The statutory text provides the clearest indication of “legislative intent” and should be construed by the courts to give effect to its plain meaning

The statutory text provides the clearest indication of “legislative intent” and should be construed by the courts to give effect to its plain meaning

Sheriff Officers Assn., Inc. v County of Nassau, 2013 NY Slip Op 06870, Appellate Division, Second Department

In June 2011, the Nassau County Legislature approved a bill authorizing the amendment of the County's 2011 budget in order "to abolish certain positions of employment . . . as a means of addressing the current economic shortfall." The County Legislature subsequently adopted a bill amending the budget [Local Law 198-2011] permitting the abolition of, among other things, up to 48 correction corporal positions.

Section 1 of Local Law 198-2011 stated, in relevant part, that the positions listed in "Appendix A to this Ordinance" "shall be deemed abolished effective no later than December 29, 2011." Section 3 of Local Law 198-2011 provides that, "Appendix A to this Ordinance may have individual line items in it stayed by Executive Order. Nothing contained herein shall limit the stay to an individual line and this shall be interpreted as permitting a stay applicable to individual job titles."

Consistent with the Local Law 198-2011, the County Executive ultimately stayed the abolition of 18 of the 48 correction corporal positions. The incumbents of the remaining 30 correction corporals were demoted to correction officer positions as their correction corporal upon the abolishment of the positions they encumbered.

The Sheriffs Association filed an CPLR Article 78 petition with Supreme Court alleging that the County Executive acted in violation of Local Law 198-2011 when he abolished the 30 correction corporal titles, contending that Local Law 198-2011 was not self-executing and required the County to take some affirmative action to abolish the listed positions before December 29, 2011.Thus, argued the Association, the County Executive untimely demoted 30 of the 48 correction corporals on January 12, 2012.

The Appellate Division ruled that the Association failed to meet its burden of proof in that it did not prove that the County Executive acted in violation of lawful procedure or that his act was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion. The court explained that “When considering questions of statutory interpretation, a court's ‘primary consideration is to ascertain and give effect to the intention of the Legislature.’ The statutory text provides the clearest indication of legislative intent, and should be construed to give effect to its plain meaning."

Here, said the court, “Supreme Court correctly found that the statutory language at issue was unambiguous, and that the provision of section 1 of [Local Law 198-2011] providing for the abolition of listed titles was self-executing.” Further, noted the Appellate Division, there is  “nothing in [Local Law 198-2011] which requires any enabling act by the County in order to abolish the positions.”

As to the County Executive’s stay of the abolition of several of the positions on or about December 28, 2011, and his amending that stay on January 12, 2012, the Appellate Division ruled that Local Law 198-2011 was self-executing, and that, as of December 29, 2011, all 48 of the correction corporal positions would have been deemed substantively abolished, but for the executive stay that was issued.

Rejecting the Association’s argument to the contrary, the court concluded that the County Executive's determination on January 12, 2012 did not constitute an illegal or untimely attempt to abolish the relevant correction corporal positions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06870.htm
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Liquidating unused leave accruals upon retirement, resignation or death

Purcell v City of New York, 2013 NY Slip Op 06799, Appellate Division, First Department

Thomas R. Purcell, a former New York County Deputy Public Administrator employed by the Office of the Public Administrator [Office], requested payment for his unused annual and sick leave accruals following his retirement from his position. However, the appointing authority advised him that he was not due any compensation for unused leave credits and that, in fact, his “final leave balance was negative.” 

 The payment or "liquidation" of such leave credits could be a significant consideration upon retirement.

Typically an employee’s unused annual leave accruals and unpaid “overtime” or compensatory time credits are paid to the individual upon his or her resignation or retirement or to his or her estate in the event of his or her death while in service.

If, on the other hand, an employee has unused annual leave credits at the time he or she retires and elects to liquidate such credits by means of a lump sum payment rather than "run them out," the lump sum payment could be a factor to be included in computing the employee's final average salary for retirement purposes, resulting in a higher retirement allowance. 

As to sick leave, although unused sick leave is not liquidated unless authorized by law, rule or regulation or, in some instances, a collective bargaining agreement, accumulated unused sick leave may be used for “additional service credit” for the purpose of determining the individual’s retirement allowance and other benefits upon the individual's retirement.

Employees of the State as the employer, certain public authorities and certain other public entities who are members of the New York Employees' Retirement System can take advantage of their accrued and unused sick leave credits when they retire from service. Upon retirement such unused leave accruals can be used for additional member service credit in the retirement system. Up to 200 days of additional member service may be credited using such unused sick leave accruals [see Retirement and Social Security Law §41.j.1].

In addition, employee of the State as the employer and some municipal employees participating in the State's Employees' Health Insurance Plan [NYSHIP], can have the actuarial value of their unused sick leave credits applied towards the payment of any employee health insurance premium required following their retirement if they remain in NYSHIP [see Civil Service Law §167, subdivisions 4 and 5].

Purcell challenged the Office's determination in an Article 78 proceeding and Supreme Court issued and order remanding the matter to the appointing authority for issuance of “a revised determination based upon correct information.”

The Office subsequently issued a revised determination, asserting that its earlier calculation of Purcell's annual leave balance was correct. About six months after receiving the Office’s “revised” decision Purcell initiated a lawsuit alleging “breach of contract” based on the Office’s failure to compensate him for the value of his unused annual and sick leave time.

The Appellate Division agreed that Purcell was correct regarding his argument that a party seeking damages arising from an alleged breach of contract against a public official or governmental body may pursue an action at law. However, said the court, Purcell had failed to establish the existence of such a contract and thus could not maintain an action at law based on an alleged “breach of contract.”

“Although framed as one for breach of contract,” Purcell, said the court, was actually challenging to the Office of the Public Administrator's administrative determination that, based upon its calculations, he was not entitled to compensation for unused sick and annual leave. The appropriate procedure to test the Office’s decision was for Purcell to have initiated an Article 78 action.

Purcell, however, had failed to file an Article 78 petition in a timely fashion as he had initiated this lawsuit some six months after the Office issued its “final determination.” An Article 78 action cannot be maintained unless it is filed within the statutory four-month statute of limitations for initiating such actions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06799.htm
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The doctrine of judicial estoppel bars a party securing a ruling in his or her favor based on taking a certain position from advancing a contrary position in another action

The doctrine of judicial estoppel bars a party securing a ruling in his or her favor based on taking a certain position from advancing a contrary position in another action

2013 NY Slip Op 06783, Appellate Division, First Department

The assistant director [AD] of a day care center applied facility applied for a position with New York City Department of Health (DOH) as an Early Childhood Education Consultant (ECEC). In August 2007, DOH notified plaintiff that she was hired and was to start her new job on September 5, 2007.

As the result of a number of mishaps related to her pregnancy, AD was ultimately told that DOH could "no longer grant [her] employment" on September 6, 2007.

AD then contacted the day care center seeking reemployment and the center “agreed to take her back.”

After reporting for work at the day care center on September 12, 2007 AD went to she her doctor during her lunch break on the same day. She returned to the office with a note from her doctor indicating that she had "preterm labor" and "restrictions" on walking. According to AD, “On either September 13, 2007, or September 17, 2007” the center terminated her.

AD sued DOH alleging “gender- and pregnancy/disability-based discrimination under the New York City Human Rights Law.” Subsequently AD commenced an action against the day care center “asserting claims of gender- and pregnancy-based discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, and the New York State and City Human Rights Laws.”

The day care center defaulted and the District Court granted AD’s motion for a default judgment and held that she was entitled to damages. Significantly, the federal district court, based on the representation set out in AD’s deposition,* ruled that she had been employed at the day care center "from April 2005 until September 17, 2007."

When Supreme Court granted DOH’s motion for summary judgment dismissing AD’s complaint against DOH that had been filed in state court, AD appealed.

The Appellate Division sustained the Supreme Court’s ruling, explaining that “The doctrine of judicial estoppel prevents a party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor from advancing a contrary position in another action, simply because his or her interests have changed.” Also referred to as the "doctrine of estoppel against inconsistent positions," said the court, the doctrine "rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise."

The Appellate Division found that AD failed to show that she was "qualified" for the DOH position in her state court action, as required to make out a prima facie case of discrimination, as she was “judicially estopped from denying that, at the time she was allegedly discriminated against by [DOH], she was actually employed with [the day care center] which would make it impossible for her to carry out her duties for [DOH].”

Although AD argued that “there is no inconsistency between the positions she took in the federal action and those she has taken in this action,” the Appellate Division disagreed, noting that AD had “neglected to inform the District Court that, while employed at [the day care center], she pursued and accepted another job with DOH which she was slated to start on September 4, 2007, left [the day care center], was allegedly discriminated against by the City, and returned to [the day care center] prior to being discriminated against there and terminated after a single day.

The Appellate Division said that “These facts would have been highly material to her claim against [the day care center], and it was highly misleading, at best, for [AD] to omit her City employment from her submissions to the District Court.”

Noting that “based on [AD's] submissions, the District Court expressly found that she was employed by [the day care center] from April 2005 until September 17, 2007,” the Appellate Division said that it the District Court’s finding was incorrect, “then it was incumbent upon [AD] to move to correct the finding, or else be bound by it in subsequent legal proceedings.”

* Although AD testified at her 2010 deposition that she was terminated on September 13, 2007, she conceded that she was uncertain of the actual date of her termination. Based on AD's allegations in the federal lawsuit, she was awarded a default judgment based on a termination date of September 17, 2007.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06783.htm
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Moreland Commission to hold third public hearing in New York City

Moreland Commission to hold third public hearing in New York City

Source: Moreland Commission Press Office

The Moreland Commission to Investigate Public Corruption will hold its third public hearing on Monday, October 28, 2013 at the Jacob K. Javits Convention Center of New York. Hearings are scheduled to begin at 5:00 p.m. [Convention Center doors will open at 4:00.p.m]

Each hearing will cover specific subject areas. The October 28 hearing will focus on Campaign Finance Reform.

The Commission has invited the following individuals to testify:* 
  
New York State Board of Elections Co-Executive Directors, Robert Brehm & Todd Valentine and Deputy Enforcement Counsel, William McCann

New York City Campaign Finance Board Executive Director, Amy Loprest
 
New York Public Interest Research Group Research Coordinator, Bill Mahoney

Campaign Finance Institute Executive Director, Michael Malbin

Connecticut Deputy Secretary of State, James Spallone & Demos President, Miles Rapoport

NYC Council Members, Brad Lander and Carlos Menchaca

 New York State League of Women Voters President, Sally Robinson

Citizens Union Director of Public Policy and Advocacy, Alex Camarda

The Commission’s Internet site address is: http://publiccorruption.moreland.ny.gov/

* Members of the public are invited to attend only. Those invited to provide testimony to the Commission will be the only individuals to speak at the hearing.



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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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