Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”

Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”

Richardson v Schenectady City School Dist., 2012 NY Slip Op 05230, Appellate Division, Third Department

Dana Richardson objected to a Workers' Compensation determination that he had voluntarily removed himself from the labor market and denied his claim for workers' compensation benefits.

Richardson, a health teacher for the Schenectady City School District, sustained a variety of compensable injuries, including injuries to his head and back, while breaking up a fight between students in February 2006. In December 2008, he submitted a letter to the school district advising it that he would be retiring effective June 2009.

After the effective date of Richardson’s retirement, the school district and its workers' compensation carrier moved to suspend benefits based upon Richardson's “voluntary withdrawal from the labor market”. Ultimately, Workers' Compensation ruled that Richardson had, indeed, withdrew from the labor market and as a result was no longer entitled to awards upon his retirement in 2009.

The Appellate Division affirmed Workers' Compensation’s decision, explaining that “Whether [Richardson’s] retirement constituted a voluntary withdrawal from the labor market presented a factual issue for the Board, and its determination will not be disturbed if supported by substantial evidence.” In this instance Workers' Compensation relied on the report of a physician who performed an independent medical examination and opined that, while Richardson suffered from a moderate to marked disability, he was capable of working in a modified duty capacity.

Another element that was considered: Richardson’s letter informing the school district indicated that “he was taking advantage of a very favorable retirement incentive.” Richardson did not indicated that his physical disabilities played a role in his decision to retire and, in addition, he testified that he never discussed retirement with his doctors, did not advise the employer that he was retiring due to his disabilities and never asked for an accommodation to return to work within his restrictions.

Although there was “evidence that may have supported a different result,” the Appellate Division said that the determination was supported by substantial evidence and thus would not be disturbed.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05230.htm

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Calkins v Police Benevolent Assn. of N.Y. State Troopers, Inc., 55 AD3d 1328

Thomas E. Calkins and five other retired State Troopers were among some 72 retirees rehired as "Special Troopers" on a temporary basis in 2001. They commenced this lawsuit in an effort to recover wage and benefit increases negotiated by the Police Benevolent Association of New York State Troopers [PBA] pursuant to a collective bargaining agreement (CBA) between it and the State of New York

Calkins charged the PBA violated its duty of fair representation as the exclusive bargaining agent for the Special Troopers as a result of the PBA excluding the Special Troopers from expanded duty pay and increases in longevity pay in an effort to obtain a substantial increase in longevity pay for the other State Troopers in the unit represented by the PBA. The Special Troopers’ exclusion was reflected in Memorandum of Agreement signed by the PBA and the State and subsequently ratified by PBA’s membership.

Supreme Court granted the PBA’s motion for summary judgment dismissing the Calkins' action and Calkins appealed.

The Appellate Division commence its review of the appeal by noting that in order “To establish that a bargaining agent breached its duty of fair representation, a plaintiff must show that the bargaining agent's conduct was arbitrary, discriminatory, or in bad faith,” citing Civil Service Bar Assn., Local 237 v City of New York, 64 NY2d 188. To do so, said the court, the complaining party must provide substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate objectives of the collective bargaining representative.

Here, however, the fact that the PBA treated the Special Troopers differently from other State Troopers represented by it in its negotiations for a new collective bargaining agreement does not amount to a violation of the duty of fair representation. The court found that the PBA “met its initial burden on the motion by establishing that it undertook ‘a good-faith balancing of the divergent interests of its membership and [chose] to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees.’"

Further, said the Appellate Division, the record demonstrates that the PBA did not misrepresent its negotiating position. A "Contract Update" memorandum sent to its members expressly stated that the Special Troopers were excluded from "all new monetary aspects of the contract."

As the record before it did not demonstrate that the PBA’s conduct was arbitrary, discriminatory or in bad faith, the Appellate Division sustained the lower court’s granting the PBA’s motion for summary judgment.

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

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07368.htm

Simple majority vote required for most personnel actions taken by a Board

Simple majority vote required for most personnel actions taken by a Board

Inquiry from a NYPPL reader

From time to time a reader will submit a question concerning a personnel matter that may be of general interest to the readers of New York Public Personnel Law. In this instance the reader submitted an inquiry regarding the termination and reinstatement of police officers or firefighters by a Town or Village Board. The question: "Does a Town Board or a Village Board need a 'super majority' to either terminate or reinstate a police officer or firefighter?"

In your editor's opinion, unless there is a law, rule, regulation or a provision in a collective bargaining agreement providing otherwise, generally all that is required to appoint, suspend, terminate or reinstate an individual to a position is a simple majority of a board when a board is the “appointing authority.”

For example, Education Law Section 2573(1)(a) permits the termination of a probationary teacher "at any time during [the individual's] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education" while Education Law Section 2509(2) states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure.

With respect to the granting of tenure by a board of education, the Commissioner of Education rejected the theory that a majority voting against tenure was required to deny a teacher tenure in the district [Decisions of the Commissioner of Education Decision No. 14,337]. In other words, unless there is an affirmative vote by a majority of the members of the school board to grant the individual tenure, he or she cannot claim tenure except in those relatively rare situations where the individual attains tenure by acquiescence or estoppel by operation of law.

As to a “super-majority” vote requirement, in some instances this is provided for by statute.

In Headriver, LLC v. Town Bd. of Town of Riverhead, 2 N.Y.3d 766, the Court of Appeals pointed out that where a planning commission recommends that the application for a special use permit be denied, General Municipal Law §239-m requires a “super-majority” vote by the town board in order to overturn the commission’s recommendation.

In Headriver, following a public hearing, the Board voted 3-2 to grant the special use permit. As the statutory super-majority requirement [i.e., a 4-1 vote], the commission's recommendation had not been overturned by the Board as the statute required “a vote of a majority plus one of all the members thereof.”

In another case, the court ruled that the Brookhaven Town Board violated its own procedures when it considered a resolution less than 90 days after earlier rejecting it. The Board’s procedure mandated that "A Resolution, Local Law or Ordinance that receives less than a majority of votes shall not be reintroduced for ninety days (90) or unless this rule is waived by a super-majority vote of the Town Board." [East End Property Co. No. 1 LLC v. Town Bd. of Town of Brookhaven, 15 Misc.3d 1138(A)].

Additionally, General Construction Law §41 requires a majority of the entire board to take any official action. Relying on this provision, the Commissioner of Education ruled that a school board may not adopt a policy requiring affirmative votes by more than a majority of the whole number of the board to take official action because neither the Education Law nor the General Construction Law authorizes a board to adopt requirements in excess of those already provided by statute (Miller, 17 Ed Dept Rep 275).

In contrast, Education Law §3016(2) requires a two-thirds vote of the board to appoint a relative of a board member to a teaching position, rather than the simple majority to appoint a non-relative, thus requiring a "super-majority" to appoint a board member's relative to a teaching position.

As earlier noted, a “super-majority” may be “a majority of all voting members of a body, plus one;" a specified number such as a two-third or three-quarter vote; or in rare cases, a unanimous vote by the body.

On a related issue, "Determining if a quorum required to conduct official business is present," see Formal Opinions of the Attorney General 2008-F1.

Destruction or loss of evidence

Destruction or loss of evidence

Dep't of Correction v. Archibald, OATH Index Nos. 2214/08, 2215/08 & 2216/08

OATH Administrative Law Judge John Spooner rejected a correction officer's motion to dismiss disciplinary charges filed againsthim based upon the spoliation of certain logbooks sought as evidence. Explaining that under New York law, sanctions for spoliation of evidence are appropriate where a litigant intentionally or negligently disposes of crucial evidence before the adversary has an opportunity to inspect them, the ALJ concluded that the officer failed to establish how the logbooks disappeared or how their disappearance would prejudice his defense.

 

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

Roberts v Gavin, 2012 NY Slip Op 05239, Appellate Division, First Department

Lillian Roberts, Executive Director of District Council 37, AFSCME, AFL-CIO [DC 37], petitioned Supreme Court seeking an order annulling the Personnel Review Board of the New York City Health and Hospitals Corporation [PRB] determination the Health and Hospitals Corporation [HHC] decision to restructure its layoff units in response to a recent financial crisis.

Supreme Court dismissed DC 37’s petition; the Appellate Division affirmed the lower court’s ruling.

HHC, which initially had a single corporation-wide layoff unit that included all of its facilities throughout New York City, subsequently created smaller layoff units based on individual hospitals and health care facilities within HHC. In 2009, in response to financial pressures faced by the City, HHC again restructured its layoff units by creating eighteen additional, smaller, layoff units within the existing hospital and medical centers that had previously been designated as the layoff units. HHC then announced plans to either close or reduce staff at the clinics and programs designated as the new layoff unit, which would affect about 87 HHC employees.

After noting that Supreme Court “should not have dismissed the proceeding as time-barred,” the Appellate Division considered the merits of DC 37’s petition.

DC 37’s contended that PRB’s action was arbitrary and capricious. 

The Appellate Division said that an administrative body’s act or omission is arbitrary if it "is without sound basis in reason and is generally taken without regard to the facts," citing Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222. In contrast, said the court, “Where a rational basis exists for an agency's action, a court may not substitute its judgment for that of the agency, and the agency's determination, acting pursuant to legal authority and within its area of expertise, is entitled to deference.”

The Appellate Division said that DC 37 failed to show that PRB's upholding HHC's creation of additional layoff units was arbitrary or capricious, or affected by an error of law, pointing out that HHC acted consistent with its past practice of designating hospital programs as layoff units.

Citing the relevant HHC Rules, which, in pertinent part, sets out HHC’s the authority to amend its own rules and regulations and which, in particular, provides that HHC "may by rule designate an individual facility or division of any facility of [HHC] as separate units for layoff or demotion under this rule," the court concluded that the HHC Rules explicitly grant HHC the discretion to designate programs and clinics of HHC facilities as layoff units. 

At the hearing, HHC explained that the closing of the clinic and hospital-based programs was necessary to provide continuity of patient care in light of the budget deficit crisis facing the City. And in its decision, PRB found that HHC's actions were predicated on budgetary deficits that required closure and/or consolidation of programs and clinics in order to minimize the impact on patient care. PRB's decision was consistent with its previous precedent that "a presumption of regularity exists in the establishment of separate layoff units, until it is demonstrated that the layoffs were not done in accordance with a rational plan" (PRB Decision No. 682 [May 27, 1992] [emphasis in original]).

Noting that "A public employer may abolish civil service positions for the purpose of economy or efficiency," the court rejected DC 37’s claim that the creation of the new layoff units violated the seniority and displacement rights of certain employees, commenting  “although some longtime employees may lose their jobs, and newer employees may not,” in the absence of any nonconclusory showing of bad faith, it declined to disturb HHC's determination establishing the additional layoff unit.

Recognizing that there may have been a different way for HHC to structure its layoff plan, the Appellate Division said that it could not say that the agency acted in an arbitrary or capricious manner as "a court's opinion that a particular outcome is not fair or is not in the interests of justice is not sufficient to overcome the deference to be afforded an agency acting rationally within its area of expertise" and declined to substitute its judgment as to how HHC “should implement personnel decisions when determining how best to provide health care to the people of New York City” as to do so “would be an unwarranted intrusion into the managerial prerogative of HHC, which acted within its rule-making authority.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05239.htm

Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment

Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment

United States v. Xavier Alvarez, USSC, Docket #11-310

Civil Service Law §50.4, in pertinent part, provides that “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible …

“(f) who has intentionally made a false statement of any material fact in his [or her] application; or

“(g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application, in his examination, or in securing his [or her] eligibility or appointment….”

Are these provisions still valid in view of the Supreme Court's ruling in United States v Alverez concerning false speech that is protected by the First Amendment?

In a word, yes! 

In holding the Stolen Valor Act, 18 U.S.C. §704(b) “facially invalid under the Free Speech Clause of the First Amendment,” Justice Kennedy, writing for the majority, explained: “Permitting the government to decree [Alvarez's false claim that he had been awarded the Congressional Medal of Honor] to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern­ment authority to compile a list of subjects about which false statements are punishable. *

That governmental power, said the majority, "has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. [See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)]. Were this law to be sus­tained, there could be an endless list of subjects the Na­tional Government or the States could single out."

In contrast, Justice Kennedy pointed out that “Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment,” citing Virginia Bd. of Pharmacy, 425 U. S., at 771** [emphasis supplied].

Thus it seems clear that the State Civil Service Department or a municipal civil service commission may lawfully disqualify an individual for public employment pursuant to Civil Service Law §50.4(f) and, or, §50.4(g), consistent with the due process provisions available to the applicant or employee.***.

* Justice Kennedy noted that “The statements [made by Alvarez] do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.”

** In Virginia the Supreme Court held that “fraudulent speech generally falls outside the protections of the First Amendment.”

*** §50.4 provides that “ No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

The Alvarez decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

Smeraldo v Rater, 55 AD3d 1298

Timothy J. Smeraldo brought an Article 78 proceeding challenging the penalty of termination of his employment with the Jamestown Police Department after he was found guilty of conduct that was disrespectful of a superior officer. Smeraldo contended that the penalty of termination is so disproportionate to the offense as to be shocking to one's sense of fairness. In addition, Smeraldo alleged that the Hearing Officer improperly relied upon facts that were not in evidence.

The Appellate Division rejected Smeraldo’s claim that penalty imposed was “shocking to one’s sense of fairness. The court said that it is well established that courts must uphold the disciplinary penalty imposed by an appointing authority unless, as a law, it is an abuse of discretion, citing Kelly v Safir, 96 NY2d 32.

The Appellate Division said that "A police force is a quasi-military organization demanding strict discipline" and "great leeway” must be accorded to “determinations concerning the appropriate punishment, for it is the [Chief of Police] . . . who is accountable to the public for the integrity of the Department."

In this instance the Hearing Officer found that Smeraldo had made a remark in front of several other officers that was disrespectful of a superior officer. Further, said the court, “the record establishes that [Smeraldo] has a prior disciplinary record, including a 30-day suspension and a demotion in rank that occurred less than one year prior to the present offense. In addition, the decision reports that Smeraldo that settlement agreement with the Department for the charge resulting in that suspension and demotion, Smeraldo expressly stated that "he will endeavor not to violate any other Department policy in the future" and that there was evidence at the hearing that he had previously been counseled on the issue of making inappropriate comments, including comments that demonstrated insubordination.

Noting that the settlement agreement was received as evidence in the course of the disciplinary hearing, the Appellate Division concluded that there was no basis for Smeraldo’s claim that the Hearing Officer improperly relied upon facts not in evidence.

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

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07336.htm

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

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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

Independent contractors not entitled to retirement benefits or other fringe benefits

Independent contractors not entitled to retirement benefits or other fringe benefits
Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516

Michael Araneo was the owner, president, and sole employee of a corporation: Michael Araneo, Inc. In 1970 Araneo began performing work for the Town of Clarkstown at the Town dump and on September 15, 1997, on behalf of the corporation, signed an agreement with the Town providing that the corporation would perform certain services at the Town's solid waste facility and other facilities.

This contract expressly provided that the corporation and its employees would be acting as independent contractors and were not to be considered employees of the Town.

Araneo submitted vouchers to the Town Comptroller for payment and the payment was generally made to the corporation. The Town did not withhold taxes or insurance, and that the corporation paid the requisite taxes and insurance on behalf of Araneo. In addition, the corporation carried liability insurance, maintained its own offices, and that the Town paid the corporation more than an individual employee would have been paid for the same work. Further, Araneo used “many of his own tools” in performing his work and “was not instructed on how to perform the work he did for the Town.”

On January 8, 2002, Araneo sued the Town, for a judgment declaring that effective July 3, 1978 and through and including January 14, 2005, he was a Town employee entitled to all benefits enjoyed by such employees, including but not limited to, pension rights, health care, vacation time, sick leave, and personal time.

The Appellate Division said that “The determination of whether one is an employee or an independent contractor requires examination of all aspects of the arrangement between the parties,” although "the critical inquiry . . . pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results." Other elements include “assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule." Significantly, the court said “the fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive.

In this instance, said the court, the record plainly establishes that, at all times at issue, Araneo was an independent contractor to the Town and not a Town employee. Consequently, Araneo was held not to be an employee of the Town of Clarkstown at any time from July 3, 1978, to January 14, 2005.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07599.htm

Creditable medical evidence trumps presumption that a disease of the heart was incurred in the performance of police officer duties

Creditable medical evidence trumps presumption that a disease of the heart was incurred in the performance of police officer duties

Goodacre v Kelly, 2012 NY Slip Op 05096, Appellate Division, First Department

Supreme Court, granted the Article 78 petition filed by a New York City police officer, Charles Goodacre, seeking, among other things, to annul the determination by the Trustees of the Retirement System denying his application for accident disability retirement (ADR) benefits to which he claimed he was entitled pursuant to General Municipal Law §207-k (the Heart Bill)*. Although Supreme Court found that the officer was “entitled to such benefits as a matter of law,” the Appellate Division reversed the lower courts ruling.

§207-k sets out the rebuttable presumption that a police officer or firefighter suffering an  impairment of health “caused by diseases of the heart, resulting in total or partial disability or death … who successfully passed a physical examination on entry into the service … which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty….” The presumption may be rebutted by competent evidence to the contrary.

Citing Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the Appellate Division said that Supreme Court “exceeded the scope of its review,” which is to determine “whether ‘some credible evidence’ supported the Medical Board's determination as to disability.”

In this instance Supreme Court concluded, “contrary to findings of the Medical Board,” that although there were conflicting submissions, as a matter of law, Goodacre’s hypertension “… constituted a stress-related condition warranting ADR benefits.”

Such a determination, however, “was the sole province of the Medical Board and the Board of Trustees, not the court.” The Board and the Trustees were to resolve conflicts in the medical evidence. Having reviewed all of the medical reports and, in its most recent decision, recognizing the conflicting evidence, the Medical Board determined that although Goodacre had hypertensive heart disease, he did not have a stress related disability because there was insufficient evidence…. "

Accordingly, the Appellate Division ruled that the statutory presumption of §207-k was overcome by this credible evidence of Goodacre's disabling congenital heart condition.

Contrary to Goodacre's contention, and the Supreme Court's conclusion, the Appellate Division ruled that “it cannot be said as a matter of law that the cause of [Goodacre's] disability is job related stress” and the Medical Board's decision was supported by credible evidence. Further, said the court, the Board sufficiently set forth the reasons for its conclusions.

The Appellate Division then reversed the Supreme Court’s decision and denied Goodacre’s Article 78 petition.

* N.B.There are two “General Municipal Law Section 207-Kaddressing “Disabilities of policemen and firemen in certain cities.” The first sets out an expiration date of July 1, 1973; the second, 207-K*2, set out an expiration date of July 1, 1995. However, Retirement and Social Security Law §480.a extends certain temporary benefits and supplementation programs otherwise “scheduled to expire or terminate at any time” during the period January 1, 1974 through and including December 31, 2011, including the so-called Heart Bill.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05096.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.

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

Exercising licensing and regulatory authority

Exercising licensing and regulatory authority

Noel v NYC Taxi and Limousine Commission, USCA, Second Circuit, Docket 12-41-cv

Justia posted the following summary of a decision by the U.S. Court of Appeals, Second Circuit:

“Two people who use wheelchairs and organizations that represent persons with disabilities brought a class action against the New York City Taxi and Limousine Commission and the TLC Commissioner for violation of Parts A and B of Title II of the Americans with Disabilities Act, the Rehabilitation Act of 1973, and the New York City Human Rights Law.

"The district court granted plaintiffs partial summary judgment as to liability on the ADA claim and entered a temporary injunction, requiring that all new taxi medallions and street-hail livery licenses be limited to vehicles that are wheelchair accessible until the TLC proposes and the district court approves a comprehensive plan to provide meaningful access to taxi service for wheelchair-bound passengers.

"The Second Circuit vacated the temporary injunction as improvidently granted.

"Although the TLC exercises pervasive control over the taxi industry in New York City, defendants were not required by Title II(A) to deploy their licensing and regulatory authority to mandate that persons who need wheelchairs be afforded meaningful access to taxis.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/60f3e1db-935e-46f7-85dd-1def5568b7b3/4/doc/12-41_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/60f3e1db-935e-46f7-85dd-1def5568b7b3/4/hilite/

Court rules that the appointing authority made its appointments consistent with the requirements of Section 61.1 of the Civil Service Law

Court rules that the appointing authority made its appointments consistent with the requirements of Section 61.1 of the Civil Service Law

Cherry v New York State Civ. Serv. Commn, 55 AD3d 604

When New York State Civil Service Commission, in effect, affirmed a decision of the New York State Division of Housing and Community Renewal to promote certain individuals to the position of Rent Examiner 2, declining to promote Bruce Cherry to the title, Cherry sued seeking a court order compelling his selection for the position, claiming that he had been “passed-over” in violation of Section 61.1 of the Civil Service Law.

Section 61.1 sets out the so-called “Rule of Three,” requiring the appointing authority wishing to fill a position in the competitive class for which an appropriate eligible list exists “to selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion….”

Supreme Court denied his Article 78 petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division held that each of the selections for promotion by the Division was made from one of the three individuals certified with the highest scores on the eligible list who were willing to accept the appointment. Accordingly, the determination of the New York State Civil Service Commission, which, in effect, affirmed the decision to promote these individuals, was neither arbitrary nor capricious.

The Cherry decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07660.htm

NYPPL comments concerning The Rule of Three 

The Rule of Three has been the subject of much litigation. The decision by the Court of Appeals in Professional, Clerical, Technical Employees Association v Buffalo Board of Education [2 Rulings, #64 and #65], 90 N.Y.2d 364, provides some important insights as to the application of this concept.

The Association case arose when the Buffalo City School District "passed over" Melvin Cross, the highest-scoring candidate on a promotion examination eligible list for Associate Account Clerk and appointed three lower ranking eligibles to fill three Associate Account Clerk vacancies. The union claimed that the School District had agreed to be bound by the "rule of one" under a contract negotiated pursuant to the Taylor Law. The School District argued that such a contract provision need not be honored because doing so would violate strong public policy.

Before addressing the court’s ruling in Association, some historical background might be helpful.

Prior to 1900 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission. In 1900 the "rule of one" was struck down by the Court of Appeals as unconstitutional. The Court ruled that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power [People v Mosher, 163 NY 32].

This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law. Section 61.1, as earlier noted, permits the appointing authority to select from among the three candidates who stand highest on the eligible list and are interested in the appointment. The rule of three was held valid by the Court of Appeals in People v Gaffney, 201 NY 535, a case decided in 1911.

In applying the Rule of Three, tie scores can allow the appointing authority to make its selection from among far more than three eligibles. For example, if the eligible list consists of one candidate having a score of 100, a second with a score of 99 and 60 candidates each with a score of 98, all 62 eligibles will be deemed "reachable for appointment." On the other hand, if there is but one vacancy to fill and 60 individuals attained a score of 100 while one eligible had a score of 99 and another eligible had a score of 98, the appointing authority could only select from among the "top 60" eligibles and may not consider either of the two lower scoring eligibles for the appointment.

Further, under certain circumstance, Section 60.1 of the Civil Service Law permits the responsible civil service commission to combine two eligible lists in order to provide a "mandatory list" -- a list consisting of at least three qualified candidates willing to accept the position.

In contrast, the "rule of one" is mandated in situations involving reinstatement from a preferred list. Where a preferred list is certified, the appointing authority must appoint the most senior individual on the list willing to accept the appointment or keep the position vacant.

Although courts have ruled that a civil service commission cannot mandate a rule of one, the appointing authority itself may decide to be bound by such a rule. This has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise discretion with respect to selecting candidates for appointment.

In the Buffalo case, the issue was similar: Could an arbitrator require the Buffalo Board of Education to promote the highest-scoring bargaining unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement?

The Board argued that such an award violated public policy "in that it restricts the statutory discretion vested in the appointing authority under Civil Service Law 61 to select one of the three highest-ranked candidates on an eligible list."

The Court of Appeals concluded that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain members of an eligible list where a probationary period precedes their permanent appointment.

This decision means that a rule of one can be agreed to in a collective bargaining agreement for positions in the competitive class and for both interdepartmental and intradepartmental promotions. Section 63 of the Civil Service Law provides that "every original appointment to a position in the competitive class and every interdepartmental promotion ... shall be for a probationary term." In addition, Section 61 authorizes appointing authorities to require "probationary service upon intradepartmental promotion" by rule.

Because certain employment rights are based on seniority under the Civil Service Law, determining an employee's "original date of permanent appointment" can be vital.

In Buffalo the Court of Appeals stated that the employee is deemed "permanently appointed" as of the effective date of his or her appointment from the eligible list. Except with respect to temporary appointments from an eligible list [Section 64.2, Civil Service Law], a probationary period precedes an individual's attaining "tenure status." Thus an individual's original date of permanent appointment is deemed to be the effective date of his or her initial, and uninterrupted, permanent appointment from the eligible list rather than from the date he or she attained "tenure" following the successful completion of his or her probationary period some months or years later.

In the grievance arbitration in Buffalo, the arbitrator found that the minutes of a series of labor-management meetings held in 1981, 1985 and 1986 reflected the parties' agreement to promote the first unit member on the eligible list. The arbitrator ruled that the "explicit agreement of the parties became part of their contractual agreement...." The arbitrator also determined that the Board violated a provision in the agreement that gave employees on the eligible list the opportunity to choose an assignment preference from among the available positions, "in order of their placement on the list." The remedy ordered by the arbitrator: Cross was to be appointed to the position Associate Account Clerk, with back salary and benefits, and, in addition, Cross was to be given the opportunity to select his assignment preference for one of the three positions in question.

The Court of Appeals said that Section 204 of the Civil Service Law --- the Taylor Law -- empowers and, in fact, requires a public employer to negotiate collectively with employee organizations and enter into written agreements governing the terms and conditions of employment. Additionally, the Court noted, public policy in this State favors arbitral resolution of public sector labor disputes.

Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court upheld the arbitrator award, ruling that: “The promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law.”

The Court decided that the use of preferences in making a selection for promotion involves a term or condition of employment and thus is a proper subject for collective bargaining and subsequent arbitral resolution. Finding no prohibition in statutory or decisional law, nor any countervailing public policy, the Court of Appeals rejected the School Board's contention that "the discretion it is granted under Civil Service Law 61(1), which permits an appointing authority to select one of the three top-scoring candidates on a promotional eligible list, is a prohibited subject of bargaining". 

The Court concluded that there is nothing in the State's Constitution, the Civil Service Law or decisional law that prohibits an appointing authority from agreeing through collective negotiations on the manner in which it will select one of the top three qualified candidates from an eligible list for promotion.

 

Employee’s claim that her position was eliminated and she was terminated because of her political affiliation rejected by the Appellate Division

Employee’s claim that her position was eliminated and she was terminated because of her political affiliation rejected by the Appellate Division

Wehlage v Quinlan, 55 AD3d 1344

Mary Ann Wehlage sued the City of Olean contending that it had eliminated her position as animal control officer then terminated her employment because of her political affiliation in violation of her 42 USC §1983, the Civil Rights Act and §201(d) of New York State’s Labor Law.

In rejecting Wehlage’s appeal, the Appellate Division said that with respect to the 42 USC §1983 claims, the City met its initial burden by establishing that Wehlage did not engage in constitutionally protected conduct that was a motivating factor in their adverse employment determination.

The court said that Wehlage conceded that she does not have a party affiliation and did not campaign for or assist any political candidate.

As to her contention that her position was eliminated because of a perceived affiliation between her and the outgoing Mayor of the City, the court said that this was based only on inadmissible hearsay and she presented no admissible evidence that "[City was] consciously aware of [her] political affiliation, or relied thereon" in making its decision to eliminate its position of animal control officer.

As to Wehlage’s allegations that the City had violated Labor Law §201-d, the court said “that section of the Labor Law provides in relevant part that an employer is prohibited from discharging an employee because of the employee's ‘political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property.’" 

Political activities is defined as "(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group." As it is undisputed that Wehlage did not engage in any such political activities, she cannot prevail on her theory that the City violated the State’s Labor Law in this regard.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07382.htm

Of particular interest to those involved in law enforcement

Of particular interest to those involved in law enforcement 

The following information has been received from AELE. 

AELE describes itself as "an extraordinary and unique resource, with free publications and online back issues since 2000." AELE has a searchable library of more than 32,000 case digests organized into 700 + indexed topics. There are no advertisements, tracking “cookies” or popups on its website. Users do not have to preregister and there is no time limit on research sessions. Contents of its online law library may be copied & pasted, saved or printed (except for commercial purposes).

Readers may forward this information to colleagues and are invited to sign up for its free periodic mailings at http://www.aele.org/e-signup.html  [N.B. AELE states that does not insert commercial messages nor sells your e-addresses.] AELE maintains a websiteat http://www.aele.org/

AELE’s July 2012 case notes and publications alert 

1. ECWs: Few police or correctional officers will use their firearm against an aggressor. Many will use an ECW in a dart or stun mode. That is why officers need to know the law of their Federal Circuit before an incident occurs, not after a lawsuit is filed. Training officers need to keep current on case law, and to modify an agency's ECW policy and in-service training, as needed.

In May, AELE created a single webpage where ECW cases are summarized. Since then, the site has expanded by a third, and now summarizes more than 200 cases. If printed on paper, the summaries are now 40 pages long, and are growing. Almost all cases cited have a link to the full decision. More than 10,000 of your colleagues have visited the webpage since May.

On June 27th we added a cautionary flag for 84 case summaries (about 42% of the total).

These summaries now begin with the word RESTRICTIVE -- because a court has determined, a jury has found, or a settlement has indicated, that the quantum of force used either was, or may have been, unreasonable. View here.    

2. ECW Resources: AELE also began a webpage where ECW articles, deployment policies, IACP conference materials and other ECW resources can be found. There are links more than 80 documents and informational sites. View here.

3. Monthly Law Journal: The June article on weapon confusion has been updated with additional cases and the article was repaginated. An appellate court unceremoniously rejected an appeal by the BART officer who fired his Glock in mistake.  View here.

4. Two New Monthly Law Journal articles.

•   Teaching 4th Amendment Based Use-of-Force

Author and trainer James Marker explains a state law enforcement academy's decision to avoid teaching a force continuum and to concentrate on standards announced in Supreme Court opinions. View here.

•   Video and Audio Taping Police Activity 

AELE introduced this topic in a May, 2009 article in the Monthly Law Journal. Much has happened since then. In addition to significant decisions in Illinois, Maryland and Massachusetts, the U.S. Justice Dept. has weighed in, with six policy recommendations. View at here.

Persons interested in contributing an article should contact AELE.

5. The July 2012 issues of AELE’s three periodicals have been uploaded.

The current issues, back issues since 2000, three 37-year case digests, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. SOS: Share Our Stuff! The main menu is at: http://www.aele.org/law

Among the new cases are several that warrant mention here.

*** Law Enforcement Liability Reporter ***

• Electronic Control Weapons - Dart Mode

A Taser was used in dart mode to restrain an intoxicated man who was perceived as attempting to break away from an officer after resisting an attempt to handcuff him. The man had a medical condition which caused his arm to suffer involuntary tremors.

The trial court found that the suspect's alleged crimes were two relatively minor misdemeanors, that he did not pose a threat to the officers, and that he did not struggle with the officers, resist arrest, or try to escape, so that the use of the Taser was objectively unreasonable if the facts were as the plaintiff alleged. The officer was not entitled to qualified immunity. Shekleton v. Eichenberger, #11-2108, 2012 U.S. App. Lexis 9041 (8th Cir.). 

  

*** Fire, Police & Corrections Personnel Reporter ***

• Injuries to Trainees

A fire department "live burn" training exercise got out of hand. A recruit participating in the exercise became trapped on the third floor of the three-story vacant building being burnt, and died from her injuries. Her surviving family filed a federal civil rights lawsuit claiming that the city had acted with deliberate indifference to the decedent's safety, in violation of substantive due process.

Such a claim could not be pursued in the absence of any evidence that the department actually intended to inflict harm on the participating recruits, for which there was no evidence. Slaughter v. Baltimore, #10-2436, 2012 U.S. App. Lexis 11482 (4th Cir.).

*** Jail and Prisoner Law Bulletin ***

• Homosexual Prisoners

An insulin-dependent diabetic prisoner was hired to work in a public works program off the prison premises. After he experienced an incident in which he became ill from low blood sugar, he was removed from the program. He sued, claiming that the true reason for his termination was his gay sexual orientation. He claimed that officers supervising the work crews treated him differently than other heterosexual insulin-dependent diabetic inmates working on the project, taunting and harassing him.

The prisoner adequately stated a claim of class-based discrimination based on sexual orientation, so that the dismissal of his lawsuit was improper. His claim was not a "class-of-one" equal protection claim barred in the context of public employment by Engquist v. Oregon Dept. of Agriculture, #07-474, 128 S.Ct. 2146 (2008).Davis v. Prison Health Services, #10-2690, 2012 U.S. App. Lexis 9548, 2012 Fed. App. 131P (6th Cir.).

6. Selected criminal law and procedure cases are at two other free websites.

http://www.fletc.gov/training/programs/legal-division/the-informer/informer-editions-2012/

http://www.kenwallentine.com/Xiphos.html

-----------------------------------------------------------------------

AELE has a free search tool covering our database of more than 32,000 case summaries, since 1975.

http://www.aele.org/htdig/common/search.html

We also have three menus of the more than 32,000 case summaries, divided into 700 + topics.

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html

2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html

3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

View or print our guide: How to Navigate AELE’s Online Law Libraries.

All relevant medical records must be considered in making a determination regarding an application for accidental disability retirement benefits

All relevant medical records must be considered in making a determination regarding an application for accidental disability retirement benefits

Baird v New York State & Local Retirement Sys., 2012 NY Slip Op 05053, Appellate Division, Third Department

Darlene A. Baird was employed by the Westchester County Department of Social Services. She was injured in the course of performing a physical test during an interview for another position with the Department.

Although Baird returned to work, she left after three days due to pain in her right shoulder and arm. When she subsequently applied for accidental disability retirement benefits, her application was denied based on the Retirement System's expert finding that she was not permanently incapacitated from the performance of her job duties. The Comptroller sustained the hearing officer’s determination and Baird appealed.

The Appellate Division said that the Retirement System's determination relies primarily upon the report of its physician, Dr. Charles Ricciardelli. Based on his examination of Baird, Dr. Ricciardelli concluded that although she had pain in her right upper arm caused by the accident, she was "exaggerating the pain, and had only a mild, partial disability."

However, said the court, the record includes the report of an MRI of Baird's right shoulder taken after Dr. Ricciardelli examined her indicated that Baird had a biceps tendon tear. As the record did not indicate that Dr. Ricciardelli was given the chance to review the right shoulder MRI report; nor did the Retirement System call him to testify, “there is no basis for concluding that his opinion would have remained unchanged in light of the new information contained [in the MRI report].

Although the Comptroller is vested with authority to evaluate conflicting medical opinions and credit the opinion of one expert over that of another, the Appellate Division said that the medical proof relied upon “must articulate a rational, fact-based opinion based upon a physical examination and review of all the relevant medical records.”

Accordingly, the Appellate Division ruled that as Dr.Ricciardelli had not been given the opportunity to clarify his opinion based upon a review of all the relevant medical records, the Comptroller's determination was not supported by substantial evidence and must be annulled and remitted for further proceedings.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05053.htm

Municipality may have voluntarily assumed a special duty to an injured employee based on "justifiable reliance"

Municipality may have voluntarily assumed a special duty to an injured employee based on "justifiable reliance" 

Morgan-Word v New York City Dept. of Educ., 2012 NY Slip Op 05151, Appellate Division, Second Department

Assistant Principal Rolanda Morgan-Word alleged that she was injured while attempting to break up a fight between two students at a school. Supreme Court denied the New York City Department of Education’s motion for summary judgment dismissing the complaint and the Department appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that although a municipality "is immune from negligence claims arising out of the performance of its governmental functions unless the injured person establishes a special relationship with the municipality which would create a special duty of protection with respect to that individual," a special relationship may be formed "when a municipality voluntarily assumes a special duty that generates justifiable reliance by the person who benefits from the duty."

In order to demonstrate such a special duty, a plaintiff must show: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured, (2) knowledge on the part of the municipality's agents that inaction could lead to harm, (3) some form of direct contact between the municipality's agents and the injured party, and (4) the injured party's justifiable reliance on the municipality's affirmative undertaking."

In this instance, said the court, the Department failed to establish its prima facie entitlement to judgment as a matter of law, because it "failed to eliminate triable issues of fact" as to whether it assumed a special duty with respect to Morgan-Word.

Accordingly, the Appellate Division ruled that Supreme Court properly denied its motion for summary judgment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05151.htm