National Labor Relations Board to determine if the National Labor Relations Act preempts the Taylor Law in certain situations involving employees of charter schools

National Labor Relations Board to determine if the National Labor Relations Act preempts the Taylor Law in certain situations involving employees of charter schools
Buffalo United Charter Sch. v New York State Pub. Empl. Relations Bd., Council of Sch. Supervisors & Adm'rs, Local 1, AFSA, 2013 NY Slip Op 04163, Appellate Division, Fourth Department

The issue presented in this appeal: Did PERB properly exercised jurisdiction over two collective bargaining matters at issue involving “charter schools?”

Supreme Court had determined that PERB properly exercised jurisdiction over the two collective bargaining matters. The Appellate Division, however, disagreed with the lower court’s ruling.

The Appellate Division decided that as the two collective bargaining matters at issue "arguably" fall within the scope of the National Labor Relations Act (NLRA). Accordingly, the National Labor Relations Board (NLRB) has primary jurisdiction "to determine in the first instance" whether its jurisdiction preempts PERB's jurisdiction.

Thus, “under the circumstances of this case, and in the interest of judicial economy,” the Appellate Division decided to defer consideration of the case pending a determination by the NLRB as to whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB's jurisdiction.

N.B. Subdivision 3 of §2854 of the State Education Law, in pertinent part, addresses the impact of Article 14 of the Civil Service Law [the Taylor Law] with respect to employees of charter schools.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04163.htm

Bipartisan Moreland Act Commission formed by Governor Cuomo to investigate public corruption

Bipartisan Moreland Act Commission formed by Governor Cuomo to investigate public corruption

Source: Office of the Governor

On July 2, 2013, Governor Andrew M. Cuomo announced the formation of the “Commission to Investigate Public Corruption” pursuant to the Moreland Act [Executive Law §6*] and Executive Law §63(8)** to probe systemic public corruption and the appearance of such corruption in state government, political campaigns and elections in New York State.

Attorney General Eric Schneiderman announced he will appoint the members of the Commission as Deputy Attorneys General,*** giving the Commission broad-based authority to investigate all matters that “involve public peace, public safety, and public justice.”

Under the Executive Order, the Commission will also have the power to subpoena and examine witnesses under oath as well as subpoena any necessary records. The Governor’s action follows several recent proven and alleged incidents of corruption and misconduct by public officials that have shown that current laws are inadequate and reforms are necessary to guard against abuses, ensure accountability in government, address the need for reform in our campaign finance laws, and restore the public’s confidence and trust in state government and state elections.

The Commission to Investigate Public Corruption will be tasked with thoroughly reviewing the adequacy of existing state laws, regulations and procedures involving unethical and unlawful misconduct by public officials, and the electoral process and campaign finance laws. The Commission will also examine whether existing laws have been fairly and vigorously enforced, and what changes must be made to such enforcement. During the Commission’s investigation, it will also review recent instances of reported misconduct by officials to determine causes and adequacy of laws and enforcement tools to more effectively prevent and punish this kind of misconduct in the future. The Commission is directed to make recommendations to toughen and improve existing laws and procedures.

Areas where the Commission will focus its investigation include but are not limited to:

*  Criminal statutes for corruption and misconduct by public officials, such as bribery laws

*  Campaign financing including but not limited to contribution limits and other restrictions; disclosure of third-party contributions and expenditures; and the effectiveness of existing campaign finance laws.

* Compliance of outside organizations and persons with existing lobbying laws, including but not limited to organizations engaged in lobbying and other efforts to influence public policies and elections, and the effectiveness of such laws.

* Adequacy and enforcement of the State’s election laws and electoral process including: the structure and composition of the State and County Boards of Elections, the Board of Elections’ enforcement, and the effectiveness of and compliance with existing election laws.

During its investigation, the Commission is mandated to promptly communicate any evidence of violations of existing law to the appropriate law enforcement agencies, including the Attorney General. In such cases, the State Police will make jurisdictional referrals to the Attorney General where appropriate.

The Commission will issue a preliminary report on its initial findings and recommendations by December 1, 2013.

The Commission’s Co-Chairs are Kathleen Rice, William J. Fitzpatrick, and Milton L. Williams, Jr.,

Ms. Rice became the Nassau County District Attorney in 2006. Rice served as an Assistant United States Attorney in Philadelphia. Rice began her career as a prosecutor in the Brooklyn District Attorney’s Office, where she prosecuted cases of domestic violence, sexual assault and armed robbery, and later, murder cases. D.A. Rice is a graduate of the Catholic University of America and Touro Law School.

Mr. Fitzpatrick has served as Onondaga County's District Attorney [D.A.] for the past 28 years. Prior to serving as D.A., he was a defense attorney. In 2007 D.A. Fitzpatrick was appointed as the New York State representative to the National District Attorney's Association, and he was elected Secretary in 2011. In 2010, New York State Chief Judge Jonathan Lippman appointed D.A. Fitzpatrick to the New York State Permanent Sentencing Commission. He is a graduate of Syracuse University and Syracuse University Law School.

Mr. Williams, Jr. is a partner in the law firm Vladeck, Waldman, Elias & Engelhard as a partner in January 2009. Prior to joining the firm, Mr. Williams was a Deputy General Counsel and the Chief Compliance Officer at Time Inc. Before working at Time, Mr. Williams was in private practice, and served as an Assistant United States Attorney in the Southern District of New York. Prior to becoming a federal prosecutor, Mr. Williams was an Assistant District Attorney in the New York County District Attorney’s Office. He is a graduate of Amherst College and the University of Michigan Law School in Ann Arbor.

The members of the Commission are J. Patrick Barrett, Richard Briffault, Daniel J. Castleman, Derek P. Champagne, Eric Corngold, Kathleen B. Hogan, Nancy Hoppock, Seymour W. James, Jr., David Javdan, Robert Johnson, David R. Jones, Lance Liebman, Joanne M. Mahoney, Gerald F. Mollen, Makau W. Mutua, Benito Romano, Frank A. Sedita III, P. David Soares, Kristy Sprague, Betty Weinberg Ellerin, Peter L. Zimroth,  and Thomas P. Zugibe.

The Commission’s staff includes Regina Calcaterra, Executive Director; Danya Perry, Chief of Investigations; Kelly Donovan, Chief Counsel; and John Amodeo, Legislative Director

Special advisors to the Commission include Joseph A. D'Amico, Superintendent of the New York State Police; Raymond W. Kelly, Police Commissioner of the City of New York; and Barbara Bartoletti, Legislative Director for the League of Women Voters of New York.

Robert M. Morgenthau, District Attorney for New York County from 1975 to 2009, will serve as Special Counsel to the Commission.

* §6 of the Executive Law provides that “The governor is authorized at any time, either in person or by one or more persons appointed by him for the purpose, to examine and investigate the management and affairs of any department, board, bureau or commission of the state. The governor and the persons so appointed by him are empowered to subpoena and enforce the attendance of witnesses, to administer oaths and examine witnesses under oath and to require the production of any books or papers deemed relevant or material. Whenever any person so appointed shall not be regularly in the service of the state his compensation for such services shall be fixed by the governor, and said compensation and all necessary expenses of such examinations and investigations shall be paid from the treasury out of any appropriations made for the purpose upon the order of the governor and the audit and warrant of the comptroller.

 “Notwithstanding any inconsistent provision of any general, special or local law, charter, administrative code or other statute, service rendered by a person appointed by the governor pursuant to this section shall not constitute or be deemed state service or re-entry into state service under the civil service law, the retirement and social security law or under any charter, administrative code, or other general, special or local law relating to a state or municipal retirement or pension system so as to suspend, impair or otherwise affect or interfere with the pension or retirement status, rights, privileges and benefits of such person under any such system or to interfere with the right of such person or his beneficiary to receive any pension or annuity benefits or death benefits by reason of the selection of any option under any such system.”

** §63 of the Executive Law sets out the general duties of the “attorney-general.”

*** All members of the Commission are attorneys licensed to practice in New York State as are a number of the members of the Special Advisers to the Commission and a numbers of those serving on the Commission's staff
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Employee eligible for Workers’ Compensation benefits after suffering a psychic injury that was found to be employment related and not in the nature of discipline

Employee eligible for Workers’ Compensation benefits after suffering a psychic injury that was found to be employment related and not in the nature of discipline
2013 NY Slip Op 04861, Appellate Division, Third Department

The Employer appealed a decision of the Workers' Compensation Board that ruled that employee had sustained a compensable injury in the course of her employment.

The basic facts:

1. The employer required employee to frequently travel between her office and New York City and the employer paid her travel and lodging expenses.

2. The Inspector General investigated an anonymous complaint regarding the employee’s travel and determined that she had committed no wrongdoing, but referred the matter to the Comptroller to assess the tax implications of the employer's travel reimbursement practices.

3. The Comptroller determined that to correct the employer'sreimbursement practices that violated Internal Revenue Service rules the employee should be deemed to have earned over $100,000 in additional income as a result of those practices and that the employee was responsible for paying back taxes and penalties on that amount.

4. Upon learning of the Comptroller's findings the employee “incurred a psychic injury” and applied for workers' compensation benefits.

5. The Workers' Compensation Board rejected the argument advanced by the employer and its workers' compensation carrier that her claim was barred by Workers' Compensation Law §2 (7).

6. Workers' Compensation Law §2 (7) provides that the term "injury" and "personal injury" for the purposes of the Workers' Compensation Law "mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom. The terms "injury" and "personal injury" shall not include an injury which is solely mental and is based on workrelated stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer."

The Appellate Division affirmed the Board’s determination, explaining that in contrast to the employee suffering psychic injury stemming from work-related stress that was "a direct consequence of a lawful personnel decision [by the appointing authority] involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer," the review of the employer’s travel “reimbursement practices,” was not "aimed at" her and thus substantial evidence supports the Board's determination that the employee’s resulting mental injury was not the direct consequence of a disciplinary action or work evaluation.*

In addition, the court said it would not disturb the Board's determination that the stress that the employee experienced was greater than that generally experienced by similarly situated workers in a normal work environment as that factual finding was also supported by substantial evidence. Here, said the Appellate Division, the stress from being advised that “she was responsible for taxes and penalties on over $100,000 of imputed income due to her employer's mistaken reimbursement practices, with no wrongdoing on her own part, along with her knowledge that she was not financially in a position to handle that substantial liability, was not a normal occurrence in the workplace and exceeded the typical stress associated with claimant's position.”**

* Judge Egan dissented from the majority opinion, noting that in his view, and notwithstanding the fact that such investigation ultimately did not culminate in disciplinary charges being lodged against employee, the employee’s workers' compensation claim has its genesis in — and is the "direct consequence [of] a lawful personnel decision involving a disciplinary action … taken in good faith by the employer."

** In a press release dated July 1, 2013, the State Comptroller reported that auditors examined the travel costs of another Albany-based Department employee whose long-term assignment to a New York City work location resulted in travel costs exceeding $100,000. Auditors examined $156,124 in travel costs associated with this employee's assignment, finding there was a lack of documentation to establish whether the official station of the selected employee was in the best interest of the state. The release also stated that the Department “may also have incorrectly failed to report taxable travel expenses to federal and state taxing authorities for 2010 and 2011.”  The matter is still being examined by the Comptroller's office to determine if further corrective action is needed. The Comptrollers report has been posted on the Internet at: http://osc.state.ny.us/audits/allaudits/093013/12s75.pdf 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04861.htm

Taxpayer’s challenge to the Village’s establishment of a service awards program for volunteer firefighters dismissed “for lack of standing”

Taxpayer’s challenge to the Village’s establishment of a service awards program for volunteer firefighters dismissed “for lack of standing”
Davidson v Village of Penn Yan, 2013 NY Slip Op 04151, Appellate Division, Fourth Department

Wayne Davidson challenged the Village Board of Trustees of Village of Penn Yan (the Board) establishment of a service awards program for volunteer firefighters pursuant to General Municipal Law Article 11-A.

§216 of GML Article 11-a provides, in pertinent part, for the establishment of “service award programs for volunteer firefighters of political subdivisions of the state and for volunteer firefighters other than of political subdivisions of the state. Such service award program may be adopted only by resolution of the governing board of a political subdivision, “receiving the affirmative vote of at least sixty percent of the governing board of the political subdivision having control of the fire departments and fire companies, and the approval of a mandatory referendum authorizing the adopting of the program by the eligible voters within such political subdivision.”*

Supreme Court granted the Board’s motions and dismissed Davidson’s petitions. The Appellate Division affirmed the lower court’s ruling, explaining that Davidson failed to demonstrate that he is personally aggrieved by the Board's actions inasmuch as he did not establish that he "sustained special damage, different in kind and degree from the community generally."

While the court stated that “the doctrine of common-law taxpayer standing . . . would excuse such lack of personal aggrievement,” the doctrine requires a petitioner to establish that the failure to accord such standing “would be in effect to erect an impenetrable barrier to any judicial scrutiny of [the Board's] action." Anderson, said the Appellate Division, had not made such a showing.

* The full text of §216 is posted on the Internet at: http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$GMU216$$@TXGMU0216+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=00241127+&TARGET=VIEW

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04151.htm

Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

2013 NY Slip Op 04414, Appellate Division, Third Department

The Fire District’s Board of Fire Commissioners served one of members of the Fire Department with disciplinary charges pursuant to General Municipal Law §209-l which in pertinent part, provides for Removal of volunteer officers and volunteer members of fire departments for incompetence or misconduct.

Subdivision 5 of §209-l states that a member of the fire department [1] suspend a volunteer firefighter after charges are filed and pending disposition of the charges and [2] after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year if he or she is found guilty of one or more of the charges served upon him or her.

.

§209-l further provides that “The provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.”

The Board of Fire Commissioner filed charges against one of the volunteer firefighters alleging that the volunteer [1] had engaged in misconduct, including violations of the Fire Department's bylaws and code of conduct. A hearing was conducted and the Hearing Officer found the volunteer guilty of the charges and recommended that he [1] be expelled from membership in the Fire Department and [2] removed from his position as an officer of the Fire Company.

The Board of Fire Commissioners adopted the Hearing Officer's findings of fact and conclusions of law and expelled the volunteer from the Fire Department and removed him from the office he had held.

In response to the individual’s challenge to the Board’s action the Appellate Division said that its determination that the individual was guilty of misconduct was supported by substantial evidence, noting that the Hearing Officer described volunteer's conduct as "persistently, repeatedly, intentionally, willfully, and incorrigibly insubordinate" based on the testimony of witnesses and the volunteer’s personnel records with the Fire Department.

Citing Matter of Kelly v Safir, 96 NY2d 32, the Appellate Division, noting that the volunteer’s acts of misconduct might not, individually, warrant expulsion from the Fire Department, said that “considering his conduct as a whole, we do not find the penalty of expulsion to be so disproportionate to the disciplinary charges as to be shocking to our sense of fairness.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04414.htm

Removal from public office by operation of law

Removal from public office by operation of law
2013 NY Slip Op 04884, Appellate Division, First Department

A New York City police officer was summarily dismissed from his position upon his entering a plea of “guilty” of “offering a false instrument for filing.”*

The officer’s CPLR Article 78 petition challenging his termination was dismissed by Supreme Court, New York County and he appealed.

Sustaining the lower court’s ruling, the Appellate Division noted that his offering a false instrument for filing constituted a violation of the oath of office, since the offense involves willful deceit.

Accordingly, said the court, his office was vacated automatically upon conviction,** pursuant to Public Officers Law §30(1)(e). §30(1) of the Public Officers Law provides that a public office shall become vacant by operation of law under certain circumstances, including the officer’s conviction of a felony, or a crime involving a violation of his or her oath of office. A police officer is a public officer and thus subject to the provisions of §30(1)(e).

In any event, a pre-termination hearing that might be otherwise required as a condition precedent to removing a public officer having tenure in the position or prior to the expiration of his or her term of office is not required in the event his or her termination is within the ambit of §30(1).

Significantly, §30(1)(e) provides that that a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. As the police officer had entered a plea of guilty, it appears unlikely that his conviction would be “reversed” or “vacated,” thus triggering any opportunity to seek a hearing seeking reinstatement to his former position.

* See Penal Law §175.30.

** A plea of guilty is deemed a conviction.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04884.htm