Claims for certain health insurance benefits and the liquidation of sick leave credits upon retirement rejected

Claims for certain health insurance benefits and the liquidation of sick leave credits upon retirement rejected

Decision 1. Suttlehan v Town of New Windsor, 2012 NY Slip Op 07292, Appellate Division, Second Department [re: Health Insurance]

Decision 2. Suttlehan v Town of New Windsor, 2012 NY Slip Op 07293, Appellate Division, Second Department [re: Sick Leave Credits]

Town of New Windsor Town Justice Donald J. Suttlehan sued the Town, contending that it was in breach of contracts when it (1) eliminated his alleged entitlement, upon his retirement, to fully paid lifetime health care benefits for himself and his spouse [Decision 1] and (2) failing to pay him for his unused sick-leave credits upon his retirement [Decision 2].

On January 7, 2009, the Town adopted resolutions prospectively awarding Justice Suttlehan [a] “fully paid lifetime medical benefits for himself and his spouse” upon his retirement and [b] granted certain post-retirement health-care benefits to elected officials with eight years or more of service. On May 6, 2009 the Town adopted a resolution revoking its January 7, 2009 action with respect to providing “lifetime health care benefits” and Town modified its earlier “unused sick-leave” resolution in accordance with a new schedule.

Justice Suttlehan retired in July 2009. He then filed petitions in Supreme Court challenging the Town’s actions that he alleged truncated certain benefits to which he claimed he was entitled upon his retirement..

With respect to his claim to “lifetime medical benefits,” Justice Suttlehan alleged “breach of contract and promissory estoppel….” He argued that, among other things, that the Town’s January 7, 2009 resolution imposed a contractual obligation upon the Town to provide him with lifetime medical benefits or, in the alternative, that, by adopting the resolution, the Town became obligated to provide him with those benefits under the theory of promissory estoppel.

The Appellate Division sustained the Supreme Court’s dismissal of Justice Suttlehan’s petition, holding that the Town had met its “prima facie burden of establishing that [it was] not obligated to provide lifetime medical benefits to the plaintiff and his spouse, and the plaintiff failed to raise a triable issue of fact in opposition.”

The Appellate Division said the resolution dated May 6, 2009, which revised Justice Suttlehan’s health-care benefits only with respect to coverage for claims made, or to be made, subsequent to his separation from Town employment, was not discriminatory as it was applicable to various elected officials -- the Town Supervisor, Town Clerk, Superintendent of Highways, Receiver of Taxes, Town Justices, and members of the Town Board -- as well as to the Town’s judiciary.

Rejecting Justice Suttlehan’s argument that the resolution violated his rights pursuant to the separation of powers doctrine or the compensation clause of the New York Constitution, the Appellate Division noted that the resolution addressed the prospective reduction of a municipal official's health benefits only after his or her retirement, not the reduction in the salary or benefits of a justice during his or her term in office.

In any event, said the Appellate Division, "[a] municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights," citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.

As to Justice Suttlehan’s cause of action to recover damages for breach of contract with respect to the liquidation of his unused sick-leave credits, Supreme Court held that he was entitled to payment for 397 unused sick days, The Town appealed the court’s decision.

The Appellate Division vacated the Supreme Court’s ruling, holding that "In general, a public employee whose employment has terminated may not recover the monetary value of unused . . . sick time in the absence of statutory or contractual authority."

The Town, said the court, had met its prima facieburden of showing its entitlement to judgment as a matter of law by demonstrating that there was no statutory or contractual authority for the relief sought by Justice Suttlehan and Supreme Court should have dismissed the Justice’s cause of action to recover damages for breach of contract with regard payment for his unused sick-leave credits.

The “health insurance” decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07292.htm

The “sick leave” decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07293.htm

Recommended penalty for firefighter who tested positive for cocaine: termination in a random drug test

Recommended penalty for firefighter who tested positive for cocaine: termination in a random drug test

OATH Index #1350/12

A firefighter who tested positive for cocaine in a random workplace drug test failed to demonstrate that he consumed the cocaine unknowingly.

OATH Administrative Law Judge Tynia D. Richard did not find the firefighter’s explanation – a supposition that three strange women had surreptitiously drugged him while they drank together on a ski vacation in Lake Placid – to be credible.

The firefighter’s testimony concerning injuries that he suffered before and after the positive drug test in an effort to mitigate the proposed penalty failed to persuade the Administrative Law Judge. In the words of Judge Richard: [The Department] seeks [the firefighter’s] termination, citing the Department’s zero-tolerance policy. [The firefighter] seeks to mitigate on the basis of injuries he sustained while working as a firefighter, including some that occurred after his positive drug test while working for the Department on light duty. I did not find such mitigation.”

ALJ Richard recommended termination of his employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1350.pdf

Challenges to the validity of the appointment of hearing officer, consideration of hearsay evidence and allegations of the denial due process

Challenges to the validity of the appointment of hearing officer, consideration of hearsay evidence and allegations of the denial due process
McKenzie v Board of Educ. of the City Sch. Dist. of Albany, 2012 NY Slip Op 07258, Appellate Division, Third Department

The City School District of Albany filed disciplinary charges against one of employees pursuant to §75 of the Civil Service Law alleging that the employee was guilty of "conduct unbecoming a [s]chool [d]istrict employee and misconduct."

The employee was advised of the identity of the Hearing Officer who was appointed to preside over the §75 disciplinary hearing in writing and a disciplinary hearing was conducted by the designated Hearing Officer..

The Hearing Officer found the individual guilty of the charges and specifications filed against him and recommended the individual be terminated from his position. The School District accepted the Hearing Officers findings and recommendation and the individual was terminated.

The employee appealed, contending that [1] the Hearing Officer's appointment was invalid because School District had failed to provide him with the official notice of the Hearing Officer's designation; [2] he was denied due process because he did not receive adequate notice of the charges that had been filed against him; and [3] hearsay evidence was admitted and considered by the Hearing Officer.

Addressing each of the individual’s arguments, the Appellate Division said:

1. Civil Service Law §75(2) requires that a hearing upon charges of misconduct "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." The Appellate Division said that these requirements of Civil Service Law §75(2) are satisfied by a written record of such designation, such as . . . a letter to the hearing officer advising him or her that the official designation has taken place," citing. Matter of Arthur v Soares, 95 AD3d 1619.

The court explained that such a letter, along with other exhibits, including the School District’s resolution appointing the Hearing Officer, constituted a written record sufficiently documenting the validity of the Hearing Officer's appointment and satisfied the relevant provisions of Civil Service Law §75(2).

2. As to the individual’s claim that he was denied due process, the Appellate Division said that “Due process requires that ‘a notice of charges must reasonably apprise the accused of the claim being made so that an adequate defense may be mounted,’ and any disciplinary determination must address the accusations as set forth in this statement of charges.” 

The court said that this requirement was satisfied by the written notice charging the individual with misconduct, which stated that the allegations were based on circumstances that resulted in his arrest….” and the seizure by the police of crack cocaine from his person at the time of his arrest.*

3. The court found that the School District’s determination that the individual was guilty of misconduct was supported by substantial evidence and the Appellate Division, citing James v Hoosick Falls Central School District, 93 AD3d at 1133, said “[c]ontrary to petitioner's contention, hearsay evidence is admissible in such administrative proceedings."

Finding that the penalty imposed — termination — was not "so disproportionate to the offense . . . as to be shocking to one's sense of fairness," the Appellate Division dismissed the appeal commenting “other incidents of misconduct that occurred during the 10-year period he was employed by the school district, including numerous arrests … provided ample justification for the decision that he be terminated.

* The court also noted that although evidence was presented at the hearing regarding the individual's past criminal record and other employment issues, “that evidence was relevant to determine the penalty to be imposed if petitioner was found guilty of the charges filed against him.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07258.htm

The “continuing jurisdiction” of the arbitrator once a final determination is made is not automatic

The “continuing jurisdiction” of the arbitrator once a final determination is made is not automatic

New York State Dept. of Corr. Servs. (New York State Corr. Officers & Police Benevolent Assn., Inc.), 2012 NY Slip Op 07242, Appellate Division, Third Department

Upon the conclusion of a disciplinary arbitration the arbitrator found the employee guilty of certain charges and made an “interim award,” imposing a penalty of suspension without pay for 45 days and directing that the employee “otherwise be made whole.”

The final award mirrored the arbitrator's interim award but further provided that the arbitrator was "maintain[ing] jurisdiction . . . in the event that any dispute [arose] between the parties over the implementation of [the] [a]ward."

After the employee returned to work he filed a grievance alleging that the Department of Correctional Services*had not restored all of the back pay, time accruals and other benefits due him as directed by arbitration award.

Ultimately it appears that the employee’s union, the New York State Corr. Officers & Police Benevolent Assn. [NYSCOPBA] asked the arbitrator to reopen the arbitration to ascertain whether employee had been made whole pursuant to the terms of his award. A hearing date was scheduled, but the Department, contending that the arbitrator was powerless to, among other things, reopen, modify or explain the prior award, objected.

Notwithstanding the Department’s objection, the arbitrator conducted a hearing in which only NYSCOPBA participated and subsequently awarded the employee approximately $4,000 in vacation and holiday accruals.

The Department filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the award upon the ground that the arbitrator exceeded his power in reopening the proceeding. In rebuttal, NYSCOPBA argued that the Department had waived its right to seek vacatur of the award and cross-moved to confirm the award.

Supreme Court granted the Department’s application, vacating the award whereupon NYSCOPBA appealed contending that the Department “waived [its] opportunity to vacate the [challenged] arbitration award by, among other things, failing to challenge the arbitrator's assertion of continuing jurisdiction and/or participating in the [challenged] arbitration hearing."

The Appellate Division affirmed the Supreme Court’s ruling, rejecting NYSCOPBA’s argument that the Department had waived any of its rights. The court explained that the Department was “not immediately aggrieved by the arbitrator's purported retention of jurisdiction, the exercise of which admittedly was conditioned upon a future … entirely theoretical dispute between the parties as to the subsequent implementation of the award.”

Further, said the Appellate Division, while NYSCOPBA is correct that "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place," here the Department expressly objected to the proposed hearing in writing, and it is undisputed that it did not attend in the hearing. Accordingly, the Appellate Division said that it was satisfied that the Department did not "actively participate [in the arbitration]."

As to merits of NYSCOPBA’s appeal, the court said that it is well settled “that an arbitrator has broad discretion to determine a dispute and fix a remedy, and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself.’

The Appellate Division said that the controlling provision of the collective bargaining agreement between the parties specifically provides that “[d]isciplinary arbitrators shall confine themselves to determinations of guilt or innocence and the appropriateness of proposed penalties . . . [and] shall neither add to, subtract from nor modify the provisions of [the CBA]." Further, said the court, the CBA agreement further provides that "[t]he disciplinary arbitrator's decision with respect to guilt[,] innocence [or] penalty . . . shall be final and binding upon the parties," which language “evidences a clear agreement by the parties to the CBA to ‘limit the discretion of disciplinary arbitrators.’"

While there may be circumstances where an arbitrator's retention of jurisdiction will be deemed permissible, in this instance the Appellate Division concluded that “such circumstances cannot — in light of the restrictive language of the underlying CBA — be said to exist here.”

Accordingly, court ruled that arbitrator's retention of jurisdiction in this matter "clearly exceed[ed] a specifically enumerated limitation [upon his] power” and the arbitrator's authority over the issues submitted to him ended once he rendered his decision.

* The Department of Correctional Services is now known as the Department of Corrections and Community Supervision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07242.htm

Handbook of New York State and Local Taxes, October 2012 Edition

Handbook of New York State and Local Taxes, October 2012 Edition

The Handbook of New York State and Local Taxes provides a general descriptive overview of the taxes which New York State and its local governments impose and is revised periodically to reflect recently enacted changes in the law.

This publication does not include non-tax revenue sources such as motor vehicle fees and the Lottery. Instead, it focuses on taxes, especially those administered by the Department of Taxation and Finance.

The handbook is posted on the Internet at:
http://www.tax.ny.gov/research/stats/statistics/new_reports.htm

New York Public Personnel Law statistics for October 2012

New York Public Personnel Law statistics for October 2012

Total number of postings through October 31, 2012: 2887

Number of readers during the month of October 2012: 18,937

The five most read postings during the month of October 2012: 

Termination by operation of law at:

http://publicpersonnellaw.blogspot.com/2009/11/termination-by-operation-of-law.html;

The legal distinction between domicile and residence at:

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html;

Essentials of the "Pickering Balancing Test” at:

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html;

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member at:

http://publicpersonnellaw.blogspot.com/2011/04/school-board-member-seeking-removal-of.html; and

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law at:

http://publicpersonnellaw.blogspot.com/2011/04/ordering-correction-officer-to-submit.html

PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 07178, Appellate Division, Third Department

The New York State Public Employment Relations Board’s [PERB] “deferral policy” in cases alleging "improper practices" was challenged by Westchester County. The County contended that the policy constituted “an abandonment of the exclusive, nondelegable jurisdiction over improper practice charges granted to PERB by Civil Service Law §205(5)(d).”

Essentially, PERB’s policy utilized an agreed-upon binding arbitration procedure set out in a collective bargaining agreement between the parties to resolve a “claimed improper practice” before it would consider the allegation.

The union had filed an improper practice charge with PERB alleging that the County had refused to negotiate an issue concerning the "maintenance of standards" clause in the governing collective bargaining agreement in violation of Civil Service Law §209-a(1)(d).

When PERB applied its deferral policy and conditionally dismissed the charge pending the outcome of binding arbitration conducted pursuant to the negotiated grievance procedure over Westchester's objections, Westchester filed a petition in Supreme Court appealing its ruling.

Supreme Court dismissed the County’s petition, agreeing with PERB that the charge raised an issue covered by the CBA and thus provided a reasonable basis for PERB to apply its policy of deferring the matter to binding arbitration. The Appellate Division agreed, noting that PERB had earlier ruled on this issue, which decision was affirmed in Matter of Westchester County Police Officer's Benevolent Assn. v Public Empl. Relations Bd., 301 AD2d 850. This, said the Appellate Division, gave the union “a reasonably arguable right to submit the conduct alleged in the improper practice charge to binding arbitration.”

The Appellate Division, in sustaining the lower court’s ruling and dismissed the County’s appeal, explained:

1. The application of the policy resulted in a conditional dismissal, meaning that the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process; and

2. The courts have generally deferred to PERB's interpretation of its jurisdiction under Civil Service Law §205(5)(d), citing Matter of Roma v Ruffo, 92 NY2d 489.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07178.htm

Employee served with disciplinary charges alleging he was intoxicated at work

Employee served with disciplinary charges alleging he was intoxicated at work

Human Resources Administration v Grimes, OATH Index #1985/12   

OATH Administrative Law Judge Kevin F. Casey sustained charges that alleged that an employee was intoxicated at work.

Coworkers noticed the individual looked disheveled and was laughing and crying to himself at his desk, in marked contrast to his usual demeanor. "911" was called and the employee was taken to a hospital by the first responders.

Noting that the Emergency Medical Technician's records indicated that the first responders had made a presumptive diagnosis that employee was intoxicated based on his unsteady gait, slurred speech, and the odor of alcohol on his breath, Judge Casey found the individual’s claims to the contrary to be vague and unsupported.

The ALJ recommended that the appointing authority impose a penalty of a 20-day suspension without pay

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1985.pdf

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued
Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv

The US Circuit Court of Appeals ruled that the Superintendent of the Connecticut Technical High School System was entitled to qualified immunity in a §1983 action in which she was alleged to have deprived the plaintiff of “sufficient notice” before the elimination of her position as a guidance coordinator at a high school.

The Circuit Court of Appeals ruled that in this instance the Superintendent’s conduct, “even when viewed in the light most favorable to [the plaintiff], did not violate the plaintiff’s clearly established rights."

The court explained that “Qualified immunity protects federal and state officials from money damages and 'unnecessary and burdensome discovery or trial proceedings.'” It, however, is an affirmative defense and the federal or state officials being sued “have the burden of raising in their answer and establishing at trial or on a motion for summary judgment.”

In determining if an official is entitled to a claimed right to “qualified immunity” the courts apply the two-prong test set out in Pearson v. Callahan, 129 S. Ct. 808.

The first prong addresses the question of whether the petitioner “stated a cause of action.”

The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”

In this instance the Circuit Court concluded that the Superintendent’s action “were not objectively unreasonable in light of the law that existed at the time of her conduct.”

Further, the Second Circuit said that it has held that when a plaintiff is subject to a collective bargaining agreement that provides adequate post-deprivation procedures, “such post-deprivation procedures . . . are sufficient to satisfy due process” citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206

The plaintiff , said the court, “utilized the grievance procedures provided for in the collective bargaining agreement and received a favorable decision" restoring her to the status she had prior to the Superintendent’s actions and awarding her back pay and benefits.*

In any event, the court held that there was nothing “objectively illegal, in a constitutional sense,” in the Superintendent’s action and although she may have been incorrect in deciding that the plaintiff did not have certain rights under the collective bargaining agreement, the plaintiff was able to avoid any harm through the very grievance procedures in place to remedy any such deprivation.

Deciding that there was no constitutional bright lines transgressed by the Superintendent in the course of her handling the plaintiff’s termination, the Circuit Court ruled that the Superintendent was entitled to qualified immunity.

* The Circuit Court observed notwithstanding her prevailing in the grievance she filed, the plaintiff “persists with this lawsuit for additional recovery of punitive damages and reimbursement of attorneys’ fees and costs.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/f1968e72-dc4f-4691-a240-38fa0d574732/5/doc/10-5248_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f1968e72-dc4f-4691-a240-38fa0d574732/5/hilite/

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