Scope of arbitration

Scope of arbitration
Richfield Springs CSD v Allen, 270 A.D.2d 734

Changes in health insurance benefits may be initiated by a third party that actually provides the benefit. Does an employee organization have any right to challenge a unilateral change in the health insurance plan made by the "third party?"

This was the major issue in Richfield Springs, a case that essentially explores the issue of the scope of arbitration under a Taylor Law agreement.

The health insurance plan covering members of the Richfield Faculty Association was changed. The plan had been established under Sections 92-a and 119 of the General Municipal Law and was commonly referred to as the BOCES plan.

The Association's basic objection: there was a change of carriers responsible for administering the BOCES Plan's coverage for prescription drugs. The Association's basic concern: the coverage to be provided by the new carrier would be inferior to the coverage under the BOCES's existing plan.

The Association demanded that the former prescription drug insurance be continued and that unit members be given "reimbursement for any financial loss" that they incurred as a result of the change. To enforce its demand, the Association filed a grievance formally objecting to the change. Eventually Richfield Springs Faculty Association President Tracy Allen demanded that the Association's grievance be submitted to arbitration.

In response to the demand for arbitration, the Richfield Central School District asked for, and obtained, a stay of arbitration from a State Supreme Court judge. Its argument: the dispute was not subject to the arbitration clause of the Agreement. The Association appealed.

Initially the Association's motion to compel arbitration was granted by the Supreme Court but subsequently an amended order was issued staying arbitration based on the court's finding that the Taylor Law agreement did not bind the district to arbitrate disputes between the Association and a third party, here the "BOCES Plan" administrators.

The Appellate Division reversed. The court decided that the Association's grievance regarding the change in the carrier of the prescription drug plan covering its members is arbitrable after all.

The court¸ citing Liverpool Central School, 42 NY2d 509, explained that "[i]t is settled law that grievances arising under public sector parties' collective bargaining agreements are subject to arbitration where both arbitration of the subject in dispute is authorized by the Taylor Law (Civil Service Law Article 14) and the parties clearly agreed by the terms of their contractual arbitration clause to refer their differences in the specific disputed area to arbitration."

This view was amplified by the Court of Appeals in a subsequent ruling, Watertown Education Association, 93 NY2d 132.

Using a two-step analysis, the Appellate Division first applied the "Liverpool test" and concluded that contract arbitration clause in the contract covered "the subject the dispute." It then applied the Watertown test -- "did the parties in fact agree to arbitrate this particular grievance." It concluded that the parties had so agreed.

The court pointed to the fact that the Richfield Springs collective bargaining agreement "specifically included" a clause stating that prescription drug coverage was to be provided by "Prescription Card Services (PCS)." Further, said the court, "the Agreement expressly provided that "[a]ny change in [insurance] plan or carrier shall be by mutual agreement of the parties."

The Appellate Division said that since there is no dispute that the specified carrier of the prescription drug plan was changed from PCS to another provider without the Association's consent, this supported the claim of an "alleged violation" of the Agreement that the parties clearly and unequivocally agreed to arbitrate.

What about the district's argument that it was not compelled to arbitrate changes unilaterally initiated by a third party? The Appellate Division decided that this was irrelevant insofar as the parties to the collective bargaining agreement were concerned.

The decision indicates that the fact that the claimed reduction in employee health benefits may have been effected by a third party, here the BOCES Plan's Board of Directors, which was not a party to the collective bargaining agreement, rather than by the school district, does not determine whether or not the grievance is arbitrable.

The test applied by the Appellate Division: where the parties broadly agreed to arbitrate any alleged violation of their collective bargaining agreement or any dispute with respect to its meaning or application, and included language dealing specifically with health insurance benefits, a grievance concerning a claimed reduction in health insurance benefits is arbitrable.

Accordingly, the Appellate Division ruled that the Association's grievance was arbitrable and "the scope of the pertinent provisions of the Agreement and the merits of the grievance should be resolved by the arbitrator."

In another case involving the implementation of a contract arbitration procedure, Wayne Finger Lakes BOCES v Keller, decided by the Appellate Division, Fourth Department on February 16, 2000, the court granted Keller's motion to compel the arbitration of a contract dispute.

Keller, as president of the Wayne Finger Lakes BOCES Faculty Association, had submitted a grievance claiming that the BOCES's scheduling of a workday prior to Labor Day was in violation of an express provision in the collective bargaining agreement.

When the BOCES refused to submit the question to arbitration, Keller filed a petition to compel arbitration pursuant to Article 75 of the Civil Practice Law and Rules.

The Appellate Division pointed out the collective bargaining agreement in question defined an arbitrable grievance as "a claim by any member of the bargaining unit based on a violation of any of the specific and express provisions of this Agreement."

The court agreed with the Association that parties agreed "`by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.'"

However, there are other considerations that may preclude a unilateral change in a Taylor Law agreement from being submitted to arbitration.

Although not identified as an issue in the Richfield Springs case, as the Appellate Division, Second Department noted in Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn. (268 AD2d 523 [2000], appeal dismissed95 NY2d 790 [2000], lv denied 95 NY2d 761 [2000]), a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration.

In Port Washington, the parties agreed to include a specific "religious holiday" provision in a Taylor Law agreement. The clause allowed employees to be absent with pay to observe certain religious holidays without charging any leave accruals. The school district then refused to implement the provision, claiming that it was unconstitutional.

The Appellate Division agreed that the provision was unconstitutional and held that the school district's refusal to implement the contract clause was not subject to arbitration under the contract's grievance procedure.

The text of the decision is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/06/scope-of-arbitration.html

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a

Terminated teacher is reinstated with back salary because school district failed to satisfy the procedural requirements of Education Law §3020-a
Robert Pollock v Kiryas Joel Union Free School Dist., 52 AD3d 722

The Kiryas Joel Union Free School District and the Board of Education of the Kiryas Joel Union Free School District terminated a teacher from his position as a tenured teacher with the district. 

The teacher sued and Supreme Court annulled the district’s action and directed that the teacher be reinstated to his position retroactive to the date of his termination "with an award of back pay, interest, and such other and further benefits as would have accrued to him but for his unlawful termination of employment." The Appellate Division affirmed the lower court’s ruling.

The court pointed out that a tenured teacher was entitled to the procedural protections set forth in Education Law §3020-a.

The Appellate Division summarized the procedural elements as follows: Prior to any disciplinary action being taken against a teacher, all charges must be submitted in writing and filed with the clerk or secretary of the school district (Education Law § 3020-a[1]); then the employing board of education, in executive session, must vote as to whether there is probable cause for the charges (Education Law § 3020-a[2]); and if the board of education's determination is affirmative, a written statement specifying the charges in detail and outlining the employee's rights, including his right to a hearing, shall be immediately forwarded to that employee (Education Law § 3020-a[2]).

In contrast, the court noted that a tenured teacher may enter into a settlement providing for his or her voluntary resignation and forfeiture of protections pursuant to Education Law §3020-a only if that settlement is shown to have been voluntary and noncoerced.

Here, however, the Appellate Division said that “the evidence did not establish that the [the teacher’s] purported waiver of his rights under Education Law § 3020-a was voluntary and noncoerced.”

As the Kiryas Joel did not prefer charges or hold a hearing pursuant to Education Law § 3020-a, the Supreme Court properly determined that the appellants' actions were undertaken in violation of lawful procedure and was correct in granting the teacher’s petition and annulling Kiryas Joel’s terminating his employment.

The Appellate Division then remitted the matter to Supreme Court for the purpose of determining the amount due the teacher but also said that the “award shall include an offset for the amount of [the teacher’s] earnings from other employment since his termination by the appellants and for the amount of unemployment benefits received by the petitioner during that period.”

NYPPL Comment:On the issue of coercion in connection with an appointing authority’s threatening disciplinary action if the employee does not resign from his or her position, the Court of Appeals has held that threatening to do what the appointing authority had a right to do -- i.e., file disciplinary charges -- did not constitute coercion so as to make the resignation involuntary [Rychlick v Coughlin, 63 NY2d 643].

The decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/terminated-teacher-is-reinstated-with.html

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

DiStico v Cook, et al, USCA, 2^nd Circuit, Docket #10-4304-cv

The Circuit Court of Appeals for the Second Circuit reversed, in part, a United States District Court’s denial of motions by a school principal and two teachers for summary judgment dismissing the action against them based on their claim that they were entitled to a “qualified immunity.”

Although the court sustained the district court’s ruling denying qualified immunity status with respect to allegations that the teachers “were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault,”* the court said that the doctrine of qualified immunity**was applicable with respect to claims that the educators were deliberately indifferent to certain other allegedly racially motivated physical misbehavior by kindergarten and first-grade students.

This was so, explained the court, because there was no clearly established law permitted a finding that the educators had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated.

In the words of the court, “To date, no Supreme Court or Second Circuit law clearly establishes that evidence of prior racial name-calling by unidentified kindergarten or first-grade students suffices to demonstrate that any subsequent physical misbehavior directed at the same classmate is also racially [motivated]. Indeed, we conclude that something more is necessary to support an inference that a teacher or school official actually knew such subsequent misconduct was racially motivated.”

In addition, said the court, the first-grade teacher was entitled to qualified immunity on this claim because her transmittal of parental complaints of physical misbehavior to the principal for investigation could not be deemed "clearly unreasonable" as a matter of law.

* The two teaches not entitled to qualified immunity with respect to these allegations “because there are disputed questions of fact for which the district court identified sufficient record evidence to support a verdict in favor of [DiStico].”

** Qualified immunity may be claimed by government officials as a defense to liability in an action for civil damages insofar as the act or omission involved did not violate clearly established statutory or constitutional rights that a reasonable person would have known [Harlow v. Fitzgerald, 457 U.S. 800].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/doc/10-4304comp_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/hilite/

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding

Past attorney-client relationship may constitute a conflict of interest with respect to representing another individual in a subsequent proceeding
Robert Falk v Chittenden, 11 NY3d 73

In 2003, City of Rye initiated a disciplinary proceeding against a police lieutenant  pursuant to Civil Service Law §75 and the Department's Rules and Regulations alleging the lieutenant was insubordinate towards another police lieutenant. The accused lieutenant ultimately retained Jonathan Lovett, Esq. to represent him at the disciplinary hearing on these charges.

Falk asked the hearing officer to disqualify Lovett from representing the accused Lieutenant on the ground that he had an attorney-client relationship with him and thus had "a conflict of interest" in view of the attorney's consulting with Falk in the past.. 

Lovett, on behalf of the accused lieutnant, opposed Falk's motion. The hearing officer concluded that he did not have authority to decide the motion.

Ultimately the Court of Appeals considered the matter and ruled that, indeed, there was a conflict of interest in Lovett’s representing the Lieutenant because, in the words of the court, earlier "Falk sought Lovett's legal advice at least partly in a professional capacity. The record further establishes that conversations between Lovett and Falk touched on the disciplining [the Lieutenant]. Lovett acknowledges that he rendered some legal advice on that issue, advising Falk to be wary of [the accused Lieutenant’s] First Amendment rights.  "Moreover, while disciplining [the Lieutenant] might have been a personal desire of Falk's, a request for legal advice as to whether discipline against an inferior officer is a viable course of action falls squarely within a commanding officer's professional responsibilities. 

"Accordingly, Falk in his official capacity had an attorney-client relationship with Lovett, and therefore has standing as a prior client to bring this action for declaratory judgment."

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/past-attorney-client-relationship-may.html

Jurisdiction of the Commissioner to consider an appeal concerning a matter being grieved

Jurisdiction of the Commissioner to consider an appeal concerning a matter being grieved
Mennella v Uniondale UFSD, Comm. Ed. Decision 14245

Among the issues presented to the Commissioner of Education in this appeal were two that Uniondale contended concerned grievances that Mennella had previously filed with the district.

The the Commissioner considered the district's "jurisdiction argument" -- i.e., did the Commissioner have jurisdiction to consider those issues that were "pending grievances."

The Commissioner responded to the district's challenge to his jurisdiction by noting that "[i]t is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter," citing Commack Union Free School District v Ambach, 70 NY2d 501.

The Commissioner then decided that the grievances had not raised the same issues that Mennella had raised in her appeal. Accordingly, he concluded that he had jurisdiction to consider her appeal. 

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume39/d14245.htm

Administrative Law Judge recommends a five-year debarment of public works contractor

Administrative Law Judge recommends a five-year debarment of public works contractor

Office of the NYC Comptroller v Abbey Painting Corporation, OATH Index #2544/11

OATH Administrative Law Judge Faye Lewis found that a contractor violated the NYS Labor Law by failing to pay prevailing wages and supplemental benefits to six employees on four public works contracts.

Based upon credible testimony by two of the workers, documentary evidence and videotapes made by one of the workers, Judge Lewis found that the contractor issued checks to the workers for prevailing wages and benefits, required the workers to endorse the backs of the checks but did not permit them to keep the checks, and instead paid them in cash at lower daily or weekly rates, thereby engaging in a “kickback” scheme.

As a penalty for the violations, the Administrative Law Judge recommended that the contractor be found liable for the underpayments, plus interest, plus a 25% civil penalty. Finding the contract had engaged in flagrant and willful violations on multiple contracts, deliberately falsified payroll records, and the kickback scheme, Judge Lewis also recommended a five-year debarment.   

The decision is posted on the Internet at:

http://www.nyc.gov/html/oath/downloads/pdf/benchpdf/11-2544.pdf

Drafting disciplinary charges

Drafting disciplinary charges
Fella v County of Rockland, 297 A.D.2d 813

How important it to properly draft disciplinary charges? According to the Appellate Division, even in situations where discipline may be warranted, the failure to properly word the charges and specifications may be fatal to the appointing authority's attempt to discipline an employee.

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that a Rockland County employee had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant position.

As a result of the disciplinary action that followed, the employee was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

In its decision the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably inter­fering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'"

Citing DeCinto v Westchester County Medical Cen­ter, 807 F2d 304, the court indicated that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while a decision to promote an employee with whom the target of the disciplinary action was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the discipli­nary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

What lesson can be learned from this ruling?

While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it can prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disci­plinary probation period, his or her dismissal is based on the individual's failure to meet the requirements set for the probation in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Here a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving the discipli­nary probationary period.

The six-month disciplinary probation period agreed upon by the parties provided that the County could terminate the employee without any hearing if, in the opinion of his superior, the employee's job performance was adversely affected by his being intoxication while at work during his disciplinary probationary period.

The employee, while serving his disciplinary probationary period, was terminated without any hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours."

The Appellate Division ruled that the employee’s dismissal was improper because he was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance

Non-tenured public administrator exercising policymaking or advisory duties ineligible for unemployment insurance
Shapiro v Commissioner of Labor, 52 AD3d 1139

The Unemployment Insurance Appeal Board held that the Village Administrator of the Village of Muttontown was ineligible to receive unemployment insurance benefits after determining that the Village Administrator was a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e).

The Village Administrator appealed but the Appellate Division sustained the Board’s ruling, holding that the Administrator position was untenured and that the powers and duties of the position of Village Administrator were set out in Village of Muttontown Local Law No. 1 (2005) that set out provisions establishing advisory and policymaking aspects of the job.

Accordingly, said the court, the Board properly determined that Labor Law §565(2)(e) precluded Shapiro from obtaining unemployment insurance benefits.

Comment: Other “excluded” officers and employees of a governmental entity: an elected official; a member of a legislative body or of the judiciary; a member of the state national guard or air national guard, except a person who renders such services as a regular state employee; a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency; and a person in a policymaking or advisory position, the duties of which ordinarily do not require more than eight hours per week to perform. In addition, §565(2)(g) excludes an individual who is an inmate of a custodial or penal institution.

Labor Law §511 sets out additional exclusions, including students and students' spouses at educational institutions [see §511 subdivisions 15 and 17] and independent contractors.

The full text of the decision is set out on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/non-tenured-public-administrator.html

Updated version of Policy Bulletin 12-01 addressing a “Transfer of Function” issued by the New York State Department of Civil Service

Updated version of Policy Bulletin 12-01 addressing a “Transfer of Function” issued by the New York State Department of Civil Service

Replaces Policy Bulletin #91-01, issued on March 20, 1991; reissued on April 14, 2000

The New York State Department of Civil Service has published a revised Policy Bulletin, Policy Bulletin 12-01, addressing personnel issues involved in the event of a transfer of function from one State Department to another State Department as provided by Civil Service Law §70(2).

The bulletin provides guidelines, policies and procedures for the transfer of employees pursuant to Civil Service Law §70(2) upon a transfer of function between departments or agencies of the State. Section §70(2) provides for the transfer of necessary employees who are substantially engaged in the performance of the function to be transferred.

The bulletin cautions that there may be unique aspects to any transfer of function and suggests that any potential transfer of function should be discussed with the appropriate agency Civil Service Department Staffing Services Representative as soon as a transfer of function is thought to be a possible action.

With respect to a “Transfer of Function Pursuant to Civil Service Law Section 70(2),” Policy Bulletin 12-01 notes that Civil Service Law section 70(2) provides, in pertinent part, as follows: 

“Transfer of personnel upon transfer of functions. Upon the transfer of a function (a) from one department or agency of the state to another department or agency of the state,... provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred. As soon as practicable after the adoption of a law, rule, order or other action directing such a transfer of function, but not less than twenty days prior to the effective date of such transfer, the head of the department or agency from which such function is to be transferred shall certify to the head of the department or agency to which such function is to be transferred a list of the names and titles of those employees substantially engaged in the performance of the function to be transferred, and shall cause copies of such certified list to be publicly and conspicuously posted in the offices of the department or agency from which such function is to be transferred, along with copies of this subdivision. Any employee of the department or agency from which such function is to be transferred may, prior to the effective date of such transfer, protest his or her inclusion in or exclusion from such list by giving notice of such protest in writing addressed to the heads of the respective departments or agencies from which and to which transfer is to be made, which notice shall state the reasons for the protest. The head of the department or agency to which such function is to be transferred shall review the protest and after consultation with the head of the department or agency from which such function is to be transferred notify the protestor within ten days from the receipt of such protest of the determination with respect to such protest. Such determination shall be a final administrative determination. Failure to make such protest shall be deemed to constitute consent to inclusion in or exclusion from, as the case may be, the certified list of employees engaged in the function to be transferred. Officers and employees so transferred shall be transferred without further examination or qualification, and shall retain their respective civil service classifications and status. For the purpose of determining the officers and employees holding permanent appointments in competitive class positions to be transferred, such officers and employees shall be selected within each grade of each class of positions in the order of their original appointment, with due regard to the right of preference in retention of disabled and non-disabled veterans. Any employee who fails to respond to or accept a written offer of transfer from the department or agency to which such function is to be transferred within ten days after receipt of such offer shall be deemed to have waived entitlement to such transfer. All officers and employees so transferred shall, thereafter, be subject to the rules of the civil service commission having jurisdiction over the agency to which transfer is made. Officers and employees holding permanent appointments in competitive class positions who are not so transferred shall have their names entered upon an appropriate preferred list for reinstatement to the same or similar positions in the service of the governmental jurisdiction from which transfer is made and in the office or agency to which such function is transferred…."

Policy Bulletin 12-01 is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/1800Appointments/Policy%20Bulletin%2012-01.htm

A PDF version of this policy statement is available on the Internet at:

 http://www.cs.ny.gov/ssd/pdf/pb12-01.pdf

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

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

Issued during the week of August 13 - 19, 2012 [Click on the caption to access the full report]

DiNapoli: Investment in New York–Based Buddy Media Yields Fifteen–Fold Return

The sale of the social media marketing company Buddy Media to Salesforce.com generated an estimated $41.2 million net return from an initial investment of $2.7 million, nearly 15 times the original investment, for the New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced Thursday. The sale, announced on Monday, was for approximately $750 million.

DiNapoli: Missing Funds Concealed by Town Clerk

The clerk in the Town of Greig used funds intended for an environmental improvement project to conceal a shortage in a tax collection bank account, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The case has been referred to State Police officials for investigation.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced Monday the following audits: the New York City Department of Education, Herbert H. Lehman High School; the Division of the Lottery; the State Education Department; and, the New York City Department of Education, James Madison High School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits: the Champion Volunteer Fire Company, Inc.; the Village of Chester; and, the City of Lackawanna. the Village of Canton; the Town of Champlain; the City of Rochester; and, the Spencerport Volunteer Fireman’s Association, Inc.

Termination for violating workplace rules defeats a claim for unemployment insurance benefits

Termination for violating workplace rules defeats a claim for unemployment insurance benefits
Smith v Commissioner of Labor, 296 A.D.2d 803

Violating the employer's policy or work rules concerning sexual harassment may not only result in the termination of the employee. It may also disqualify the individual for unemployment insurance benefits.

The Appellate Division, Third Department, said that it is clear that an employee who is terminated because he or she "knowing" violated his or her employer's established policy or workplace rules may have been dismissed for "disqualifying misconduct" for the purposes of his or her eligibility for unemployment insurance benefits is concerned. In the Smith case, the Appellate Division, citing the Campbell decision, 271 AD2d 787, demonstrated this principle in a case involving an employee's termination for violating the employer's policy prohibiting sexual harassment.

An employee was dismissed from his position for violating his employer's policy prohibiting its employees from "sending inappropriate communications by e-mail." When his application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board, The applicant sued.

According to the evidence introduced in the course of an unemployment insurance administrative hearing, the individual had sent "questionable e-mail" to his co-employees to notify them of a meeting with the e-mail's subject line reading "NUDE PICTURES - NUDE PICTURES". The applicant's explanation for this: he had used the phrase as a means of gaining the attention of his readers.

About a year later the employee was terminated following his sending an e-mail to his co-employees the employer determined had again violated its policy of transmitting "inappropriate communications by e-mail."

The Appellate Division sustained the Unemployment Insurance Appeals Board's decision that the employee had lost his employment under disqualifying circumstances -- i.e., he lost his employment due to his misconduct in violating the employer's workplace rules..

The court said that there was substantial evidence in the record to sustain the Board's determination and any issue concerning the credibility of the testimony of witness was for the Board to resolve.

A personnel management book to watch for: Help Them Grow or Watch Them Go

A personnel management book to watch for: Help Them Grow or Watch Them Go

Berrett-Koehler Publishers, ISBN-10: 1609946324; ISBN-13: 978-1609946326

This book by co-authors by Beverly Kaye and Julie Winkle Giulioni is designed for personnel officers, supervisors, managers, directors, team leaders, training personnel and others involved in personnel management and development. Focusing on employment models and personnel management situations common to the private sector, it provides insights to help management develop and retain valuable personnel that are applicable to employment in the public sector as well.

The basic premise of the authors: “Career development is one of the most powerful and underutilized levers managers have to drive engagement, retention and results. Even during challenging economic times, an organization’s best and brightest have options. Failing to help them grow can lead employees to quit and leave or quit and stay which can sometimes be even more devastating.” 

This is an easy to read handbook, with easy to apply insights, that will prove valuable to those having personnel management responsibilities as well as those aspiring to such positions.

To download an excerpt from this book to your computer, visit www.help-them-grow.com

Scheduled for publication September 17, 2012, Watch Them Grow may be pre-ordered from your local bookstore or Amazon. It will be available in a soft-cover edition and in an e-book edition.

Below is a sampling of the author’s suggestions set out in this 144 page “hands on, how to handbook” that could make a difference.

Just talk with people. In today’s workplace, everyone knows that employees own their careers. But there’s a lot you can do through conversation to help focus, energize, and activate that ownership toward satisfying results by merely talking with employees.

Keep learning about employees — and help them learn about themselves throughout their careers.  Genuine interest is too frequently in short supply, yet it goes a long way toward building loyalty, retention, and results.

Encourage and enable foresight. What people are good at, what they love, and how they like to work needs to be filtered through a foresight lens. When you help employees develop the ability to scan the environment, anticipate trends, and spot opportunities, you provide a constructive context for career development.

Leverage insights... Opportunities exist where what the employee wants to do can find expression in the real, ever-changing world of work. Help employees mine that intersection. 

Paint a more expansive picture of career development and available growth opportunities.

Most people have blinders on when it comes to how to advance their careers, and they look only upward. Encourage them to develop in all directions.

Help others think through how to turn their career goals into action. Ideas and objectives are a good starting point, but they don’t get far without the creativity of opportunity mindedness, the tactical focus of planning, and the ongoing conversations that help employees recognize and make the most of education, exposure, and experiences designed for development.

Find ways to bring development to life day in and day out. Waiting for an annual or pre-scheduled meeting to discuss career matters robs you and the employee of the energy and opportunities that are present always and everywhere. Infuse development conversations into the workflow and see how quickly they permeate the culture.

The terms of a collective bargaining agreement may permit the employee organization to demand arbitration of a grievance on behalf of retirees

The terms of a collective bargaining agreement may permit the employee organization to demand arbitration of a grievance on behalf of retirees
City of Niagara Falls v Niagara Falls Police Club, Inc., 52 AD3d 1327

The City of Niagara Falls resisted efforts by the Niagara Falls Police Club to submit a grievance concerning healthcare benefits for retired police officers to arbitration.

Supreme Court rejected the City’s application for a stay of arbitration and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that dispute between the parties over healthcare benefits for retired police officers is properly the subject of arbitration based on the terms of the parties' collective bargaining agreement (CBA).

The court pointed out that the CBA sets out a grievance procedure to resolve disputes that arises "concerning the interpretation or application of the terms of this contract or of the rights claimed to exist, hereunder." Further, said the court, the CBA specifically provides that, in the event that there is not a satisfactory resolution of a grievance, "either party may seek resolution by arbitration."

As the CBA expressly refers to retirement benefits in defining the term grievance, and the grievance procedure set forth in the CBA is "not predicated upon the status of the affected beneficiaries" – i.e., it does not distinguish between active employees or retirees – the Appellate Division concluded that the Police Club “is entitled to pursue arbitration on behalf of the retirees.”

Tenure by estoppel

Tenure by estoppel
Tucker v Bd. of Education SD #10, 189 AD2d 704

Under certain circumstances a probationary teacher may attain tenure by estoppel, sometimes referred to as "tenure by acquisition."

As the court said in Pascal v Board of Education, 100 AD2d 622, tenure by estoppel results when a school board fails to take the action required by law to grant or deny tenure and, with its full knowledge and consent, permits a teacher to continue to teach beyond the expiration of his or her probationary period.

§3031 of the Education Law requires that the board of education review "all recommendations not to appoint a person on tenure." The individual is to be advised of the date on which the board will consider the recommendation at least 30 days prior to the date of the meeting.

Another §3031 provision: the probationary teacher "may, not later than 21 days prior to such meeting" ask for a written statement setting out the reasons for the superintendent's recommendation and may file a response to such reasons "not later than 7 days prior to the day of the board meeting."

What is the potential impact on a school district if it is found that it did not comply with the provisions set by §3031?

In Tucker v Bd. of Education SD #10, 189 AD2d 704, the court found that a probationary teacher was advised that she was to be denied tenure 22 days before her probationary period was to end. The court ruled that the individual was entitled to an award of a day's pay for each day the district's notice to her that she would not be granted tenure was late. In other words, the probationary teacher was entitled to pay  corre­sponding to the number of days for which she was not given the statutory number of days of notice prior to effective date of her termination.

Implicit in this ruling is that in the event a probationary teacher is not provided with timely notice that he or she is to be denied tenure, the failure to provide such notice is not a fatal defect insofar as a defense to the individual claiming tenure by estoppel or by default is concerned, provided the teacher was given formal written notice of this deci­sion by the appropriate party prior to expiration of his or her probationary period and he or she receives payment for each day that the notice was "late."

Further, the removal of the probationary employee from the payroll does not have to take effect on or before the last day of the applicable probationary period. In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez on the payroll until the end of payroll period for administrative convenience did not result in his attaining tenure in the position. The Court held that under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that [1] it was of a short duration;[2] it was for "administrative convenience;" and [3] he was provided with timely prior notice of the termination from his probationary appointment. .

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the employee's actual removal from the payroll may occur after this date, the required notice of the termination delivered to the employee before the end of his or her probationary period is deemed timely notice of termination for the purposes of determining if the individual has attained tenure by estoppel.

Addressing another variation concerning the individual's attaining tenure in his or her position, in Yastion v Mills, 229 AD2 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of continuous service. The decision points out that Yastion's con­tinued employment was contingent on the district's receipt of federal funding and his annual employment contracts specifically indicated that "tenure does not apply to this position."

Only educators holding valid New York State teacher’s certificate are entitled to Jarema service credit in meeting probationary service requirements

Only educators holding valid New York State teacher’s certificate are entitled to Jarema service credit in meeting probationary service requirements
Goldberg and the NYC Department of Education, Decisions of the Commissioner of Education 15763

A per diem substitute teacher and worked for a total of 12 days pursuant to a temporary license allowing him to teach while at the same time working toward certification. The teacher was subsequently assigned to a regular, full-time substitute teaching position and ultimately received a provisional certificate from the State Department of Education as an English teacher.

He was then appointed to a probationary teaching and was given one year of credit towards his probationary period for the two complete terms in which he served as a regular substitute.

The teacher was given an unsatisfactory rating in his annual review and was notified that his services as a probationer would be discontinued. He appealed his termination, claiming that he acquired tenure by estoppel and could not be terminated after that point without a due process hearing held in accordance with Education Law §§3020 and 3020-a. He also argued that that his substitute service qualified for credit of approximately one year, three months and 18 days, and thereby reduced his probationary period as a teacher with the Department pursuant to Education Law §2573(1).

Rejecting the teacher’s appeal the Commissioner of Education cited Education Law §2573(1)(a), which states, in pertinent part, “Teachers ... shall be appointed ... for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years ... the probationary period shall be limited to one year;....”

In addition, the Commissioner noted that “Parallel provisions are found in Education Law §§2509(1)(a) and 3012(1)(a).”

Thus, a teacher can apply service as a “regular substitute” toward completion of the three-year probationary term required for tenure – commonly referred to as “Jarema credit.”

In order to earn Jarema credit, however, a teacher must serve as a regular substitute continuously for at least one school term immediately proceeding the probationary period. The Commissioner also noted, “Jarema credit cannot be given to a regular substitute who does not possess a valid New York State teacher’s certificate.”