Arbitration award granting relief to both active employees and retired employees confirmed

Arbitration award granting relief to both active employees and retired employees confirmed

Matter of City of Buffalo (Buffalo Professional Firefighters Assn., IAFF Local 282), 2012 NY Slip Op 04527, Appellate Division, Fourth Department

The City of Buffalo modified the health insurance plan provided to members of in several negotiating units. The several unions representing City employees in those units filed a grievance with respect to the modified plan, alleging that the modified plan violated their respective collective bargaining agreements (CBA).

An arbitrator issued an award finding that the City's actions violated the relevant CBAs and awarded relief to both active members and retired former members in the collective bargaining units that brought the grievances. 

Buffalo filed an Article 75 petition seeking to vacate the award to the extent that it granted relief to the retirees.

The Appellate Division ruled that the arbitrator did not exceed his authority in fashioning an award that granted relief to the retired unit employees, explaining that the issue whether the unions had standing to represent retired employees formerly in their respective collective bargaining units was for the arbitrator to determine. 

Significantly, the court noted that the record was devoid of any evidence that the elimination of health insurance options did not affect the retirees such that the relevant unions would lack standing to represent them. Accordingly, the court held that Buffalo “failed to demonstrate that the arbitrator exceeded his authority.”

As to Buffalo’s argument that the arbitration award should be vacated because it was "indefinite" as the arbitrator had granted its request to delay implementation of the award until a related police union case completed the appeal process and thus was finalized, the Appellate Division said that it rejected the City’s theory, holding that "An award is subject to vacatur as indefinite or nonfinal only if it leaves the parties unable to determine their rights or obligations, if it does not resolve the controversy submitted, or if it creates a new controversy."

The Appellate Division then confirmed the arbitration award.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04527.htm

A demand is directly related to compensation when its primary characteristic is a modification in the amount or level of compensation and is thus arbitrable

A demand is directly related to compensation when its primary characteristic is a modification in the amount or level of compensation and is thus arbitrable

County of Orange and Sheriff of Orange County and Orange County Deputy Sheriff’s Police Benevolent Association, Inc., 44 PERB ¶3023, U-28693, U-28738 

The Board reaffirmed that a demand is directly related to compensation, and therefore arbitrable under §209.4(g) of the Public Employees’ Fair Employment Act (Act), when its sole, predominant or primary characteristic is a modification in the amount or level of compensation.

In making such a determination, the Board compares the proposal with the lists of subjects specifically identified by the Legislature in §209.4(g) of the Act. The Board, however, reversed the decision in Putnam County Sheriff’s Dept PBA, Inc., 38 PERB ¶3031 (2005), to the extent it held that a proposal seeking a change in the aggregate amount or level of compensation received by unit members from the nonuse of sick leave is nonarbitrable under §209.4(g) of the Act.

The Board concluded that the primary characteristic of such a demand is the monetization of sick leave, a compensatory benefit ordinarily unavailable to public employees.

In addition, the Board reversed Sullivan County Patrolmen’s Benevolent Association, 39 PERB ¶3034 (2006) to the extent it concluded that a proposal seeking to permit the conversion of overtime compensation into compensatory leave and to permit the subsequent remonetization of that leave back into cash or to be applied to health insurance is nonarbitrable because it relates only to “potential” compensation.

The Board held that union proposals in the present cases seeking to permit the conversion of accumulated unused leave time into cash at the time of separation from service were arbitrable under §209.4(g) of the Act because each seeks a form of deferred compensation. However, the Board found that a proposal to increase the amount of compensatory leave time that can be accumulated is nonarbitrable.

Finally, it found a proposal to require an unpaid leave of absence to run currently with leave under the Family Medical Leave Act was nonarbitrable.

PERB reached the same conclusion concerning a unitary demand involving overtime, flex time and scheduling. 

Practice tip noted by PERB staff:  The practical impact of the distinction drawn in §209.4(g) of the Act between arbitrable and nonarbitrable subjects might lead parties to choose to segregate arbitrable subjects from the nonarbitrable in their initial proposals or to sever them during the course of negotiations. While such an approach is not obligatory under §209.4(g) of the Act, it can help avoid unnecessary delays in the issuance of interest arbitration awards and fact-finding reports following an impasse. In contrast, placing arbitrable and nonarbitable subjects into a single demand creates the high risk that the demand will be treated as a nonarbitrable unitary demand. 

Union’s demand that GML §207-c the individual continue to receive benefits pending a hearing and determination is mandatorily negotiable

Union’s demand that GML §207-c the individual continue to receive benefits pending a hearing and determination is mandatorily negotiable

Baldwinsville Police Benevolent Association and Village of Baldwinsville, 44 PERB ¶3031, U-29453, U-29481 

PERB held that that a General Municipal Law (GML) §207-c proposal that would require a continued receipt of benefits pending a hearing and determination is mandatorily negotiable because the proposal seeks a contractual codification of a unit member’s constitutionally protected property right of continued GML §207-c benefits, which can not be terminated without due process.

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

========================

A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty

A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty

Gibson v Board of Educ. for The City School Dist. of Albany,2012 NY Slip Op 04441, Appellate Division, Third Department

A City School District of Albany account clerk was charged with two specifications of incompetence: unsatisfactory work performance and excessive absenteeism, during the 2009-2010 school year. Following a hearing pursuant to Civil Service Law §75, account clerk was found guilty of both specifications and the Hearing Officer recommended dismissal as a penalty to be imposed.

The appointing authority accepted the Hearing Officer's findings and recommendation and terminated account clerk's employment with the school district. Contending that the evidence did not support the Board's finding that her conduct and deficiencies rose to the level of incompetence, and that dismissal is an inappropriate and excessive penalty, the account clerk appealed.

The Appellate Division ruled that “The determination of the Board must be upheld where, as here, it is supported by substantial evidence,” explaining that "a finding of incompetence only requires evidence of some dereliction or neglect of duty." Further, said the court, testimony by the account clerk’s immediate supervisors, coworkers and two district-level assistant supervisors, and the documentary evidence — including the clerk's employee evaluations in March 2009 and May 2010 and attendance records — “provided overwhelming evidence to substantiate each of the specifications of misconduct.”

As to the penalty imposed, dismissal, the Appellate Division said that “on the record before us, we do not find the penalty of termination shocking to the judicial conscience,” citing Kelly v Safir, 96 NY2d 32, and Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the individual was “given numerous warnings over a period of many years and failed to assume responsibility for her shortcomings.”

Accordingly, said the court, “In view of the foregoing, the Board's implicit conclusion that further attempts to rehabilitate and retrain petitioner would be futile is neither unfair, shocking nor an abuse of discretion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04441.htm

Civil Service Commission permitted to rely on appointing authority’s medical expert’s opinion where medical experts differ concerning applicant’s medical condition

Civil Service Commission permitted to rely on appointing authority’s medical expert’s opinion where medical experts differ concerning applicant’s medical condition
Matter of Altieri v City of New York Civ. Serv. Commn. 57 AD3d 248

Anthony Altieri sued the New York City Civil Service Commission after it disqualified him for appoint to the position of sanitation worker because of Altieri’s cardiac condition

The Appellate Division said that the Commission was entitled to rely on the opinion of the Department of Sanitation's medical director that Altieri's appointment as a sanitation worker would put Altieri “at serious risk.”

The fact that Altieri’s treating physician’s opinion disagreed with the Department’s medical director’s opinion does not tend to show that the Commission "acted illegally or capriciously or adopted a professional opinion not founded on a rational basis."

Further, the Appellate Division commented that Altieri’s disqualification for medical reasons “cannot be the predicate of a discrimination claim under Executive Law §296(1)(a).”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09487.htm

 

The timeliness an unfair practice charge measured from the date on which the party adversely affected learned [or should have known] of the event

The timeliness an unfair practice charge measured from the date on which the party adversely affected learned [or should have known] of the event
Levi Mcintyre And Middle Island Administrators Association and Longwood Central School District, ALJ Blassman, U-27349

A PERB ALJ dismissed a charge alleging that the Association violated of its duty of fair representation §209a.2(c) of the Act in breach as untimely.

The Association agreed to a collectively negotiated agreement that gave Levi McIntyre a lower total wage increase than other unit employees during the life of the agreement. McIntyre advanced two arguments with respect to his contention that his charge was timely: (1) that timeliness did not begin to run until he learned of the retirement of the Association's president, who was the only other unit employee who was similarly situated to McIntyre under the agreement or, in the alternative, the statute of limitations not begin to run until the second year of the agreement, which was when McIntyre alleged he was first negatively impacted by the agreement.

The ALJ ruled that McIntyre was adversely affected by the agreement when the Association agreed to it and thus his time to file a charge began to run from the date he learned of its provisions and how they affected him.

[See, also, Police Benevolent Association of Elmira, New York, Inc. and City Of Elmira, U-27466, in which the Board affirmed the decision of its ALJ dismissing an improper practice charge as untimely after determining that the PBA had actual knowledge of the triggering event more than four months before it filed its improper practice charge and failed to demonstrate that Elmira was equitably estopped from asserting its timeliness defense.]

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440, Appellate Division, Third Department

The issue in this action: Does Retirement and Social Security Law §110* insulate the retirement benefits from a public retirement system of this State from “the broad reach of the Son of Sam Law, which does not expressly exempt pension funds?”**

The Appellate Division held that such retirement benefits are not exempt from the Son of Sam Law.

Steven C. Raucci, a former employee of the Schenectady City School District, was sentenced to a lengthy prison term upon his conviction of numerous crimes arising out of his alleged detonation and attempted detonation of explosive devices at two of his victims' homes. Raucci began receiving a retirement allowance from the New York State and Local Employees' Retirement System of approximately $5,800 per month.

The New York State Office of Victim Services sought a preliminary injunction prohibiting the withdrawal or transfer of those funds from Raucci’s inmate account. Raucci, and his spouse as “an interested person,” argued that RSSL §110 exempts the pension funds from garnishment or any other legal process.

Noting that prior to its amendment in 2001, the Son of Sam Law permitted victims to recover only "profits from a crime," i.e., property or income generated from the crime itself, the Legislature "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source."

Accordingly, said the Court,  “The current version of the statute thus permits crime victims to commence an action ‘within three years of the discovery of any profits from a crime or funds of a convicted person’ broadly defined as "all funds and property received from any source by a person convicted of a specified crime (Executive Law § 632-a [1] [c]” [emphasis added by the court].

The Appellate Division said that only two categories of a convicted person's funds are not recoverable by crime victims: the first $1,000 in the convicted person's account and the first 10% of compensatory damages obtained by the convicted person in a civil judgment, less counsel fees.

* The decision summaries the provisions of §110 as follows: Retirement and Social Security Law §110 protects public employee pensions, providing that "[t]he right of a person to a pension . . . or a retirement allowance . . . to the return of . . . the pension . . . or retirement allowance itself . . . and the monies in [those] funds . . . [s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever, and . . . [s]hall be unassignable."

** The decision refers to both a “pension” and a “retirement allowance.” A retirement allowance consists of a “pension portion” determined by the employee’s final average salary and his or her “years of member service,” which is funded by employer contributions plus an “annuity portion” based on the actuarial value of the employee’s contributions, or contributions made on his or her behalf as of the date of his or her retirement.

NYPPL comments: This decision raises a number of questions that may have to be addressed by the courts or the legislature such as [1] Is a retirement allowance being received by a surviving beneficiary or beneficiaries of a retired public employee of this State subject to the Son of Sam Law? and [2] Is a retirement benefit being received by an individual or his or her beneficiary or beneficiaries from a retirement program or plan other than a public retirement system of this State subject to the Son of Sam Law?

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04440.htm

The Doctrine of Primary Jurisdiction explained

The Doctrine of Primary Jurisdiction explained 

Razzano v Remsenburg-Speonk UFSD, 2012 NY Slip Op 04178, Appellate Division, Second Department

The Board of Education of Remsenburg-Speonk UFSD reclassified Janice Razzano’s from a full-time position to a part-time position. Razzano filed a CPLR Article 78 petition seeking a court order compelling Board to reinstate Razzano to her former full-time position.

Razzano alleged that the reclassification of her position from full-time to part-time was undertaken in retaliation for various complaints she had made regarding alleged hazardous health conditions in the school building in which she worked. She also contended that school district improperly attempting to circumvent tenure rules by engaging the services of “an outside contractor to undertake the job responsibilities that she had previously undertaken” when she was employed full-time.*

Supreme Court dismissed Razzano’s on the ground that primary jurisdiction over the dispute lies with the Commissioner of the New York State Department of Education. The Appellate Division reversed the lower court’s ruling and remitted the matter to the Supreme Court, Suffolk County, for further proceedings.

Supreme Court had based its denial of the petition and dismissed the proceeding, pursuant to the doctrine of primary jurisdiction, i.e., (1) the Commissioner has the specialized knowledge and expertise necessary to resolve the factual question of whether an independent contractor assumed some of the responsibilities of Razzano, who held tenure in the position, and (2) whether the school district's conduct in reclassifying Razzano‘s full-time position to a part-time position was undertaken in good faith.

The Appellate Division ruled that Supreme Court erred in dismissing Razzano’s petition on basis of the doctrine of primary jurisdiction. The court explained that "The doctrine of primary jurisdiction provides that [w]here the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 35.

The doctrine, said the court, is applied whenever a claim is originally cognizable in the courts, and comes into play “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” In such situations the judicial process is suspended, rather than being dismissed, pending referral of such issues to the administrative body for its views.

In this instance, said the Appellate Division, the crux of Razzano’s threshold claim is that the reclassification and subsequent "excessing" of her employment from her full-time position and her “reinstatement” to a part-time position was undertaken in bad faith in that it was effected in retaliation for her engagement in a protected activity, in violation of the New York State Public Sector Whistleblower Law (see Civil Service Law §75-b).

In addition, Razzano contended that the school district’s "purported rationale was a fiction, and was not an issue within the Commissioner's special competence.”

The Appellate Division agreed, ruling that in light of the nature of Razzano’s allegations, Supreme Court should have retained jurisdiction to decide her claim of retaliation. Thus, said the court, the matter must be remitted to the Supreme Court for further proceedings on that branch of the petition alleging that the reclassification of Razzano’s position was undertaken in bad faith and, thus, constituted an abuse of discretion as a matter of law.

As to next steps, the Appellate Division explained that:

1. If the Supreme Court ultimately determines that Razzano’s employment was reclassified in bad faith, she is entitled to reinstatement.

2. If the Supreme Court ultimately determines that Razzano’s position was not reclassified in bad faith, then it would be proper for the Supreme Court to refer the remaining issues raised by the petition to the Commissioner for determination of questions arising under Education Law §3012, pursuant to the doctrine of primary jurisdiction.

* Razzano had also filed administrative petitions with the Commissioner of the New York State Department of Education pursuant to Education Law §310 challenging the district's decision to reclassify her position as a part-time position.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04178.htm

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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.

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Serving notices by mail

Serving notices by mail

Cook v Village of Greene, 2012 NY Slip Op 04264, Appellate Division, Third Department

This decision by the Appellate Division sets out a number of points concerning effectively serving a notice to an individual to appear for a General Municipal Law §50-h when sending such a notice by mail.

The Village of Greene served a demand for examination by certified mail to the address verified by Wayne C. Cook in his notice of claim as his address. Cook failed to appear for the examination, but subsequently commenced an action against the Village and others. The Village moved to dismiss the action asserting, among other things, Cook's failure to attend the General Municipal Law §50-h examination.

The Appellate Division said that complying with a proper request for an examination pursuant to General Municipal Law §50-h is a condition precedent and failure to comply, absent exceptional circumstances, generally is a ground for dismissal of the action.

General Municipal Law §50-h [2] provides that certified mail is authorized manner of notifying a litigant not represented by an attorney to appear for an examination and the Village’s motion papers included a duly executed affidavit of service. The court noted that "A properly executed affidavit of service raises a presumption that a proper mailing occurred."

The Village, however, did not send the notice with a return receipt requested. Although the Appellate Division commented that a “return receipt” is not required by the statute as a general rule sending the notice "certified mail, return receipt requested" or "registered mail, return receipt requested," is viewed as appropriate and desirable.

Other provisions of law may authorize the delivery of certain notices by mail.

For example, Civil Service Law §76.1 provides that a §75 disciplinary determination is to be delivered “personally or by registered mail to the last known address of such person” while Education Law §3020-a provides that disciplinary charges shall be served on an educator “by certified or registered mail, return receipt requested or by personal delivery to the employee.”

The decision if posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04264.htm

Selected Rulings posted by PERB – A question of jurisdiction

Selected Rulings posted by PERB – A question of jurisdiction

United Federation of Teachers and the Board Of Education of the City School District of the City of New York, PERB U-28996

Although the Board dismissed exceptions filed by the employee after finding that she did not timely serve her exceptions upon UFT and the School District pursuant §213.2(a) of the Rules of Procedure, it noted that had it addressed the merits of her exceptions it would have dismissed them as PERB “does not have authority to determine alleged violations of Education Law §3020-a, or alleged violations of the terms of an unexpired agreement.”

Employee’s ADA claim for damages survives promotion to a higher grade position

Employee’s ADA claim for damages survives promotion to a higher grade position
Matter of Jochelman v New York State Banking Dept., 56 AD3d 375

After the New York State Banking Department denied Irving Jochelman a promotion to the position of Principal Bank Examiner I, Jochelman sued

Supreme Court granted Banking’s motion to dismiss his petition because Jochelman had been given the promotion underlying his complaint prior to his appeal, which also had the effect of “rendering moot that portion of his complaint seeking back pay.”

The Appellate Division, however, reversed the lower court’s dismissal of Jochelman’s petition “as a matter of law” explaining that his complaint also sought damages under the Americans with Disabilities Act (ADA).

Reinstating Jochelman’s ADA claim, but dismissing the remainder of his appeal as moot, the court explained that Jochelman's “separate claim for damages related to [Banking’s] allegedly discriminatory behavior has not been rendered moot by [Jochelman’s] promotion.”

Finding that Jochelman’s “ADA claim “was not without merit as a matter of law,” the Appellate Division indicated that the record raised factual issues as to whether Banking failed to make reasonable accommodations for the alternative workspace that Jochelman had requested for medical reasons and remanded the case to Supreme Court for its further its consideration of that issue.

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

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09267.htm

Appellant required to meet a high burden by showing, with clear and convincing evidence, that the disciplinary hearing officer was partial

Appellant required to meet a high burden by showing, with clear and convincing evidence, that the disciplinary hearing officer was partial

Batyreva v N.Y.C. Dept. of Educ., 2012 NY Slip Op 04234, Appellate Division, First Department

Supreme Court, New York County denied the CPLR Article 75 petition seeking to vacate an arbitration award which found that the New York City Department of Education had just cause to terminate the employee, Olga Batyreva. The Appellate Division unanimously affirmed the lower courts ruling.

Explaining that the award was made in accord with due process, is supported by adequate evidence, is rational and is not arbitrary and capricious, the court noted “(e)ach of the sustained specifications was well supported by both documentary evidence and witness testimony.”

Batyreva, said the Appellate Division, failed to meet the high burden of showing, by clear and convincing evidence, that the hearing officer was partial, noting that it had not found any basis in the record to support a finding of partiality. Further, said the court, to the extent that Batyreva’s contention “is premised upon the hearing officer's credibility determinations, her arguments are unavailing because she failed to show that the hearing officer's credibility findings evince a bias against her.”

As to the penalty imposed, termination, the court rejected Batyreva’s claim that it is unwarranted and shocks the conscience.

In the words of the Appellate Division: “Not only does the high volume of sustained specifications of misconduct, standing alone, justify termination … but also [Batyreva] repeated unsuccessful attempts to cast [the employer], the witnesses, the hearing officer, a federal judge, and a Supreme Court Justice as somehow biased against her tend to show her "failure to take responsibility for her actions."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04234.htm

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

Meaney v Village of Johnson City, 2012 NY Slip Op 04265, Appellate Division, Third Department

The mayor of the Village of Johnson City demoted a fire captain to firefighter first class after adopting the findings of the disciplinary hearing officer that a fire captain was guilty of multiple counts of misconduct and incompetence.

The Appellate Division annulled the mayor’s determination and reinstated the captain to his former position with back salary.

In explaining its ruling the Appellate Division said:

1. Substantial evidence does not support the determination of guilt;

2. The disciplinary charges were based on the captain’s “failure to disclose information that was neither solicited nor relevant to the conversation” with a police detective and “under no reasonable view of the evidence can it be said that the captain’s silence was willful or indicative of ‘some dereliction or neglect of duty’ on his part;” and

3. The captain was not charged with making inaccurate statements to his superior and, thus, cannot be disciplined for allegedly making such statements.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04265.htm

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Vargas v New York City Employees' Retirement Sys., 2012 NY Slip Op 04185, Appellate Division, Second Department

Alex Vargas filed a petition pursuant to CPLR Article 78 challenging a determination of the Board of Trustees of the New York City Employees' Retirement System [NYCERS] that denied his application for accidental disability retirement benefits pursuant to Retirement and Social Security Law §605-b. When Supreme Court denied his petition, Vargas appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that NYCERS’ Medical Board determines whether a member applying for accidental disability retirement benefits is disabled and NYCERS’ Board of Trustees of the New York City Employees' Retirement System is bound by the Medical Board's determination as to whether an applicant is disabled. Further, said the court, the Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational.

The record demonstrates that the Medical Board considered all of the medical evidence submitted by Vargas, interviewed him, and performed its own physical examination of him. Although the medical conclusions of some of Vargas' treating physicians differed from that reached by the Medical Board, the resolution of such conflicts is solely within the province of the Medical Board.

Rejecting Vargas’ argument to the contrary, the Appellate Division said that a disability determination by the Workers' Compensation Board does not control the Medical Board's disability determination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04185.htm

Police officer dismissed after being found guilty of serving as an active volunteer firefighter while on GML §207-c leave

Police officer dismissed after being found guilty of serving as an active volunteer firefighter while on GML §207-c leave

Kaufman v Wells, 56 AD3d 674

A disciplinary hearing officer found Steve Kaufman guilty of 42 of 122 specifications of misconduct filed against him, which ultimately resulted in Kaufman’s being terminated from his position with the Town of New Castle Police Department.

New Castle, among other things, charged that Kaufman, while on leave pursuant to General Municipal Law §207-c, participated in activities as a volunteer firefighter “which demonstrated his ability to work a light-duty assignment for the police department.”

Kaufman filed an Article 78 action to review New Castle’s determination.

The Appellate Division said that "Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence."

In this instance the court found that the Town Board's determination that Kaufman was guilty of the specified acts of misconduct was supported by substantial evidence.

In addition, said the court, "[a]n administrative penalty must be upheld unless it is 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," citing Kreisler v New York City Transit Authority, 2 NY3d 775.”

The Appellate Division concluded that ”Considering the repeated and numerous acts of misconduct, and the serious nature of the acts, it cannot be concluded, as a matter of law, that the penalty of [termination] shocks the judicial conscience."

Finally, the court said that “there is substantial evidence in the record to support the hearing officer's determination” that the disciplinary charges were not preferred against Kaufman in retaliation for his commencement of a civil action against the Town and members of the police department.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09082.htm

=======================

General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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