Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties

Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties
Cavanaugh v DiNapoli, 2012 NY Slip Op 07177, Appellate Division, Third Department

A firefighter for the City of Syracuse filed an application for accidental disability retirement benefits following an injury he suffered at the World Trade Center [WTC] in the aftermath of 9/11.

The Comptroller denied the application on the grounds that the firefighter had not established he was performing duties in his official capacity at the time he was working at the WTC.

The firefighter appealed the Comptroller’s determination contending that it was not his burden to establish that he was working in his official capacity as a firefighter at the time of his injury because the rebuttable presumption set forth in Retirement and Social Security Law §363(g)(2)(a) placed that burden upon the New York State and Local Retirement System.

The Appellate Division never reached that issue as it found that there was substantial evidence that firefighter presence at the WTC following 9/11 was a “personal pursuit” rather than part of his job as a Syracuse firefighter.

According to the decision, the record showed that the firefighter had been granted a leave of absence from his position to go to the WTC and was considered to be on vacation during the time he was there. Thus, said the court, the firefighter was not working in an official capacity when the 9/11 attacks occurred and he went to the WTC the next day at the invitation of a friend who owned a private ambulance service.

The bottom line: Although the firefighter had the approval of his fire chief to go to the WTC and took his firefighting gear with him, the Appellate Division said that there was substantial evidence supports the Retirement System’s finding that he was engaged in a personal activity and not performing or discharging his official duties as a Syracuse firefighter while at the WTC site.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07177.htm

A breach of contract complaint fails as a matter of law in the absence of any showing that a specific provision of the contract was breached

A breach of contract complaint fails as a matter of law in the absence of any showing that a specific provision of the contract was breached

Westchester County Corr. Officers Benevolent Assn., Inc. v County of Westchester, 2012 NY Slip Op 07106 {See, also, 2012 NY Slip Op 07107 decided herewith], Appellate Division, Second Department

The Westchester County Correction Officers Benevolent Association, Inc., and individually named retired correction officers, commenced this action to recover damages for an alleged breach of contract based on Westchester County’s' failure to pay the individual plaintiffs benefits equivalent to those provided by the Worker's Compensation Law for loss of earning capacity due to permanent partial disability.

The Association argued that any correction officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application* for such retirement on the behalf of the individual is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial disability.

Westchester, on the other hand, contended that the parties' intention at the time that the collective bargaining agreement (the CBA) was negotiated was to assure that the correction officers were afforded all of their rights under the Workers' Compensation Law.

The Associating had admitted that the CBA "is silent as to awards for permanent partial disability." Accordingly, argued the County, as the CBA is silent as to such awards, the correction officers were not entitled, upon retirement, to Workers' Compensation awards for permanent partial disability.

The Appellate Division pointed out that "A breach of contract cause of action fails as a matter of law in the absence of any showing that a specific provision of the contract was breached."

Here, the Association failed to identify a specific provision in the CBA that requires the County to pay benefits equivalent to those paid pursuant to the Workers' Compensation Law for loss of earning capacity due to permanent partial disability. Accordingly, ruled the court, the Association failed to establish its prima facie entitlement to judgment as a matter of law.

The Appellate Division explained that "[W]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms."

Further, said the court, "[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument. A court should not imply a term which the parties themselves failed to include."

Finding that the specific provisions of the CBA did not provide for the retirement benefits sought by the Association, the Appellate Division held that the Association’s “reliance upon generalized language in the CBA is unavailing.”

* §207-c.2 of the General Municipal Law, in pertinent part, provides that the “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his [or her] duties if such policeman is granted an accidental disability retirement allowance …If application for such retirement allowance or pension is not made by such policeman, application therefor may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed. [Emphasis supplied.]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07106.htm

Police officers involved shootings may be required to submit to breathalyzer testing

Police officers involved shootings may be required to submit to breathalyzer testing

Palladino v. City of New York, USDC, SDNY, #07 CV 9246, 2012 U.S. Dist. Lexis 90291

Unions representing various ranks of police officers serving with the New York City Police Department objected to a departmental order requiring that any police officer involved in a shooting, on or off duty, that resulted in an injury or death submit to a breathalyzer test.

The unions contended that requiring police personnel to submit to such testing “without probable cause” constituted an unreasonable search in violation of the Fourth Amendment. Federal District Court Judge George B. Daniels rejected this argument and granted the City’s motion for summary judgment.

Judge Daniels ruled that requiring police officers to submit to the breathalyzer tests under such circumstances was justified under the “special needs doctrine.” This doctrine has been relied upon to justify warrantless drug and alcohol testing of individuals employed in the public sector.*

According to the decision, the primary purpose of the searches was not crime control, but personnel management--to deter officers from becoming intoxicated and discharging their weapons. These special needs outweigh any privacy interest that officers might have in not submitting to the tests.

* See National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), upholding drug and alcohol testing of public employees.

The decision is posted on the Internet at;

http://www.nysd.uscourts.gov/cases/show.php?db=special&id=190

Powers set out in Election Law 3-300 trump relevant provisions in a contract negotiated pursuant to the Taylor Law

Powers set out in Election Law 3-300 trump relevant provisions in a contract negotiated pursuant to the Taylor Law
County of Erie v Civil Serv. Empls. Assn., Local 815, 2012 NY Slip Op 07144, Court of Appeals

In Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146,  the Court of Appeals ruled that §155 of the Town Law prohibited Taylor Law negotiations providing for an alternative disciplinary procedure [see http://publicpersonnellaw.blogspot.com/2012/10/negotiating-disciplinary-procedures.html].

In County of Erie v Civil Service Employees Association, Local 815, the high court held that Eric County [the County] could not agree to contract provisions in the course of collective bargaining pursuant to the Taylor Law that would limit the powers vested in the County's Board of Elections by §3-300 of the Election Law.

Affirming an order of the Appellate Division, the Court of Appeals, Justice Ciparick dissenting, ruled that  the County could not negate or restrict the Erie County Board of Elections’ (the Board) statutory power to remove employees’ nor restrict the Board’s scheduling of its employees' work shifts on election day so as to provide adequate coverage in the course of collective bargaining in view of the authority vested in the Board by §3-300 of the Election Law.*

The Civil Service Employees Association, Local 815 (CSEA), had filed a grievance on behalf of certain employees of the Board alleging that the collective bargaining agreement (CBA) between the County and CSEA was violated when the Board modified the work hours of its employees assigned to school district elections in a way that deprived these employees of overtime compensation.

After the Board denied the grievance, CSEA notified the County of its intent to arbitrate the dispute. The County objected and Supreme Court to granted the County’s motion stay arbitration, which ruling was affirmed by the Appellate Division (see 82 AD3d 1633).

Relying on the provisions set out in §3-300 of the Election Law, the Appellate Division concluded that the County could not negotiate away the Board’s statutory authority with respect to [1] the appointment and removal of its employees or its prescribing their duties, nor [2] diminish or impair any other authority vested in the Board by the statute in the course of collective bargaining under the Taylor Law. The Court of Appeals agreed.

EDITOR'S COMMENT: This ruling is consistent with case law holding that a statutory right enjoyed by an employee may not be negotiated away through collective bargaining. For example, a collective bargaining agreement provided that in determining seniority in the event of demotions in connection with a layoff of employees in the competitive class, the "date hired" was to be used to determine the employee's seniority.. §80 of the Civil Service Law provides that the initial date of "permanent appointment" controls in determining seniority for the purpose of layoff. After an employee having the earlier “date hired” was retained in the position and a person having the earlier date of “permanent appointment” was laid off instead, the Appellate Division ruled that the seniority provisions of the Civil Service Law controlled notwithstanding the “layoff provisions” addressing "seniority" for the purposes of layoff set out in the contract between the parties negotiated pursuant to the Taylor Law [see City of Plattsburgh v Local 788, 108 AD2d 104]

* Section 3-300 of the Election Law vests every board of elections with exclusive power to "appoint, and at its pleasure remove, clerks, voting machine technicians, custodians and other employees, fix their number, prescribe their duties, fix their titles and rank and establish their salaries within the amounts appropriated therefor by the local legislative body and shall secure in the appointment of employees of the board of elections equal representation of the major political parties."

The Eric County decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07144.htm

Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146, Court of Appeals

Although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

Essentially the new disciplinary procedure did not provide for arbitration but instead provided that a disciplinary hearing would be conducted by “a Town Board member or a designee of the Town Board” rather than submitted to arbitration. The Board member or the designee was to issue a decision “with recommended findings of fact and a suggested disciplinary penalty.” The Town Board would then review the hearing officer's findings and recommendation, render a final determination of the charges and if the police officer was found guilty of one or more of the disciplinary charges and specifications, impose a penalty "consistent with the provisions of the New York State Town Law."* Any appeal from such determination was subject to review pursuant to a CPLR Article 78** proceeding in Supreme Court.

Following its enacting Local Law No. 2, the Town initiated disciplinary action against two police officers and the PBA filed demands for arbitration on behalf of the police officers. The Town’s Article 75 application for a permanent stay of arbitration was denied by Supreme Court, which granted the PBA’s cross-petition to compel arbitration.

Citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]), the Appellate Division reversed the lower court’s ruling (see 84 AD3d 968 [2d Dept 2011]).

The Court of Appeals sustained the Appellate Division’s ruling, explaining that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Although Civil Service Law §§75 and 76 generally provide for "the procedures for disciplining public employees, including police officers," and where applicable, "police discipline may be the subject of collective bargaining," the Court of Appeals noted that Civil Service Law §76(4) also states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws.”***

In this instance the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155." Accordingly, the Court held that “police discipline resides with the Town Board and is a prohibited subject of collective bargaining between the Town and the PBA.”****

* Town Law §155,. In the words of the Court of Appeals, Town Law §155 is “a general law enacted prior to Civil Service Law §§75 and 76, commits to the Town the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."

** Town Law §155 sets out a 30-day statute of limitations for filing such a petition.

*** Civil Service Law §76(4) continues the provision set out in §22.3 of the Civil Service of 1909, as amended, to this end. 

**** Significantly, the Court ruled that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, rather than holding that such negotiation is a "non-mandatory" subject of collective bargaining within the meaning of the Taylor Law [Civil Service Law Article 14].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07146.htm

Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146, Court of Appeals

Although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

Essentially the new disciplinary procedure did not provide for arbitration but instead provided that a disciplinary hearing would be conducted by “a Town Board member or a designee of the Town Board” rather than submitted to arbitration. The Board member or the designee was to issue a decision “with recommended findings of fact and a suggested disciplinary penalty.” The Town Board would then review the hearing officer's findings and recommendation, render a final determination of the charges and if the police officer was found guilty of one or more of the disciplinary charges and specifications, impose a penalty "consistent with the provisions of the New York State Town Law."* Any appeal from such determination was subject to review pursuant to a CPLR Article 78** proceeding in Supreme Court.

Following its enacting Local Law No. 2, the Town initiated disciplinary action against two police officers and the PBA filed demands for arbitration on behalf of the police officers. The Town’s Article 75 application for a permanent stay of arbitration was denied by Supreme Court, which granted the PBA’s cross-petition to compel arbitration.

Citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]), the Appellate Division reversed the lower court’s ruling (see 84 AD3d 968 [2d Dept 2011]).

The Court of Appeals sustained the Appellate Division’s ruling, explaining that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Although Civil Service Law §§75 and 76 generally provide for "the procedures for disciplining public employees, including police officers," and where applicable, "police discipline may be the subject of collective bargaining," the Court of Appeals noted that Civil Service Law §76(4) also states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws.”***

In this instance the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155." Accordingly, the Court held that “police discipline resides with the Town Board and is a prohibited subject of collective bargaining between the Town and the PBA.”****

* Town Law §155,. In the words of the Court of Appeals, Town Law §155 is “a general law enacted prior to Civil Service Law §§75 and 76, commits to the Town the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."

** Town Law §155 sets out a 30-day statute of limitations for filing such a petition.

*** Civil Service Law §76(4) continues the provision set out in §22.3 of the Civil Service of 1909, as amended, to this end. 

**** Significantly, the Court ruled that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, rather than holding that such negotiation is a "non-mandatory" subject of collective bargaining within the meaning of the Taylor Law [Civil Service Law Article 14].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07146.htm

The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas

The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas 

McVeigh v Curry, 2012 NY Slip Op 07091, Appellate Division, Second Department

In a matrimonial action, Supreme Court directed the plaintiff to furnish her former spouse with a copy of her birth certificate essentially for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining life insurance and directed the defendant to elect either the 100% joint and survivor option of his pension fund or obtain life insurance to cover her 50% share of the marital portion of her former spouse's pension.

The Appellate Division modified the order issued by Supreme Court, explaining the Supreme Court erred in directing the plaintiff to furnish her former spouse with a copy of her birth certificate only for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining appropriate life insurance, as that option could potentially result in an award to the plaintiff that is more than she is entitled to under the equitable distribution formula enunciated in Majauskas v Majauskas (61 NY2d 481).

The court observed that the 100% joint and survivor option would, upon the plaintiff's former husband’s death, provide her with the full monthly retirement allowance of her former husband's pension for the rest of her life.

In contrast, Option 3 of the defendant's pension fund, the 50% joint and survivor option, would, upon the defendant's death, provide the plaintiff with 50% of the original monthly retirement allowance for the rest of her life.*

Noting that the 50% joint and survivor option is closer to the equitable distribution formula set forth in Majauskas, the Appellate Division ruled that the Supreme Court’s order must be modified as indicated.

* Not mentioned in the opinion is the difference in the amount of the monthly retirement allowance that would be paid to the plaintiff’s former husband under the 100% joint and survivor option in contrast to the amount that would be paid to him under “Option 3.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07091.htm

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff

Appeal of Erika L. Kwasnik, Decisions of the Commissioner of Education, Decision #16,419

This decision by the Commissioner of Education succinctly sets out the controlling consideration in determining the rights of an educator resigning from his or her tenured position in one tenure area to accept a tenured appointment in a different tenure area in the event of the abolishment of his or her position.

Essentially there was no dispute that following her appointment to a library media specialist position, Erika L. Kwasnik submitted a letter of resignation from her English teacher position. When the library media position was abolished and Kwasnik was advises that she would be excessed and her name place on a reinstatement list, she contended that because she was continuously employed within the district, she maintained her tenure, and therefore her seniority rights, in the English teacher position.

The Commissioner indicated that in a layoff situation, the relevant rules of the Board of Regents provided as follows:

1. 8 NYCRR §30-1.10, a professional educator who acquires tenure in a new tenure area generally retains tenure in his or her original tenure area while he or she remains continuously employed as a full-time member of the professional staff of the district.

2. 8 NYCRR §30-1.13(c) provides that upon abolition of his or her position, a professional educator who has tenure status in additional tenure areas must be transferred to such other tenure area in which he or she has greatest seniority.

The Commissioner noted that both regulations apply “only to professional educators who have tenure and seniority rights in another tenure area at the time tenure was acquired in a new tenure area or the position was abolished, as applicable.”

In this instance, however, the school district claimed that Kwasnik had resigned from her tenured English teacher position and thus the issue before the Commissioner in this appeal is whether she had knowingly and freely waived her tenure and seniority rights in the English tenure area by resigning from her position as an English teacher. 

Citing Matter of Middleton (16 Ed Dept Rep 50, Decision No. 9,296, reopening denied 16 id. 366, Decision No. 9,433), the Commissioner noted that where a teacher had resigned from a full-time position but was simultaneously appointed to a non-probationary, part-time position in the district it was held that the resignation served to terminate the employment relationship and any reinstatement rights. 

Similarly, said the Commissioner, although Kwasnik continued to work in the district and her benefits accrued without interruption, “I must conclude that her resignation from her position as a tenured English teacher constituted a relinquishment of her tenure and seniority rights with respect to an English teacher position.”

The Commissioner then observed that to be enforceable, such a waiver of tenure rights must be knowingly and freely given and not the product of coercion. Further, “[a]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted* by school authorities.”

Kwasnik asserted that that she expressed reservations to the district’s previous superintendent about resigning but was told that “it was the only way she would be able to take on the duties of a Library Media Specialist.”  She then claimed that she “reluctantly” agreed to provide a letter of resignation. 

  

The Commissioner, however, said that “The record indicates that petitioner knowingly and freely resigned from her position of English teacher once she was assured that she would be receiving the position of a library media specialist.” The Commissioner continued: “While [Kwasnik] may have expressed reservations about providing a letter of resignation, she did not seek the assistance of counsel or her union before submitting the letter, nor did she indicate in her letter that she wished to maintain her tenure and seniority rights to the English teacher position.”

Finding that Kwasnik “has not demonstrated that she was coerced into submitting a letter of resignation” or that the district engaged in any other affirmative conduct that rendered her resignation involuntary, the Commissioner ruled that the school district acted reasonably when it viewed Kwasnik’s resignation “as a voluntary end to her employment as an English teacher, thereby terminating her seniority and tenure rights to that position.”

* COMMENT: Except as otherwise provided by law, rule or regulation, or by the terms of a collective bargaining agreement, a resignation need only be received by the appointing authority, or its designee, prior to receipt of a notice that the individual has rescinded or withdrawn it to be effected – acceptance of the resignation is not required for it to be operative [Hazelton v Connelly, 25 NYS2d 74]. An example of a situation where acceptance of a resignation mandated by statute: Section 2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16419.html

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