If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

Nassau County Sheriff's Correction Officers Benevolent Assn., Inc. v Nassau County, 2016 NY Slip Op 02096, Appellate Division, Second Department

The Nassau County Sheriff's Correction Officers Benevolent Assn., Inc. [Association] brought a CPLR Article 78 action seeking a review the hearing officer’s decision  confirming a determination of the Nassau County Sheriff's Department [Department] to discontinue the General Municipal Law §207-c benefits being paid to Correction Officer John Thomas. Supreme Court dismissed the Association’s petition and the Appellate Division affirmed the lower court’s decision.

Thomas sustained a back injury in the course of performing his duties as a correction officer. He was absent from work due to his work-related injury and received benefits pursuant to GML §207-c. He subsequently returned to work in a restricted/light-duty capacity, “with no inmate contact and no carrying of a weapon.”*

In June 2009, a doctor appointed by Nassau County [County] determined that, as a result of his back injury, Thomas was no longer fit for any duty, making him again eligible to receive benefits pursuant to GML § 207-c. A subsequent evaluation by a County-appointed doctor in September 2009 reached the same conclusion. In February 2010, Thomas was examined by a County-appointed doctor who determined that he was now fit to return to work in a light/restricted-duty capacity.

The Sheriff's Department informed Thomas of the County’s physician’s determination and of his right to request a hearing to challenge the determination as provided for in the collective bargaining agreement [CBA] between the County and the Association. Thomas elected to submit the matter to a hearing whereby hearing officer would determine whether Thomas was capable of returning to work on restricted/light-duty assignment as of February 2010.** Although Thomas contended that the burden of proof was on the County to show that he was capable of returning to work in a restricted/light-duty capacity, the hearing officer disagreed, ruling that Thomas had the burden of proof to show that he was not fit to return to work in a light/restricted-duty basis.

At the administrative hearing that followed Thomas was represented by an attorney and submitted evidence, including the opinion of his personal physician, to contest the County’s medical examiner's conclusion that Thomas was capable of returning to restricted/light-duty work. The hearing officer weighed the conflicting medical opinions and concluded that Thomas was capable of returning to restricted/light-duty work.

The Association, contending that the hearing officer's determination was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion," filed an Article 78 petition arguing that Thomas was denied due process when the hearing officer placed the burden of proof on him to show that he was not capable of returning to work in a restricted/light-duty capacity.

The Supreme Court agreed with the hearing officer's conclusion that Thomas bore the burden of proof at the hearing, and denied the petition and dismissed the proceeding.

The Appellate Division commenced its review of the Association’s appeal of the lower court’s decision by noting that Thomas’ right to receive payments pursuant to GML §207-c "constitutes a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated, 'and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of continued total disability'."

However, said the court, §207-c provides no definitive procedure to be followed, so the hearing procedure to be provided may be the subject of collective bargaining. As the parties in the instant proceeding had not “collectively bargained for a procedure to be followed when an officer contests a light-duty determination,” the Appellate Division ruled that the County was free to fashion a hearing remedy so long as its procedure provided Thomas with administrative due process.

The Appellate Division, citing Kigin v State of NY Workers’ Compensation Board, 24 NY3d 459, said: "Generally, procedural due process principles require an opportunity for a meaningful hearing prior to the deprivation of a significant property interest. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner."

Under the circumstances, said the court, Thomas was afforded administrative due process. In the words of the Appellate Division, “[r]equiring him to come forward with some evidence at the hearing to support his claim of ‘continued total disability’ did not deprive him of such right. Indeed, an officer's right to a due process hearing under the Fourteenth Amendment is not triggered until he or she submits such evidence.”

Accordingly, the Appellate Division ruled that Supreme Court had properly denied the Association’s petition and dismissed the Association's appeal.

* In 2003, Thomas was called to active military duty, where he was also given restricted duties because of his back injury. Upon his return from active military duty in 2008, Thomas again returned to his work as a correction officer in a restricted/light-duty capacity.

** Such determinations are made based on the medical condition of the individual at the time the challenged medical examination was administered rather than his or her medical condition at the time of hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02096.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw

Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw
New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2016 NY Slip Op 02280, Court of Appeals

Thomas Tierney was employed by the Office of Mental Health [OMH] as a Safety and Security Officer 2 [SSO2], a Salary Grade [SG] 15 position. When the Chief Safety and Security Officer [CSSO] of the Hudson River facility, position allocated to SG 20, transferred to another facility in June 2011, Tierney was advised that he would be serving as the Acting CSSO. He served in that capacity until Hudson River closed in January 2012.

In August 2011, Tierney filed an out-of-title work grievance with OMH in accordance with the three step review process set out in the relevant collective bargaining agreement seeking compensation at the SG 20 level for the out of title duties he alleged he was performing as Acting CSSO.

OMH granted Tierney’s grievance but noted that under the terms of the controlling collective bargaining agreement "[o]nly the Director of the Governor's Office of Employee Relations [GOER] has the authority to issue monetary awards" in the event an out-of-title grievance is sustained by the appointing authority.

Step 3 of the grievance procedure set out in the collective bargaining permited GOER to seek an opinion from the Civil Service Department’s Division of Classification and Compensation [DCC] as to whether the grieved duties substantially differed from those appropriate to the title “to which the employee is certified.” 

DCC undertook its own comparison of the duties and responsibilities of CSSOs and SSO2s* and determined that the duties Tierney described in the grievance he filed did not constitute “out-of-title” duties but, rather, were consistent with the duties of a SSO2.

GOER adopted the findings of DCC and denied the grievance. Tierney appealed GOER’s decision.

In his Article 78 petition Tierney alleged that, in addition to the duties he included in the grievance form he had submitted to OMH, he had performed the out-of-title duties DCC had listed as examples of out-of-title work in its decision. The Court of Appeals said that “[a]s those additional duties were not included in the grievance form and apparently were not considered by OMH, they were not considered by either Supreme Court or by the Appellate Division.”

Sustaining the decisions of DCC and GOER, the court said that “judicial review of administrative determinations is confined to the facts and record adduced before the agency." In the words of the Court of Appeals, “[t]he motion court concluded that GOER's determination that [Tierney’s] responsibilities as an acting CSSO were substantially similar to the job description of a SSO2 was not arbitrary and capricious.” A divided Appellate Division had affirmed GOER’s determination (see 126 AD3d 1267 [3d Dept 2015]) and the Court of Appeals affirmed the Appellate Division's decision.

Citing Nehorayoff v Mills, 95 NY2d 671, the Court of Appeals explained that where the administrative determination "is supported by a rational basis, and is neither arbitrary nor capricious, it will not be disturbed."

Noting that Civil Service Law §61(2) bars the assignment of an employee to "perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position" other than when those duties are performed on a temporary emergency basis, the court said that there was evidence in the record to support the determination that Tierney was performing duties as the Acting CSSO that were “consistent with, and a natural extension of, his title as a SSO2."

Finding that the combination of out-of-title work and the work being performed for an extended period of time was not present, the Court of Appeals held that the conclusion reached by DCC and adopted by GOER was neither arbitrary nor capricious simply because it differed from OMH's conclusion.

Accordingly, said the court, “GOER's determination that Tierney was performing duties consistent with his position as a SSO2 and was not performing the key distinctive duties of the CSSO position [was] rationally based.”

A number of court decisions addressing out-of-title work and position classification grievance determinations are summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2011/04/out-of-title-work-and-position.html

* DCC also described some of the duties that are assigned to CSSOs and that would have been out-of-title for a SSO2 but such duties were not included in Tierney's grievance,

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02280.htm

Agency shop fee statutes affecting public employees

Agency shop fee statutes affecting public employees

Friedrichs v. California Teachers Assoc., No. 14–915

On March 29, 2016, the Supreme Court issued its decision in Friedrichs v. California Teachers Assoc., 578 U.S. ___(2016).

At issue in this case was whether public-sector “agency shop” arrangements violate the First Amendment by requiring public employees to subsidizing speech not related to collective bargaining by public-sector unions unless the member elects to “opt-out.”

The Court said "The Judgment is affirmed by an equally divided Court."

The decision results in the Ninth Circuit Court of Appeals’ ruling standing, thereby permitting the California Teachers Association to continue its “agency shop” arrangement. Accordingly, a member of the negotiating unit must “affirmatively object” to “subsidizing nonchargable speech” by a public union and thereby receive a refund for the relevant portion of the agency shop fee attributed to supporting such “nonchargable speech.”

The decision is posted on the Internet at:

http://lawprofessors.typepad.com/files/friedrichs.pdf

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex

McKay v Village of Endicott, 2016 NY Slip Op 02129, Appellate Division, Third Department

The Appellate Division, in considering the Village of Endicott’s appeal of  decisions made by Supreme Court that awarded firefighter Joseph W. McKay certain disability benefits, set out  basic procedural guidelines with respect to determining a firefighter's eligibility for benefits available pursuant to General Municipal Law §207-a in the event he or she disabled as the result of a "line-of-duty" injury:

1. In the event a firefighter claims that he or she suffered a disability in the performance of his or her duties, the employer makes the initial determination as to the employee’s fitness to return to full-duty or restricted/light-duty work based on the opinion of a physician it appointed to medically examine the firefighter.

2. The County has the right to make this initial determination without holding a hearing or initiating any type of proceeding.

3. In the event the employer determines that the firefighter is fit to return to full-duty or restricted/light duty, the firefighter may challenge the employer’s determination.

4. Should the firefighter challenge the employer’s decision, he or she is entitled to a hearing during which he or she may be represented by counsel and an opportunity to contest the employer's medical examiner's conclusion by submitting his own evidence, including the opinion of his personal physician and other medical experts.

5. The hearing officer weighs any conflicting medical opinions to arrive at his or her determination whether or not the firefighter is capable of returning to full-duty or restricted/light-duty work.

With these guidelines in mind, the significant events in the MacKay case are as follows:

McKay, employed by the Village as a firefighter, sustained a work-related injury in 2008 and obtained workers' compensation benefits. He was also granted disability benefits pursuant to General Municipal Law §207-a(1) by the Village.

The Village subsequently discontinued McKay’s GML §207-a(1) benefits. 

McKay, however, was latter found eligible for such GML §207-a(1) benefits but, prior to that determination being promulgated, McKay commenced receiving performance of duty disability retirement benefits from the New York State and Local Police and Fire Retirement System. As a result, McKay was no longer eligible for GML §207-a(1) disability benefits.

McKay then sought post-retirement supplemental benefits payments from the Village that were available pursuant to GML §207-a(2). The Village denied his application and McKay initiated a CPLR Article 78 proceeding. 

In 2012, Supreme Court granted McKay’s petition in part and directed the Village to pay McKay GML §207-a(2) benefits retroactive to the effective date of his performance of duty disability retirement in 2010, "pending a determination consistent with due process" as to whether GML §207-a(2) supplemental benefits should be terminated.

The Village appealed the Supreme Court's 2012 judgment. While that appeal was pending, McKay submitted a proposed judgment to Supreme Court that would award him a set amount in retroactive benefits. While the parties were arguing over the court’s issuing a new judgment and the correct amount of retroactive benefits to be awarded, the Appellate Division affirmed the Supreme Court's 2012 Article 78 decision, (see 113 AD3d at 991-993). 

In February 2014 Supreme Court issued a judgment that awarded McKay $67,830.69 in retroactive benefits, interest and costs. The Village appealed the Supreme Court’s 2014 ruling.

The Appellate Division, however, limited the Village’s appeal of the Supreme Court's 2014 ruling to the Village's claim that Supreme Court had erred in calculating the amount of retroactive benefits the court awarded to McKay in its 2014 judgment. 

The Appellate Division agreed with the Village's contention that the lower court had erred in calculating "retroactive benefit," holding that “the award of retroactive benefits cannot stand.” 

The court explained that although the Village was not required to pay McKay his full salary as of the date that he was granted performance of duty disability retirement benefits, he was entitled to the difference between the amounts received as his retirement allowance and the amount of his regular salary or wages that he would have otherwise received had he not retired from the Village "until such time as he shall have attained the mandatory service retirement age applicable to him or shall have attained the age or performed the period of service specified by applicable law for the termination of his service."

The Appellate Division also said that Supreme Court’s 2012 judgment, and its affirming thereof, “make clear that [McKay] was entitled to receive the benefits afforded by GML §207-a(2) until a due process hearing could be conducted to determine whether those benefits should be terminated.”

Although Supreme Court’s 2014 judgment correctly required the Village to pay McKay benefits retroactive to the date of his 2010 retirement, and Supreme Court acknowledged that those benefits must be "reduced by the amount of the [workers' compensation] benefits" that McKay received as a result of his 2008 injury, the Appellate Division noted that Supreme Court did not "factor in the receipt" of the workers' compensation benefits received by McKay in making its award “due to a  lack of proof to establish the offset amount” and directed the Village “to seek redress in whatever forum it deems appropriate."

Agreeing that the proof presented concering the amount of the offset was "meager," the Appellate Division said that the award was premature without considering this “offset” and rather than require the Village to undertake “piecemeal efforts” to establish the appropriate offset amount, it remitted the matter "to Supreme Court for the holding of a hearing, without delay, at which the parties may present proof relative to . . . [the Village’s] entitlement to an offset" in consideration of the workers’ compensation benefits paid to McKay."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02129.htm

_____________________

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Name clearing hearings

Name clearing hearings

Chang v Department of Educ. of the City of New York, 2016 NY Slip Op 02018, Appellate Division, First Department

The New York City Department of Education [Department] terminated Tzefang Frances Chang’s contract as a bilingual speech pathologist. Chang brought an Article 78 action challenging the Department’s action.

Supreme Court dismissed Chang’s petition after finding that the agreement between the Department and Chang gave the Department “the unconditional right to terminate the contract without cause and that such contract termination clauses are enforceable.”*In addition, the court said that the Department was not required to accept Chang's claims concerning the events that triggered the Department’s action. The Appellate Division sustained the lower court’s ruling.

Another element in this action concerned Chang’s demand for a “name-clearing hearing.” The Appellate Division held that Chang was not entitled to a name-clearing hearing as she presented no evidence to refute the statements of the Department’s Director of Employee Relations that “the code” placed on Chang's personnel file was for internal use only, and therefore she failed to show a likelihood of public dissemination of the material she alleged was “stigmatizing.”

In Swinton v Safir, 93 NY2d 758, the Court of Appeals held that with respect to an employer providing a former employee with a “name clearing hearing,” the material in the individual’s personnel records objected to must be “stigmatizing in the constitutional sense,” and not merely charges of “individual or isolated instances of bad judgment or incompetent performance of duties.” Further, the individual seeking such a hearing carries the burden of proof and must show the “stigmatizing nature” of the information and its publication to the public.

Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.

In any event, a name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Prevailing at a name-clearing hearing does not entitle the individual to reinstatement to his or her former position.

* Presumably an employer’s “unconditional right” to terminate a contract employee would not extend to insulating the employer from liability if it terminated the individual for a constitutionally impermissible reason or purpose.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02018.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 

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Selected reports issued by the Office of the State Comptroller during the week ending March 26, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 26, 2016

Click on text highlighted in color to access the entire report 

Municipal Audits released:

Town of Hempstead Sanitary District No. 1 - Selected Financial Activities 

Niagara Falls Water Board – Financial Management 

City of Olean – Procedures Related to Obligations to Fund Operating Deficits 

School Audits released: 

Burnt Hills-Ballston Lake Central School District – Leave accruals and separation payments 

Ellenville Central School District – Financal Condition 

Lake Pleasant Central School District - Payroll 

Mount Pleasant-Blythedale Union Free School District – Short-Term Borrowing and Purchasing 

Pelham Union Free School District – Reserve Funds 

Mobil must include Climate Change Resolution in Shareholder Vote
Comptroller Thomas P. DiNapoli, as Trustee of New York State Common Retirement Fund, and the Church of England co-filed a shareholder proposal at ExxonMobil in December, asking the company to assess how the worldwide effort to rein in global warming would impact its business. In response, ExxonMobil sought clearance from the Securities and Exchange Commission (SEC) to block DiNapoli’s proposal from a shareholders’ vote at its annual meeting. Wednesday, the SEC rejected that request.

http://www.osc.state.ny.us/press/releases/mar16/032316c.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160327&utm_campaign=pension+fund 

Agreements reached on Corporate Political Spending
New York State Comptroller Thomas P. DiNapoli announced that five Fortune 500 companies – Coca-Cola Enterprises, Raytheon, Waste Management, Union Pacific and Centerpoint Energy – have agreed to the New York State Common Retirement Fund’s request that they publicly report all direct and indirect corporate political spending.

http://www.osc.state.ny.us/press/releases/mar16/032316c.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160327&utm_campaign=pension+fund