Waiving further administrative or judicial consideration of the resulting decision as a conditions of electing a particular administrative review procedure binding

Waiving further administrative or judicial consideration of the resulting decision as a conditions of electing a particular administrative review procedure binding

Colon v New York City Employees' Retirement Sys., 2012 NY Slip Op 05819, Appellate Division, Second Department

When the application for a performance-of-duty retirement disability pension was denied by the Board of Trustees of the New York City Employees' Retirement System, the applicant was advised that there were three different options to seek review of the determination available: (1) to commence a CPLR article 78 proceeding within four months of receipt of the denial letter; (2) to request review of her case by a Special Medical Committee consisting of three independent physicians; or (3) to refile for a disability pension.

The applicant elected to have her case reviewed by the Special Medical Committee and, as a condition of obtaining such a review, waived any right to further administrative or judicial review of the Board of Trustees' determination.

The Special Medical Review Committee concluded that while the applicant was, indeed, disabled, the disability was not the result of a job-related accident.

Board of Trustees adopted the Special Medical Review Committee's recommendation, again denying the application, and the applicant filed an Article 78 petition seeking to overturn the Board’s determination.

Denying the appeal, the Appellate Division said that by “electing to have her case reviewed by the Special Medical Review Committee and executing a waiver of her right to further administrative or judicial review, [the applicant] agreed to accept the Special Medical Review Committee's determination as binding and conclusive.”

Noting that the applicant did not allege that the waiver was the result of coercion or duress and its terms were “clear and unambiguous,” the court explained that "[W]hen a waiver is freely and knowingly made and not the product of coercion or duress, a party can waive his rights to seek review of an administrative proceeding and such determination is binding."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05819.htm

Limitations on the use of sick leave by police officers

Limitations on the use of sick leave by police officers
Economico v. Village of Pelham, 50 NY2d 120

Is it lawful to terminate a police officer on sick leave at full pay if he or she is unable to perform the duties of the position due to a non-work related injury or disease?

In contrast to the discontinuation of a police officer from the payroll while he or she is eligible for benefits pursuant to §207-c of the General Municipal Law,* a police officer placed on a leave of absence pursuant to §72 of the Civil Service Law because of an injury or disease that is not work-related may be terminated from his or her position pursuant to §73 of the Civil Service Law at the discretion of the appointing authority.

Notwithstanding a Taylor Law contract provision providing for “unlimited sick leave with pay” for police officers unable to work due to non-service related disabilities, the New York State Court of Appeals has held that a police officer so disabled could be terminated pursuant to §73 of the Civil Service Law. The Court distinguished Economico from the Yonkers teacher case (Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268) where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement.

The State’s interest in maintaining the efficiency and continuity of its civil service was held to be a substantial one and §73 truncates the employee’s right to be continued in his or her position without limitation, even in the face of a contract provision to the contrary, at the discretion by the appointing authority. It should be noted, however, that a police officer eligible for General Municipal Law §207-c benefits would be subject to the provisions of §71 of the Civil Service Law while a police officer absent due to an injury or disease that was not job-related is typically granted leave, with or without pay, pursuant to §72 of the Civil Service Law.

In Dolan v Whalen, 49 NY2d 991, the Court of Appeals held that a hearing in connection with termination pursuant to §73 is required if there is “some factual dispute impacting upon the employer’s right to discharge” the employee.**

Although §73 speaks of “termination,” such a termination is not a “dismissal” in a pejorative sense as the individual has certain rights to reinstatement to his or her former position, or a similar position, upon his or her recovery from the underlying disability or, if there is no suitable vacancy available at that time, the placement of his or her name on a preferred list. The same it true with respect to an individual who is terminated from his or her position while on leave pursuant to §71 of the Civil Service Law.

The police officer injured in the line of duty is entitled to unlimited leave with pay and other benefits pursuant to General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases or the individual retires or is retired, as provided by law. 

Further, the police officer cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptroller’s Opinion noted that “a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his [or her] disability.”

* An appointing authority may not summarily terminate an individual’s §207-c disability benefits [Kempkes v Downey, 53 AD3d 547].

** See Sheeran v New York State Dept. of Transp., 18 NY3d 61, a case addressing the rights of an individual who has voluntarily absented him or herself from work due to a non-work related injury of disease and seeks to return to his or her position.

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

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Reports and information published by New York State's Comptroller Thomas P. DiNapoli

Reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of July 30 - August 5, 2012 [Click on the caption to access the full report]

DiNapoli: Special Education Contractor Bilked Taxpayers Out of $2.6 Million

IncludED Educational Services, a Cedarhurst–based provider of special education services, inappropriately charged New York City’s Department of Education and others more than $2.6 million over a two–year period, including more than $850,000 in salaries paid to the sons and other relatives of its executive director, according to an auditreleased Wednesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to the Manhattan District Attorney’s Office.

DiNapoli: Auditors Block $1.4 Million in Improper Unemployment Insurance Payments

State Comptroller Thomas P. DiNapoli prevented $1.4 million in inappropriate unemployment insurance payments or payment requests by the Department of Labor, including to recipients that were employed, deceased or unauthorized to work in the United States, according to a reportreleased Tuesday. The Comptroller’s Office also found nearly $1 million in improper payments, which had already been paid.

DiNapoli: Local Governments Facing New Fiscal Reality

The Office of the State Comptroller has released a reportentitled New Fiscal Realities Challenge Local Governments, which is now available on our website. This summarizes 60 audit reports released in fiscal year 2011–12 that identified local governments with inaccurate budgeting practices. The report also summarizes 23 budget reviews that OSC completed during the same time period. The report outlines the Comptroller’s commitment to ensuring that local officials develop budgets that provide transparency and accountability to taxpayers. The report can be accessed on the OSC website at http://www.osc.state.ny.us/localgov/pubs/fiscalrealities2012.pdf.

DiNapoli: MTA Gave Apple Inside Advantage For Grand Central Terminal Lease

The Metropolitan Transportation Authority (MTA) slanted a supposedly competitive process to fill prime retail space in Grand Central Terminal in Apple’s favor, according to an auditissued Monday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators found that the MTA worked exclusively with Apple behind the scenes on a lease for more than a year before issuing a request for proposals that resulted in only one response — from Apple.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits: the Town of German; the Town of Hurley; the Town of Ridgeway; Washington County; and, the Westfield Volunteer Fire Department.

An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner

An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner

Appeal of R.F. and D.F., on behalf of their son R.F., from action of the Board of Education of the East Meadow Union Free School District, Decisions of the Commissioner of Education, Decision #16,369

In this pro se appeal, R.F. and D.F. [the parents] appealed the suspension of their child, R.F., and asked the Commissioner to remove the Superintendent and the Board President from their respective positions.

The Commissioner denied the parents’ appeal on the merits but addressed a number of procedural matters that should be noted.

The School District contended that the appeal should be dismissed because the petition filed by the parents:

1. Failed to state a claim upon which relief may be granted;

2. Failed to join necessary parties; and

3. Was not verified. 

The School District also objected to parents’ response to its memorandum of law. On this point the Commissioner said: “Although labeled ‘Reply,’ it is unclear whether [the parents] intend this document to be a reply or reply memorandum of law …to the extent this ‘Reply’ was intended as a reply, it is untimely, because the parents failed to serve it within 10 days after service of the school district’s answer in accordance with §275.14(a) of the Commissioner’s regulations.”

 

If, however, the “Reply” was intended as a reply memorandum of law, the Commissioner pointed out that a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings and may be accepted only with the prior approval of the Commissioner, citing 8 NYCRR §276.4.  Although the Commissioner said that the parents had “apparently contacted my Office of Counsel prior to their submission, it fails to comply with §276.4 of the Commissioner’s regulations pertaining to memoranda of law, or with §276.5 pertaining to additional affidavits, exhibits and other supporting papers.”

 

Accordingly, said the Commissioner, “I have not considered it.”

The School District also contended that the appeal must be dismissed because the petition is not verified.  8 NYCRR §275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  In the event a petition is not properly verified, the appeal must be dismissed.

The Commissioner, noting that the parents’ petition that was filed with his Office of Counsel included the required verification, ruled that dismissal on that basis is not warranted.

Turning to that portion of the parents’ appeal that challenged their child’s suspension from school and seeking to expunge any report of the incident from his school record, the Commissioner said that he will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest. As the child had already “served the suspensions and returned to school,” that aspect of the appeal, said the Commissioner, was moot.

However, said the Commissioner, to the extent that parents seek expungement of the incident from their child’s school record, that aspect of the appeal survived.

As to the parents’ seeking the removal of the Superintendent and the Board President, the Commissioner said that their application must be denied for failure to join necessary parties, i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

“Joinder” requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Turning to the requirement that the appropriate parties must be served with the necessary papers, the Commissioner noted that the parents had “served only the district by personally serving the Superintendent’s secretary and … a member of the board.” As neither the Superintendent nor the Board President was personally served with a copy of the notice of petition and petition, the Commissioner ruled that the parents’ “removal application must be denied.”

Further, said the Commissioner, there was another basis for denying parents’ application for removal: the notice of petition was defective.  8 NYCRR §277.1[b] requires that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office. The parents, however, had failed to give such notice and, instead, used the notice prescribed under 8 NYCRR §275.11(a) for appeals brought pursuant to Education Law §310. 

A notice of petition that fails to include the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondents.

Finally, the Commissioner noted that “A petition to the Commissioner is required to set forth the allegations in numbered paragraphs, be typewritten and double spaced, citing 8 NYCRR §275.3[c].  Although a liberal interpretation of these rules is appropriate where petitioners are pro se and there is no prejudice to respondent, the Commissioner noted that the parents’ lack of adherence to the regulations “has obfuscated their contentions.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16369.html

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

Snead v Village of Spring Valley, 2012 NY Slip Op 05749, Appellate Division, Second Department

Supreme Court dismissed a petition filed pursuant to Article 78 of the Civil Practice Law and Rules challenging the determination of the Village of Spring Valley Justice Court dismissing the individual from her position, noting that the Justice Court had adopted the findings and recommendation of the disciplinary hearing officer.

The Appellate Division affirmed the Justice Court’s action, noting that the alleged misconduct, falsification of public records, and insubordination, was supported by “substantial evidence adduced at the administrative hearing.”

In addition, the court held that “in light of the charges and the [employee’s] duties, the penalty imposed was not so disproportionate to the offenses as to be "shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05749.htm