The Adjunct Law Professor’s LawBlog has a new look

The Adjunct Law Professor’s LawBlog has a new look

The Adjunct Law Professor Law Blog, which has as its focus personnel law in general and public personnel law in particular, has been completely redesigned.

Recent posts include summaries of decisions addressing discrimination against the disabled and claims alleging same sex harassment.

The URL is http://lawprofessors.typepad.com/adjunctprofs/

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New York State’s Student Internship Program Offers Hundreds Of Internships

New York State’s Student Internship Program Offers Hundreds Of Internships Source: New York State Department of Civil Service

Civil Service Commissioner Jerry Boone recently announced that New York State has hundreds of internships available, and reminded college students to apply for Fall semester internships before the application deadline on September 3, 2013. New York State created a one-stop website at http://nysinternships.com/nnyl/ that allows students to view and apply for internship opportunities across an array of state agencies both downstate and upstate. The website is one component of Governor Andrew M. Cuomo’s New New York Leaders initiative, which is focused on attracting new talent to state government through both a fellowship program and an internship program.  With the internship website, applicants can view job descriptions, create profiles, specify interests, and upload resumes, writing samples and letters of recommendation.  Students can apply for multiple internships at the same time. “The internship program is designed to attract and mentor a new generation of talented leaders for New York State,” said Governor Andrew M. Cuomo.  “I continue to encourage talented college students to consider devoting time to public service while acquiring valuable skills and marketable work experience.” “New York State continues to offer a wide variety of opportunities across numerous professional occupations,” said Civil Service Commissioner Jerry Boone.  “Governor Cuomo’s internship program offers opportunities for hands on experience in finance, engineering, public relations, information technology and health care, as well as a host of other professional disciplines.” The program is open to resident graduate and undergraduate students as well as students who attend schools in other states, but reside in New York.  Opportunities include both paid and unpaid positions.  Internships may include academic credit depending on the policy of the educational institution. To apply, visit http://nysinternships.com/nnyl/ .

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Public employee pensions account for about 3% of government spending

Public employee pensions account for about 3% of government spending

Source: New York State Teachers’ Retirement System

According to a February 2012 report by the National Association of State Retirement Administrators (NASRA), “on the average, pension costs for state and municipal governments are just shy of 3% of total spending.”

The NASRA report noted that “State and local government pension benefits are paid not from general operating revenues, but from trust funds to which public retirees and their employers contributed while they were working. …On average, public pension programs remain a small part of state and local government spending.”

NASRA’s calculations were based on the most-recent data then available from the U.S. Census Bureau. (Read more)
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Retraining and progressive discipline deemed inappropriate penalties where correction officer was found guilty of using excessive force against an inmate

Retraining and progressive discipline deemed inappropriate penalties where correction officer was found guilty of using excessive force against an inmate

OATH Index Nos. 731/13 & 1000/13

OATH Administrative Law Judge Alessandra R. Zorgniotti recommended that a correction officer found guilty of using improper force on four occasions be terminated from his position.

The New York City Department of Correction alleged that the correction officer used excessive physical force in dealing with prison inmates such as choking inmates, punching inmates in the head, and slamming one inmate against a wall. Among the charges served on the correction officer was one that alleged that he hit an adult inmate with a radio. 

The correction officer was also charged with making false statements in interviews concerning his conduct. 

ALJ Zorgniotti found that the correction officer’s use of deadly force and his inability to appreciate the seriousness of his misconduct indicated that retraining and progressive discipline were inappropriate penalties.

Accordingly Judge Zorgniotti recommended the individual be dismissed from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-731.pdf
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Determining eligibility for accidental disability benefits

Determining eligibility for accidental disability benefits

Mruczek v McCall, 299 AD2d 638,
Steven v McCall,**

 

The Mruczek Case:The Mruczek decision demonstrates the burden an individual has in proving that he or she is eligible for accidental disability benefits or line of duty disability benefits. The test to be met is difficult. 

In the words of the Appellate Division, in order for an injury to be the result of an accident for the purposes of eligibility for [accidental] disability retirement benefits within the meaning of the Retirement and Social Security Law, it must "result from a `sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact' and [be] unrelated to the ordinary risks of employment." 

The Comptroller sustained ERS's rejection of Patrick M. Mruczek's applications for accidental, or in the alternative, performance of duty, disability retirement benefits.

Mruczek, a correction officer at the Attica correctional facility, claimed he was injured while at work when he fell over a "feed-up" cart as he proceeded to remove his lunch from a microwave oven. According to Mruczek, he was talking to the hall captain when he heard the bell on the microwave oven. Turning around to retrieve his meal, he fell over a feed-up cart that he alleged had been placed behind him by an inmate. Mruczek also testified that it was normal for inmates to use the feed-up carts and that it was not uncommon to see the carts in the block area in which the accident occurred. 

The Employees' Retirement System [ERS] explained that it had rejected Mruczek's applications because the occurrence was neither (1) an accident nor (2) a result of the acts of an inmate. The Comptroller affirmed ERS's ruling; Mruczek appealed.

The Appellate Division held that "[u]nder these circumstances, the Comptroller could rationally conclude that [Mruczek's] injury occurred as a result of his misstep while he was engaged in a routine activity rather than a sudden, fortuitous and unexpected event."

The Stevens Case: In Stevens the Appellate Division, 3rd Department affirmed the Comptroller's decision that a Nassau County police officer, Gordon F. Stevens, did not qualify for accidental disability retirement benefits.

Stevens was the commanding officer of the County's Marine/Aviation Bureau. He injured his arm while he was assisting other officers engaged in launching a 36-foot patrol vessel weighing 30,000 pounds.

The Appellate Division said that "[c]rucial to the finding of an accident ... is `a precipitating accidental event ... which was not a risk of the work performed.'" Stevens contended that he was not engaged in a task he normally performed and he had never before participated in launching a boat. However, he also said that it was his job was to "make sure everything [got] done" and indicated that, because of the urgency of the situation, he physically assisted in launching the boat. In addition, a former commanding officer of the Bureau testified that it was the responsibility of the commanding officer to see to it that all functions of the Bureau were accomplished and this included physically assisting in the performance of certain tasks if necessary to fulfill this responsibility. 

The court's conclusion: notwithstanding the fact that Stevens had not previously participated in launching the patrol boat, there was substantial evidence to support the Comptroller's finding that "it was a task inherent in [Stevens'] regular duties as commanding officer to carry out the functions of the Bureau" and, therefore, it declined to disturb the Comptroller's determination disapproving Steven's application. 

**The decision is posted on the Internet at http://decisions.courts.state.ny.us/ad3/decisions/2002/91879.pdf
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Aspiration for another position with the employer not a property right

Aspiration for another position with the employer not a property right

Gokaran Singh v District Council 37, et al. US Circuit Court of Appeals, 2^nd Circuit; 05-2255*

The Circuit Court of Appeals affirmed the district court's dismissal of Gokaran Singh’s complaint that he had been denied due process in connection with his alleged loss of property rights due him by his employer. The lower court had dismissed Singh's petition because, it held, Singh failed to demonstrate that he had been deprived of a cognizable property interest by his employer.

Singh’s complaint was based on his interest in obtaining employment in other positions within his Department, the New York City Department of Design & Construction, and his desire for an “exceptional performance” evaluation.

These objectives, said the court are “abstract need[s], desire[s] or unilateral expectation[s]” and do not satisfy the requirement that Singh demonstrate that he has been denied a property right.

* This summary order will not be published in the federal reporter and may not be cited as precedential authority to this or any other court, but may be called to the attention of this or any other court in a subsequent stage of this case, in a related case, or in any case for purposes of collateral estoppel or res judicata.

The decision is posted on the Internet at:

http://federal-circuits.vlex.com/vid/singh-v-district-council-25604512
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Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation

Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation

2013 NY Slip Op 05633, Appellate Division, Second Department

A teacher [Petitioner] was served with disciplinary charges alleging misconduct flowing from her participation in a “job action” near school grounds in the course of collective bargaining. Found guilty of misconduct and fined $1,000 by the Education Law §3020-a arbitrator, Petitioner challenged the determination by filing a petition pursuant to CPLR Article 75 in an effort to vacate the arbitration award.

According to the decision, the School District and the District's teachers' union were engaged in negotiations on a new collective bargaining agreement. As negotiations continued without an agreement, teachers engaged in concerted actions, including weekly picketing in front of a school. The district filed disciplinary charges against a number of teachers, including Petitioner, alleging that the job action "intentionally created a health and safety risk … by purposely situating [their] vehicle[s] … in order to preclude children from being dropped off at curbside” in front of the school building.

The Appellate Division initially noted that where arbitration is statutorily required, as is the case in an Education Law §3020-a disciplinary action, "judicial review under CPLR Article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record." Further, said the court, "The award must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78" and "Due process of law requires . . . that the [arbitrator's determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]."

The Appellate Division then noted that in two earlier appeals involving teachers disciplined for their involvement the same job actions, it was found that  “the evidence at the hearing provided a rational basis for the arbitrator's determination that the teachers contributed to the creation of a health and safety hazard, and that the awards were not arbitrary and capricious.”* This, said the court, was true in Petitioner’s case as well.

That said, the Appellate Division vacated the arbitration awards handed down in the two earlier cases and then did the same in Petitioner’s case.

In the two earlier cases the appellate court determined that the School District failed to meet its burden of demonstrating the teachers charged with misconduct, who were then engaged in the exercise of their First Amendment rights, so threatened the school's effective operation as to justify the imposition of discipline.

Accordingly, the Appellate Division granted Petitioner’s appeal “for the same reasons, i.e., her job-related activity regarding collective bargaining issues” indisputably addressed matters of public concern and the School District failed to meet its burden of demonstrating that Petitioner's exercise of her First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline.

* See Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 101 AD3d 1026; Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05633.htm

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SUNY at Albany's sabbatical leave policies and procedures reviewed by the State Comptroller

SUNY at Albany's sabbatical leave policies and procedures reviewed by the State Comptroller

Source: Office of the State Comptroller

A State Comptroller’s audit reports that State University of New York at Albany [SUNY-Albany] officials “failed to consistently follow guidelines for sabbatical leaves and granted questionable paid leave to other employees, unnecessarily costing taxpayers more than $1 million.”* The Comptroller recommended that SUNY-Albany “Take actions as needed, including the recovery of improper compensation payments, to address the matters presented.”

As to efforts to recover “improper compensation payments," in Trumansburg Central School District v Chalone, 87 A.D.2d 921, the Appellate Division agreed with the School District that it could recover the salary it paid to an educator during his sabbatical leave when he failed to return to his position as agreed upon completion of the leave.

Similarly, in State of New York v Gordon, 102 A.D.2d 990, affirmed, 64 N.Y.2d 712, the court ruled that the employer could recover the cost of the benefits it provided to an individual placed on leave for training purposes in the event he or she fails to return to his or her job.

Also, the State Comptroller has advised that a municipality may adopt a resolution requiring employees who are sent to schools for specialized training at the municipality’s expense in order to qualify for a promotion to reimburse the municipality for the cost of such training if they resign from their position within a specified period of time (Op. St. Comp. 82-4). 

* The Comptroller’s SUNY-Albany audit report is posted on the Internet at:

http://www.osc.state.ny.us/audits/allaudits/093013/11s34.pdf?utm_source=weeklynews20130804&utm_medium=email&utm_campaign=073113release

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The law in effect at the time the administrative or court decision is made controls

The law in effect at the time the administrative or court decision is made controls

Trifaro v Town of Colonie, 31 AD3d 821

Pointing out that it is well established that, generally, the law is to be applied as it exists at the time a decision is rendered, even if the law has been altered since the commencement of the action or proceeding, the Appellate Division, citing citing Gager v White, 53 NY2d 475, 483 [1981], cert denied 454 US 1086, said that this rule applies to administrative and judicial proceedings alike.

Accordingly, the Appellate Division vacated a hearing officer’s determination that was based on the law at the time a hearing was requested rather than the law as it existed at the time the decision was made, notwithstanding the fact that the processing of the hearing was delayed by the individual requesting the hearing. 
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School district must offer its Medicare-eligible retirees the same health insurance benefits the district offers to its active employees

School district must offer its Medicare-eligible retirees the same health insurance benefits the district offers to its active employees

Anderson v Niagara Falls City Sch. Dist., 2013 NY Slip Op 23274, Supreme Court, Niagara County, State Supreme Court Justice Ralph A. Boniello, III

Medicare-eligible retirees of the Niagara Falls City School District [Plaintiffs] sued the school district alleging that the School District had diminished their health insurance benefits by placing them in the "Blue Cross/Blue Shield Forever Blue Medicare PPO 799 Plan" (Forever Blue Plan) without making a similar change in the health insurance plan in which the school district's active employees participated.

This, contended Plaintiffs, constituted a unilateral diminution of their benefits – i.e., additional or higher co-payment costs and medication costs -- as the result of the School District requiring that its Medicare-eligible retirees switch from the “Traditional Blue Plan” to the “Forever Blue Plan.”* In contrast, there was no corresponding diminution in the health insurance benefits provided the active employees. Indeed, said the court, it is undisputed that at the same time Plaintiffs were placed in Forever Blue, the active employees employed by the School District were placed in the NY-44 Health Benefits Trust Plan and as a result the active employees were provided with an increase or improvement of their overall health insurance benefits.

Plaintiffs alleged that this change violated the School District’s obligations under Chapter 504, Part B, §14 of the Laws of 2009 [The Moratorium provision]:

§14 addressed health insurance benefits available to retired employees of school districts and certain boards and, in pertinent part, provides that “a school district … shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such … district makes for such health insurance coverage … unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board [for] the corresponding group of active employees ….”

Among the differences noted by Justice Boniello: the Traditional Blue Plan did not require co-payments for nearly all medical services that took place in-network while the Forever Blue Plan requires co-payments for medical services that occur, both in and out-of-network, and required significantly higher co-payments for prescription medications.

While the School District claimed that it had “offset the additional out of pocket expenses” incurred by the Plaintiffs resulting from their enrollment in Forever Blue by creating a medical reimbursement account for each Medicare-eligible [retiree]," this account was capped at $600.00. Justice Boniello found that “while in some cases the $600.00 may be sufficient, it is entirely possible, and indeed probable, that in most cases it will not be enough.”

Justice Boniello concluded that the School District’s actions violated the mandates set out in Chapter 504, Part B, §14 of the Laws of 2009 and that the School District’s actions were arbitrary, capricious and unlawful.

Justice Boniello then directed the School District[1] to pay each of the Petitioners the amounts, together with interest, "that each has incurred and/or will incur" by reason of the School District’s action to the date of its compliance with the Moratorium provision; and further ordered the school district [2] “to cover the costs and/or provide health insurance coverage that will place the Petitioners in the same position that they would have been in but for the actions of the [School District].”

* A number of school districts, rather then unilaterally imposing such a change upon its Medicare-eligible retirees, have offered its Medicare-eligible retirees the option of either [1] remaining in the district's health insurance plan available to its active employees or [2] electing to switch to different health insurance plan.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23274.htm
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