A probationary employee employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

A probationary employee employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

Johnson v County of Orange, 2016 NY Slip Op 02821, Appellate Division, Second Department

Supreme Court granted the Orange County Sheriff’s motion to dismiss Janine Johnson's Article 78 petition challenging her termination from her position while she was still serving her probationary period “for failure to state a cause of action.” Johnson had filed a “notice of appeal” that the Appellate Division deemed to be an application for leave to appeal, granted the “application” and then affirmed the Supreme Court’s ruling with costs.

The Appellate Division explained that a probationary employee “may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law." 

In addition, it should be noted that Rules promulgated by a civil service commission may set out administrative procedures and standards that control the termination of a probationary employee.* For example, in Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753, the Court of Appeals held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards. 

Further, as the court held in Yan Ping Xu v New York City Dept. of Health and Mental Hygiene, 121 AD3d 559,  a  department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law. 

Another element to consider in the context of terminating a probationary employee is the "probationary status" of the individual. Case law indicates that a probationary employee may be terminated at any time after the completing his or her minimum period of probation prior to completing his or her maximum period of probation [see Gray v Bronx Developmental Center, 65 NY2d 904] unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. 

In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position [see McKee v. Jackson, 152 AD2d 54]. 

In Johnson's case the Appellate Division found that the allegations in her petition were insufficient to state a cause of action that her employment was terminated “in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.”

The Appellate Division also held that:

1. Johnson’s claims that the Orange County Sheriff's Office tolerated other relationships such as the one in which she was involved and did not have a formal anti-fraternization policy were inadequate to state a cause of action alleging that she was terminated in bad faith; and

2. Johnson was not entitled to a statement of the reason for the termination of her probationary employment, citing York v McGuire, 63 NY2d 760.

Accordingly, said the court, Supreme Court properly granted the appointing authority’s motion to dismiss Johnson’s petition.

* See, for example, 4 NYCRR 4.5(b) of the Rules of the State Civil Service Commission. Many local civil service commissions have adopted similar rules. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02821.htm

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Ronga v New York City Dept. of Educ., 2016 NY Slip Op 02921, Appellate Division, First Department

In an earlier decision, Ronga v New York City Department of Education, 114 AD3d 527, the Appellate Division sustained the findings of the Disciplinary Hearing Officer that Ronga, a probationary principal at a New York City public school, [1] improperly directed subordinates to create fabricated teacher observation reports and professional development plans for which he himself was personally responsible, and [2] submitted those reports and plans to the superintendent.  

That court, however, had dismissed certain other charges and specifications filed against Ronga on due process grounds, vacated the penalty of termination imposed by the Hearing Officer, and then remanded the matter to the Hearing Officer for consideration of the appropriate penalty to be imposed based on the surviving charges and specifications.

The Hearing Officer, in accordance with the Appellate Division’s directive, reconsidered the penalty to be imposed and reimposed the penalty of termination. Again Ronga appealed but this time the Appellate Division affirmed the penalty the Hearing Officer had determined – dismissal from the position.

The Appellate Division explained that “[d]espite [Ronga’s] long-standing work history and lack of prior misconduct, given the fraudulent nature of his misconduct, the fact that he coerced subordinates into being complicit in his malfeasance, and the fact that his misconduct deprived teachers of important observations and evaluations, the penalty of termination does not shock [its] sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02921.htm

__________________________ 

Challenging Adverse Personnel Decisions - A 752-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://nypplarchives.blogspot.com/

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Reassigning individuals to perform duties alleged to be those of a position classified and allocated to a lower title and grade

Reassigning individuals to perform duties alleged to be those of a position classified and allocated to a lower title and grade

Alston v Bertoni, 2016 NY Slip Op 02897, Appellate Division, Third Department

As the result of a perceived increase in criminal activity, Village of Endicott Mayor John Bertoni, directed Endicott Police Chief Michael Cox to assign detectives to police patrol duties.

Chief Cox designated Detectives Scott Alston, Michael McEwan and James Surdoval to perform such police patrol duties.* As a result, these detectives "work[ed] part of [their] normal work week, during [their] normal work hours, in uniform on patrol." The detectives and their union, Endicott Police Benevolent Association, Inc., filed a petition pursuant to Article 78 of the CPLR challenging their patrol duty assignments. Supreme Court found that the assignments were permissible and dismissed their petition.

The detectives had contended that assigning detectives to patrol duty on a limited basis violated Civil Service Law §§58 and 75 by forcing them to perform work "beneath their rank and title" without a hearing,” appealed the Supreme Court's decision. The Appellate Division disagreed with the arguments advanced by the dectectives and sustained the Supreme Court’s ruling.

Initially the Appellate Division noted that the detectives had [1] been permanently appointed to their positions, and there is no dispute that they are entitled to "the higher salaried, preferred status of detective" and [2] they had held their positions as detectives for more than three years and thus they may "not be removed or otherwise subjected to any disciplinary penalty provided in [Civil Service Law §75**] except for incompetency or misconduct shown after a hearing upon stated charges."

With respect to any alleged violation of CSL §58, the court determined that the detectives had not been deprived of their detective positions as a result of their assignment to patrol duties nor was their pay or benefits as detectives adversely affected in any way by such an assignment. The court explained that “§58 only guarantees that the detectives will ‘be permanently designated as . . . detective[s] . . . and receive the compensation ordinarily paid to persons in such designation,’ its provisions are not implicated by the assignment here” challenged."

Significantly, the Appellate Division observed that it is well settled that [1] an employee's displeasure with a work assignment, absent an adverse impact on his or her civil service grade or title, salary or benefits, does not implicate Civil Service Law §75, citing Galatti v County of Dutchess, 64 NY2d 1163, and [2] the assignments of the detectives were within the sole discretion of "the appointing officer.”***

Finally, said the court, assigning the detectives to patrol duty on a limited basis was rational in light of the proof that residents of the Village were demanding a greater police presence to combat a perceived rise in lawlessness, demands that could not be met by hiring more patrol officers because of budgetary problems.

* A footnote in the Appellate Division’s decision refers to the job description for Detective, which included the provision that detectives are required to "[a]ssist Patrol Division concerning criminal cases," and that both detectives and juvenile division detectives must perform any "duties imposed upon them by … [s]pecial [o]rders and lawful orders of their [s]uperior [o]fficers."

** One of the penalties authorized by §75 is “demotion in grade and title.”

*** See Detective Endowment Assn., Police Dept., City of N.Y. v Leary, 36 AD2d 289, affirmed 30 NY2d 577

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02897.htm

Accruing vacation and sick leave credits during leave for ordered military leave

Accruing vacation and sick leave credits during leave for ordered military leave

Andrews v State of New York, 2016 NY Slip Op 02895, Appellate Division, Third Department

An employee of the State as the employer absent from his or her position while on “ordered military duty,” is placed on military leave* from his or her position in accordance with provisions in the State Military Law and the Rules of the State Civil Service Commission. While on such military leave Rules of the State Civil Service Commission provided that the employee does not accrue vacation or sick leave credits unless he or she is "in full pay status for at least seven workdays during [the] biweekly pay period" during such absences for ordered military duty.**

A number of current and former employees [Claimants] of the State Department of Corrections and Community Supervision [Department], absent during various periods of ordered military duty, demanded that the Department credit them with the vacation and sick leave credits that they would have otherwise accrued had they not been absent on such ordered military duty. 

The Department ultimately denied there request and Claimants sued the Department seeking, among other things, a declaration that the denial of vacation and sick leave accruals during their respective periods of military leave violated both the Uniformed Services Employment and Reemployment Rights Act, 38 USC §4301 et sec, [USERRA]), and §242 of the State’s Military Law and sought a court order directing the Department to calculate and credit the amount of vacation and sick leave accruals that they would have otherwise earned but for their absences for ordered military service.

Supreme Court, concluding that [1] the State of New York did not waive its sovereign immunity with respect suit founded on alleged violations of USERRA; [2] that only those claims arising within the four-month statute of limitations applicable to CPLR Article 78 proceedings were timely; and, in any event, [3] the Claimants failed to state a cause of action.  In response to Claimant's appeal of Supreme Court's dismissal of  their petition, the Appellate Division affirmed the lower court’s ruling.

Reviewing of the applicable state and federal statutory and regulatory provisions, the court noted that, with respect to the relevant State law, rules and regulations:

1. An employee in state service "shall not earn" either annual or sick leave credits "for any biweekly pay period unless he [or she] is in full pay status for at least seven workdays during such biweekly pay period" (4 NYCRR 21.2 [b] [1]; 21.3 [b]).***

2. A state employee who is ordered to military duty is entitled to take a leave of absence for such purpose and, consistent with the provisions of Military Law §242 (5), is entitled to be paid his or her salary and other compensation for a specified number of days.

3. Upon the exhaustion of the military leave with pay authorized by Military Law §242(5), certain eligible state employees "shall be granted supplemental military leave with pay for a period or periods not exceeding a total of 30 calendar days or 22 working days, whichever is greater" (see 4 NYCRR 21.15 [a]; 4 NYCRR 21.16). Once that employee has exhausted those available options and, thus is no longer is on full pay status, he or she — consistent with the requirements imposed by 4 NYCRR 21.2 (b) (1) and 21.3 (b) — no longer accrues such credits.

With respect to federal law, the Appellate Division noted that:

1. USERRA prohibits an employer from denying a member of the uniformed services "initial employment, reemployment, retention in employment, promotion, or any benefit of employment" based upon, among other things, such member's performance of military service (38 USC §4311 [a]).

2. USERRA further provides that "a person who is absent from a position of employment by reason of service in the uniformed services shall be . . . deemed to be on furlough or leave of absence while performing such service . . . and . . . entitled to such other rights and benefits not determined by seniority as are generally provided by the employer . . . to employees having similar seniority, status, and pay who are on furlough or leave of absence under a contract, agreement, policy, practice, or plan in effect at the commencement of such service or established while such person performs such service" (see 38 USC §4316 [b] [1]; 20 CFR 1002.150 [a]).

3. Generally speaking, "accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence" [emphasis supplied by the Appellate Division].

4. In the event "the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services" [emphasis supplied by the Appellate Division].

For purposes of determining whether two forms of leave are comparable, the Appellate Division said “consideration should be given to the purpose of the leave and the employee's ability to choose when to take the leave, with the duration of the leave being the most significant factor.”

Addressing Claimants’ allegations that the Department violated 38 USC §§4311(a) and 4316(b) when it denied them vacation and sick leave accrual credits during their respective periods of military duty benefits, the court said that Claimants contended were denied benefits provided to state employees on allegedly comparable leaves of absence. However, said the court, Complainants “did nothing more than assert in a conclusory fashion — and without reference to the allegedly applicable statutory or regulatory provisions — that such accruals and credits were ‘generally provided by the [s]tate . . . to such employees on [w]orkers' [c]ompensation [l]eave, jury duty, bereavement, and extended sick leave/[Family Medical Leave Act].’”

Further, the court noted that:

1. “[A]bsent from the petition was any evidence … that state employees who were absent from work due to one of the cited forms of leave did in fact accrue vacation and/or sick leave credits even if they were not ‘in full pay status for at least seven workdays during [the relevant] biweekly pay period;’” and

2. The Claimants’ petition did not set forth any factual assertions demonstrating that the leaves of absence they claimed were “comparable leaves of absences” -- workers' compensation, jury duty, bereavement and extended sick leave - are, in fact, comparable in terms of purpose and duration to the military/supplemental military leaves available to Claimants.

Absent such factual allegations, the Appellate Division ruled that Claimants' allegations of violations of USERRA cannot stand.

The court said it reached a similar conclusion with regard to Claimants’ allegations of violation of Military Law §242(4). 

Although §242(4) prohibits an employer from subjecting an employee on a leave of absence due to ordered military duty "to any loss or diminution of time service, increment, vacation or holiday privileges, or any other right or privilege, by reason of such absence," the Appellate Division pointed out that “state employees on military leave/supplemental military leave (such as [Claimants]) are entitled to be paid for certain specified periods of time, and the parties do not dispute that such employees also may utilize certain accrued leave credits to extend their full pay status.”

While on full pay status, explained the court, "employees on leave for military service — like any other full pay status state employee — continue to accrue vacation and sick leave credits". However, "once employees on leave for military service exhaust their options to remain in full pay status, they — like all other state employees on unpaid leave — no longer accrue vacation and sick leave credits."

Finding that Claimants failed to demonstrate that they were treated differently than any other state employee on an unpaid leave of absence, the Appellate Division ruled that Supreme Court correctly concluded that Claimants failed to state a cause of action and properly granted the Department’s motion for summary judgment dismissing the Article 78 petition in its entirety.

* Military Leave is leave without pay except as otherwise provided by State law, rule or regulation.

** See 4 NYCRR 21.2[b][1]; 21.3[b]

*** Employees absent on leave for ordered military leave may elect, but may not be required, to use vacation, overtime and similar leave credits to remain on the payroll until such leave credits are exhausted.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02895.htm

Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law [OATH] Judges

Recent decisions by New York City Office of Administrative Tribunals and Hearings Administrative Law [OATH] Judges

Failure to report to work during a snow emergency

OATH Index No. 106/16

The New York City Department of Corrections filed charges alleging a correction office was absent without leave [AWOL] when the officer failed to report to work “during a snowstorm.” The Department had denied officer’s request for emergency leave, indicating that the officer “had notice of the storm and should have made other travel arrangements.”

The correction officer testified that she did not report to work during a snowstorm because [1] there was a travel ban in place and [2] she could not get her car out of her driveway.

OATH Administrative Law Judge Susan J. Pogoda dismissed AWOL charges against filed against a correction officer. Judge Pogoda ruled that, based on the evidence in the record in this disciplinary action, the Department had failed to failed to prove that the officer’s absence rose to the level of misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-106.pdf

Failure to submit to a random drug test

OATH Index No. 806/16

A sanitation worker was charged with misconduct after he failed to submit to a random drug test when ordered to do so.

The worker had “called in sick on the morning of the test” after the testing unit personnel had arrived at his garage. He was then directed to report to the Department of Sanitation's clinic for drug testing that afternoon. He failed to appear at the clinic as directed.

OATH Administrative Law Judge Astrid B. Gloade ruled that the worker had failed to prove that he had been too ill to travel and recommended that the individual be suspended without pay for thirty days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-806.pdf

A co-worker’s demeaning behavior towards an employee charged with using expletives and a racial slur deemed sufficient to mitigate the penalty proposed by the appointing authority

OATH Index No. 801/16

The New York City Transit Authority filed disciplinary charges against an employee alleging that he had used expletives and a racial slur towards a co-worker. It sought to have  the penalty of termination from employment imposed if the employee was found guilty of such misconduct.

In the course of an investigation by the Authority’s Office of Equal Employment Opportunity [EEO], and at the disciplinary hearing, the co-worker admitted that he had repeatedly cursed at and used demeaning language towards the employee charged with misconduct.

ALJ Ingrid M. Addison explaining that “A preponderance has been defined as the burden of persuading the trier of fact to believe that the existence of a fact is more probable than its non-existence,” found that in this instance a preponderance of the evidence, including testimony of the co-worker and the investigating EEO officer at the disciplinary hearing, as well as documentary submissions, supported a finding that the employee had, indeed, used the racial slur and expletives.

However, said Judge Addison, the employee’s behavior was the result of his being subjected to a protracted period of insults and demeaning behavior based on his perceived disability and ethnic origin.

Noting that employee had no disciplinary record and was reacting to his co-worker demeaning behavior towards him, ALJ Addison found the the Authority’s request for termination to be disproportionate to the offense, given the circumstances and  recommended the employee be suspended without pay for 20 days, with credit for time served. In light of his 30-days pre-trial suspension. Accordingly, Judge Addison recommended that the Authority “restore” the employee to his job and reimburse him 10 days’ pay.*

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-801.pdf

Employee disciplined after threatening supervisors with physical harm

OATH Index No. 1099/16

OATH ALJ Noel R. Garcia sustained the disciplinary charges filed against an assistant manager [Manager] by the appointing authority that alleged she had made oral threats to two supervisors and had failed to follow a directive “to report directly to the Assistant Personnel Director at the Human Resources Office the day after the alleged [oral] threats were made.”

Manager, after an alleged theft of money from her purse, telephoned two supervisors and threatened physical harm in the course of her demanding to speak to a “higher-up because no one has followed through with her request to be transferred.” Administrative Law Judge Noel Garcia found that there was evidence that in the course of the telephone calls Manager stated that if this did not happen “she would have to get physical,” and “something to the effect of would fists have to fly before anything would happen.”

As both supervisors provided credible testimony consistent with contemporaneous written reports of the incident, Judge Garcia found Manager guilty of making the oral threats. The ALJ, however, dismissed the charge that Manager failed “to follow a directive,” finding that was an apparent miscommunication between a supervisor and manager and Manager did not intend to disregard the order. Judge Garcia explained that he found the relevant instruction given to Manager was “ambiguous” and that Manager “did not willfully refuse to obey” the directive.

Accordingly, Judge Garcia recommended that, under the circumstances, the appointing authority impose a penalty of a 30 day-suspension without pay.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1099.pdf

* Civil Service Law §75.3 provides that "that the time during which an officer or employee is suspended without pay may be considered as part of the penalty."

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Challenging Adverse Personnel Decisions A 752 -page volume focusing on New York Statecourt and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://nypplarchives.blogspot.com/

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The so-called "Firefighter Rule" bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

The so-called "Firefighter Rule" bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

Voss v City of New York, 2016 NY Slip Op 02586, Appellate Division, First Department

The “Firefighter Rule,” which has been extended to apply to police officers, bars firefighters and police officers from recovering damages from their employer for line of duty injuries that occur or result from the performance of the duties of firefighter or police officer.

New York City Police Officer Roberta Voss, who had not yet completed her tour of duty, was injured when another police officer “grabbed her from behind and demonstrated a take-down maneuver.” Voss sued the City alleging common-law negligence and violations of the Labor Law and the Penal Law. Supreme Court granted the City’s motion for summary judgment dismissing Voss’ complaint and Voss appealed.

The Appellate Division unanimously affirmed the lower court’s ruling, explained the Voss’ common-law negligence claim is barred by the so-called "Firefighter Rule" because she was injured by a fellow officer while both were on duty. Further, as the count noted in Alcalde v Riley, 73 AD3d 1101, GML §205-a “largely abolished the former so-called ‘firefighter's rule’ by giving firefighters [and police officers] a cause of action in negligence for injuries suffered while in the line of duty except as to actions against municipal employers and fellow workers.”

In Voss’ situation the Appellate Division said “[b]ecause it is asserted against her employer (and her fellow officer), [Voss'] common-law negligence claim can only be based on the statutory right of action set out in General Municipal Law §205-e.

Although a §205-e claim may be predicated upon an alleged violation of Labor Law §27-a,* the Appellate Division concluded that Voss’ injury was not the type of workplace injury contemplated by Labor Law §27-a.

Addressing Voss’ complaint of alleged Penal Law violations, the court observer that there was no evidence that any criminal charges were brought against the fellow officer whose actions resulted in Voss’ injury and she offered no evidence that the officer's conduct was intentional, criminally reckless, or criminally negligent, so as to rebut the presumption that the Penal Law was not violated.

* §27-a of the State’s Labor Law addresses “Safety  and  health  standards  for  public  employees.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02586.htm

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A New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option

A New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option

Batorksy v New York State Off. of the Comptroller, 2016 NY Slip Op 02698, Appellate Division, Third Department

Victor H. Batorksy filed an Article 78 petition seeking a review a determination of the Deputy Comptroller denying his request to change his retirement election option.

Batorksy, a retired state employee and member of New York State and Local Retirement System [ERS], was formerly married to “interested party” Angela M. Batorksy [AMB]. AMB is also a retired state employee and an ERS member. A 2002 judgment of divorce and incorporated stipulations of settlement in a domestic relations order required Batorksy to pay a share of his pension benefits to AMB calculated according to the formula set forth in Majauskas v Majauskas, 61 NY2d 481. This domestic relations order was subsequently amended a number of times.*

The Appellate Division characterized Batorksy's several challenges to Supreme Court's determination denying his Article 78 petition as “fundamentally premised on the theory that the Retirement System improperly refused to allow him to change AMB's survivorship benefit.”

Batorksy contended that a 2011 domestic relations order, the last in a series of amendments to orders following the 2002 domestic relations order, should be amended to alter the survivorship benefit and that the Retirement System improperly refused to permit him to do so. The Retirement System had determined that the provisions of a 2005 domestic relations controlled.

The Appellate Division said that his arguments were unavailing as Batorksy as was not entitled to the relief he seeks. The court explained that the Comptroller has exclusive authority to determine the validity of applications by Retirement System members for any form of retirement benefits. In making such determinations, the Comptroller's interpretation of the statute that he or she is charged with enforcing must be sustained if it is not “irrational, unreasonable or inconsistent with the governing statute.”

It was Batorksy's burden to prove that the Retirement System incorrectly determined that the percentage of the option specified in the 2005 domestic relations order became irrevocable on October 31, 2010. In the words of the Appellate Division, “[t]his burden was not met.”

The governing statute, RSSL §90[e], provides that "an option selection previously filed by a member . . . may be changed no later than [30] days following the date of payability of his or her retirement allowance." The date of payability is "the first day of each and every month beginning on the first day of the month following the effective date of retirement" and Batorksy's retirement became effective on September 25, 2010.

Thus, said the Appellate Division, the date of payability was October 1, 2010, and October 31, 2010 was 30 days after the date of payability. There is no statutory exception permitting a retiree to change a valid option election after the time to make such an election has expired, and "[t]he absence of statutory prohibition does not permit [this Court] to imply the power with which the Comptroller must be endowed to conform legally with . . . [Batorksy's] present demand."

Accordingly, the Retirement System’s determination that the option election contained in the 2005 domestic relations order became irrevocable on October 31, 2010 was neither irrational nor unreasonable, and must be sustained.

On another point, the Appellate Division noted that there apparently was “[a]n erroneous statement by [the Employees’ Retirement System] in a memorandum of law submitted to Supreme Court to the effect that the Retirement System rejected the 2011 order” The court said that this “did not constitute a concession or admission, but was merely a typographical error, clearly contradicted by the record.”

* The Appellate Division’s decision sets out in some detail the events leading to the instant Article 78 action and appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02698.htm

A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence

A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence

New York State Corr. Officers and Police Benevolent Assn., Inc. v New York State Off. of Mental Health, 2016 NY Slip Op 02696, Appellate Division, Third Department

The New YorkState Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA], representing certain personnel at psychiatric centers operated by Office of Mental Health [OMH], brought an Article 78 action challenging an OMH emergency regulation* that required personnel employed at psychiatric centers operated by OMH and psychiatric facilities licensed under the Mental Hygiene Law who had not been vaccinated against influenza to wear face masks in areas where patients might be present during influenza season. NYSCOPBA contended that the emergency regulation was arbitrary and capricious. Supreme Court dismissed the petition and NYSCOPBA appealed.

In its appeal NYSCOPBA argued that the mandatory mask-wearing requirement was arbitrary and capricious because it fails to take into account the special circumstances present in psychiatric facilities. NYSCOPBA theory: the job responsibilities of the affected personnel included “such functions as assisting psychiatric patients in their treatment and rehabilitation, maintaining their safety and security and modeling appropriate behavior, and that the mask-wearing requirement interferes with their ability to communicate with patients, act as effective role models and otherwise perform their job responsibilities.”

In support of the challenged regulation, OMH submitted, among other things, the affidavit of Lloyd Sederer, Chief Medical Officer for OMH. Sederer said that in promulgating the emergency regulation OMH was "following the lead" of the New York State Department of Health [DOH] which had earlier promulgated a rule** addressing the use of masks to prevent influenza transmission in health care facilities. Sederer said that OMH relied upon the knowledge and expertise of DOH clinicians in deciding to adopt a similar regulation.

In addition to relying upon the expertise of DOH, OMH said that it had also considered research and recommendations from various authorities such as the Centers for Disease Control and the Food and Drug Administration concerning the use of face masks to control the spread of disease. 

OMH also noted its experience in treating the mentally ill indicated that individuals with chronic and serious mental illness suffer higher rates of chronic physical illness than other persons and that recent influenza seasons had been more severe than in the past. Thus OMH determined that the adoption of an emergency regulation, and ultimately a final regulation, in an effort to control influenza transmission was imperative to safeguard the health, safety and welfare of patients.

The Appellate Division said that "[OMH] is entitled to a high degree of judicial deference, especially when act[ing] in the area of its particular expertise,” and decided that NYSCOPBA had failed to meet its heavy burden of showing that the regulation was unreasonable and unsupported by any evidence.

In the words of the Appellate Division, “[t]aken as a whole, the record demonstrates that OMH did not disregard the special circumstances present in psychiatric facilities, but instead weighed these circumstances carefully and reached the reasonable conclusion that any disadvantages associated with mask-wearing in psychiatric facilities were outweighed by the substantial advantages they offered in preventing or reducing the transmission of influenza.”

As NYSCOPBA did not meet its burden of demonstrating that OMH acted arbitrarily, capriciously or unreasonably in promulgating the challenged regulation, the Appellate Division dismissed its appeal.

* The Appellate Division ruled that NYSCOPBA’s petition was not rendered moot by the expiration of the emergency regulation after 90 days. OMH subsequently adopted a permanent regulation that incorporated the mandatory mask-wearing requirement into its Rules concerning preventing influenza transmission [see 14 NYCRR 509].

** In Matter of Spence v Shah, 136 AD3d 1242, the Appellate Division determined that the DOH regulation was not arbitrary, capricious, irrational or contrary to law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02696.htm

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Stapleton v Ponte, 2016 NY Slip Op 02658, Appellate Division, Second Department

The Commissioner of the New York City Department of Correction, adopting and rejecting parts of the recommendation of an Administrative Law Judge [ALJ] following a hearing conducted pursuant to Civil Service Law §75, found Kadar Stapleton guilty of using excessive force upon an inmate and terminated his employment.

Supreme Court denied Stapleton’s CPLR Article 78 petition challenging the Commissioner’s determination and he appealed.

There was but one issue Stapleton raised in his appeal for the Appellate Division to consider: Did the Administrative Law Judge have the lawful authority and jurisdiction to conduct his §75 disciplinary hearing and “make findings and a recommendation?”

The Appellate Division, noting that Civil Service Law §75 governed the disciplinary proceeding at issue in this case, explained that §75 requires that "[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose."

Further, said the court, the failure to designate a hearing officer for a disciplinary hearing in writing, as required by Civil Service Law §75(2), “is a jurisdictional defect that renders the hearing officer's determination null and void.”

In this instance, however, the Appellate Division found that Supreme Court had correctly determined that the ALJ had been properly designated to conduct Stapleton’s §75 disciplinary hearing and to make findings of fact. Further, were the ALJ to find Stapleton guilty of one or more of the charges filed against him, the ALJ was properly authorized to make a recommendation as to the penalty to be imposed.

As the Appellate Division found that Supreme Court properly denied Stapleton’s petition and dismissed the Article 78 proceeding, the court dismissed his appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02658.htm

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A public benefit corporation may not establish an alternate civil service system unless such action is authorized by law

A public benefit corporation may not establish an alternate civil service system unless such action is authorized by law

Civil Serv. Empls. Assn., Inc. v Westchester County Health Care Corp., 2016 NY Slip Op 02649, Appellate Division, Second Department

In Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361, the Court of Appeals held that “public benefit corporation was not subject to constitutional provisions regarding civil service appointment.” As a general rule, unless the law specifically makes the Civil Service Law applicable to the employees of a public benefit corporation, such persons are not subject to its provi­sions. 

For example, although Section 8087 of the Unconsolidated Laws provides that the employees of the New York City Off-track Betting Corporation are subject to the Civil Service Law and "other laws applicable to civil service personnel," statutes creating other OTBs do not include such a provision. Accordingly, New York courts have ruled that employees of such other OTBs are not in the public service for the purposes of the Civil Service Law.

In 1997 Article 10-C of the New York Health Care Corporations of the Public Authorities Law was amended by adding §§3300 – 3321 to create the Westchester County Health Care Corporation (WCHCC), a “public benefit corporation."* Significantly, §3304.4 provides that WCHCC shall be subject to the civil service law while §3305.12 grants WCHCC the authority “to appoint such officers, employees and agents as the corporation may require for the performance of its duties and to fix and determine their qualifications, duties, and compensation subject to the provisions of the civil service law and any applicable collective bargaining agreement, and to retain or employ counsel, auditors, engineers and private consultants on a contract basis or otherwise for rendering professional, management or technical services and advice.”

In 2013 WCHCC’s Board of Directors, WCHCC's governing body, adopted Resolution No. 29-2013 directing WCHCC's management to "take all steps and provide the resources necessary to establish, administer, and maintain its own civil service system." 

In response to this action by WCHCC the Civil Service Employees Association, Inc. and a number of other employee organizations [CSEA] initiated an Article 78 action contending that the Board acted in violation of the Act directing the establishment of its own civil service system when it approved the Resolution.

Supreme Court agreed, annulling the Resolution and WCHCC appealed.

The Appellate Division said that the standard of review in this proceeding pursuant to CPLR Article 78 is whether “the resolution under review was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.” In considering questions of statutory interpretation the Appellate Division explained that a court's "primary consideration is to ascertain and give effect to the intention of the Legislature" as "[T]he statutory text provides the clearest indication of legislative intent, and should be construed to give effect to its plain meaning."

In this Article 78 action the court ruled that CSEA met its burden of proving that WCHCC's adoption of the Resolution No. 29-2013 was affected by “an error of law” as the statute creating it did not explicitly nor implicitly transferred to the WCHCC and its Board of Directors the authority to self-administer its own civil service system.

Accordingly, the Appellate Division ruled that the Supreme Court properly annulled the Resolution.

* The significant provisions of §3304 addressing the transfer of certain officers and employees of Westchester County to WCHCC provide that [1] such officers and employees shall become officers and employees of WCHCC with equivalent offices, positions and employment and shall be deemed public officers or public employees for all purposes; [2] the provisions of §70 shall apply to such transfers as appropriate; [3] individuals holding a temporary or provisional appointment so transferred shall be subject to the same right of removal, examination or termination as though such transfer had not been made consistent with the provisions of the applicable collective bargaining agreement [CBA]; [4] WCHCC shall recognize the existing certified or recognized employee organizations for those persons who become WCHCC employees and be bound by the relevant provisions of CBAs with respect to existing terms and conditions of employment which CBAs shall remain in effect until altered by the terms of a successor contract; [5] successor employees to the positions held by such employees shall, consistent with the provisions of Article Fourteen of the Civil Service Law, be included in the same unit as their predecessors; [6] the salary or compensation of any such officer or employee, after such transfer, shall be paid by WCHCC and WCHCC shall acknowledge and give credit for all leave balances held by such officers and employees on the date of transfer; and [7] WCHCC shall be subject to the civil service law

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02649.htm
[Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.]