NYC police officer’s pension vested as a result of the appointing authority’s failure to hold a timely disciplinary hearing

NYC police officer’s pension vested as a result of the appointing authority’s failure to hold a timely disciplinary hearing
2013 NY Slip Op 06772, Appellate Division, First Department

New York City’s Administrative Code §13-256 provides that a police officer's pension automatically vests thirty days after he or she "duly execute[s an] application for a deferred retirement allowance," provided, among other things, that the discontinuance of the officer's employment is not "by . . . dismissal."*

In this instance a police officer [Petitioner] submitted his retirement application. On the day before his  pension would have become vested, the New York City Police Commissioner dismissed Petitioner from the police force as the result of a disciplinary hearing held in absentia.

Petitioner challenged the Commissioner’s action and Supreme Court vacated the order of dismissal. The court ruled that that Commissioner’s notice of the disciplinary charges was not "reasonably calculated to give him actual notice and an opportunity to be heard" thus violating due process and rendering "the final determination . . . arbitrary and capricious and without sound basis in reason."

Supreme Court granted Petitioner’s petition to the extent of remanding the matter to NYPD for “a full hearing on proper notice,” which ruling was affirmed by the Appellate Division, 80 AD3d 530. The Court of Appeals denied Commissioner’s application for leave to appeal (see 16 NY3d 714).

While Supreme Court's remand order was stayed during the pendency of Commissioner’s appeals, the stay terminated five days after service of the Court of Appeals' order denying the Commissioner's leave to appeal with notice of its entry.

The Appellate Division said that the Supreme Court's initial ruling rendered the order of dismissal a nullity. Accordingly the thirty-day vesting period set forth out §13-256 “remained in effect upon remand and began running anew.” The Commissioner, however, failed to hold a hearing and issue a new order of dismissal in timely fashion.

Petitioner then asked Supreme Court to issue an order compelling NYPD to process his pension application. Supreme Court rejected the petition and Petitioner appealed.

The Appellate Division said that Petitioner’s “pension vested automatically” when the Commissioner failed to hold a hearing within thirty days of the date of the Court of Appeals’ order. Accordingly, the Appellate Division directed the Commissioner to vest Petitioner's pension.

* See §§13-256[a][1], [4] and § 13-256[b]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06772.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 19, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 19, 2013

Click on text highlighted in color  to access the full report

Comptroller DiNapoli and A.G. Schneiderman Announce Arrest of Former Siemens Executive for Stealing from Monroe County Project

On October 15, 2013 Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the indictment of Daniel Lynch, a former sales executive of Siemens Building Technologies and current president of Treadstone Development Corporation, for stealing $75,000 from Siemens and the Upstate Telecommunications Corporation (UTC). UTC, a local development corporation, is a not–for–profit organization that contracts with Monroe County to provide upgrades to the county’s information technology and copier systems. Lynch is charged with Grand Larceny in the Second Degree, a class C felony, and two counts of Falsifying of Business Records in the First Degree, a class E felony. The maximum prison sentence for Grand Larceny in the Second Degree is five to 15 years in state prison.

DiNapoli: Financial Challenges Remain for State Despite Progress

New York state spending declined for the second straight year in fiscal year 2012–13 while debt reached an all–time high of $63.5 billion, according to the annual reporton the Financial Condition of New York State released Tuesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli and A.G. Schneiderman Announce Arrest of Town Supervisor For Stealing Campaign Funds

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman on Octcber 17, 2013 announced the arrest of Melinda “Mindy” Wormuth, the Town of Halfmoon Supervisor, for stealing more than $6,000 in campaign contributions from her campaign fund.

DiNapoli: Audit Finds Excessive Surplus Funds in Mt. Sinai School District

The Mt. Sinai Union Free School District in Suffolk County overestimated expenditures five years in a row creating surpluses that exceed statutory limits, according to an audit released Wednesday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Funds Missing in Town of Lebanon Justice Court

An audit by State Comptroller Thomas P. DiNapoli has revealed that more than $2,000 is missing in the Town of Lebanon justice court in Madison County. The audit was conducted at the request of town officials and upon initiation of the audit, the town justice immediately resigned his position.

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed audits of::

the City University of New York;

the Department of Environmental Conservation;

the Department of Health–Medicaid Program;

the Department of Financial Services;

the Empire State Development Corporation;

the Workers’ Compensation Board;

the Department of Health; and

the Office of Mental Health.

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Contingent permanent appointment not automatic

Contingent permanent appointment not automatic

Matter of Snyder, 132 A.D.2d 905, 907, aff'd 72. N.Y.2d 981

When the permanent incumbent of a position is placed on leave of absence for what is expected to be an extended period, the appointing authority often seeks to fill the position. Usually this results in a “temporary” appointment. However, under State Civil Service Commission rules (similar rules have been promulgated by a number of municipal civil service commissions as well), if there is an appropriate eligible list available, the department or agency may elect to fill the position on a “contingent permanent” basis by selecting a person from the eligible list.

Such an appointment may prove to be of some importance as it provides the individual appointed on a contingent permanent basis with all of the rights of a permanent employee, except the right to retain the position in the event the person on leave from the position returns to the position.

Snyder, an Associate Attorney, had been “provisionally appointed” to the title Supervising Attorney, a higher-level position. The supervising attorney position had become available when the permanent Supervising Attorney was placed on leave of absence from the title upon his temporary appointment to a higher-level position – Principal Attorney. About two years later Snyder was reinstated to his permanent, lower grade, Associate Attorney position. The permanent incumbent of the Supervising Attorney position, however, continued to serve “temporarily” in the Principal Attorney position, still on leave from the supervising attorney position.

Snyder sued, arguing that he had become tenured in the supervising attorney position on a “contingent permanent” basis when he was continued in the title for more than nine months. He claimed that he had attained such status automatically solely because he had been qualified to be appointed on a contingent permanent basis. As a result, he said, he could not be “demoted” except as a result of disciplinary action so long as the permanent incumbent of the Supervising Attorney remained on leave of absence from the  position.

Snyder based his claim of tenure on a contingent permanent basis on the fact that the supervising attorney title to which he had been appointed had always been filled by non-competitive promotion from associate attorney in accordance with “§52.6” of the Civil Service Law. As he had been appointed as a permanent Associate Attorney, he contended that his advancement to the supervising attorney position during the leave of absence of the permanent incumbent could only have been effected on a continent permanent basis.

The Department of Civil Service conceded this procedure had been followed in the past and that it did not expect to ever hold a competitive examination for the Supervising Attorney title. Reading §§52.6 and 65.4 together, Snyder contended that he was now tenured in the supervising title on a contingent permanent basis.

§65.4 provides if a person whose name is on an appropriate, nonmandatory eligible list is provisionally appointed to a vacancy, or is continued in such a position on a provisional basis beyond the maximum period of probation, is deemed to have been permanently appointed to the position.

The Commission, in interpreting its Rule concerning contingent permanent appointments, 4 NYCRR 4.11(a), said that making an appointment on a contingent permanent basis was discretionary and that the appointing authority did not have to make such an appointment merely because it was possible to do so. 4 NYCRR §4.11 provides that “a position in state service left temporarily vacant by the leave of absence may be filled on a permanent basis....” In effect, the Commission said that making a contingent permanent appointment requires an affirmative act on the part of the appointing authority to effect such an appointment.

The Appellate Division agreed with the Commission, rejecting Snyder’s theory that §65.4 applied in his case.

Noting that the regulation uses the permissive word “may,” the majority ruled that appointments to temporarily vacant positions do not have to be permanent. The Court said “[o]nce it is established that (Snyder’s) status was solely as a provisional appointee and, therefore governed entirely by Civil Service Law §65, the conclusion becomes inescapable that it could not ripen into that of permanent appointment absent full, literal compliance with all of the conditions for converting a provisional appointment to a permanent one under Civil Service Law §65.4.”

As §65.4 applies only where an examination fails to produce a list adequate to fill all positions then held on a provisional basis or where such a list is exhausted immediately following its establishment, the majority concluded that Snyder could not have attained permanent (or contingent permanent) status as there was no examination or list in his case.
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School board’s “final ruling” in a grievance reviewable by the courts absent the union’s voluntary waiver of its right to seek judicial review

School board’s “final ruling” in a grievance reviewable by the courts absent the union’s voluntary waiver of its right to seek judicial review

Aloi v. West Babylon Union Free School District, 81 AD2d 874

The Appellate Division ruled that the School Board's reliance on its regulation that provided that its decision in a grievance “shall be final” was misplaced and the regulation in question did not preclude judicial review.

A grievance was submitted by the West Babylon Non-Teaching Unit of the Civil Service Employees Association pursuant to the school board's regulations. The board of education ultimately denied the grievance.

When CSEA appealed, the board of education contended that the courts could not review its “final determination,” pointing out that its regulation provided that "The report of the Board of Education shall be final."

The Appellate Division disagreed, explaining “The regulation cannot preclude judicial review in the absence of a voluntary surrender of the union's right to resort to the courts to enforce the collective bargaining agreement,” citing Matter of Riverdale Fabrics Corp., 306 NY 288.

Further, the court said that the fact that the union submitted the dispute pursuant to the board of education's grievance mechanism did not constitute a waiver of the union's rights to appeal an adverse ruling to the courts. Otherwise, were the union not to avail itself of the administrative remedy provided by the board it might be precluded from seeking judicial review under the “failure exhaustion of administrative remedies” doctrine.

The Appellate Division viewed the school board’s regulation as self-serving  and ruled that it could not preclude CSEA’s further appeal to the Courts.
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Salary adjustments due firefighters disabled in the line of duty

Firefighter disabled in the line of duty eligible to continue to receive his of her salary

Drahos v. Village of Johnson City, 80 AD2d 100

In Drahos v. Village of Johnson City, 80 AD2d 100, the Appellate Division held that a firefighter injured in the line of duty and unable to return to work, and who is not permanently disabled, is entitled to the payment of his or her regular salary in full until he or she returns to duty* or retires, citing §207-a of the General Municipal Law.

This, according to the opinion, includes increases and adjustments received by firefighters in active status during the period of the disabled firefighter's absence due to his or her injury or disease.

Presumably the same would apply to police officers injured in the line of duty and otherwise eligible for similar benefits pursuant to §207-c of the General Municipal Law.

* Where appropriate, the injured firefighter may be required to return to work to perform "light duty."
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US Supreme Court declines to review a 9th Circuit holding that the ADEA is the exclusive remedy available to individuals alleging unlawful age discrimination by a California governmental entity

US Supreme Court declines to review a 9th Circuit holding that the ADEA is the exclusive remedy available to individuals alleging unlawful age discrimination by a California governmental entity

Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2013, Meyers Nave. All rights reserved.

Meyer Nave, a law firm, distributed an e-mail stating that there is “Good news for California public employers out of the U.S. Supreme Court today:[October 15, 2013] the high court officially kicked the age bias case of Madigan v. Levin* to the curb, dismissing the matter in a per curiam decision as improvidently granted."

The e-mail reports that “The bottom line for California public employers is that the rule in the U.S. Court of Appeals for the Ninth Circuit under Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009) remains in effect: the Age Discrimination in Employment Act (ADEA) is the exclusive remedy in federal courts for age discrimination claims against state and municipal employers, precluding equal protection claims under 42 U.S.C. §1983.”

Click here to Read the full article online

* Madigan v. Levin, No. 12-872

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Provisional employee terminated after failing two examinations for the position

Provisional employee terminated after failing two examinations for the position

Matter of the Steuben County Civil Service Commission, 113 Misc 2d 570

Subdivision 4 of §65 of the Civil Service Law provides as that "successive provisional appointments shall not be made to the same position after the expiration of the authorized period of the original provisional appointment to such position; provided, however, that where an examination for a position or group of positions fails to produce a list adequate to fill all positions then held on a provisional basis, or where such list is exhausted immediately following its establishment, a new provisional appointment may be made to any such position remaining unfilled by permanent appointment, and such new provisional appointment may, in the discretion of the appointing authority, be given to a current or former provisional appointee in such position".

When the employee failed two successive examinations for the position he held on a provisional basis, the Steuben County Civil Service Commission invoked its “Two Examination Failure” Rule and refused to approve the employee’s continuation in the position as a provisional provisional.

The Rule provided that no provisional employee who twice failed the test for the position would be given another provisional appointment unless the test failed to produce any qualified eligible or where the list was immediately exhausted. In this case the list consisted of four names, but one candidate refused appointment and a second withdrew his name from consideration.

The Commission successfully argued that further provisional appointment was not permitted because the examination did not fail to produce any qualified candidates and

the list was not exhausted.

Noting that a local commission has the discretion to adopt such a Rule, the Court suggested the employer, who “clearly was under no compulsion” to use the eligible list, would effect the purposes of the Constitution’s merit and fitness provision by appointing one of the two remaining eligibles on a provisional basis to the position.

Of course, the appointing authority could elect to make a permanent appointment from  “two-name list.”

However, if a person on eligible list is appointed to the vacancy provisionally, applying the decision in Roulett v Hempstead Civil Service Commission, 40 AD2d 611,the individual selected would automatically attain permanent status if continued in service beyond the maximum probationary period otherwise required for the position.

In Roulett the Appellate Division ruled that if a person on a nonmandatory eligible list is provisionally appointed to a vacant position, or is continued as a provisional employee after being certified for appointment from a nonmandatory list, he or she will be deemed to have been permanently appointed to the position if continued in service beyond the maximum period of probation

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