Employee terminated as the result of disciplinary action not entitled to his or her unused vacation credit accruals

Employee terminated as the result of disciplinary action not entitled to his or her unused vacation credit accruals

Kozlow v City of New York, 2015 NY Slip Op 08960, Appellate Division, First Department

The Appellate Division affirmed the City of New York’s dismissal police officer David R. Kozlow holding that substantial evidence supported the City’s finding that Kozlow had engaged in numerous acts of misconduct, including failing to follow “proper procedure in presenting a prisoner at the station house; delaying his return to the station house in order to earn overtime; abandoning a fixed post; failing to follow directions to proceed immediately to a post; writing improper comments on his monthly report; and being discourteous to supervisors.”

As to the penalty imposed, termination, the court said that Kozlow’s prior disciplinary record, which included prior dismissal probations, and in light of the number and persistency of his infractions, termination from employment does not shock its sense of fairness.

The Appellate Division also ruled that the Police Commissioner was authorized to impose the penalty of a 30-day suspension without pay and to dismiss petitioner Kozlow City of NY § 14-115[a] and that Kozlow was not entitled to his “unused accrued vacation and sick leave” upon separation from service since he was terminated from employment.

Similarly with respect to employees of the State as the employer, 4 NYCRR 23.1, provides, in pertinent part that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.” §23.1 also provides that the appointing authority may require, as a condition for payment for unused vacation credit that the employee submit written notice of his or her resignation at least two weeks prior to his or her last day of work.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08960.htm

The statute of limitations for an Article 78 action begins to run once the administrative agency's final position concerning the issue becomes “readily ascertainable”

The statute of limitations for an Article 78 action begins to run once the administrative agency's final position concerning the issue becomes “readily ascertainable”

Plainview-Old Bethpage Congress of Teachers v New York State Health Ins. Plan, 2015 NY Slip Op 08676, Appellate Division, Third Department

[See, also, Roslyn Teachers Assn. v New York State Health Ins. Plan, 2015 NY Slip Op 08677, Appellate Division, Third Department, decided with Plainview-Old Bethpage Congress of Teachers.]

Plainview-Old Bethpage Central School District [District] is a participating agency in the New York State Health Insurance Program [NYSHIP]. During collective bargaining negotiations between the District and the Plainview-Old Bethpage Congress of Teachers and its Clerical Unit and Teachers Unit [Congress], the Department of Civil Service issued its Policy Memorandum No. 122r3 [122r3]* setting out limited the circumstances under which an employee of a participating agency may choose to decline NYSHIP coverage in exchange for a cash payment. 

Although earlier collective bargaining agreements had included such a buyout program without the new limitations, the District took the position that it was required to conform its buyout program to the new NYSHIP restrictions set out in 122r3. In response, the Congress initiated a combined CPLR Article 78 proceeding and Action for Declaratory Judgment seeking, among other things, a declaration that 122r3 was null and void.

Supreme Court agreed with the Association's position and granted its petition and, declared 122r3 null and void, whereupon the District appealed.

The Appellate Division vacated the Supreme Court’s ruling, holding that the Congress’ petition must be dismissed on the procedural ground that it was untimely, not having been filed before Article 78’s four-month statute of limitations had expired. The Appellate Division explained that in determining the date upon which the limitations period began to run, in this instance the four-month statute of limitations began to run on May 15, 2012, the date that NYSHIP issued the memorandum as NYSHIP’s decision on the new policy was deemed final and binding on that date and was "readily ascertainable"  by the Congress on that date.

The CPLR and case law make clear that the statute of limitations period for a CPLR Article 78 proceeding begins to run when the determination to be reviewed becomes final and binding upon the entity or person bring the action. Courts have ruled that such a challenged determination becomes final and binding when two requirements are met: [1] completeness or finality of the determination and [2] the exhaustion of administrative remedies available to the complaining party.

In the context of a quasi-legislative determination such as a policy memorandum, here 122r3, actual notice of the challenged determination is not required in order to trigger the running of the statute of limitations. Rather the statute of limitations begins to run once the administrative agency's definitive position on the issue becomes readily ascertainable to the affected party. In such instances courts apply what is termed constructive notice, i.e., the court deems a person or entity to have knowledge of the law, rule, regulation or policy at issue even if they have no actual knowledge of it.

As the Congress did not commence its Article 78 proceeding until December 21, 2012, the Appellate Division ruled it to be time-barred and granted NYSHIP’s motion for summary judgment, dismissing the Congress’ petition.

* The Department of Civil Service’s “PA/PE Health Insurance Buyouts” policy memorandum is posted on the Internet at: http://www.pobschools.org/cms/lib/NY01001456/Centricity/Domain/9/NYSHIP%20Buyout%20Policy%20Memo.pdf

The Plainview-Old Bethpage Congress of Teachers decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08676.htm

The Roslyn Teachers Assn. decision, decided on the same day, is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2015/2015_08677.htm

Another ruling concerning Policy Memorandum No. 122r3, School Adm'rs Assn. of N.Y. State v New York State Dept. of Civ. Serv., 124 AD3d 1174, is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00676.htm

A school administrator's transfer to another position within his or her tenure area at a lower salary as the result of a reorganization held not a disciplinary action

A school administrator's transfer to another position within his or her tenure area at a lower salary as the result of a reorganization held not a disciplinary action

Appeal of Charles R. Soriano Decisions of the Commissioner of Education, Decision #16,849

Charles R. Soriano, a tenured administrator was employed in the district as an assistant superintendent of schools until he was transferred, within his tenure area of “Administrator,” to the position of middle school principal.

Soriano had initially entered into an Employment Agreement [Agreement] with the school board in 2003 as assistant superintendent. The Agreement fixed his salary and benefits for a four-year period. 

This Agreement was subsequently amended by addenda in 2006, 2007, and 2010, with the 2010 Agreement including an extension of its term through July 1, 2012.  Together with the addenda, the Agreement included a salary schedule with annual increases as well as several other benefits tied to Soriano’s salary such as a deferred tax annuity contribution by the district, life insurance in the amount of three and one half times Soriano’s annual salary, and "sell-back options" for unused vacation and sick time at a pro-rata share of Soriano’s annual salary. 

At its June 19, 2012 meeting, the school board approved a reorganization of the administrative staff within the district, including the appointment of Soriano to the position of middle school principal, effective July 1, 2012 at a lower annual salary.

Soriano wrote the school board demanding that the then-current annual rate of compensation he received as an Assistant Superintendent be continued in accordance with the “board’s legal obligations” and contended that the decrease in his compensation approved by the school board was “unreasonable and constituted discipline”  In response, a letter signed by the school board president dated June 29, 2012, advised Soriano that the school board “declined to reinstate [Soriano’s] previous salary," stating that the new salary was an adjustment which was appropriate under the circumstances, not a disciplinary action.  

Soriano appealed the school board’s decision to the Commissioner of Education. As a remedy, he asked for the restoration of his salary and benefits retroactive to July 1, 2012, “as well as salary increases at increments prescribed in the [relevant collective bargaining agreement] and any benefits exceeding those provided to him in the 2011-2012 school year.”

In its defense, the school board contended that Soriano’s salary reduction [1] was not arbitrary or capricious, rather it was reasonable under the circumstances; [2] the  Agreement relied upon by Soriano was not binding as it had expired on June 30, 2012; [3] “even if the Employment Agreement had not expired, it would be considered void as against public policy as one board cannot bind a successor board by a contract extending beyond the term of the contracting board;” and [4] the tenure statutes and broad administrative tenure area of the district do not require an administrator to retain  his or her prior salary when transferred to a new position within his or her tenure area. 

The Commissioner initially addressed two procedural issues:

1. In its memorandum of law the school board argued that Soriano failed to file a grievance as required by the relevant collective bargaining agreement and thus had failed to exhaust his administrative remedies prior to filing his appeal to the Commissioner.  The Commissioner said that the school board had failed to raise the exhaustion of administrative remedies argument in its answer as an affirmative defense and ruled that such a defense has been waived by the school district.

2. Soriano had cited Stokes v. City of Mount Vernon in a letter to the Commissioner submitted by him after filing of his memorandum of law. The Commissioner declined to consider the decision as it had been available before Soriano had submitted his memorandum of law.

Turning to the merits of Soriano’s appeal, the Commissioner said Soriano salary was not decreased as a result of dissatisfaction with his performance or as the result of a disciplinary action and the minutes of school board’s July 3, 2012 board meeting reflect board approval of Soriano’s salary without noting any disciplinary reason.

The Commissioner also noted that in Appeal of Cadicamo* the then Commissioner of Education ruled that a salary decrease such as the one Soriano experienced cannot fall below an individual’s starting salary. Cadicamo explains that “[w]hile the salary of an employee may be reduced, it may not be reduced to a point below that at which the employee was induced to join the system.” Finding that Soriano’s starting salary in 2003 was less than his current salary as middle school principal and was neither below that starting salary nor below the minimum level for a middle school principal position within the district, the Commissioner said that absent some showing that the school board’s actions were disciplinary in nature, she “cannot find that the salary reduction was contrary to law.”

Soriano also argued that in “a parallel situation under the Civil Service Law, a lateral transfer of a tenured civil service employee that results in a reduction of salary constitutes disciplinary action that may only be imposed after a hearing under Civil Service Law §75, citing Bailey v. Susquehanna Valley Cent. School Dist. Board of Educ., 276 AD2d 963 and Borrell v. County of Genesee, 73 AD2d 386. Soriano contended that “the principle of those Civil Service Law cases” should be extended to tenured teachers under the Education Law.

The Commissioner said she did not agree that the principle articulated in the cases decided under the Civil Service Law should be applied “on these facts to confer upon [Soriano] a right to retain his salary and benefits as assistant superintendent upon transfer within his tenure area,” explaining that although CSL §75 prohibits imposition of a disciplinary penalty without a hearing and Civil Service Law §75(3) specifically provides that a “reduction in grade or title” is a disciplinary penalty that can be imposed, “there is no comparable language in Education Law §§3020 or 3020-a and thus no explicit statutory requirement that a demotion with reduction in pay be considered a disciplinary action.”

Turning to Soriano’s argument that the Agreement remained in effect absent an extension or new agreement, the Commissioner said that “juxtaposed with the expiration date plainly set forth therein, [such an argument] is unpersuasive,” and the Agreement cannot bind the school board beyond its stated expiration date of June 30, 2012. 

As the Agreement was not binding on the school board, the Commissioner ruled that Soriano “was not entitled to the salary contained therein beyond the expiration of his employment contract” nor, on these facts, found that the setting of Soriano’s salary constituted discipline or was arbitrary or capricious.

Based on the record before her, the Commissioner held that Soriano failed to meet his burden of establishing that the salary and benefits designated by school board upon his appointment to the position of middle school principal was arbitrary and capricious or that such action was disciplinary in nature.

* Appeal of Cadicamo, 15 Ed Dept Rep 274, Decision #9,167; aff’d as Bd. of Ed., Mt. Sinai UFSD v. Nyquist, Supreme Court, Albany Co., [Cobb, J.], June 23, 1976, [Not selected for publication in the Official Reports].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16849

Comptroller Dinapoli and A.G. Schneiderman announce sentencing of former Halfmoon Town Supervisor for stealing campaign funds

Comptroller Dinapoli and A.G. Schneiderman announce sentencing of former Halfmoon Town Supervisor for stealing campaign funds
Source: Office of the State Comptroller

 
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman today announced the sentencing of Melinda “Mindy” Wormuth, the former town of Halfmoon Supervisor, on state charges for stealing several campaign contributions donated to her campaign fund. The public corruption case arose out of a cooperative federal-state partnership between the State Comptroller, the Attorney General, the Federal Bureau of Investigation and the United States Attorney's Office for the Northern District of New York.
 
Wormuth previously pleaded guilty to Grand Larceny in the Fourth Degree in Saratoga County Court. The Honorable Matthew J. Sypniewski sentenced Wormuth to 10 months of incarceration in the county jail with said term to run concurrent with a term of incarceration in a federal penitentiary stemming from related charges in federal court.

As part of the plea agreement, Wormuth must also pay $1,250 in restitution to the Friends of Mindy Wormuth campaign committee and terminate the committee in accordance with the New York State Election Law. Wormuth also agreed to contribute any remaining funds of that campaign committee to a charity that is recognized by the Internal Revenue Service, but is not one over which she or a member of her family holds controls or decision making powers.

 
The charges against Wormuth claimed that between July 2009 and July 2013, Wormuth cashed seven contribution checks, totaling $6,250, intended for Friends of Mindy Wormuth. She then pocketed the proceeds without reporting the contributions to the committee’s treasurer, or on the Financial Disclosure Reports that were filed with the State Board of Elections.

 
The felony complaint relied, in part, on statements that Wormuth made to the FBI, including an admission that she cashed and spent certain checks made payable to her campaign. In one FBI interview, Wormuth attributed some of her actions to her bitterness at not receiving her political party’s endorsement for reelection in November 2013.  
 
From 2007 to January, 2013, Wormuth served as the Supervisor of the town of Halfmoonin Saratoga County. In that capacity, she headed the Halfmoon Town Board and served as the town’s representative on the Saratoga County Board of Supervisors.  

The case was investigated by the Comptroller’s Division of Investigations. The Attorney General and State Comptroller thank the Federal Bureau of Investigation and the U.S. Attorney’s Office for the Northern District of New York for their partnership.

 
The case was handled by former Senior Assistant Attorney General Darren Miller and Assistant Attorney General Bridget Holohan Scally of the Public Integrity Bureau. The Public Integrity Bureau is led by Bureau Chief Daniel Cort and Deputy Bureau Chief Stacy Aronowitz. The investigation was conducted by Investigator Mitch Paurowski of the Investigations Bureau with assistance from Associate Forensic Auditor Jason W. Blair of the Forensic Audit Unit. The Forensic Audit Unit is led by Edward Keegan. The Investigations Bureau is led by Bureau Chief Dominick Zarrella and Deputy Bureau Chief Antoine Karam. The Criminal Division is led by Executive Deputy Attorney General for Criminal Justice Kelly Donovan.

Individual whose name was on a preferred list challenged the appointing authority's failure to use the preferred list to fill a vacancy alleged to be a similar position

Individual whose name was on a preferred list challenged the appointing authority's failure to use the preferred list to fill a vacancy alleged to be a similar position

Matter of Renee Eschmann and the Board of Education of the Tuckahoe Union Free School District, Decisions of the Commissioner of Education, Decision #16,853

In this decision Commissioner of Education MaryEllen Elia addresses a number of significant procedural issues concerning the filing an appeal to the Commissioner and substantive issues with respect to layoff and the use of preferred lists to fill a vacancy.

The genesis of Commissioner Elia’s ruling was the appeal to the Commissioner submitted by Renee Eschmann challenging the action of the Tuckahoe Union Free School District's Board of Education appointing Sabrina Peduto to the position of school psychologist. 

Eschmann, a licensed psychologist and holding a permanent certification in school psychology, was granted tenure in the school psychologist special subject tenure area by Tuckahoe in 2002.  Effective June 30, 2006, Tuckahoe abolished her position and Eschmann’s name was placed on the preferred eligibility list [PEL] for the school psychologist special subject tenure area.

According to the record, in July 2013 Eschmann learned that Tuckahoe had posted a vacancy for a full-time school psychologist position for the 2012-2013 school year and had then appointed  Peduto to the vacancy in February 2013. Eschmann then wrote to Tuckahoe claiming “entitlement to the school psychologist position and requested reinstatement to her former position.” Tuckahoe responded, advising Eschmann that she was not entitled to the position[1]  as it was not more than 50 percent similar to her former position and [2] that, in any event, the position was filled in August 2013, at which time Eschmann’s name was no longer on the PEL.* 

In her appeal to the Commissioner Eschmann contended that the duties of her former position are substantially similar to the duties of the school psychologist position and, therefore, pursuant to Education Law §2510, she was entitled to be appointed to that position from the PEL. She asked that the Commissioner issue an order directing Tuckahoe to appoint her to the school psychologist position as of the time it was filled in February 2013, "with back pay and benefits as well as seniority credit, retirement service credit and any other emoluments of employment" retroactive to February 2013.

In rebuttal, Tuckahoe generally denied that Eschmann was entitled the appointment to the position of school psychologist from the PEL, contending that the position was not similar to Eschmann’s former position because it contained duties relating to the committee on special education (“CSE”) and the committee on preschool special education (“CPSE”).  Tuckahoe also asserted three affirmative defenses: improper service, failure to state a claim upon which relief may be granted, and that the petition is untimely, arguing that for “all of the above reasons” Eschmann’s appeal must be dismissed.

The Commissioner initially addressed the following procedural issues:

Timeliness of Eschmann appeal to the Commissioner.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown. Where, however, a petitioner has first commenced an action in the courts which has been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the "making of the decision or the performance of the act complained of" and in earlier decisions Commissioners have allowed an appeal to the Commissioner within 30 days after such dismissal.**Noting that Eschmann’s appeal to the Commissioner was commenced within 30 days after the Supreme Court’s dismissal of the Article 78 proceeding, Commissioner Elia ruled that Eschmann’s appeal to the Commissioner was timely commenced.

Submitting additional affidavits, exhibits and other supporting papers to the Commissioner. 

Commissioner Elia said that although the submission of additional evidence is permitted, a party may not add new claims against a respondent for which notice has not been provided. Further, the Commissioner said that she would “not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal.”

Submission of additional pleading.

Parties cannot agree among themselves to the submission of additional pleadings that do not meet the requirements of §275.3(b) of the Commissioner's regulations. Further, the regulations allow parties to submit additional pleadings only with the prior permission of the Commissioner.

Service of an appeal upon the parties.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

Eschmann's petition was served on Victor Karlsson, a school business official, who was not authorized to accept service on behalf of Tuckahoe. However an affidavit from the process server indicating that he believed Karlsson to be an authorized agent and that Karlsson indicated he was authorized to accept service. In contrast, Karlsson’s affidavit does not indicate whether or not he stated that he was not authorized to accept service, while the affidavit of petitioner’s process server states that Karlsson affirmatively indicated he was authorized to accept service. As the burden was on Tuckahoe to establish its affirmative defense, the Commissioner concluded that “on this record” Tuckahoe failed to meet its burden and declined to dismiss Eschmann’s appeal for failure to properly serve Tuckahoe under these circumstances.

Joining a necessary party

Commissioner Elia also decline to dismiss Eschmann’s appeal “for failure to join a necessary party,” Dr. Randi Newman, noting that her Office of Counsel had advised the all the parties that Eschmann’s earlier request to join Dr. Newman as a necessary party was granted. Consequently, said the Commissioner, “in this instance, I find the failure to include Dr. Newman in the original petition is not a basis for dismissal of this appeal.

Turning to the merits of Eschmann’s appeal, the Commissioner ruled that:

Reinstatement rights from a preferred list.

With respect to reinstatement rights from a preferred list, an individual whose position is abolished has reinstatement rights, but only if the new position is "similar" to the former position.  The test to determine whether the two positions are "similar" is whether more than 50 percent of the duties of the new position are those which were performed by the Eschmann in her former position and she has the burden of proving that a majority of the duties of the new position are similar to those of her former position. Noting that the standard of what is similar is flexible and is not to be applied mechanically, Commissioner Elia said that “On this record, I find that [Eschmann] has met her burden of proving that the two positions are similar.” 

Similarity of positions.

Explaining that in assessing the similarity of positions the law does not require a comparison of job titles, but rather an analysis of job responsibilities, the Commissioner said that Tuckahoe  offered no evidence of the duties performed by Peduto in the 2013-2014 school year beyond those of a CSE or CPSE member. As the record shows that Eschmann served as a member of the CSE and that she performed duties similar to the duties of members of the CPSE and the Section 504 committee, the Commissioner said that absent any other evidence, she found the duties Peduto performed following her appointment were indistinguishable from those of a CSE member and, as such, are similar to those performed by Eschmann in her former position. 

The bottom line: Commissioner Elia sustained Eschmann’s appeal, presumably with back pay and benefits effective February, 2013.

* Both §§2510.3(a) and 3013.3(a) provide that the name of  an individual shall remain on the relevant preferred list for seven years from the date on which his or her position was abolished. Eschmann’s position was abolished June 30, 2006; Peduto was appointed to the contested vacancy in February 2013.

** Prior to filling her appeal to the Commissioner Eschmann had commenced a timely Article 78 proceeding in Westchester County Supreme Court seeking an order and judgment for reinstatement to her former position. Her petition was dismissed under the doctrine of primary jurisdiction, i.e., the deferral by a court of its power to hear a case pending administrative review of the matter by the appropriate administrative tribunal having jurisdiction, whereupon Eschmann submitted her appeal to the Commissioner of Education.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d168530

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

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