Employees “demoted” to a lower grade position as a result of their exercise of their “displacement rights” in a layoff situation are not entitled to a “pre-demotion” hearing

Employees “demoted” to a lower grade position as a result of their exercise of their “displacement   rights” in a layoff situation are not entitled to a “pre-demotion” hearing

Yackel v City of Rochester, 2012 NY Slip Op 09253, Appellate Division, Fourth Department

The Rochester Firefighters Association file an Article 78 petition challenging an administrative order issued by the Fire Chief of the City of Rochester Fire Department that resulted in the "demotion" of a number of Fire Department battalion chiefs to the rank of captain.

These demotions were the “fall-out” resulting from the abolition of battalion chief positions* as part of budget cuts made by the City of Rochester and the decision of the individual battalion chiefs to exercise their "displacement rights" pursuant to Civil Service Law §80.6.

The Appellate Division said that Supreme Court “properly granted [the City’s] motion to dismiss the Association’s petition, rejecting the Association’s argument that the Fire Chief acted in excess of his authority as the appointing authority for City of Rochester Fire Department when he issued the challenged administrative order.

The court explained that although §8B-4 of the City Charter provided that that "members of the Fire Department . . . hold their respective offices during good behavior or until by age or disease they become personally incapacitated to discharge their duties" did not truncate the "undisputed management prerogative of the [City], as an employer, to abolish positions in the competitive class civil service in the interest of economy."**

The Appellate Division also affirmed Supreme Court’s rejection of the Association’s contention that, as a matter of procedural due process, the individual Battalion Chiefs that exercised their “displacement rights” to an appointment is a lower grade position were entitled to a hearing prior to their "demotions" commenting that the Chief’s action was not based upon any question involving the conduct or the competency of the Battalion Chiefs involved but, rather, was based on their seniority and the mandates of Civil Service Law §§80 and 81.
 

* There must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 or 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

** CSL §80 controls with respect to the rights of employees in the competitive class in the event of a layoff; §80-a controls with respect to employees in State service in positions in the non-competitive class. See §45 of the Civil Service Law with respect to determining seniority for the purposes of a layoff involving employees continued in public service following a “take-over” of a private institution or enterprise by a government entity.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09253.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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

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

Issued during the week of December 31, 2012 – January 6, 2013 [Click on the caption to access the full report]

DiNapoli Seeks Disclosure Of Political Spending At Qualcomm

New York State Comptroller Thomas P. DiNapoli announced Thursday that the New York State Common Retirement Fund has filed suitin a Delaware court against Qualcomm Inc. for the right to inspect the company’s books and records to determine how shareholder funds are being spent for political purposes.

DiNapoli: Local Governments Continue to Face Significant Fiscal Challenges

Many local governments have nearly exhausted their resources in an effort to avoid severe fiscal stress, according to an annual reportreleased last week by State Comptroller Thomas P. DiNapoli.

DiNapoli: Snowmobile Association Treasurer Misdirected Grooming Funds

The Herkimer County Snowmobile Association Treasurer falsified documentation and improperly used his dual authority as the association’s treasurer and president of a trail maintenance entity to redirect funds from one snowmobile club to his own, according to an audit. released Wednesday by State Comptroller Thomas P. DiNapoli. The findings were referred to the Herkimer County District Attorney’s Office.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli last week announced his office completed the audits of:

the SUNY at New Paltz;

the Department of Economic Development;

the Office of General Services; and,

the New York State Health Insurance Program.

An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged

An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged

White v County of Sullivan, 2012 NY Slip Op 09131, Appellate Division, Third Department

Supreme Court granted Earl White’s CPLR Article 78 to partially vacate Sullivan County’s determination denying White benefits pursuant to General Municipal Law §207-c.

White, a correction officer with the Sullivan County Sheriffs’ Department, was injured in the performance of his duties and filed for, and received, disability benefits pursuant to General Municipal Law §207-c. White’s physician subsequently cleared him to return to work in a light duty capacity, and White began working full time as a control room officer.

Some time later White again suffered an injured in the course of his employment and again filed for benefits pursuant to General Municipal Law §207-c. White’s superior at the Sheriff's Department approached him with a disability retirement application, but White refused to sign it or related medical releases.*

The County denied White's application for General Municipal Law §207-c benefits due to a lack of medical evidence. In response to White’s petition challenging the County’s decision, Supreme Court, concluding that the county's determination was arbitrary and capricious, remanded the matter and directed the County to hold a hearing.

The Hearing Officer determined, among other things, that White had established his eligibility to receive §207-c benefits beginning at the time of his injury but that he was able to resume light duty work. The Hearing Officer also found that White's eligibility for benefits ended effective July 24, 2009 due to his refusal to cooperate with County's attempts to file retirement paperwork on his behalf.**The County adopted the Hearing Officer's determination.

The Sheriff, however, preferred charges of misconduct against White pursuant to Civil Service Law §75, alleging that his refusal to sign retirement forms constituted misconduct. The disciplinary hearing officer found White guilty and the Sheriff adopted the hearing officer’s findings, imposing the penalty of termination from his position effective in January 2011.

White then initiated this action, challenging [1] the determination one denying him benefits pursuant to General Municipal Law §207-c and [2] the Sheriff’s decision finding him guilty of misconduct and terminating his employment. Supreme Court partially granted White’s petition, vacating the County’s determination that White was ineligible for benefits after July 2009 and vacated Sheriff’s decision terminating White from his position.***

As to that part of White’s appeal concerning the County’s termination of his §207-c benefits, the Appellate Division noted that Sullivan County Local Law No. 1 (1989) vested in the County’s “insurance administrator the exclusive authority’ to make determinations of eligibility for General Municipal Law §207-c benefits for Sheriff's Department staff.

Noting that both State Law and Sullivan County Local Law provided that the payment of §207-c salary benefits "shall be discontinued" for any officer "who is permanently disabled" as a result of the injury occurring in the performance of his or her duties if that officer is granted a disability retirement and in the event such an officer does not apply for a disability retirement, “the head of the police force may apply on behalf of the officer,” citing General Municipal Law § 207-c [2] and the relevant collective bargaining agreement with White's union, governing its procedure for compliance with General Municipal Law §207-c” pursuant to Local Law No. 1.

Local Law No. 1, provides that in the event the County’s insurance administrator determines that an officer is permanently disabled, the administrator "shall" notify [the County's] personnel officer, who then "shall request that the [officer] make application for" a disability retirement (Local Law No. 1 § 210). "If application for such retirement is not made by the [officer], application therefor[] may be made by the Sheriff or [p]ersonnel [o]fficer," again citing Local Law No. 1.

The court then explained that initially the County’s denied White benefits based on a lack of medical proof, without mentioning petitioner's refusal to sign retirement documents.

The Hearing Officer found that medical proof did exist, rejecting the basis relied upon by the County for its denial of benefits. Noting that the county “is not now challenging that finding,” said that the County “should not be permitted to create or rely upon different reasons for the denial that were not raised and stated at the time of that denial” and  "judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination."

Further, said the court, even were County permitted to rely on White's refusal to sign retirement documents despite not having included that reason in its denial letter, the County concedes that its personnel officer never requested White to apply for disability retirement. Accordingly, the Appellate Division granted that portion of White’s petition seeking the annulment of the County’s determination finding White ineligible for General Municipal Law §207-c benefits as of July 2009.

The Appellate Division then observed that White was entitled to §207-c benefits beginning at the time of his injury in June 2009 but that “No end period for those benefits has been established, as that may depend on the outcome of the remittal regarding the Sheriff's termination of [White’s] employment.”

* See  GML §207-c.2.

** The County contended that Retirement and Social Security Law §605 provides an alternate basis upon which it could apply for retirement benefits on White's behalf, but it did not make an application pursuant to that section. See, also, GML §207-c.2.

*** The Appellate Division, noting that the Sheriff was not named as a respondent in the action before Supreme Count with respect to White’s dismissal from his position, said that the Sheriff was a necessary party and “join the Sheriff as a respondent” in the action. The Sheriff, however, was not a necessary party with respect to that portion of White’s action challenging the County’s discontinuing his §207-c benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09131.htm

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

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Decisions of the US Department of Labor Administrative Review Board - October, November and December 2012

Decisions of the US Department of Labor Administrative Review Board - October, November and December 2012

Source: USDOL/OALJ Reporter

The United States Department of Labor, Office of Administrative Law Judges website has been updated with the following:

Case summaries and case links for December 2012

ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/12_2012.HTM

Case summaries and case links for November 2012

ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/11_2012.HTM

Case summaries and case links for October 2012

ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/10_2012.HTM

Code of Silence Litigation - Police Officer's use of force

Code of Silence Litigation - Police Officer's use of force

Source: AELE*

AELE reports that "In November, 2012, a federal jury in Chicago returned a verdict in favor of a plaintiff and against the city on a claim that the city had a persistent widespread custom or practice of protecting officers from citizen complaints. The article reveals how the plaintiff and two expert witnesses proved her allegations. At the end, there is an extensive list of references."

The article is posted on the Internet at http://www.aele.org/law/2013-01MLJ101.html

* AELE has a free search tool covering our database of more than 33,000 case summaries at http://www.aele.org/htdig/common/search.html

An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department

An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department

Decisions of the Commissioner of Education, Decision #16,440

In this appeal the issue concerned an applicant's challenge to a decision by the New York State Education Department Office of Teaching Initiatives that the applicant for a permanent teaching certificate was not eligible for such a certificate.

Dismissing the appeal on the grounds that the Commissioner of Education does not have jurisdiction to consider such an appeal, the Commissioner explained that “it is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department.

However, said the Commissioner, such a challenge may be advanced in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16440.html

Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB

Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB

City of New York v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 09130, Appellate Division, Third Department

The State’s Public Employment Relations Board found that the Board of Education of the City School District of the City of New York [Board] committed an improper employer practice in response to a complaint filed by the union representing certain employees employed by the Board. The union had alleged that the Board unilaterally changed a condition of employment by eliminating the automatic granting of parking permits after the City adopted a new plan aimed at reducing traffic congestion in the City. 

The City of New York filed a petition in Supreme Court seeking an annulment of PERB's decision. PERB counterclaimed seeking enforcement of its remedial order. Supreme Court dismissed the City’s petition and granted PERB's counterclaim.

Addressing a “procedural issue,” the Appellate Division, noting that PERB's order did not make any findings against the City nor did it order the City to do anything, ruled that the City did not have standing to commence a proceeding seeking to annul PERB's decision. Thus, said the court, Supreme Court properly dismissed that the petition brought by the City, explaining that the City and the Board are separate legal entities.

Further, said the court, the City was not a party to the PERB proceeding and although it was argued that “the City could have intervened,” the court noted that PERB’s regulations only permit intervention by public employees, a union acting on their behalf or the public employer, citing 4 NYCRR 212.1 [a]. In this instance, said the court, the relevant employer was the Board and not the City of New York.

As to PERB’s ruling concerning the merits of the alleged improper practice charge filed against the Board, the Appellate Division considered Board’s argument that it had no control over changes with respect to parking that was imposed upon it by the City and therefore had no power to negotiate anything regarding this parking permit situation.

Conceding that the power to regulate traffic and parking on city streets is expressly delegated to the City, the Appellate Division said that the relevant questions for it to address were [1] did the Board had any control over the change in producing and distributing parking permits and [2] did PERB intruded on an area under the authority of the City or its Department of Transportation [DOT].

The Appellate Division’s answer: it agreed with PERB that the Board did have control over some aspects of the new parking permit situation as DOT produced and provided to Board 10,007 site-specific placards and 1,000 three-hour permits for on-street parking and did not have any oversight responsibilities as to the distribution of such placards and permits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09130.htm

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely

Feuer v State of New York, 2012 NY Slip Op 09129, Appellate Division, Third Department

Prior to retiring in June 2009, a teacher, a Tier 4 member of the New York State Teachers' Retirement System [TRS], met her financial advisor and a TRS representative for a preretirement consultation. The teacher then submitted her application for retirement, selecting the option entitled "Largest Lump Sum," which provided the "largest possible lump sum payment to a beneficiary" following the member's death (emphasis in the decision), and designated her niece and nephew as her beneficiaries.

The retirement application the teacher completed also detailed another option available to a retiree entitled the "Maximum" option. It described this option as follows: "MAXIMUM — Do notdesignate a beneficiary if you select this option. This election will provide you with the largest possible annual benefit. All payments will cease at your death."

In addition, the application stated that, in the event an applicant wished to change options, notice of such a change had to be received by the Retirement System "within 30 days after [the] effective date of retirement" —  in this retiree's case, no later than July 30, 2009.

After submitting her application, the retiree received a letter from the Retirement System dated March 23, 2010, summarizing her retirement benefits and established her monthly pension payment. More then 30 days after the effective date of her retirement, however, the now retired teacher notified the Retirement System that she wanted to change her retirement option selection from "the Largest Lump Sum" option to the "Maximum" option.

The Retirement System denied her request and the retiree filed a petition with the Court of Claims seeking permission to file a late notice of claim.*

The Court of Claims denied her request because the retiree, by her own admission, did not notify the Retirement System that she wanted to change her retirement option within 30 days of the effective date of her retirement. The Appellate Division affirmed the Court of Claims’ ruling, explaining that the Court of Claims is a court of limited jurisdiction that has no capacity "to grant strictly equitable relief, [although it] may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases."

Although the relief that the retiree seeks is couched in money damages,** the Appellate Division characterized her application as requiring  the review of an administrative agency's determination. In that regard, the Appellate Division noted that the money damages that the retiree sought were calculated by using as a base figure what she would have received as her pension benefit had she initially selected the "Maximum" option.

The bottom line: The Appellate Division ruled that as the retiree, in essence sought judicial review and reversal of an administrative determination made by the Retirement System, the Court of Claims lacked subject matter jurisdiction and it properly denied the retiree's motion for leave to file a late notice of claim.

* The retiree also sued TRS’ representative in Supreme Court, contending that the representative was negligent regarding the her retirement options. Supreme Court dismissed this action as it sought money damages from a state employee in connection with the performance of her duties and, as such, could only be commenced in the Court of Claims.

** The Appellate Division said that the relief that the retiree sought would result in her receiving “windfall, because not only would she receive the monthly pension benefit under the Maximum option, but she still would have a lump sum available to her beneficiaries upon her demise.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09129.htm