Department of Civil Service - Five Year Review of Certain Existing Rules and Regulations

Department of Civil Service - Five Year Review of Certain Existing Rules and Regulations

Source: NYS Register- February 19, 2014

The following notice was published in the February 19, 2014 issue of the State Reporter pursuant to §207 of the State Administrative Procedure Act (SAPA) addressing Rules and Regulations adopted by the New York State Civil Service Commission or by the President of the New York State Civil Service Commission for the calendar years 1999, 2004 and 2009.

Public Comments

There will be a forty-five (45) day public comment period following publication of this notice. Requests for information and public comments regarding the foregoing may be directed to: J . Marc Hannibal, Eaq., Special Counsel, Department of Civil Service, Empire State Plaza, Albany, NY 12239, (518) 473-2624, E-mail address: marc.hannibal@cs.state.ny.us

Below is a brief description of each rule, including the statutory authority for its promulgation; a statement of the justification for the ongoing need for each rule; and the Department of Civil Service’s recommendations for their continuation without modification.

1999

Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions)

Statutory Authority: Civil Service Law Section 6

Description of the Regulations:

The resolutions added new sections and amended existing sections of the Attendance Rules for non-managerial/confidential (Part 21 of 4NYCRR) and managerial/confidential (Part 28 of 4 NYCRR) employees in New York State Departments and Institutions.

Sections 21.16 and 28-1.18 of the Attendance Rules were adopted to permit appointing authorities to grant overtime ineligible employees who have exhausted military leave with pay provided pursuant to the New York State Military Law, further leave with pay without charge to accruals for any period[s] of less than a workweek during which such employees are ordered to temporary military duty.

Section 21.9 and 28-1.9 of the Attendance Rules were amended to permit agencies to grant overtime ineligible employees leave with pay without charge to accruals for any absence[s] of less than a workweek during which such employees are required to appear as a witness pursuant to a subpoena or other order of court, regardless of whether an

employee is a party to the action.

These rules ensure that the Attendance Rules will be applied to employees serving in overtime ineligible positions consistent with relevant provisions of the federal Fair Labor Standards Act (FLSA).

Action: The rules have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendments to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President’s Regulations])

Statutory Authority: Chapter 534 of the Laws of 1998, amending section 167(2) of the Civil Service Law.

Description of the Regulations:

Chapter 534 of the Laws of 1998 amended section 167(2) of the Civil Service Law to provide that unpaid board members of public authorities shall be eligible to participate in the New York State Employee Health Insurance Program (NYSHIP) after six months of

service.

The regulation added a new subparagraph (iv) to section 73.1(c)(1) and a new paragraph (5) to section 73.1(e) of the President’s Regulations providing that unpaid board members of public authorities may participate in NYSHIP after six months of service and may also

continue their NYSHIP enrollment upon leaving public service with20 years or more of service in such positions.

Action: The regulations have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendment to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President’s Regulations])

Statutory Authority: Civil Service Law, Article XI

Description of the Regulation:

Section 73.3(b)(1) of the President’s Regulations was amended to enable participating agencies (PAs) and participating employers (PEs) in the New York State Health Insurance Program (NYSHIP) to contribute towards health insurance premiums on behalf of employees on leave without pay, provided such benefit is accorded to all employees within a class or category. The amendment provides that upon (60) days prior notice to the Department of Civil Service, PAs and PEs may provide such benefit to an eligible employee for a period of two years. This authorization may be extended for one additional two year period by the State Civil Service Commission for good cause shown and where the interests of government would be served. The amendment further provides that where contributions have been made on behalf of an employee on leave without pay for a two year period, or a four year period where authorized by the State Civil Service Commission, no further extensions may be granted unless the employee returns to his or her position and serves continuously therein for the six month period immediately preceding a subsequent leave of absence. This regulation extends an additional potential benefit to eligible employees and forms a part of the overall “benefit package” that employers may consider when electing to adopt NYSHIP as a health insurance offering.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2004

Amendment to Chapter IV of 4 NYCRR (Regulations of the Regulations of the State Civil Service Commission [Commission’s Regulations])

Statutory Authority: Civil Service Law Section 6

Description of the Regulation:

The resolution amended Part 55.2 to provide that a committee on appeals of the State Civil Service Commission shall not consider an examination appeal from a candidate whose score at time of establishment of the eligible list is immediately reachable for appointment as provided in section 61 of the Civil Service Law. However, a committee on appeals will consider timely appeals where a candidate’s reachability for appointment is affected by the committee’s determination of another appeal.

This resolution eliminates the need to consider examination appeals from candidates who are already eligible for immediate appointment pursuant to the Civil Service Law “rule of three.” Based upon public comments received before adoption of the resolution, the rule provides for continued consideration of timely appeals if candidates’ reachability could be impacted by other pending examination appeals.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2009

No current amendments to 4 NYCRR were adopted during 2009.

Various amendments to the Appendices to the Rules for the Classified Service (1999 and 2004)

Appendix 1 (Exempt Class)

Appendix 2 (Non-Competitive Class)

Statutory Authority:

Appendix 1: Civil Service Law, Sections 6 and 41; 4 NYCRR 2.1

Appendix 2: Civil Service Law, Sections 6 and 42; 4 NYCRR 2.2

Description of the regulations:

Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from review under Executive Order 20 by the former Governor’s Office for Regulatory Reform (GORR), upon a finding by GORR that review of such rules lacked substantial benefit.

Based upon this determination, and pursuant to SAPA section 207(5), a recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted during calendar years 1999, 2004 and 2009 is hereby omitted.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 22, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 22, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday, February 18, 2014, the following audits have been issued:

the Tuition Assistance Program;

the Metropolitan Transportation Authority;

the Office of Children and Family Services;

the New York City Department of Education; and

the New York State Health Insurance Program.


DiNapoli: DOT Improperly Paid Employees Working on Tappan Zee Bridge $320,000 for Commuting Expenses

The state Department of Transportation improperly paid nearly $321,000 to eight employees working on the Tappan Zee Bridge project for their commute to work in Tarrytown, even after an internal audit identified it as inappropriate, according to an auditreleased Tuesday, February 18, 2014, by State Comptroller Thomas P. DiNapoli.

DiNapoli: Investment in Rochester Company Returns $6.7 Million to State Pension Fund

5LINX, a telecommunications company located in Rochester, has generated an estimated $6.7 million return, nearly four times the initial investment, and achieved an approximated 21 percent internal rate of return for the New York State Common Retirement Fund (Fund), New York State Comptroller Thomas P. DiNapoli announced Thursday, February 20, 2014. The Fund invested in 5LINX through its In–State Private Equity Program, which seeks profitable investments in New York State–based companies.

DiNapoli: Audit Finds Misuse of Funds in Town of Fishkill

The former recreation director in the town of Fishkill allegedly misused as much as $50,000 generated by the town’s senior center, according to an audit released Friday, February 21, 2014, by State Comptroller Thomas P. DiNapoli. The findings of the Comptroller’s audit and investigation have been referred to Dutchess County District Attorney William V. Grady.

DiNapoli Releases January State Cash Report

State tax collections through the first 10 months of the state’s fiscal year increased 4.2 percent from last year, but were below projections largely due to the timing of Personal Income Tax (PIT) payments, according to the January 2014 cash report released Friday, February 21, 2014, by New York State Comptroller Thomas P. DiNapoli. The Division of the Budget is expected to issue a revised Financial Plan with updated revenue projections next week.
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Hearsay evidence alone may constitute substantial evidence in an administrative hearing

Hearsay evidence alone may constitute substantial evidence in an administrative hearing

2013 NY Slip Op 08169, Appellate Division, Third Department

The arbitrator dismissed disciplinary charges filed against the employee. While the arbitration was pending, the employee’s supervision lodged a complaint against employee alleging violations of certain canons of ethics relevant to the employee maintaining required credentials.

Following a hearing, Hearing Officer recommended that employee’s credentials be revoked, which recommendation the responsible Commissioner accepted and revoked the employee’s credentials. This resulted in the employee’s termination because he now lacked the required certification to be employed in the position. The employee filed an Article 78 petition challenging the Commission’s action.

The Appellate Division annulled the Commissioner’s decision, explaining that there was “serious doubt” concerning the credibility of the employee's accusers and, for that reason, the court did not find that the hearsay evidence presented at the hearing to be sufficiently reliable to support the Commissioner’s determination revoking the employee’s credentials.

Characterizing the primary issue in the appeal as the employee’s complaint that the Commission’s action was not supported by substantial evidence in the record as a whole and “specifically, that the hearsay evidence adduced at the hearing was insufficient to establish the alleged ethical violations,” the Appellate Division explored the terms “substantial evidence” and “hearsay evidence.”

Substantial evidence, said the court, has long been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”, citing Matter of Berenhaus v Ward, 70 NY2d 436, and other decisions.

The Appellate Division then noted that an administrative determination may be based entirely upon hearsay evidence “provided such evidence is ‘sufficiently relevant and probative’ or ‘sufficiently reliable’ and is not otherwise ‘seriously controverted.’"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08169.htm
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A "stand alone agreement” outside a collective bargaining contract containing a sunset provision is excluded from “maintenance of the status quo” within the meaning of Civil Service Law §209-a(1)(e)

A "stand alone agreement” outside a collective bargaining contract containing a sunset provision is excluded from “maintenance of the status quo” within the meaning of Civil Service Law §209-a(1)(e)

Matter of Uniformed Firefighters Assn. of Greater N.Y. v City of New York, 2014 NY Slip Op 01108, Appellate Division, First Department

The New York City Board of Collective Bargaining (BCB dismissed Uniformed Firefighters Association’s improper practice charges, holding that the City was not required to negotiate its decision to reduce fire engine staffing levels. Supreme Court dismissed the Association’s challenge to the BCB’s decision and the Appellate Division affirmed the lower court’s ruling.

The City had earlier implemented a roster staffing program and ultimately entered into a “Roster Staffing Agreement (RSA) setting of the staffing requirements. The RSA was to be effective for a 10-year term, expiring on January 31, 2006 and in October 2005, the Association and the City agreed to extend the term of the RSA by five years to January 31, 2011. The RSA included the following provision:

"ELEVENTH: By entering into this Stipulation of Settlement, the Union agrees to waive its right to file any litigation or grievance regarding the Department Roster Staffing program as set forth in the case docketed with the Office of Collective Bargaining as BCB-1265-90, or with regard to the practical impact of this RSA until January 31, 2006. Should a court of competent jurisdiction or any other administrative entity, except for enforcement purposes, grant the right to initiate any such litigation or grievance within that time, this RSA will be terminated immediately. Should litigation or a grievance commence, this RSA or any portion thereof shall not be admissible in any court proceeding or other administrative forum. After the expiration of this RSA, January 31, 2006, the City in view of factors including, but not limited to changes in technology, structural and non-structural fires, and response times, may wish to change staffing levels. In the event the City plans to make such changes, the parties will negotiate to the extent required by the New York City Collective Bargaining Law. Should differences between the parties arise, it is the intent of the parties to work expeditiously to resolve them."

In October 2010, the City notified petitioner that in consideration of the RSA's impending January 31, 2011 expiration date, it planned to the staff assigned to engines in certain companies with a minimum of four firefighters per engine at the beginning of each tour and others with five firefighter crews, effective February 1, 2011.

The City noted that, while it was not obligated to bargain with the union over the changes, it was "willing to meet with the UFA to discuss any concerns the union may have." The City gave petitioner a publication containing the FDNY's guidelines and procedures for implementing the new staffing policy.

On January 31, 2011, the Association, with the Uniformed Fire Officers Association** (UFOA), brought a combined Improper Practice and Scope of Bargaining petition to challenge the City's decision to reduce the engine staffing levels at certain companies from five firefighter crews to four commencing February 1, 2011, contending that the City's unilateral action was violative of both the RSA and the New York City Collective Bargaining Law (NYCCBL).

The BCB, by a four-to-two vote, dismissed all challenges except the allegations concerning the practical impact of the City's decision to reduce the engine staffing levels. BCB also directed a hearing before a trial examiner to determine whether the reduction would have a safety impact that would require negotiations between the parties concerning implementation of the changes.

In its decision, BCB found that the RSA contained a "sunset" provision because paragraph Eleventh and the subsequent extension indicated an expiration date. Thus, any provision in the RSA to maintain the engine staffing levels had "sunset" which had the practical effect of terminating a benefit at a specific time or on a specific condition. 

In so ruling BCB rejected a reading of paragraph Eleventh as requiring the parties to negotiate post-expiration should the City decide to reduce engine staffing levels. This construction, BCB held, would render the RSA's expiration meaningless and would impose an absolute obligation on the City to bargain, where the language indicated only that the parties would bargain "to the extent required by the NYCCBL."

In addition, BCB found that the RSA allowed the Association to file grievances after the expiration date, but that its proposed reading would not similarly permit the City to act; thus the Association’s reading of the RSA would evince a lack of mutuality that could not have been the parties' intent.

Significantly, BCB held that that, based on its determination that paragraph Eleventh "on its face, constitutes a sunset provision," and thus neither maintenance of the status quo under Civil Service Law §209-a(1)(e),* nor the conversion theory of negotiability, applied.

Based on its own precedent, BCB determined that the RSA was not incorporated into the parties' Collective Bargaining Agreement and, consistent with its previous decisions and NYCCBL 12-307, fire engine staffing levels are a nonmandatory bargaining subject. Accordingly, it ruled that the City was not required to bargain such staffing levels unless, following a hearing, BCB found a practical safety impact.

Supreme Court found no reason to disturb the board's determination and held that once BCB determined that the RSA expired on January 31, 2011, it rationally applied its own precedent to find that this "sunset provision" rendered inapplicable the theory that nonmandatory subjects could be converted into mandatory subjects by way of incorporation into a collective bargaining agreement. Accordingly, any provision in the RSA that required the Association and the City to negotiate the reduction of engine staffing levels expired with the RSA. Noting that there was no post-expiration obligation to negotiate the matter unless the reduction had an impact on safety, the court ruled that BCB had properly directed a hearing to establish a record concerning that issue.

The Appellate Division agreed, finding that Supreme Court properly denied the petition and dismissed the proceeding and that BCB’s determination was rational and did not render any provision in paragraph Eleventh meaningless. The Appellate Division then explained that if BCB’s determination has a rational basis, it must affirm, “even if this Court would have interpreted the provision differently.”

Finding that BCB rationally concluded that paragraph Eleventh's reference to the "expiration of this RSA, January 31, 2006" was a sunset provision, it properly concluded that, after the RSA's expiration, if the City intended to reduce engine staffing levels, it would negotiate "to the extent required by the New York City Collective Bargaining Law."

However, said the court, under the current Collective Bargaining Law, staffing levels are a nonmandatory subject of collective bargaining and “[c]ontrary to [the Association’s] contention, [BCB’s] decision does not render meaningless the last sentence of paragraph Eleventh—‘[s]hould differences between the parties arise, it is the intent of the parties to work expeditiously to resolve them’—because the safety impact of any staffing level reduction remains negotiable.”

* The so-called Triboro Amendment

** The UFOA is not a party to the RSA and, thus, is not a party to this appeal.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_01108.htm

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Employee terminated for deficient performance

Employee terminated for deficient performance

2013 NY Slip Op 08012, Appellate Division, First Department

The Appellate Division confirmed the ruling of the State of New York Industrial Board of Appeals (IBA) which, after a hearing, determined that New York State Department of Labor (DOL) acted reasonably in concluding that the New York City Board of Education (BOE) did not terminate an individual's [Petitioner] employment in retaliation for his submitting complaints about health and safety pursuant to the Public Employee Safety and Health Act. *

The court said that substantial evidence in the record supports IBA's determination that DOL acted reasonably in concluding that Petitioner's complaints regarding health and safety were not a motivating factor in his dismissal from his position as a “Homebound Program”** teacher.

Although there is evidence that Petitioner's supervisor “purportedly told a DOL investigator in 1993 that [Petitioner] was terminated from his position because he made health and safety complaints,” the Appellate Division said that the evidence underlying DOL's conclusion that BOE did not terminate Petitioner because of his filing complaints pursuant to the Pubic Employee Safety and Health Act included extensive evidence of deficient performance by Petitioner.

The Appellate Division also noted that the supervisor who allegedly indicated a discriminatory motive was not the ultimate decision-maker, and the record shows that BOE immediately offered Petitioner another tenured track position after terminating his employment in the Homebound Program.

The court commented that the same result would obtain whether the matter was analyzed pursuant to the traditional framework set forth in McDonnell Douglas Corp. v Green, 411 US 792, or under a "mixed motive" analysis, citing Melman v Montefiore Medical Center, 93 AD3d 107.

* New York State Labor Law §27-a, “Safety and health standards for public employees”

** Homebound instruction - A resident of the public school district enrolled in a public or nonpublic school is eligible for this service if qualified. Home instruction is a form of tutorial services, provided to public or nonpublic students, by the public school district of residence.  These services are provided in accordance with the Commissioner of Education's Regulations [see 8 NYCRR 175.21] to students who are unable to attend their public or nonpublic school because of physical, mental, or emotional illness or injury.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08012.htm

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Filing a timely “Notice of claim” pursuant to Education Law §3813(1) held a condition precedent to maintaining an action seeking damages

Filing a timely “Notice of claim” pursuant to Education Law §3813(1) helf a condition precedent to maintaining an action seeking damages

2014 NY Slip Op 01007, Appellate Division, Second Department

Challenging the School Board's decision denying a probationary teacher [Teacher] tenure and terminating her employment, Teacher filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Board's determination on the ground that it was arbitrary and capricious and sought reinstatement to her former position with tenure and back pay.

Supreme Court directed the Board to reinstate Teacher with back pay pending a hearing to determine “whether [Teacher] was denied tenure and terminated from her position as a probationary teacher in bad faith.”

The Board appealed and among its affirmative defenses it argued that Teacher “had failed to serve a notice of claim within three months after her claim arose as required by Education Law §3813(1).” The Appellate Division agreed and reversed the lower court’s ruling on the law. The Appellate Division explained that Teacher was, indeed, required, pursuant to Education Law §3813(1), to serve a timely notice of claim.*

The court distinguished Teacher’s claim from one where a litigant seeks only equitable relief or commences a proceeding to vindicate a public interest. Here, said the Appellate Division, Teacher sought damages in the form of back pay as well as equitable relief and had not commenced this proceeding to vindicate a public interest.

The court also noted that although a litigant seeking "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the §3813(1) notice of claim requirement, that exemption is inapplicable here and Teacher’s service of a notice of claim pursuant to Education Law §3813(1) was a condition precedent to the maintenance of her action.

* In Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602, it was held that a timely appeal to the Commissioner of Education provides the pre-litigation §3813 Notice of Claim that must be filed with a school district while in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights,” citing Matter of Tadken v Board of Education, 65 AD2d 820, Motion for leave to appeal denied, 46 NY2d 711.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01007.htm

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