Determining the permanent status of police officers designated detective or investigator in jurisdictions where competitive examinations for such titles are not held

Determining the permanent status of police officers designated detective or investigator in jurisdictions where competitive examinations for such titles are not held
Harnischfeger v Moore, 56 AD3d 1131

Civil Service Law §58(4)(c)(ii) provides in relevant part that, "[i]n any jurisdiction, other than a city with a population of one million or more . . ., which does not administer examinations for designation to detective or investigator, any person who has received permanent appointment to the position of police officer . . . or deputy sheriff and is temporarily assigned to perform the duties of detective or investigator shall, whenever such assignment to the duties of a detective or investigator exceeds eighteen months, be permanently designated as a detective or investigator and receive the compensation ordinarily paid to persons in such designation."

In this action the Appellate Division decided that the City of Rochester Civil Service Commission does not administer examinations for detective or investigator within the meaning of Civil Service Law §58(4)(c)(ii), nor had it classified these positions within the meaning of Civil Service Law §59-a, -- "Placement of detectives and investigators in classified service."

The New York State Constitution requires that "[a]ppointments and promotions in the civil service of the state . . . shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive. While the Commission used a "merit and fitness test," sometimes called an “unassembled examination,” to determine civil service promotions to these titles (see Civil Service Law §52[2]), the Appellate Division said that it has not shown it would be impracticable to use the "competitive examination" procedures for this purpose.

Therefore, said the court, the Commission's tests for these titles are not the equivalent of the "examinations for designation to detective or investigator" required in order to be exempt from the requirements set forth in Civil Service Law §58(4)(c)(ii) whereby an individual holding a permanent appointment as a “sworn officer” designated as a detective or an investigator attains tenure in such titles upon completing eighteen months of such assigned service.

Only holding "competitive examinations," as traditionally defined, will relieve a jurisdiction from applying the “eighteen month rule” set out in §58(4)(c)(ii) in such situations said the court.

Accordingly, the Appellate Division ruled that Supreme Court should have conducted a hearing to determine whether Harnischfeger and his co-plaintiffs were "temporarily assigned to perform the duties of detective or investigator" for a period of 18 months or longer and remanded the matter to the lower court for further action.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08779.htm

Jerry Boone confirmed as Commissioner and President of the New York State Civil Service Commission

Jerry Boone confirmed as Commissioner and President of the New York State Civil Service Commission

Source: Office of the Governor

On June 20, 2012, Governor Andrew M. Cuomo today announced that the State Senate confirmed Jerry Boone as Commissioner and President of the Civil Service Commission.

Mr. Boone served as the Solicitor General in the New York State Attorney General’s Office from 1991 to 1994. He was the State’s chief appellate lawyer, litigation manager, and bond counsel. Prior to his tenure as Solicitor General, Mr. Boone was the Assistant Attorney General in Charge of the Real Property Bureau in New York City and Albany, as well as Assistant Attorney General in the Litigation Bureau, from 1984-1991.

Mr. Boone is currently the Managing Principal of Boone Consulting, where he has helped develop human resources and operations infrastructure. Earlier, Mr. Boone founded Pride Properties, LLC, in 2008, a company based in Memphis, Tennessee, that focused on the acquisition and rehabilitation of distressed properties to develop quality, affordable housing for sale or rental to lower to middle income households. Mr. Boone still serves as President of the organization, which also offers financial counseling provided for first-time home buyers.

Prior to his founding of Pride Properties, Mr. Boone was the Regional Human Resources, Integration, and Internal Communications Senior Vice President of Harrah’s Entertainment, Inc., Atlantic City. Mr. Boone was in charge of the transition and integration of three acquired casinos into the Harrah’s brand. Mr. Boone has also served as the Corporate Senior Vice President, the Vice President of Human Resources, the Vice President of Casino Operations, and the Vice President of Gaming Executive Development and Corporate Counsel, all for the Harrah’s company.

Mr. Boone received his B.A. from Columbia College.and his his J.D. from Boston College Law School. He was admitted to the New York State Bar in 1986.

Employee terminated after being found guilty of failing to follow proper procedure

Employee terminated after being found guilty of failing to follow proper procedure

Matter of Thomas v County of Rockland, Dept. of Hosps., 55 AD3d 745

A registered nurse at the Summit Park Hospital of the Rockland County Department of Hospitals was served with disciplinary charges alleging misconduct in that she failed to follow proper procedures and she failed to report her alleged error concerning the event.

The hearing officer found the Nurse guilty of all of the charges filed against her and recommended that she be terminated. The Department adopted the findings and recommendation of the hearing officer and dismissed Thomas from her position.

Dismissing the nurse’s appeal, the Appellate Division said that:

1. "The review of administrative determinations in employee disciplinary cases made as a result of a hearing required by Civil Service Law §75 is limited to a consideration of whether the determination is supported by substantial evidence."

2. "Moreover, it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject."

3. "An 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’."

In this instance, said the court, the determination that the nurse was guilty of misconduct by failing to properly utilize a defibrillator machine during a "code blue," and then did not report her error, is supported by substantial evidence.

Citing Pell v Board of Education, 34 NY2d at 240, the court said that “it cannot be concluded, ‘as a matter of law, that the penalty of [termination] shocks the judicial conscience.’”

The full text of the decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07924.htm 

Violating of the terms of a disciplinary probationary settlement

Violating of the terms of a disciplinary probationary settlement
Pagan v Board of Educ. of the City School Dist. of the City of New York, 56 AD3d 330

The employee, while serving a disciplinary probationary period, was summarily dismissed for violating the terms and conditions of the probationary settlement agreement.

The Appellate Division dismissed former employee’s petition seeking reinstatement.

The court said that the terms of a signed stipulation to which the individual had agreed set out a three-year probationary period that provided as follows:

1. She was subject to automatic termination if she exceeded 10 days per school year in unexcused absences; and

2. She waived her tenure right to a hearing under Education Law § 3020-a.

Accordingly, the individual was a probationary employee with insofar as any unexcused was involved and was required to show bad faith of the part of the Board of Education in order to succeed in her challenge to her dismissal.

Here, said the court, the evidence did not demonstrate that the former employee had been terminated in bad faith. Rather, the evidence established that during the 2005-2006 school year, she had 11 unexcused absences.

The individual argued that she only had 8 unexcused absences because three of her absences were in connection with court appearances. The Appellate Division held that Pagan’s unexcused absences for court appearances “did not satisfy the terms of the stipulation for excused absences.”

NYPPL Comment: Except where a collective bargaining agreement provides otherwise, a public employee required to appear in a judicial or quasi-judicial proceeding pursuant to a subpoena is typically excused from his or her duties without charge to his or her leave credits. In contrast, an individual who is a party appearing in other than his or her official capacity must charge his or her absence from work to his or her leave credits or be place on leave without pay.

As an example, 4 NYCRR 21.9 of the attendance rules for employees of the State as the employer, address “Leave for subpoenaed appearance and jury attendance.” The rule provides that:

(a) Except as provided in subdivision (b) of this section, on proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this section shall not apply to any absence by an employee occasioned by such an appearance in an action to which such employee is a party; and

(b) An employee holding a position designated as overtime ineligible may be granted a leave of absence with pay with no charge against leave credits on proof of necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body for any period(s) of less than a workweek, regardless of whether such employee is a party to the action.

4 NYCRR 28-1.9 provides for similar absences, with or without pay, by individuals designated Managerial or Confidential within the meaning of Article 14 of the Civil Service Law  [the Taylor Law].


The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08993.htm

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Filing a statutory notice of claim: efforts by an individual to vindicate a personal interest and efforts to vindicate a public interest distinguished

Filing a statutory notice of claim: efforts by an individual to vindicate a personal interest and efforts to vindicate a public interest distinguished
Palmer v Niagara Frontier Transp. Auth., 56 AD3d 1245

A former employee sued the Niagara Frontier Transportation Authority alleging that the Authority terminated his employment in retaliation for his having advised the Authority’s employees and agents of alleged safety violations at his work site.

The Appellate Division ruled that Supreme Court properly granted the Authority’s motion for summary judgment to dismiss individual’s complaint.

The former employee had contended that the Authority had violated Civil Service Law §75-b, the “Whistle Blower Law." However, said the court, in this instance the individual sought only to vindicate his “individual interests," and he had not filed a notice of claim as mandated by Public Authorities Law §1299-p(1) before initiating his law suit. This, explained the court, was a fatal omission on the part of the individual.

With respect to the applicability of the three-month notice of claim requirement of Education Law 3813(1) to statutory or nonjudicial proceedings involving school districts, school boards and boards of cooperative educational services, as well as parallel notice of claim requirements when such proceedings involve other municipal units of government, New York’s courts have distinguished between proceedings which concern an individual’s personal interest [see, for example, Doyle v. Board of Education of Deer Park Union Free School District, 230 A.D.2d 820, a case involving a claim of lost retirement benefits] and those involving an individual seeking to vindicate a public interest (see, for example, Union Free School District No. 6 of Towns of Islip & Smithtown v New York State Division of Human Rights Appeal Board, 35 NY2d 371, at 380, motion to reargue denied 36 NY2d 807).

The general rule: statutes requiring the filing of a notice of claim as a condition precedent to initiating litigation are applicable in actions involving “only a personal interest” but not in actions involving an effort to vindicate a “public interest.”

There as some exceptions to this general rule, however.

PERB, relying on the Court of Appeals ruling in Freudenthal v. Nassau County, 99 NY2d 285, that claims filed with the NY State Division of Human Rights, an administrative agency, do not require the filing of a Notice of Claim pursuant to Education Law Section 3813, has ruled that such notice is not required with respect to improper practice charges filed with it.

Similarly, the Commissioner of Education has held that Section 3813 does not apply to appeals brought under Section 310 of the Education Law [Appeals of Bodnar and DeGiglio, 1990 Opinions of the Commissioner of Education, 12369] while in Mennella v Uniondale UFSD, 287 A.D.2d 636, the Appellate Division decided that a petition filed with the Commissioner of Education may constitute the functional equivalent of a Section 3813(1) notice of claim.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights."

Addressing another aspect of the former employee’s petition, the Appellate Division ruled that his cause of action “is not viable because Civil Service Law §75-b(2)(a)(i) prohibits a public employer from … terminating a public employee based on the employee's disclosure of the ‘violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety’ [and the Authority] established as a matter of law that the safety concerns raised by [former employee] did not present such a danger, and [the individual] failed to raise an issue of fact.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08947.htm