State Employees’ Retirement System member must have been a public officer or employee earlier in order to “buy back” service credit for such service

State Employees’ Retirement System member must have been a public officer or employee earlier in order to “buy back” service credit for such service 
2014 NY Slip Op 03904, Appellate Division, Third Department

A member [Member] of the NYS Employees' Retirement System sought to "buy back" member service credit based on his service as a hearing examiner with the City of New York. The Comptroller determined that Member was not an employee of the City and thus was ineligible to purchase service credit for that work.

In an earlier action* Member contended that he served as an “officer” of the City of New York and the matter was remanded to the Comptroller to address that claim. The Comptroller rejected Member’s claim that he was a public officer by reason of his so serving as a hearing examiner and Member appealed that determination as well.

The Appellate Division affirmed the Comptroller’s decision, explaining that the Comptroller "is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence.” Further, said the court, Member had the burden of establishing his entitlement to the additional service credit.

The service credit question's result was dependent on whether Member had been engaged in "previous service with a public employer” that would have been creditable in one of the public retirement systems of the State, in this instance the New York City Employees' Retirement System. In other words, Member would have had to have been eligible for membership in NYCERS based on his work as a hearing examiner being deemed service as an officer of the City.

The City of New York Law Department, however, had taken the position that hearing examiners were neither city officers nor employees and NYCERS had determined that hearing examiners were not city officers such as to render them eligible for membership. The Comptroller relied upon these determinations in formulating his decision.

The court commented that even if the Comptroller had not relied on the views of the City’s Law Department and NYCERS in this regard, substantial evidence nevertheless supported the Comptroller's finding that Member was not a city officer entitled to claim prior service credit. Member, said the court, did not demonstrate that he served as a public officer in that he failed to show that he had been appointed for any specific length of time, was "a manager or policy maker," had filed a financial disclosure statement and that he had taken or filed an oath of office.

Although evidence in the record could support a different result, the Appellate Division concluded that there was sufficient substantial evidence in the record to support the Comptroller's determination that Member was not entitled to “prior service credit.”

* See 81 AD3d 1156.

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Albany Law School offers Continuing Legal Education [CLE] courses on line

Albany Law School offers Continuing Legal Education [CLE] courses on line

Attorneys in New York state admitted to practice for more than two years are able to take their CLE courses by viewing educational sessions online by approved CLE providers.

Albany Law School, an accredited CLE provider in New York state, now has a library of interesting CLE programs for viewing online, given by leaders in the field, including Albany Law faculty, alums and other experts.

Sample sessions include:

Professor Robert Heverly’s lively discussion of the ethical issues related to attorney use of social media

Professor Michael Hutter’s engaging overview of recent U.S. Supreme Court decisions on personal jurisdiction

Catherine Hedgeman's explication of recent updates to New York’s Not-for-Profit Corporations Law

Professor Dorothy Hill and Professor Nancy Nancy Maurer's training on how to supervise law students

CLE sessions are available for download for $25 per credit hour and no separate membership or affiliation with Albany Law School is required to access the courses.

Click here to View the full list of available sessions and instructions for download

For more information or questions regarding the online CLE program, please contact Lisa Rivage at lriva@albanylaw.eduor 518-472-5888.

Additional course will be available soon. To receive notice when new courses are available, please email Amy Gunnells at agunn@albanylaw.edu.

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Volunteer firefighters must be afforded due process in disciplinary proceedings

Volunteer firefighters must be afforded due process in disciplinary proceedings

A volunteer firefighter was suspended from active duty with the Fire Company for a period of one year, which subsequently was reduced to a suspension from active duty for a period of six months and a suspension from social functions for another period of six months.

The firefighter filed a CPLR Article 78 petition contending that the Fire Company's disciplinary proceeding failed to comply with the requirements of Civil Service Law §75 with respect to his status as an exempt volunteer firefighter.* Supreme Court remitted the matter to the Fire Company to conduct a hearing in accordance with Civil Service Law §75 and for a new determination thereafter.

The Appellate Division affirmed the result but in so doing noted the relevant provision of law was General Municipal Law §209-l and not the Civil Service Law §75.

The Appellate Division explained that "Civil Service Law §75(1)(b) provides certain procedural protections to permanent employees in the competitive class and to permanent appointee in the classified service not in the competitive class who are also exempt volunteer firefighters. The statute provides these protections to all individuals employed in classified civil service positions who fit within its definitions."

Although in this instance the firefighter was an exempt volunteer firefighter, he has not been subjected to disciplinary action by as an employee of the State as the employer or as an employee of a political subdivision of the State. The court rejected the firefighter’s argument that his status as an exempt volunteer firefighter, standing alone, entitled him to the protection of Civil Service Law §75.**

However, the Appellate Division found “no merit” in the Fire Company’s contention that it did not have to comply with the hearing requirements of General Municipal Law §209-l because this matter did not involve the firefighter's "removal" from the Fire Company. 

The court said "[A]; volunteer firefighter must be afforded due process in disciplinary proceedings” where he or she has been subjected to disciplinary action initiated by his or her Fire Company, citing Matter of Greene v Medford Fire Department, 6 AD3d 705. This, said the court, is true whether the penalty that is ultimately imposed entails the firefighter's permanent removal from his or her position, or a suspension from the position.”

The court pointed out that General Municipal Law §209-l(5) provides that "[t];he officer or body having the power to remove the person charged with incompetence or misconduct may suspend such person after charges are filed and pending disposition of the charges, and after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year" (emphasis supplied by the court).

The Appellate Division found that the plain meaning of this provision is that a volunteer firefighter may only be temporarily suspended, without a hearing, from the time that the charges are filed until the ultimate disposition of the charges, but that a hearing is required to actually dispose of the charges, and that a final penalty of suspension, not to exceed one year, may only be imposed after that hearing. Accordingly, the Fire Company was required to comply with the procedures set our in General Municipal Law §209-l

Thus, the Appellate Division ruled that Supreme Court “properly remitted the matter to the Fire Company for further proceedings, including a hearing on the charges preferred against the [firefighter], and a new determination thereafter.

* The qualifications for certification as an exempt volunteer firefighter are set out in §200 of the General Municipal Law. General Municipal Law §202 provides for a certificate to be issued to a person qualified to be an exempt volunteer firefighter.

** See Civil Service Law §75[1];[b]).

___________________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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Unsatisfactory performance rating

Unsatisfactory performance rating 
2014 NY Slip Op 03765, Appellate Division, First Department

A second-year probationary teacher took over the class in the second week of November. The principal gave her Unsatisfactory Performance Rating [U-rating] at the end of the school year based on facts indicating a lack of progress toward implementing suggestions to improve the teaching and learning environment in the classroom, together with the principal’s view that the teacher had inherited a well-managed class without instructional and disciplinary concerns which deteriorated under the probationary teacher's leadership.

The teacher filed an Article 78 petition seeking a court order annulling her U-rating for the school year. Supreme Court granted her petition and remanding the matter to the New York City Board of Education for a new determination of the teacher’s performance rating for that year.

The Appellate Division unanimously reversed the Supreme Court ruling “on the law,” explaining that on the records presented the teacher failed to demonstrate that the U-rating was arbitrary and capricious, or made in bad faith.

The court said that the record showed a rational basis for the conclusion that the teacher’s performance was unsatisfactory as evidenced by the three formal classroom observation reports describing her performance in class management and engagement of students. While the teacher asserted that she did not receive any mandatory pre-observation conferences before any of her classroom observations, she has not established that the U-rating was made in violation of a lawful procedure or substantial right

The teacher also alleged that she was never provided a curriculum or a professional development plan, that the school's administration did not help her manage the class's continued disciplinary problems and that no member of the administration modeled lesson plans for her. However, said the court, the record established that she had received professional support and that she had not sufficiently progressed during the year.

As examples, the Appellate Divisions noted that the teacher had been observed in the classroom three times and had received unsatisfactory ratings for the last two observations. Further, each observation was followed a report indicating areas for improvement and which set out specific recommendations for addressing observed the deficiencies.

Another factor considered by the court: the record indicated that the teacher was provided with professional development sessions after receiving her first unsatisfactory report but the same instructional deficiencies continued to appear in the next observation report, indicating that the teacher “had not implemented the recommendations for improvement.”

BLACK LETTER law may not be that black

BLACK LETTER LAW may not be that black
Source: New York Times article by Adam Liptak

In an article captioned "Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing" that appeared in the New York Times dated May 24, 2014, Adam Liptak introduces the subject to the reader as follows:

“WASHINGTON — The [United States] Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”

Professor Lazarus’ article, now in draft, is scheduled for publication in the December 2014 issue of the Harvard Law Review.

Mr. Liptak’s article is posted on the Internet at:

http://mobile.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?from=us

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Lying to investigators

Lying to investigators
2014 NY Slip Op 03623, Appellate Division, First Department

A New York Police Officer challenged her dismissal from her position as a police officer. The Appellate Division unanimously denied her petition, noting that “The penalty of dismissal does not shock the conscience in that petitioner was found to have engaged in serious misconduct, and admitted other less serious charges committed during her short career as a police officer”.

The court found that there was substantial evidence to support finding her guilty of certain disciplinary charges, including her admissions that she lied to federal agents conducting a drug trafficking investigation.

In Bryson v. United States, 396 U.S. 64 (1969), the United States Supreme Court said: "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

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Teacher’s prior unblemished record of service did not mitigate imposing termination as the penalty after being found guilty of professional misconduct and other charges

Teacher’s prior unblemished record of service did not mitigate imposing termination as the   penalty after being found guilty of professional misconduct and other charges

2014 NY Slip Op 03210, Appellate Division, First Department

A tenured schoolteacher [Teacher] was found guilty of a number of disciplinary charges alleging professional misconduct, neglect of duty, failure to follow procedures and carry out duties, and incompetent and inefficient service during two school years over a two-year period.

Teacher challenged the Department of Education’s decision to terminate her. Supreme Court vacated the termination and remanded the matter to the Department for its determination of a lesser penalty.

The Appellate Division reversed the lower court’s ruling, noting that the Hearing Officer upheld many of the charges and specifications lodged against Teacher, which findings were not challenged on appeal.

Furthermore, said the court, the evidence showed that notwithstanding Teacher's prior unblemished record of service, she continued to blame others and refused to accept responsibility for her failure to effectively manage her classroom and deliver effective instruction and was unwilling to implement any of the school administration's suggestions for improvement.

The Appellate Division held that under the circumstances the penalty of termination “does not shock one's sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2d 222].

___________________________

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

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Defending and indemnifying officers and employees of the State involved in litigation

Defending and indemnifying officers and employees of the State involved in litigation

Public Officers Law §§17 and 19

In the event an officer or an employee of the State as the employer is sued in connection some alleged act or omission in the performance of his or her official duties, he or she may seek representation by the State and indemnification in the event he or she is held liable for damages and fees under certain circumstances.*

§17 of the Public Officers Law applies with respect to civil proceedings and provides for the defense and indemnification of officers and employees as defined in Subdivision 1 of §17 in the event such an individual is in a civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the individual was acting within the scope of his or her public employment or duties; or which is brought to enforce a provision of 42 USC 1981 or 42 USC 1983 [Federal Civil Rights Acts]. This duty, however, does not arise where the civil action or proceeding is brought by or on behalf of the State.

The State’s duty to defend or indemnify and save harmless the individual is subject to the following conditions::

1. The individual’s delivery of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he or she is served with such document to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State, and

2. The full cooperation of the individual in the defense of such action or proceeding and in defense of any action or proceeding against the State based upon the same act or omission, and in the prosecution of any appeal.

The timely delivery of such documents is deemed a request by the individual that the State provide for his or her defense and indemnification pursuant to §17.

§19 of the Public Officers Law applies in criminal actions and provides for the State to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an officer or employee of the State as the employer in his or her defense of a criminal proceeding in a State or Federal court:

1. arising out of any act which the individual was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or

2. incurred in connection with an appearance before a grand jury which returns no true bill against the individual where the individual's appearance was required as a result of any act which occurred while the individual was acting within the scope of his or her public employment or duties if such appearance did not occur in the normal course of the public employment or duties of the individual.

However, such reimbursement is also conditioned on (a) the individual’s timely delivery of a written request for such reimbursement of expenses together with, in the case of a criminal proceeding, the original or a copy of an accusatory instrument within ten days after he or she was arraigned pursuant to such instrument or, in the case of an appearance before a grand jury, written evidence of such an appearance. Such an item is to be delivered to the Attorney General or an Assistant Attorney General at an office of the Department of Law in the State.

In the event a request for reimbursement for reasonable attorneys' fees or litigation expenses or both made by, or on behalf of, the individual, the Attorney General is to investigate and review of the facts and circumstances involved and determine whether such reimbursement shall be paid. The Attorney General is to then notify the individual in writing of that determination.

Another condition to be met by the individual:seeking such reimbursement is his or her full cooperation in the defense of any action or proceeding against the State based upon the same act, and in the prosecution of any appeal.

* §18 of the Public Officers Law authorizes a political subdivision of the State to adopt a law, by-law, rule, resolution or regulation providing for the defense and indemnification of the entity’s officers and employees.
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An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits

An applicant for a preliminary injunction must satisfy two tests: a showing of irreparable injury if its application is not granted and its probability of success on the merits

Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York, 2014 NY Slip Op 03464, Appellate Division, First Department

Three members of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. The three were issued Release Time certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75) which provided the three elected PBA members with full-time leaves with pay and benefits.

A grand jury indicted the three members in connection with an alleged ticket-fixing scheme.* Pursuant to Civil Service Law §75(3-a), the three individuals were suspended without pay for 30 days, after which they were restored to modified duty. In addition the City rescinded their respective Release Time certificates. The PBA, however, declined the City’s offer to issue new Release Time certificates for three other employees of the union's choice, and filed a contract grievance with the City’s Office of Labor Relations.

After the grievance was denied, petitioners filed a demand for arbitration with the New York City Office of Collective Bargaining seeking to have the certificates reinstated on the ground that the rescission violated the parties' collective bargaining agreement and EO #75. In addition, the PBA filed an application in Supreme Court pursuant to CPLR Article 75 seeking a preliminary injunction barring the revocations of the Released Time Certificates pending arbitration.

Supreme Court granted the PBA a preliminary injunction enjoining the City from denying or revoking the "Release Time" certificates to the three PBA members pending resolution of arbitration proceedings.

CPLR §7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending The party seeking the preliminary injunction must demonstrate a probability of success on the merits, a danger of irreparable injury in the absence of a preliminary injunction preliminary injunction being issued, and a balance of the equities in its favor.

The City appealed. The Appellate Division, Judges Tom and Gische dissenting, vacated the Supreme Court’s preliminary injunction, explaining that the PBA, even assuming that an arbitration award in its favor would be render ineffectual without such provisional relief, failed to establish a likelihood of success on the merits of the claim to be arbitrated.

* The Appellate Division's opinion states “The indictments of the [three members] on charges related to a ticket-fixing scheme ... include allegations of grand larceny, official misconduct, tampering with public records, and criminal solicitation ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03464.htm

Removal of volunteer officers and volunteer members of a volunteer fire department

Removal of volunteer officers and volunteer members of a volunteer fire department
2014 NY Slip Op 03521, Appellate Division, Second Department

The Board of Fire Commissioners expelled a member of the Fire Department. The member sued and Supreme Court annulled the Board’s determination and remitting the matter for a hearing and a new determination.*  thereafter, and the petitioner cross-appeals from so much of the order as failed to grant the petition in its entirety.

The Appellate Division affirmed the lower court’s ruling, explaining that as the member was entitled to a hearing “upon due notice and upon stated charge” under General Municipal Law §209-l but was not afforded one, “the Supreme Court properly annulled the determination and remitted the matter for a hearing and a new determination thereafter.”

GML §209-l addresses the removal of volunteer officers and volunteer members of volunteer fire departments and, in pertinent part, provides:

1. The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.

2. Such officers and members of such departments and companies shall not be removed from office, or membership, as the case may be, by such authorities or by any other officer or body, except for incompetence or misconduct.**

3. Removals on the ground of incompetence or misconduct, except for absenteeism at fires or meetings, shall be made only after a hearing upon due notice and upon stated charges and with the right to such officer or member to a review pursuant to article seventy-eight of the civil practice law and rules. Such charges shall be in writing and may be made by any such authority. The burden of proving incompetency or misconduct shall be upon the person alleging the same.

* On a procedural note, in this instance, “on the Court's own motion,” the notice of appeal and the notice of cross appeal from the [Supreme Court’s] order was deemed to be applications for leave to appeal, and cross-appeal, respectively, and leave to appeal and cross-appeal is granted

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

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03521.htm

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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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