Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days

Alarcon v Board of Educ. of S. Orangetown Cent. School Dist , Appellate Division, Second Judicial Department, 2014 NY Slip Op 06969. [Alarcon II]

In Alarcon I, [Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 85 AD3d 780], the Appellate Division directed the reopening of the disciplinary hearing after finding that a key witness against Alarcon recanted the testimony he gave at the disciplinary hearing.  

The court explained that the South Orangetown Central School District had adopted the findings and recommendation of the disciplinary hearing officer who found Marco Alarcon guilty of certain charges of misconduct and incompetence, and recommended that Alarcon's be dismissed from his position. However, said that Appellate Division, the hearing officer's recommendation that Alarcon be terminated from service "was largely based upon the testimony of the eyewitness," one Ramon Reyes.

After Reyes testified, but prior to the issuance of the hearing officer's report and recommendation, Reyes had recanted his testimony and, in a sworn affidavit, stated that the testimony he had given at the disciplinary hearing was false and that he gave such false testimony because his supervisor directed him to lie. 

Under the circumstances, the Appellate Division annulled the Board’s determination on the law and remitted the matter for a hearing at which Alarcon was to be given the opportunity to recall Reyes to testify and directed that the Board receive “this newly discovered evidence” and make a new determination.

A second hearing was conducted, after which the Board of Education adopted the findings and recommendation of a hearing officer who had found the Alarcon guilty of certain charges of misconduct and incompetence and recommended that he be dismissed from his position. The Board again imposed the penalty of dismissal and terminated Alarcon’s employment with the School District.

Alarcon challenged the Board’s action, which the Appellate Division addressed in instant appeal, Alarcon II.

In Alarcon II the court sustained the Board’s action and found that contrary to Alarcon’s contention, the challenged determination was:

1. Supported by substantial evidence in the record; and

2. The penalty imposed by the School Board was not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The Appellate Division, however, sustained Alarcon’s claim that he was entitled to back pay and benefits "for any period of suspension in excess of 30 days, including the period commencing with an earlier determination terminating his employment," which was previously annulled by the Appellate Division in Alarcon I, up to the date of the determination by the Appellate Division in Alarcon II, “excluding any delay occasioned by him, and less any unemployment insurance benefits received for that period.”

The court than remitted the matter to the School Board to calculate the amount of “back pay and benefits to which [Alarcon] is entitled, if any, and to pay him that amount.”

Another decision in which “tainted testimony” was the basis for overturning a disciplinary determination is Buric v Safir, 285 A.D.2d 255, leave to appeal dismissed, 98 NY2d 688. This case also involved a claim for back salary and benefits that, under there relevant circumstances, was denied.

The decision in Alarcon I is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05055.htm

The decision in Alcarcon II is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06969.htm

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Appellate Courts differ regarding the State’s reduction of its employer contribution towards health insurance premiums for certain State retirees

Appellate Courts differ regarding the State’s reduction of its employer contribution towards health insurance premiums for certain State retirees
Bransten v State of New York, 117 AD3d 455

Retired Pub. Empls. Assn., Inc. v Cuomo, 2014 NY Slip Op 07044, Appellate Division, Third Department

In course of collective bargaining for Taylor Law agreements for the period 2011-2016, the State and several collective bargaining units representing State employees agreed to reductions in the State's employer contribution towards State employee health insurance premiums to avoid laying off State employees during the life of these several collective bargaining agreements.

As a result, the State's employer contributions towards State employee health insurance premiums were reduced by between 2% and 6% depending upon the State employee's salary grade. The President of the State Civil Service Commission adopted a regulation,* approved by the Director of the Budget, reducing the State’s employer contributions for State employees and for State employee who had retired before the effective date of these new collective bargaining agreements [pre-contract State retirees]. 

The Bransten v State of New York decision

In September 2011 the New York State Department of Civil Service notified sitting judges that the State would reduce its contributions for health insurance premiums by 6% and reduce its contributions to retired judges' health insurance premiums by 2%. 

The Bransten court explained that the reduction in the State’s employer contribution to health insurance premiums occurred in 2011 when the State, faced with a serious budget shortfall, threatened to lay off thousands of workers unless employees in State's several collective bargaining units made wage and benefit concessions that included bearing more of the cost of their health care insurance.

However, the Bransten court said that the judiciary “had no power to negotiate with the State with respect to the decrease,” and they “received no benefit from the no-layoffs promise because their terms of office were either statutorily or constitutionally mandated.” Thus, said the court, “§167.8 uniquely discriminates against judges because it imposes a financial burden on them for which they received no compensatory benefit.”

Accordingly, said the Appellate Division, the State’s motion to dismiss the Bransten action was properly denied by Supreme Court. 

The Retired Public Employees Association, Inc. [RPEA]  v Cuomo decision

The Retired Public Employees Association [RPEA] challenged the State's reduction of the percentage of its employer contribution towards health insurance premiums with respect to “pre-contract” State retirees, contending that:

 [1] Civil Service Law §167.1 sets out the ratio of employer contributions the State was required to make on behalf on these pre-contract State retirees and that provision was not amended to provide for a different ratio;

[2] The State’s effort to set out any different ratio of State's employer contributions made on behalf of  pre-contract State retirees by adopting a regulation, 4 NYCRR 73.3 [b], under color of §167.8, as amended, was a nullity; and

[3] The reason advanced by the State for reducing the State’s employer contributions towards employee health insurance premiums in the course of collective bargaining – to avoid layoffs – was irrelevant insofar as pre-contract State retirees were concerned as pre-contract State retirees are neither employees nor, as retired employees, subject to layoff from employment.

The Appellate Division, Third Department, however, ruled that Civil Service Law §167.8 “plainly and unambiguously" permits modification of the fixed contribution rates for retiree health insurance premiums set forth in Civil Service Law §167(1)(a) by regulation" with respect to employees of the State and the pre-contract State retirees.

The court explained that: “Given the Legislature's expressed intent** to authorize a modification in the state's contribution rate towards retiree health insurance premiums under the circumstances present here, we conclude that [the State’s] actions in effectuating the reduced state contribution rates was both lawful and in compliance with the statute".

It then dismissed RPEA's complaint on the ground that the Complaint "failed to state a cause of action ... except that the John and Mary Does 1-2,000, current and retired Judges and Justices of the Unified Court System of the State of New York are dismissed from this action, without prejudice."***

As to the retired judges represented by RPEA in its action, it would appear that pre-contract State retirees are similarly situated as pre-contract State retirees have no power to negotiate with the State and they received no benefit from the no-layoffs promise because retirees are not employees subject to layoff pursuant to §§80 or 80-A of the Civil Service, which provisions address “Suspension or demotion upon the abolition or reduction of positions..”

* 4 NYCRR 73.3 [b].

** The SPONSORS MEMO in support of Senate S5846, which was enacted into law as Chapter 491 of the Laws of 2011, states that the purpose of the bill was “amend the civil service law and the state finance law, in relation to compensation and other terms and conditions of employment of certain state officers and employees.” With respect amendment to Civil Service Law § 167(8), the Sponsor’s memo stated that the purpose of the amendment is “to provide authority to modify the employer and employee shares of health premium and subscription costs under the New York State Health Insurance Plan [emphasis supplied].”

*** Retired State judges and retired State legislative personnel were among the pre-contract State retirees included in RPEA's action.

The Bransten decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03214.h

The RPEA decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07044.htm

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Off-duty misconduct

Off-duty misconduct

OATH Index No. 1460/14

A research assistant [RA] was served with charges that alleged he was guilty of off-duty misconduct that resulted in his arrest among other misdeeds.  .

The employer presented certificates of conviction, which proved that RA committed the crimes of assault, resisting arrest, intentional property damage and public intoxication. 

OATH Administrative Law Judge Kevin F. Casey found RA could be disciplined for such off-duty conduct, which fundamentally conflicted with the agency's mission. In determining whether a criminal conviction for off-duty activity constitutes employee misconduct, Judge Casey said that “this tribunal has also looked to whether there is a sufficient nexus between the underlying act and the employee’s position.”*

The ALR also found that RA failed to notify the agency of his arrest and conviction and was absent without leave.

Also in the record was evidence showing that RA violated an order of protection in April 2013 and used disrespectful language in an email to an agency attorney

Judge Casey recommended that the employer terminate RA from employment, which recommendation was adopted by the appointing authority.

* In Tessiero v Bennett, 50 A.D.3d 1368, the Appellate Division sustained the termination of an employee found guilty of off-duty misconduct that brought discredit upon the employer.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1460.pdf

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Volunteer ambulance organization is not a “state actor” for the purposes of the Fourteenth Amendment

Volunteer ambulance organization held not a “state actor” for the purposes of the Fourteenth Amendment

Grogan v. Blooming Grove Volunteer Ambulance Corps, USCA, 2^nd Circuit, 13-656-cv

The Blooming Grove Volunteer Ambulance Corps [BGVAC], a private volunteer ambulance organization, submitted a motion in federal district court seeking summary judgment dismissing claims brought against it pursuant to 42 U.S.C. §1983 based on allegations that BCVAC had dismissed Lenore Grogan, one of its members, without a hearing.

Grogan alleged that various disciplinary charges levied against her by BGVAC, resulting in her suspension as an officer of BGVAC without a  hearing constituted “state action” and that such action violated her rights under the First and Fourteenth Amendments of the United States Constitution. The district court disagreed and granted BCVAC’s motion and dismissed Grogan’s complaint.

In her appeal to the Second Circuit Grogan contended that BGVAC was a “state actor” for the purposes of the Fourteenth Amendment as it had contracts with a municipality to provide emergency medical services. Accordingly, Grogan contended, BGVAC had violated her Constitutional rights when it issued disciplinary charges against her and then suspended her from the organization without a proper hearing.

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Grogan claimed that BGVAC’s conduct amounts to state action because: (1) the services BGVAC provides — emergency medical care and general ambulance services — are “traditionally exclusive public functions” that the State has delegated to BGVAC; and (2) the extensive State regulation and oversight under which BGVAC operates, coupled with BGVAC’s performance of a “municipally assumed” statutory function, so “entwines” BGVAC with the State that its actions are fairly attributable to the State.

The Circuit Court disagreed, sustaining the District Court’s determination that BGVAC’s conduct did not constitute state action.

The court explained that “Because the United States Constitution regulates only the Government, not private parties,” Grogan, who alleges that her “constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.” To demonstrate state action, said the court, a plaintiff must establish both that the alleged constitutional deprivation was caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation is a person who may fairly be said to be a state actor.’”

In this instance, said the court, there are two elements to consider:  

1. Has Grogan satisfied the “public function” test by demonstrating that there a “close nexus” between the challenged action and the State by showing that the private entity has exercised powers that are traditionally the exclusive prerogative of the State; and

2. Is the private entity so entwined with governmental policies, or is government entwined in the management or control of the private entity.

The court said that the statute authorizing the municipality to contract with BGVAC, New York Town Law §198(10-f), imposes no duty, obligation, or responsibility on New York towns to provide emergency medical services. Instead, the statute is entirely permissive, declaring that “the town board may . . . provide an emergency medical service, a general ambulance service, or a combination of such services . . . and to that end may . . . [c]ontract with one or more . . . organizations” to provide such services.”

Because the New York statutory scheme does not place an affirmative responsibility on towns or municipalities to provide ambulance services, those services cannot be considered “public functions.”

The Circuit Court futher explained that “even if we were to assume that the provision of emergency medical care and ambulance services constitutes state action under the public function theory (which we do not), that conclusion would be of no assistance to Grogan because the gravamen of her claims deals not with the performance of those ambulance services but instead with BGVAC’s employment decision to charge and suspend her.”

Concluding that Grogan” failed to demonstrate a sufficiently close nexus between the State or Town governmental entities and the disciplinary actions taken against her,” BGVAC’s actions cannot be fairly attributed to the State or the Town and, as a result, BGVAC cannot be held liable under  §1983,” the judgment of the District Court was affirmed.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/115153c9-61d9-4e7b-a767-d551a4ea8744/2/doc/13-656_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/115153c9-61d9-4e7b-a767-d551a4ea8744/2/hilite/
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Withdrawal of a resignation

Withdrawal of a resignation

2014 NY Slip Op 06883, Appellate Division, First Department

From time to time a former New York City Department of Education educator who was tenured in the position is reemployed in his or her former position. Does such a reemployment automatically result in the employee attaining tenure? 

The Appellate Division ruled that if a former tenured employee fails to comply with the regulations of the Chancellor of the New York City Department of Education governing the “withdrawal of a resignation and restoration to tenure,” the former employee’s tenure is not ipso facto*restored.

Rejecting a former New York City Principal’s contention that his tenure was constructively restored to him upon his reemployment by the New York Department of Education, the Appellate Division affirmed Supreme Court dismissal of his petition seeking a court order directing the Chancellor to reinstate him to his former position with tenure.

In a footnote to the decision, the Appellate Division said that “neither side has explained why petitioner could not still be restored to tenure if he now followed the procedures set out in the Chancellor's regulations.”

The relevant regulations appear to be Regulation C-205, subdivisions (28) and (29).

C-205(28) [Withdrawal of Resignation Generally] provides, in pertinent part, that “upon written request, a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation….”

C-205(29) [Withdrawal of Resignation within Five Years] addresses the reinstatement of former non-supervisory tenured staff and provides, in pertinent part, that in the event "a non-supervisory educator is reinstated more than five years after the effective date of his or her resignation," he or she will be required to serve a two-year probationary period.

With respect to employees subject to the Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

That said, 4 NYCRR 5.4, Reinstatement following resignation, provides, in pertinent part that a permanent employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant.

4 NYCRR 5.4 further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.”

Many local Civil Service Commissions have adopted similar rules.

* In other words, the individual does not attain tenure as a direct consequence of his or her reemployment.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_06883.htm

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