Statutory presumption that an individual suffered a disease of the heart as a result of the performance of duty rebutted by medical evidence to the contrary

Statutory presumption that an individual suffered a disease of the heart as a result of the performance of duty rebutted by medical evidence to the contrary
Lawless v DiNapoli, 56 AD3d 1114

A member of the New York State Employees’ Retirement System [NYSERS] applied for performance of duty disability retirement benefits alleging that he was permanently incapacitated as the result of a heart attack he suffered approximately six months earlier. The member filed his application relying upon the statutory presumption contained in Retirement and Social Security Law §507-b(c).

§507-b(c) provides that “…any condition of impairment of health caused by diseases of the heart, resulting in disability or death to a member covered by this section, presently employed and who shall have sustained such disability while so employed, who successfully passed a physical examination on entry into service as a correction officer or security hospital treatment assistant, which examination failed to disclose evidence of any disease or other impairment of the heart, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

NYSERS conceded that the individual was permanently incapacitated from the performance of his duties, but decided that his disability was not sustained as a result of the discharge of his duties as a correction officer and rejected his application for line-of-duty disability benefits. The Hearing Officer upheld the denial, concluding that the proof submitted by the Retirement System was sufficient to rebut the statutory "incurred in the line of duty presumption" set out in Retirement and Social Security Law §507-b(c).

The Appellate Division, noting that the Retirement System did not dispute that the member had successfully passed his pre-employment physical or that he is now permanently disabled from performing his duties as a correction officer due to his heart attack and underlying coronary artery disease, said that because the applicant elected to rely upon the statutory presumption contained in §507-b(c), the issue to resolve was whether the Retirement System had rebutted this presumption with competent medical evidence.

The court said that its conclusion, after its review of the record as a whole, was that the Retirement System successfully rebutted the statutory presumption and thus properly rejected the member’s application for benefits.

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

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09335.htm

The duties and responsibilities of the position control with respect its classification and allocation to a salary grade

The duties and responsibilities of the position control with respect its classification and allocation to a salary grade
Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO v State of New York Unified Court System, 55 AD3d 1070

Following the reallocation of positions previously titled "Hearing Examiner" to “Support Magistrates, JG-31” and the adoption of a new title standard, individual Support Magistrates and the labor union representing them [petitioners], commenced a proceeding seeking to rescind the allocation of the title to JG-31, and place the Support Magistrate title in a higher salary grade -- JG-33. The title change and level of compensation had been determined by the Chief Administrative Judge.

Supreme Court concluded that the classification of the position and its allocation to JG-31 had a rational basis, was not arbitrary and capricious and dismissed the petition. The Appellate Division affirmed Supreme Court’s determination.

In the course of the proceeding the Administrative Director of the Unified Court System submitted an affidavit in support of the classification of the position and the allocation of the title Support Magistrates to JG-31 in which he stated that the allocation of the Support Magistrate title to salary grade JG-31 was based upon the Chief Administrative Judge's finding that duties, responsibilities and functions of Support Magistrates are comparable to those of Court Attorney-Referees. Court Attorney-Referees act as special referees in a number of courts, including Family Court, and are also allocated to grade JG-31.

In addition, the Administrative Director said that “Court Attorney-Referees, when authorized by a Family Court judge and upon consent of the parties, perform the same quasi-judicial functions that Support Magistrates do and in the same court both conduct trials, take evidence and issue orders, including orders of protection.”

Conceding that the reasons underlying the determination, are "facially legal," the petitioners argued that the two titles are not comparable because a Support Magistrate is directly empowered by statute to decide certain issues while a Court Attorney-Referee has no original jurisdiction conferred by statute and the Court Attorney-Referee must be appointed by a court to hear and report or, with the consent of the parties, hear and determine, the issues.

The Appellate Division was not persuaded by the petitioners’ argument, ruling that “the difference in the origin of authority to entertain issues does not contradict [the Chief Administrative Judge’s] conclusion that the duties, responsibilities and functions of the two titles are similar.” In other words, it is the duties and responsibilities of the position that are controlling in classifying the position and allocating it to a salary grade, not the source of the authority that the incumbent of the title exercises.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08043.htm

 

Reports from the Office of the State Comptroller

Reports from the Office of the State Comptroller

For the week of June 11 - 17, 2012

Forensic Audit Reveals Metro–North Employees Were No Shows

Metro–North Railroad employees that were supposed to monitor train conditions and crew performance were not on the job when they were scheduled to work and performed poorly when they were, according to an audit released Friday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators also found that a relative of a manager was hired at an inflated salary over other more qualified employees, a possible violation of the New York State Public Officers Law.

DiNapoli: State Agencies’ Late Approvals of Contracts with Not–For–Profits Rose to 80 Percent Last Year

State agencies were late more than 80 percent of the time in approving contracts subject to the Prompt Contracting Law with not–for–profit providers last year, according to a report released Thursday by State Comptroller Thomas P. DiNapoli. This prompted interest payments that cost taxpayers nearly $200,000, the report found.

DiNapoli: Auditors Blocked $61.5 Million in Erroneous Workers’ Compensation Payment Requests

Auditors uncovered $61.5 million in erroneous workers’ compensation payment requests, according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli. The 2011 year–end report details errors caused by improper data entry or computation, among other reasons. After discussions with the Comptroller’s Office, the Workers’ Compensation Board made improvements which reduced the improper payment rate by 17 percent in November and December of 2011.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli announced his office completed an audit of the Hoosick Falls Central School District.

Comptroller DiNapoli Releases Municipal Audit

New York State Comptroller Thomas P. DiNapoli announced his office completed an audit of the City of Syracuse.

An employer may find that firefighter’s disability was not the result of a work-related injury or disease not withstanding the Retirement System’s decision to the contrary

An employer may find that firefighter’s disability was not the result of a work-related injury or disease not withstanding the Retirement System’s decision to the contrary

Davenport v City of Mount Vernon, 2012 NY Slip Op 04744, Appellate Division, Second Department

The City of Mount Vernon Fire Commissioner adopted the recommendation of a hearing officer denying a firefighter’s application for supplemental benefits otherwise available pursuant to General Municipal Law §207-a(2).* The Appellate Division confirmed the Commissioner’s decision, commenting that it was supported by substantial evidence.

The court said that the record contains evidence consisting of the reports of three orthopedic surgeons, each of whom concluded that the firefighter's condition was not caused by an accident, explaining that the Commissioner had the authority to evaluate conflicting medical evidence, and was free to credit evidence based on reports of one set of physicians over that of another set of physicians.

In Cook v City Of Utica, 88 NY 2d 833, the court ruled that while a disabled firefighter's Section 207-a benefits may depend in part on benefits paid pursuant to RSSL Section 363-c, there is no specific statutory language or anything in the legislative history concerning these measures suggesting that the Comptroller's eligibility determination with respect to RSSL benefits precluded the municipal employer from making a separate, and, as here, contrary determination with respect an individual's eligibility for GML Section 207-a benefits. Accordingly, the employer could deny granting the firefighter supplemental benefits to his or her disability retirement allowance upon a finding that the disability was not the result of a work-related injury or disease that was supported by substantial evidence.

Similarly, in Balcerak v Nassau County, 94 NY2d 25, the Court of Appeals said that "[a] determination by the Workers' Compensation Board that an injury is work-related does not by operation of collateral estoppel, automatically entitle an injured [police] officer to General Municipal Law Section 207-c benefits."

Accordingly, an employer was not precluded from determining that an individual was not entitled to Section 207-c benefits despite a prior Workers' Compensation determination in an employee had suffered an "on-the-job" injury.

* The amount of the supplement that would be paid the disabled firefighter pursuant to §207-a(2) would the difference between his or her retirement allowance and the compensation he or she would have received in active service, payable until the firefighter's mandatory age of retirement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04744.htm

Removal of an officer of a political subdivision of the State for misconduct, maladministration, malfeasance or malversation in office

Removal of an officer of a political subdivision of the State for misconduct, maladministration, malfeasance or malversation in office
Matter of Hedman v Town Bd. of Town of Howard, 56 AD3d 1287

§36 of the Public Officers Law provides for the removal of an officer of a town, a village, an improvement district or a fire district, [other than a justice of the peace], found guilty of misconduct, maladministration [performing official duties corruptly or inefficiently], malfeasance [performing official duties inadequately or poorly], or malversation [misuse of public or other funds] while holding public office.

In this action it was alleged that a member of the Town Board attempted to conceal his relationship with an alternate energy company, and ignored an alleged conflict of interest that arose when he voted to approve a wind energy facility proposed by company that included installing a wind turbine on the Board member’s property.

The Appellate Division, citing Jones v Filkins, 238 AD2d 954, said that the removal of an official from office pursuant to Public Officers Law §36 "generally will not be granted absent allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust[,]” while allegations of  “minor neglect of duties, administrative oversights, or violations of law do not, in general, warrant removal."

The court decided no an actual conflict of interest that would warrant the removal of the Board member had been shown, explaining that the submitted evidence in support of the alleged conflict of interest that consisted solely of company's proposal for a wind energy facility in which Board member was identified as a proposed participating landowner on whose property a wind turbine would be located.

In contrast, the Appellate Division said that the Board member had established that he had not entered into any agreement with company with respect to a wind turbine at the time he voted on the proposal in favor of the company's plan for a wind energy facility. Further, the court said that the allegation that Board member had intentionally concealed his relationship with company “was based on pure speculation and thus was not entitled to any evidentiary weight.”

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

 http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09229.htm

Consideration of ex parte information in a disciplinary action constitutes a denial of due process

Consideration of ex parte information  in a disciplinary action constitutes a denial of due process

Faga v Board of Educ. of Harrison Cent. School Dist., 2008 NY Slip Op 09078, Decided on November 18, 2008, Appellate Division, Second Department

An employee, terminated from his position with the Harrison Central School District, challenged the District’s action, contending that his due process rights were violated the Board of Education had “received ex parte information about the charges from the District's attorneys and the Superintendent of Schools.”

The individual also alleged that his right to due process was violated because the Superintendent submitted a statement to members of the Board before the charges were brought that he believed that charges could be sustained.

The Appellate Division found that the District established that the Board did not prejudge the matter nor did it rely on any improperly-obtained information in making its determination to dismiss the employee from his position.

In contrast, where the court finds that the rights of the accused were prejudiced because of some activity of the appointing authority, it will typically vacate the determination.

For example, in Ernst v Saratoga County, 234 AD2d 764, the Appellate Division annulled the dismissal of an individual found guilty of disciplinary charges because the chairman of the county Board of Supervisors - 
(a) met with the county’s attorneys “to discuss the pending investigation;” (b) met with the employees involved to, as the chairman phrased it, “relieve their fears;” (c) signed the notice of the charges against the individual, (d) voted to bring charges against the employee; (e) served as a witness at the disciplinary hearing; and (f) voted to accept a hearing officer’s findings of guilt and impose the recommended penalty. 


These actions, said the court, denied the employee a fair and impartial tribunal.

The Faga decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09078.htm

Placement of a candidates name on an eligible list does not give the individual a right to an appointment

Placement of a candidates name on an eligible list does not give the individual a right to an appointment
Tardif v Town of Southold, 56 AD3d 755

John J. Tardif filed a notice of claim alleging that the Town of Southold, and the Town's police department, did not appoint him as a police officer even though he had "the best qualifications" and "the number one test score" on the examination to become a police officer because of his age.*

The Town moved for summary judgment, contending it did not discriminate against Tardif because of his age but elected not to appoint him “because he submitted deceptive responses in his application to become a police officer.”

In opposing the Town’s motion, Tardif did not make any argument in support of his age discrimination claim. He, instead, contended that the Town “had violated his constitutional rights to due process and equal protection in other ways.” The Appellate Division, however, ruled that Tardif failed to raise any triable issue of fact with regard to any of his constitutional claim.

The court pointed out that Tardif does not have a protectable property interest in a position with the Town's police department that would entitle him to maintain a due process claim. In this regard, said the court, “An individual does not have a "legally protectable interest" in an appointment to the position of police officer merely because he or she achieved a sufficient score on the examination to be placed on an eligibility list,” citing Andriola v Ortiz, 82 NY2d 320 and Cassidy v Municipal Civil Service Commission of City of New Rochelle, 37 NY2d 526.

Specifically, the Appellate Division commented that "'An appointing authority has wide discretion in determining the fitness of candidates . . . This discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied . . . As long as the administrative determination is not irrational or arbitrary, this Court will not interfere with it."

As Tardif did not have a property interest in an appointment as a police officer and failed to raise a triable issue of fact as to the deprivation of a protected liberty interest, the Appellate Division held that the Supreme Court had properly determined that he had failed to raise a triable issue of fact as to whether he was deprived of his constitutional right to due process.

Finally, said the court, Tardif did not establish any right to a “name-clearing hearing” with respect to his rejection for appointment as a police officer by the Town.

*Section 54 of the Civil Service Law sets out standards for establishing age requirement for appointment to positions in the public service in general while Section 58.1(a) sets out age requirements for police officers in particular.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09381.htm

A provision in a town code that is intended to supercede a statutory provision must comply with the statutory method set by law to accomplish that end

A provision in a town code that is intended to supercede a statutory provision must comply with the statutory method set by law to accomplish that end
Matter of Guzdek v Mohan, 56 AD3d 1206

The Amherst Town Board adopted a resolution providing for the appointment of three officers to fill vacancies in the Town’s Police Department.

When Satish Mohan, the Town Supervisor, declined to comply with the Board’s action, Edward W. Guzdek, Jr., the President of the Amherst Police Club, sued in an effort to obtain a court order directing Mohan to fill the vacancies.

Mohan argued that, pursuant to Section 4-10 of the Town of Amherst’s Code, he had the authority to appoint officers to the Town Police Department.

The Supreme Court disagreed, holding that the Code was inconsistent with Town Law §150. The court said that Town Law §150 provides that the appointment of police officers "is a legislative function within the exclusive jurisdiction of the town board," citing a 1980 opinion of the Attorney General [1980 Informal Opinion 249].

The Appellate Division affirmed the Supreme Court’s ruling, holding that although the Amherst Town Board may delegate its authority to appoint police officers to the Town Supervisor by designating the Supervisor to serve as police commissioner as authorized by Town Law §150.2, it had not done so. Nor, said the court, does Section 4-10 of the Code effectively supersede the provisions of Town Law §150 with respect to the Town Board's authority to make appointments to the Town Police Department.

Section 150.1 of the Town Law provides, in pertinent part that “The town board of any town may establish a police department and appoint a chief of police and such officers and patrolmen as may be needed and fix their compensation.”

The Appellate Division concluded that Section 4-10 did not "substantial[ly] adhere to the statutory methods to evidence a legislative intent to … supersede those provisions of [Town Law §150] sought to be … superseded” and dismissed Mohan’s appeal.

On this point, Section 150.2, in pertinent part, provides that “The town board may also by resolution designate the supervisor to serve as police commissioner, and when so designated, such supervisor shall have all the powers of and perform the duties of such board of police commissioners.” In this instance the court, in effect, ruled that that no such resolution had been adopted and that Section 4-10 of the Town Code was not sufficient to demonstrate such a legislative intent.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08875.htm

A public school district is not an "education corporation or association" within the meaning of the State’s Human Rights Law §296(4)

A public school district is not an “education corporation or association” within the meaning of the State’s Human Rights Law §296(4)

North Syracuse Cent. School Dist. v New York State Div. of Human Rights, 2012 NY Slip Op 04668, Court of Appeals

Is a public school district an "education corporation or association" within the meaning of  Executive Law §296(4)? If it is an “education corporation or association,” then the New York State Division of Human Rights (SDHR) has jurisdiction to investigate complaints filed against public school districts under that provision. Otherwise it does not. The Court of Appeals decided “not.”

The case arose when a number of public school students filed complaints with the SDHR claiming that their respective school districts engaged in an "unlawful discriminatory practice" barred by §296(4) of the Executive Law, the "Human Rights Law," by permitting their harassment on the basis of race and/or disability.

The school districts involved filed Article 78 petitions seeking a writ of prohibition* barring the SDHR from investigating the complaints on the ground that a public school district is not an "education corporation or association" as contemplated by Executive Law §296(4).**

The Appellate Division concluded that as a school district is a "municipal corporation" and therefore a "public corporation" under the General Construction Law, it could not be an "education corporation" within the meaning of Executive Law §296(4)]. However, the Court of Appeals, noting that this “approach is a legitimate one,” decided that there was some problem in SDHR's relying on the General Construction Law because the provision at issue in the Executive Law was enacted 15 years prior to General Construction Law §§65 and 66.

The Court, however, said that it did not need to address whether the General Construction Law is applicable here as there was an independent basis, supported by legislative history of Tax Law §4(6), for its conclusion that a public school district is not an "education corporation or association."

The Court of Appeals said that the legislative history surrounding the enactment of Tax Law §4(6), in concert with the circumstances under which the Legislature transferred the term "education corporation or association" from Tax Law §4(6) to Executive Law §296(4), “bespeaks the Legislature's intention that the term was to have the same meaning in the Executive Law as it did in former Tax Law §4(6).” Moreover, said the court, the use of the phrase "non-sectarian" was plainly included in Executive Law  296(4) to carve out an exception for parochial schools, while reserving for the SDHR the jurisdiction to investigate §296(4) complaints against private, non-sectarian education corporations or associations.

The Court then noted that “Public school districts are different from private, non-sectarian institutions and fall outside the purview of the SDHR's jurisdiction relative to §296(4) claims … [as] a public school district receives tax-exempt status by virtue of the fact that it is public, so there would never be any need for it to 'hold itself out to the public to be non-sectarian' as, say, a private school."

The fact that the SDHR did not have jurisdiction to consider the students’ complaints did not mean that they did not have a forum in which to seek relief. The Court said that “In addition to potential remedies under federal law, public school students may file a complaint with the Commissioner of Education (see Education Law §310).”

Further, said the court, in 2010, the Legislature enacted the "Dignity for All Students Act," establishing article 2 of the Education Law, designed "to afford all [public school] students an environment free of any harassment that substantially interferes with their education, regardless of the basis of the harassment, and free of discrimination based on actual or perceived race, color, weight, national origin, ethnic group, religion, disability, sexual orientation, gender, or sex," commenting that while SDHR lauded this legislation by noting that it "addresses a myriad of harassment and discrimination issues that arise within a school context and its goals comport with the goals of the [Human Rights Law]," noticeably absent from SDHR’s correspondence was any indication that the Division had previously handled similar claims of that nature arising in public schools.***

The Court’s conclusion: Because a public school district is not an "education corporation or association" under Executive Law §296(4), the SDHR lacked jurisdiction to investigate the complaints filed by the students in these appeals.

* A writ of prohibition, one of the ancient writs under English Common Law, is an order issued by a higher tribunal barring a lower tribunal prohibiting the litigation from going forward because the lower tribunal lacks jurisdiction to consider the matter before it.

**Executive Law § 296 (4) provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to … [RPTL Article 4] … to permit the harassment of any student or applicant, by reason of his race … [or] disability …."

***The Court of Appeals referred to a letter from New York State Div. of Human Rights, dated July 22, 2010, and included in the Bill Jacket for Chapter 482 of the Laws of 2010, in support of this statement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04668.htm

A public officer must show that alleged false statements concerning him or her were made with actual malice to recover damages for defamation

A public officer must show that alleged false statements concerning him or her were made with actual malice to recover damages for defamation
Watson v Jamestown, 56 AD3d 1289

Michael J. Watson, a police officer, sued a number of police department officials, alleging, among other alleged wrongdoing, defamation.

Supreme Court granted summary judgment dismissing Watson’s complaints. The Appellate Division affirmed the lower court’s action.

Addressing Watson’s claim of defamation, the Appellate Division noted that "A public official [as a police officer, Watson was a public officer] may not recover damages for defamation unless the official proves that the offending false statement was made with actual malice -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not," citing Freeman v Johnston, 84 NY2d 52.

In this instance, said the court, the officials being sued established “their entitlement to judgment as a matter of law with respect to that cause of action by demonstrating that the remarks that allegedly defamed [Watson] were true with the exception of one remark that was a misstatement but was not made with malice.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09231.htm

A union’s duty of fair representation

A union’s duty of fair representation

County of Tompkins and Tompkins County Sheriff and Tompkins County Deputy Sheriff’s Association, Inc., 44 PERB ¶3024, U-28437, U-28483

The Board affirmed the dismissal of a charge by the Tompkins County Deputy Sheriff’s Association, Inc. (Association), which alleged that the joint employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) by submitting to interest arbitration a proposal to exclude all unit employees not on the payroll at the time of contract ratification and/or the date of an interest arbitration award from receiving retroactive payments of wages and benefits. 

Although a demand for retroactivity of wages and benefits is generally a mandatory subject of negotiations under the Act and arbitrable under §204.9(g) of the Act, the Association asserted that the joint employer’s proposal was prohibited based upon the rationale in the Appellate Division, Third Department’s decision in Baker v Board of Education, Hoosick Falls Central School District, 3 AD3d 678, 37 PERB ¶7502 (3d Dept 2004).

In that decision, the appellate court concluded that the particular facts alleged in a plenary action were sufficient to state a claim of a breach of the duty of fair representation based upon the employee organization’s alleged failure to provide any representation to the plaintiffs, who had been excluded from receiving retroactive salary increases under a negotiated agreement.

The Board noted that in reaching its decision, the Appellate Division was obligated to grant all reasonable inferences to the factual allegations of bad faith and arbitrariness made in the complaint. Accordingly, the Board found that the Hoosick Falls decision does not stand for the substantive proposition that parties are prohibited from proposing the exclusion of one group of employee from a negotiated retroactive salary increase or other benefits.

In its decision, the Board also resolved exceptions and cross-exceptions to the ALJ’s conclusions with respect to the arbitrability of various Association proposals under §209.4(g) of the Act. The Board concluded that the Association’s mandatory on-call and General Municipal Law §207-c proposals were nonarbitrable under §209.4(g) of the Act because they were unitary demands that included inseparable nonarbitrable components under §209.4(g) of the Act.

The Board emphasized that the application of the unitary demand principle to disputes under §209.4(g) of the Act is necessitated by the Legislature’s public policy choice of dividing the subject matter of proposals for deputy sheriffs into two classes with distinct impasse procedures.

The Association’s health insurance buy-out, rate of pay and overtime proposals were found to be arbitrable because they are directly related to compensation. However, the Board found that the Association’s proposals concerning union leave, road patrol schedules, and clothing were nonarbitrable under §209.4(g) of the Act.

Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities

Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities

Thomas v New York City Dept. of Educ., 2012 NY Slip Op 04280, Appellate Division, First Department [See, also, Sagal-Cotler v Board of Educ. of City School Dist. of the City of N.Y., 2012 NY Slip Op 04281, Appellate Division, First Department]

The genesis of the Thomas action: An individual employed as a paraprofessional by the New York City Department of Education (DOE), sought to obtain legal representation pursuant to Education Law §2560(1) when she was named as the defendant in a civil action.*

To obtain legal representation pursuant to the statute in such a situation, however, the individual must meet three requirements: 

1. He or she must have acted within the scope of her employment;

2. He or she must have acted in the discharge of her duties; and

3. His or her action must not have been in violation any rule or regulation of the DOE at the time of the incident.

The Corporation Counsel rejected the individual request for representation and indemnification if held liable.

Noting that the Corporation Counsel is empowered by General Municipal Law §50-k(2) to make factual determinations in the first instance as to whether the individual violated any agency rule or regulation, which "determination may be set aside only if it lacks a factual basis and in that sense, is arbitrary and capricious," the Appellate Division sustained the Corporation Counsel’s decision.

Although the individual denied the charges that had been filed against her, the court said that the allegations against her were "substantiated" at the conclusion of an investigation. Significantly, said the Appellate Division, the individual did not challenge the disciplinary findings against her.

Accordingly, the Corporation Counsel’s determination denying the individual with legal representation and indemnification in a civil action arising out of this incident had a rational basis and was not arbitrary and capricious, an abuse of discretion, or contrary to law.

In so ruling the Appellate Division sustained Supreme Court’s holding that Education Law §2560, which incorporates by reference General Municipal Law §50-k, and Education Law §3028, are not in conflict and should be read together and "applied harmoniously and consistently," citing Alweis v Evans, 69 NY2d 199.

The Appellate Division explained that "It is the duty of the courts to so construe two statutes that they will be in harmony, if that can be done without violating the established canons of statutory interpretation," (see McKinney's Consolidated Laws of New York, Book 1, Statutes §398).

In this instance the Appellate Division said that individual was acting within the scope of her employment since the incident occurred in a classroom but the alleged action, hitting a child on the head during a lesson, violated DOE Chancellor's Regulation A-420 as well as a Statewide rule prohibiting corporal punishment (see 8 NYCRR 19.5[a][2]).

Accordingly, said the court, the alleged act was not undertaken in the discharge or furtherance of the individual’s duties as a school employee, regardless of the purpose of the alleged act.

 

The decision notes that it is a fundamental rule of statutory construction that a court, "in interpreting a statute, should attempt to effectuate the intent of the Legislature" and the plain meaning of the statutory language is "the clearest indicator of legislative intent.”

Both Education Law §§3028 and 2560 provide for the legal representation and indemnification of Board of Education employees. However, they each set forth different circumstances under which such representation and indemnification are to be provided.

When read together, said the court, it is clear that, pursuant to Education Law §3028, a board of education must provide legal representation and pay attorney's fees and expenses incurred in the defense of an employee in any action arising out of a disciplinary action taken against a student by an employee while acting in the scope of his or her employment and in the discharge of his or her duties, unless, pursuant to Education Law §2560(1), the employee is a member of a board of education in a city having a population of one million or more, and, pursuant to General Municipal Law §50-k, he or she violated any rule or regulation of the agency.

* §§17 and 18 of the Public Officers Law respectively address providing State officers and employees and officers and employees of political subdivisions of the State with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out an act or omission involving the performance of official duties. §19 of the Public Officers Law provides for the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of a State officer or employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such officer or employee was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or reasonable attorneys' fees incurred in connection.

The Thomas decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04280.htm

The Sagal-Cotler decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04281.htm

Individual dismissed after being found guilty of stealing from a fellow employee

Individual dismissed after being found guilty of stealing from a fellow employee

Clinkscales v Kelly, 2012 NY Slip Op 04287, Appellate Division, First Department

New York City Police Commissioner Raymond Kelly dismissed a police officer found guilty of disciplinary charges that alleged that the officer had stolen a money order from a fellow officer and deposited it in her bank account.

Holding that there was substantial evidence to support finding the officer guilty of the charges filed against her, the Appellate Division then addressed the issue of the officer’s request for an adjournment of the hearing pending the disposition of the complaining officers' related disciplinary charges.

The court ruled that the officer was not deprived of due process as her counsel agreed to the scheduled hearing date, knowing that the minutes, but not the decision, in the related matter were available. Indeed, the decision reports that the officer had a copy of the complaining officers' testimony in the related hearing.

Further, said the court, the decision in the related matter was not probative of any issue in the officer’s disciplinary proceeding.

As to the penalty imposed, dismissal, the Appellate Division said that it did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04287.htm

Negotiating under the Taylor Law in joint employment relationship

Negotiating under the Taylor Law in joint employment relationship

Negotiating under the Taylor Law in joint employment relationship

Matter of the County of Erie, 44 PERB ¶3027, U-28856

The Board affirmed, as modified, a decision of a PERB Administrative Law Judge finding that the County of Erie violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it refused to execute memoranda of agreement negotiated and signed by CSEA and the Erie County Medical Center Corporation.

The Board reiterated that Public Authorities Law §§3629 and 3630 demonstrate a clear legislative intent to create a statutory joint employment relationship between the County and ECMCC, but with unique characteristics distinct from those of other joint employers designated under the Act.

The Board held that the County violated §209-a.1(d) of the Act by failing to sign the agreements because the County had previously acquiesced in ECMCC conducting separate direct negotiations with CSEA resulting in memoranda of agreement that the County signed and the County failed to inform ECMCC and CSEA that it would not execute future agreements resulting from the direct ECMCCCSEA negotiations. 

Failure to cooperate defeats allegations the union violated Civil Service Law §209-a [The Taylor Law] when it withdrew from representing the individual in a disciplinary proceeding

Failure to cooperate defeats allegations the union violated Civil Service Law §209-a [The Taylor Law] when it withdrew from representing the individual in a disciplinary proceeding

Ronald Grassel and United Federation Of Teachers, Local 2, PERB Case U-29040

PERB Administrative Law Judge Blassman dismissed the charge which alleged that the United Federation of Teachers [UFT] violated §209-a.2(a) and (c) of the Act when it withdrew as Grassel’s representative in his Education Law §3020-a disciplinary proceeding.

The ALJ found that the UFT did not act arbitrarily, discriminatory or in bad faith when it withdrew as Grassel’s representative, the standard required for such violations.

The record showed that NYSUT, which was representing Grassel on behalf of the UFT, withdrew as Grassel’s representative because Grassel sent a letter to the arbitrator in which he made various motions and requests to the arbitrator and refused to rescind that letter upon NYSUT’s request. The ALJ found that, by making motions and requests normally reserved for the assigned attorney, Grassel had failed to cooperate with NYSUT in his representation and had impinged upon the negotiating representative’s rights under the Act to make litigation and trial decisions.