of time in the title of "part-time" correction officer in Montgomery County. During their respective periods of employment in the title of part-time correction officer, both voluntarily and regularly “worked in excess of 20 hours per week and, in fact, in excess of 40 hours per week” without complaint nor did the Association ever file complaints on their behalf or sought to obtain additional compensation or benefits for them during this period.

Anderson and Waal Malefyt were appointed "full time" correction officers in 2000 and 2003 respectively.

In March 2004, the Association sued, seeking monetary relief in the form of retroactive benefits under the collective bargaining agreement. Supreme Court granted the County’s motion for summary judgment and dismissed the action.

In addressing the Association’s appeal from the dismissal of its petition by Supreme Court, the Appellate Division ruled that “Having failed to avail themselves of the grievance procedures outlined under the very collective bargaining agreement on which they now rely for monetary relief, [Anderson and Waal Malefyt] and the Association failed to exhaust administrative remedies and are precluded from pursuing this action.”

The Appellate Division noted that in an effort to avoid the rejection of its appeal because of the failure to exhaust administrative remedies, Anderson and Waal Malefyt and the Association try to disavow their reliance on the collective bargaining agreement by claiming that “they are not seeking to enforce the collective bargaining agreement but, rather, are alleging a violation of the County Civil Service Rules and Regulations.”

The court said that the petition filed in Supreme Court “belies this notion” as it clearly alleged that County defendants “have breached the terms of the collective bargaining agreement . . . in that they, as [j]oint [e]mployers, denied [p]laintiffs . . . benefits afforded by the collective bargaining agreement to full-time employees while holding the title of ‘[p]art-time [c]orrection [o]fficer’” and “denied the benefits contained in the collective bargaining agreement, including, but not limited to longevity, health insurance, vacation leave, holiday pay, sick leave, personal time, and increased wages.”

Thus, said the Appellate Division, it is clear that the true nature of this action is for breach of contract. Further, said the court, “even if we were to view the complaint as simply alleging a violation of the County Civil Service Rules and Regulations,” the result would be the same “as the monetary remedy for this perceived violation is still being sought under the auspices of the collective bargaining agreement, thus leading to the same result; namely, that [Anderson and Waal Malefyt] and the Association were still required to avail themselves of the grievance and arbitration procedures outlined under the agreement with the failure to do so being fatal to the requested relief.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09519.htm

Custodian-helpers hired by Custodian-engineers employed by the NYC Department of Education are not “building service employees” within the meaning of the Labor Law

Custodian-helpers hired by Custodian-enginers employed by the NYC Department of Education are not “building service employees” within the meaning of the Labor Law
Brown v Liu, 2012 NY Slip Op 03567, Appellate Division, First Department

Supreme Court dismissed an Article 78 petition seeking an investigation of wage complaints filed by certain members of Local 94 serving as "custodian-helpers" employed New York City Department of Education [DOE] "custodian-engineers.". The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The Appellate Division explained that as the union members involved served as “custodian-helpers,” they were not entitled to the prevailing wage and benefits protection under Labor Law Article 9.* Such is the case because under the "indirect system" of custodial care, the DOE employs custodian-engineers in accordance with civil service regulations. These custodian-engineers, in turn, may employ custodian-helpers.

Indeed, the relevant collective bargaining agreement for the custodian-engineers' provides that they are employees of the DOE. 

Thus, said the court, the custodian-engineers are not "contractors" and the custodian-helpers employed by them are not "building service employees" of DOE’s custodian-engineers as those terms are defined in Labor Law §230.

* Article 9 of the Labor Law is captioned “Prevailing Wage For Building Service Employees.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03567.htm

Legislative approval of a grievance settlement that does not change the terms and conditions of controlling Taylor Law contract is not required

Legislative approval of a grievance settlement that does not change the terms and conditions of controlling Taylor Law contract is not required
Patrolmen's Benevolent Assn. of City of Long Beach, Inc. v City of Long Beach, 57 AD3d 499

This litigation involved efforts by the Patrolmen's Benevolent Association [PBA] to enforce three stipulations executed by the parties in settlement of three grievances initiated by the PBA pursuant to the terms of its collective bargaining agreement with the City of Long Beach. The three grievances initiated by the PBA on behalf of its members concerned sick leave retirement computations, night differential pay calculations, and a disciplinary action that had been brought against 17 of its members.

In response to the PBA’s inquiry concerning the City's compliance with the terms of one of the settlement agreements, the City indicated that it regarded all three underlying grievances as still pending. The reason offered by the City in support of its views: The City Council had never approved the settlements and thus they were not binding on the parties.

The PBA, seeking to enforce the terms of the stipulations and agreements, sued and won a decision by Supreme Court holding the stipulations and agreements were legally binding and enforceable as between the parties. The City was directed by Supreme Court to abide by the terms of the settlement agreements. Long Beach appealed, only to have the Appellate Division affirm the Supreme Court’s ruling.

As to the City’s claim that approval by the City Council was required to bind the parties, the Appellate Division said that the Court of Appeals in Board of Education for City School District of City of Buffalo v Buffalo Teachers Federation, 89 NY2d 370, made it clear that “the Taylor Law does not by its terms 'vary or extend the instances in which legislative approval is necessary and does not create a necessity for action by a legislative body where it does not otherwise exist.'" Here, said the court, Long Beach "has not identified any further legislative action that it must perform under the pertinent statutes" as a condition to the approval of the three stipulations settling the PBA’s grievances.

The Appellate Division also noted the past practice of the parties of executing similar stipulations resolving PBA grievances by the City Manager and the President of the PBA without any need for City Council ratification.

Further, the decision notes, the stipulations and agreements involved do not alter or amend the language of the controlling collective bargaining agreement so as to trigger the need for legislative approval. Rather, said the court, “they represented agreements between the parties on how they would interpret certain CBA provisions.” Therefore, “no City Council approval was needed in order for the stipulations and agreements to bind the parties.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09573.htm

Public employees and the First Amendment right to free speech

Public employees and the First Amendment right to free speech
Thomas v City of Blanchard, 548 F.3d 1317

In considering a public employee’s claim that his or her First Amendment right to free speech has been compromised by his or her public employer, courts distinguish between the employee’s speech in terms of the vindication of a personal interest and the vindication of a public interest.

Another arena in which an employee may contend that his or her employer’s actions are violative of the employee’s free speech are tested in terms of whether the speech concerned the employee’s official duties or a public interest.

The latter was the issue in the Thomas case: Was Thomas’s report to the Oklahoma State Bureau of Investigation (OSBI) made pursuant to his professional duties and therefore outside the scope of First Amendment protections within the meaning of Garcetti v Ceballos, 547 U.S. 410, or was his speech a matter of public interest and thus protected by the First Amendment?

Ira Thomas was fired from his job as building code inspector for the City of Blanchard, Oklahoma, after he discovered a signed and completed certificate of occupancy for a home constructed by a local builder — who was also the mayor — in the City Clerk’s office although Thomas had neither made the final inspection of the home nor approved issuance of the certificate.

In the words of the Tenth Circuit, “Suspecting illegality, Mr. Thomas responded forcefully (and maybe even inappropriately; that is a disputed issue) by storming into a meeting to denounce the certificate, shouting at the City Clerk, threatening to report the matter to the OSBI and eventually following through on the threat.”

Subsequently terminated from his position, Thomas sued the City and various city officials, including the mayor, claiming his discharge was in retaliation for his exercising his right to free speech — primarily, his reporting the matter to the OSBI — and therefore in violation of the Free Speech Clause of the First Amendment.

The Circuit Court decided that Thomas’s search was not made pursuant to his professional duties and thus was constitutionally protected. Citing its decision in Casey v. West Las Vegas Independent School District, 473 F.3d 1323, the court concluded that ala Casey, "Thomas was not satisfied that the city’s officials would report the fraud to the authorities, so he 'took his grievance elsewhere' — that is, to the OSBI.”

The court then considered a number of additional relevant issues including (1) whether the government’s interest outweighed the employee’s free speech rights and (2) whether the speech was a motivating factor in the discharge.

As to whether Thomas’s speech was a matter of public concern, the Circuit Court of Appeals concluded that although this issue was raised for the first time in this appeal, speech about possible illegality or pressure by the mayor would count as a matter of public concern.

Addressing whether city’s interest as employer in promoting the efficiency of the services it performs outweighs the employee’s interest in his speech, the court said that for the purposes of this test, the question is not whether the plaintiff’s speech was accompanied by disruptive behavior or made in a disruptive manner, but whether the government’s legitimate interests provide a sufficient justification for controlling Thomas’s message.

The decision also addresses other significant issues concerning the rights and limitations concerning the exercise of “free speech” by a public employee.

The full text of the decision is posted on the Internet at:
http://www.ca10.uscourts.gov/opinions/07/07-6197.pdf

Designating a beneficiary typically will result a reduction of the individual’s retirement allowance otherwise payable before such a designation

Designating a beneficiary typically will result a reduction of the individual’s retirement allowance otherwise payable before such a designation

A retired Chief of Department is entitled to a retirement allowance, consisting of both an annuity and a pension. In this instance the retired Chief of Department of the New York City Police Department, challenged Board of Trustees' interpretation of Administrative Code §13-249, claiming that the plain language of the statute entitled him to receive a pension equal to two-thirds of his salary unreduced by any optional modification.  

Although Supreme Court granting the retiree’s petition holding that that New York City Police Department’s failure to apply the plain language of Administrative Code of City of New York §13-249 to the calculation of retiree's retirement allowance was arbitrary, capricious and contrary to law, the Appellate Division unanimously reversed the ruling “on the law” and dismissed proceeding brought pursuant to CPLR Article 78.

Administrative Code §13-249 provides that a retired Chief of Department is entitled to a retirement allowance consisting of both an annuity and a pension that will effectively make the retirement allowance equal to two-thirds of the retiree's salary.*

The Appellate Division said that the plain language of §13-249, states that a retiring Chief of Department's "accumulated deductions," are not subject to "any decrease resulting from withdrawals, loans, optional modifications . . .." The statute, however, is silent with respect to computations of the "pension" portion of the retirement allowance.

Accordingly, said the court, a retiring Chief's receiving the full two-thirds retirement allowance may be affected by his or her choice of options under Administrative Code §13-261 whereby “if any retiree exercises an option to designate a beneficiary to receive a portion of his retirement allowance, then his retirement allowance will be reduced accordingly.”

The Appellate Division then held that “no fair reading of Administrative Code §13-249 … leads to the conclusion that the ‘pension’ portion of [retiring Chief’s] retirement allowance would not be subject to a reduction based on the selection of an option in which a beneficiary is designated under Administrative Code §13-261.”

* Section 13-249 also provides instruction as to the computation of the "annuity portion" of the retirement allowance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03723.htm

Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

Arbitration between Albany Police Supervisor's Assn. and the City of Albany, 2012 NY Slip Op 03704, Appellate Division, Third Department

The Appellate Division affirmed a ruling by Supreme Court denying the Albany Police Supervisor’s Association’s CPLR Article 75 application to vacate an arbitration award and confirmed the award.

A member of the negotiating unit represented by the Association was served with disciplinary charges that eventually resulted in the termination of the member’s employment with the Albany Police Department.

Essentially the member was charged with allegedly failing to inform and misled superior officers about what had transpired with respect to an incident involving another Albany Police Department police officer. The arbitrator found the member guilty of nine of the 14 charges filed against him and concluded that his termination was the appropriate penalty.

In affirming the arbitration award the Appellate Division noted that "In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 wherein the Court of Appeals said that "[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice."*

Here, said the court, the arbitrator's findings that member was untruthful when questioned by a superior officer concerning the event is supported by the record and did not result from the arbitrator grossly expanding the charges or other arbitral misconduct.

As to the penalty imposed, dismissal, the Appellate Division rejected the Association’s argument that the penalty was so disproportionate as to constitute arbitral misconduct as "unpersuasive.”

* A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03704.htm

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 03700, Appellate Division, Third Department

The Chenango Forks Central School District distributed a memorandum to its faculty and staff represented by the Chenango Forks Teachers Association announcing that it would discontinue its longstanding practice of reimbursing retirees' Medicare Part B premiums.

While the relevant collective bargaining agreement (CBA) between the parties did not explicitly obligate the school district to make such reimbursements, it had done so since at least 1980 when such reimbursement was required by the Empire Plan, the health insurance plan provided to employees up until 1990.

In 1990 the parties entered into a new CBA, and health insurance coverage was changed to Blue Cross/Blue Shield, which did not require the reimbursement of Medicare Part B premiums. Chenango Forks, however, continued to make such reimbursements.

The Association filed a grievance alleging a violation of the CBA.* At the same time, the Association filed an improper practice charge with the Public Employment Relations Board (PERB) alleging that Chenango Forks had violated Civil Service Law §209-a(1)(d) when it failed to negotiate the discontinuance of reimbursement of Medicare Part B premiums.**

PERB’s Administrative Law Judge (ALJ) found that school district's practice of reimbursement had "giv[en] rise to a reasonable expectation by current employees that they proceed under a promise of post-retirement [reimbursement]" and, thus, Chenango Forks’ unilateral decision to discontinue reimbursement violated its collective bargaining obligations under Civil Service Law §209-a(1)(d).

Ultimately PERB affirmed the ALJ's  conclusions regarding the school district's obligations under Civil Service Law §209-a(1)(d). The district filed an Article 78 challenging PERB's determination.

Rejecting the school district’s argument that reimbursement of Medicare Part B premiums is not a "term and condition of employment" subject to mandatory negotiation, the Appellate Division said that health benefits for current employees are a form of compensation, and thus a term of employment that is a mandatory subject of negotiation.

Although Civil Service Law §201(4) prohibits negotiation of certain retirement benefits, the Appellate Division pointed out that the continuation of health insurance payments to current employees after their retirement is not a retirement benefit within the meaning of that provision, citing Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d 801, 802 [1995], lv denied 87 NY2d 812 [1996].

The court explained that such health insurance benefits, although paid after retirement, constitute a form of compensation earned by the employee while employed. Thus, noted the Appellate Division, as the Court of Appeals has held, and PERB rationally concluded, here that Chenango Forks "ha[d] a duty to negotiate with the bargaining representative of current employees regarding any change in a past practice affecting their own retirement health benefits," citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d at 332 [emphasis omitted]; see Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d at 404; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d at 802; Matter of Corinth Cent. School Dist. [Corinth Teachers Assn.], 77 AD2d 366, 367 [1980], lv denied 53 NY2d 602 [1981].

As to the question of whether a binding past practice was established, the Appellate Division said that the issue before PERB was whether, irrespective of any contractual obligation in the parties' CBA, a past practice of reimbursing retirees for Medicare Part B premiums was established such that Chenango Forks was barred from discontinuing that practice without prior negotiation with the Association.***

As to the merits of its past practice determination, the Appellate Division found that PERB had determined that there was a reasonable expectation by unit employees that they would receive reimbursement of Medicare Part B premiums upon their retirement, which finding was “supported by the stipulated facts that [the school district had] reimbursed Medicare Part B premiums to active employees and retirees since at least 1980 and that, despite the fact that the health insurance coverage provided under the CBAs subsequent to 1990 did not require such reimbursement, [the school district had] continued to do so until July 2003.”

Significantly, the Appellate Division said that it could not conclude that, by entering into a new CBA for the 2004-2007 period, which is silent regarding the reimbursement of Medicare Part B premiums, the Association waived its right to negotiate a change in [school district’s] practice of providing Medicare Part B reimbursement, explaining that. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it . . . Such a waiver must be clear, unmistakable and without ambiguity."

As a final point, the Appellate Division stated that the “reimbursing active employees for Medicare Part B premiums does not constitute an improper gift of public funds (see NY Const, art VIII, § 1), as the reimbursements represent compensation earned by employees while employed and in consideration for a benefit furnished to [the school district].”

* A group of school district retirees also commenced a CPLR Article 78 proceeding to annul the district's decision to discontinue Medicare Part B premium reimbursements (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134 [2005]). This action wast remitted to Supreme Court for further record development to determine whether there had been a "corresponding diminution of benefits or contributions" effected by petitioner from active employees (Chapter 48 of the Laws of 2003; see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1137-1138). The instant proceeding before the Appellate Division, in contrast, involved current, active employees of school district.

** PERB conditionally dismissed the charge subject to a motion to reopen the matter after the conclusion of the grievance procedure. When the grievance proceeded to arbitration, an arbitrator determined that petitioner was under no contractual obligation to continue the payments.

*** In contrast, the specific issue before the arbitrator was whether school district was under a contractual obligation to make Medicare Part B reimbursement payments to retirees.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03700.htm

Student Intern Program announced by the NYS Department of Civil Service

Student Intern Program announced by the NYS Department of Civil Service

Acting NYS Civil Service Commission President Patricia A. Hite has distributed the following "General Information Bulletin #12-01" to State Departments and Agencies describing a new Student Intern Program that is to be made available to qualified college and graduate school students interested in a career in public service and inviting their respective Department and Agency participation.

GENERAL INFORMATION BULLETIN No. 12-01

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers
FROM: Patricia A. Hite
SUBJECT: New New York Leaders: Student Intern Program
DATE: May 10, 2012

On February 15, Governor Cuomo launched the New New York Leaders: Student Intern Program, the first ever centralized Student Intern Program for state government. The Program will provide talented undergraduate or graduate students who are New York State residents or who attend a New York State college, university or graduate program and are interested in exploring a career in public service with a single location to apply and be considered for internship opportunities. Students will be exposed to the work of governing and the increasingly complex policy challenges facing New York State. This group of diverse and talented students is the future of state government.

A memorandum from Howard Glaser dated May 9, 2012, advised agency heads of this important initiative, the success of which depends upon agency participation. The Department of Civil Service is hosting the portal for the Student Intern Program which will function as the primary location where agency internship opportunities will be posted and applications will be accepted. Based on the preferred candidate profile submitted by the agency for each internship opportunity, the Department will provide agencies with a list of qualified candidates. It is expected that by fall 2012, all New York State internship opportunities will be included on the New New York Leaders: Student Intern Program portal.

This Program is not intended to replace established agency relationships with colleges and universities; rather, the portal is to serve as a comprehensive recruitment tool for agencies and a single resource to which schools may direct students. The Department will notify New York State colleges and universities of the Program and develop a recruitment plan to actively recruit students from schools with diverse populations. Agencies are encouraged to continue their recruitment efforts. Communication with college and university internship coordinators should continue to ensure the inclusion of candidates with agencies' preferred qualifications; however, students should be directed to the portal to apply for and select specific agency opportunities. Appointments must be made through the centralized process.

We are making every effort to meet agencies' needs while providing schools and students a centralized portal for the Student Intern Program. This fall we will ask for your feedback on the portal and, based upon that input, will seek to expand the visibility of the Program and increase efficiency and transparency in the process of hiring interns.

Student Intern Program Overview

The internship opportunities offered by the New New York Leaders: Student Intern Program may be paid or unpaid, and for graduate or undergraduate students. Applications will be accepted three times a year for internships to be filled in the fall, spring and summer. The internship portal will allow candidates to submit applications, upload resumes and review and identify preferences for internships. Agencies will use the internship portal to post internship opportunities, set hiring criteria, and receive a list of qualified candidates.

Between June 1 and June 27, 2012, agencies will post their Fall 2012 internship opportunities on the internship portal. An agency guide and further directions will be made available to assist you with this process. Agencies will also have the opportunity to attend a Student Intern Program briefing on May 30, 2012 in Room 354 in the Alfred E. Smith Office Building in Albany. Agency staff in locations outside of Albany will have the ability connect to the briefing via webinar. During the briefing, Student Intern Program staff will provide programmatic details of the Program, a demonstration of the internship portal, and guidelines for submitting internships.

Student Intern Program Liaisons

We request that all agencies designate an agency liaison to serve as a point of contact for future communication related to the Student Intern Program. The Student Intern Program Liaison will be responsible for:

• communicating all relevant Student Intern Program information and deadlines to agency staff; and,

• coordinating your agency's input and maintenance of internship posting information in the internship portal.

• May 15, 2012
 - Agencies designate Student Intern Program Liaison

• May 23, 2012
 - DCS provides agencies a guide and template for posting internships

• May 30, 2012
 - Student Internship Program Briefing for Liaisons

• June 1, 2012
 - Access to Internship Portal for Agencies

• June 27, 2012
 - Deadline for Posting Internships

• July 23, 2012
 - Deadline for Students to Apply and Identify Internship Preferences

• July 24 - 31, 2012
 - Agencies Establish Criteria and Receive List of Qualified Candidates

• July 24, 2012 - August 31, 2012
 - Agencies Contact Candidates for Interviews

• September 2012
 - Internships Begin

The Student Intern Program Liaison should be, whenever possible, a professional member of your human resource team. All human resource or personnel staff with access to NYSTEP will have permissions to access the Internship Portal using their Department of Civil Service Web Applications Log In information. Please contact Lynne Harting via email atnysinternships@cs.state.ny.us by Tuesday, May 15, 2012, with the name and contact information for your agency liaison. Please also indicate if the Student Intern Program Liaison will be attending the Student Internship Program briefing in person or connecting via the webinar.

Timeline

To assist you in your planning efforts, the timeline for the New New York Leaders: Student Intern Program for Fall 2012 internships is as follows:

We look forward to your participation in the New New York Leaders: Student Intern Program. For more information on the program, visit our website http://www.nysinternships.com beginning the week of May 14. If you have any questions, please contact Lynne Harting at (518) 473-9721 or contact us at nysinternships@cs.state.ny.us.

The school board rather than the Commissioner of Education in the party that may initiate disciplinary action against a school officer

The school board rather than the Commissioner of Education in the party that may initiate disciplinary action against a school officer

Decisions of the Commissioner of Education, Decision No. 16,350

An individual challenged the actions of the school board and various officers of the school district by filing an appeal with the Commissioner of Education in which he include a request that the Commissioner remove certain school officials from their respective positions.

The Commissioner dismissed the appeal and denied the removal application.

Addressing the denial of the individual’s “removal application” with respect to the superintendent and the assistant superintendent, the Commissioner explained that the individual must seek disciplinary action from the [superintendent’s and the assistant superintendent’s] employer, the board of education, in the first instance. 

Disciplinary action against a superintendent or assistant superintendent, said the Commissioner, is within “the discretion of the employing board of education.”

Accordingly, the individual should have brought his complaint to the board of education, whose decision may then be reviewed in an appeal to the Commissioner of Education.

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

http://www.counsel.nysed.gov/Decisions/volume51/d16350.html

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

A correction officer employed by the New York State Department of Corrections and Community Supervision filed an action in the Court of Claims alleging that he had been subjected to retaliation and a hostile work environment in violation of Executive Law §296.

The officer had claimed that he was disciplined after engaging in an on-duty physical confrontation with another correction officer, contending that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. He contended that the disciplinary action taken against him was in retaliation of his having previously filed complaints against his supervisors alleging racism.

The Appellate Division affirmed the Court of Claims’ ruling that the correction officer had failed to establish either claim.

Citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, the court explained that to establish a claim for retaliation, a claimant was required to prove the following four elements:

[1] he or she had engaged in protected activity;

[2] his or her employer was aware that he or she had engaged in such activity;

[3] he or she suffered an adverse employment action based upon his or her activity;

[4] there is a causal connection between the protected activity and the adverse action.

The Appellate Division noted although the first three elements of a retaliation claim were not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant.

The Court of Claims had [1] credited the version of events reported by the witnesses to the confrontation and determined that claimant was the aggressor and [2] the confrontation in which the officer had been involved “was more serious than the unrelated incident.”

As to the officer’s “retaliatory hostile work environment claim,” the Appellate Division said that the actions giving rise to such a claim “must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus.”

The Appellate Division held that in determining if such a hostile work environment existed “All of the circumstances must be considered, including ‘the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"  Further, said the court, "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so."

Noting that the record supported the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level, the court dismissed the correction officer’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03487.htm

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

An audit report issued by the State Comptroller's Division of Local Government and School Accountability  alleges that a former Village of Wolcott clerk-treasurer misappropriated more than $68,000 of the village's funds over a four-year period.

The village had contacted the Comptroller's office. After reviewing the village's financial records the auditors reported that the village’s accounting records indicated that unauthorized disbursements in the form of extra payroll payments, unauthorized overtime payments, excessive health insurance buyouts, unearned leave payouts, overpayment of vital statistics fees, and payments inappropriately charged to the village’s records management grant had been made.

The audit report recommended the village:

1. Ensure the village's clerk-treasurer maintains adequate, accurate and timely records and reports on an ongoing basis;

2.Require and review detailed monthly financial reports, which should include cash balances, cash receipts and disbursements made during the month, a comparison of actual revenue and expenditures to budget amounts, and bank reconciliations with copies of the bank statements.

3. Adopt and distribute a Code of Ethics, as required by law; and

4. Monitor cash disbursement records to ensure accuracy.

The Division's audit report is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/villages/2012/wolcott.pdf