Responding to a Freedom of Information Law request by neither confirming nor denying the existence of such information or data

Responding to a Freedom of Information Law request by neither confirming nor denying the existence of such information or data

Abdur-Rashid v New York City Police Dept., 2016 NY Slip Op 04318, Appellate Division, First Department 
Samir Hashmi v New York City Police Department, et al., 2016 NY Slip Op 04318, Appellate Division, First Department

A governmental agency’s response to a Freedom of Information Law [FOIL] request stating it would “neither confirm nor deny” it had information concerning focus of the FOIL request in its possession is characterized as a “Glomar response” -- the Central Intelligence Agency’s response to a FOIL request for information concerning the activities of the Glomar Explorer, a salvage vessel allegedly built at the request of the CIA in an effort to salvage a sunken submarine.

Supreme Court denied the petition brought by Talib W. Abdur-Rashid pursuant to CPLR Article 78 seeking to compel the New York City Police Department [Department] to disclose documents requested pursuant to FOIL. The Department's response to Abdur-Rashid's FOIL request was that it "would neither confirm nor deny" such records or documents existed. The Appellate Division unanimously affirmed the lower court's ruling.*

The Appellate Division explained that FOIL does not prohibit the Department from giving a Glomar response to a FOIL request where, as here, the Department "has shown that such confirmation or denial would cause harm cognizable under a FOIL exception."

Citing Hanig v State of N.Y. Dept. of Motor Vehicles., 79 NY2d 106, the court said that although Abdur-Rashid contends that a “Glomar response is impermissible in the absence of express statutory authorization," the Glomar Doctrine is "consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL,” as it allows an agency to safeguard information that falls under a FOIL exemption.

Addressing the Supreme Court's ruling in Samir Hashmi v New York City Police Department,** the Appellate Division, after considering the differences between the two statutes identified by the Hashmi court,  concluded that they do not justify rejecting the Glomar doctrine in the context of FOIL.

The Appellate Division noted that while federal case law regarding FOIA is not binding on it, it is "instructive" when interpreting FOIL provisions and the application of the Glomar doctrine to FOIA requests has been widely approved by federal circuit courts. 

Further, said the court, the Department met it burden to "articulate particularized and specific justification" for declining to confirm or deny the existence of the requested records. In this instance the records sought information related to Department investigations and surveillance activities, including showing that answering the inquiries “would cause harm cognizable under the law enforcement and public safety exemptions of Public Officers Law §87(2).”

The Appellate Division, referring to Wilner et al,v NSA,*** then cautioned that by its ruling in these two actions it was not suggesting that any FOIL request for Department records would justify a Glomar response, opining that "An agency resisting disclosure of the requested records has the burden of proving the applicability of [a FOIL] exemption" and must submit "a detailed affidavit showing that the information logically falls within the claimed exemptions" and "the basis for [the agency's] claim that it can be required neither to confirm nor to deny the existence of the requested records."

* The Appellate Division unanimously reversed, on the law, the same Supreme Court’s denial of the Department’s motion to dismiss the Article 78 petition filed by Samir Hashmi seeking to compel it to disclose documents requested by Hashmi pursuant to FOIL and to submit an answer to the petition.

**See Samir Hashmi, et al v New York City Police Department, 46 Misc 3d 712, 722-724

*** USCA, Second Circuit, Docket No. 08-4726-cv, [Petition for writ of certiorari denied, US Supreme Court]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04318.htm

A General Municipal Law §207-a(2) salary supplement becomes payable by the employer upon a firefighters retirement with accidental or line of duty disability benefits

A General Municipal Law §207-a(2) salary supplement becomes payable by the employer upon a firefighters retirement with accidental or line of duty disability benefits

Masullo v City of Mount Vernon, 2016 NY Slip Op 04225, Appellate Division, Second Department

The Fire Commissioner of the City of Mount Vernon adopted the recommendation of a hearing officer, made after a hearing, and denied disabled firefighter Michael Masullo’s application for supplemental salary benefits pursuant to General Municipal Law §207-a(2).

Masullo appealed the City’s action and Supreme Court held that Masullo was obligated to submit an application in the manner prescribed by the City of Mount Vernon and City of Mount Vernon Fire Department for §207-a(2) salary supplement payments and that the eligibility review process imposed by the City of Mount Vernon and City of Mount Vernon Fire Department was not improper. Masullo appealed the Supreme Court’s determination.

The Appellate Division overturned the Supreme Court’s decision, essentially holding that the language in §207-a(2) providing for supplemental salary payments to a firefighter retired on accidental or line of duty disability retirement mandates such payments upon the retirement of the firefighter because of such disability and is initiated by operation of law. Thus no “procedure” or “request” to grant or obtain such payments involving the employer appears to be required.

In the words of the Appellate Division, “General Municipal Law §207-a(2) guarantees the payment of benefits to a firefighter who is permanently disabled in the line of duty, including the continued payment of the firefighter's regular salary until the mandatory retirement age, less certain amounts received from other sources.”

The court noted that Masullo’s appeal “presents an issue of first impression for this Court: whether the provisions of General Municipal Law §207-a(2) authorize a municipality to terminate permanent disability retirement benefits previously awarded to a firefighter pursuant to that subsection, and require the firefighter to submit a formal application for those benefits pursuant to an application procedure that was adopted by the municipality subsequent to the firefighter's retirement.”

The court ruled that “a municipality is not authorized to terminate such previously awarded §207-a(2) benefits or require the submission of a formal application for such benefits after the firefighter has retired, as this essentially amounts to an improper reconsideration of an award of benefits based on improved medical condition, a procedure which is not authorized by General Municipal Law §207-a(2).”

The decision reports that the New York State Comptroller had approved both an accidental disability retirement allowance pursuant to the Retirement and Social Security Law §363, and a performance-of-duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c for Masullo. In addition, the decision notes that Masullo "had simultaneously retired from the fire department."

In accordance with General Municipal Law §207-a(2), the City commenced paying Masullo §207-a(2) benefits, consisting of the  difference between his regular salary and those retirement allowances. In April 2004, the City adopted an application procedure for firefighters to request and receive §207-a(2) benefits.

The genesis of this litigation was a letter Deputy Fire Commissioner Deborah Norman sent to Masullo advising him that the City had recently reviewed his eligibility to receive §207-a(2) benefits and determined that there was no record that he had ever requested or applied for those benefits. Norman also advised Masullo that, "in the absence of a request or application for [Section] 207-a(2) benefits," she had determined that Masullo had been erroneously paid these benefits. Norman then directed the City to immediately cease paying Masullo §207-a(2) benefits, and included an application form with the letter should Masullo wish to apply for those benefits.

Masullo’s attorney wrote to the City the expressing his view that the Masullo was entitled to continue receiving §207-a(2) benefits. The City agreed to resume paying §207-a(2) benefits to Masullo on the condition that he submit an application in full compliance with the Fire Department’s recently implemented application process. Masullo did so and the City’s physician who examined Masullo opined that he “did not find any pathology that would represent a causally related disability, and determined that there was nothing which would prevent [Masullo] from returning to full-duty status.” Ultimately the City discontinued Masullo’s §207-a(2) supplemental payments.

Citing McGowan v Fairview Fire District, 51 AD3d 796,  the court said that it had addressed the question of whether a fire district was authorized to review a firefighter's medical condition for the purpose of determining whether it had improved to such an extent that the firefighter was no longer entitled to supplemental benefits pursuant to General Municipal Law §207-a(2).

The court said in McGowan it had held that General Municipal Law §207-a does not contain any language authorizing a municipality to terminate General Municipal Law §207-a(2) benefits on the basis of improved medical condition.

In contrast, GML §207-a(3) expressly grants municipalities the authority to terminate benefits being paid pursuant to GML §207-a(1) upon a finding that the employee has experienced an improvement is his or her medical or physical condition under certain circumstances.

Subdivision 3 of General Municipal Law §207-a provides as follows: “If such a [firefighter] [i.e., a firefighter receiving §207-a(1) benefits] is not eligible for or is not granted such accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension and is nevertheless, in the opinion of such health authorities or physician, unable to perform his [or her] regular duties as a result of such injury or sickness but is able, in their opinion, to perform specified types of light duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such [firefighter] if he [or she] shall refuse to perform such light duty if the same is available and offered to him [or her], provided, however, that such light duty shall be consistent with his [or her] status as a [firefighter] and shall enable him [or her] to continue to be entitled to his [or her] regular salary or wages, including increases thereof and fringe benefits, to which he [or she] would have been entitled if he [or she] were able to perform his [or her] regular duties.”*

The Appellate Division concluded that the absence of a similar provision in General Municipal Law §207-a with respect to retirees receiving §207-a(2) salary supplements to their retirement benefits indicates that the Legislature did not intend to grant municipalities the authority to terminate benefits paid §207-a(2) on the basis of the retiree’s improved medical condition.

The Appellate Division determined that the Masullo [1] was not obligated to submit an application for benefits pursuant to General Municipal Law §207-a(2) in the manner prescribed by the City of Mount Vernon and City of Mount Vernon Fire Department; [2]  the eligibility review process imposed by the City of Mount Vernon and City of Mount Vernon Fire Department was improper; [3] directed the City of Mount Vernon to reinstate Manullo’s§207-a(2)  benefits retroactive to February 13, 2009, plus statutory interest; and [4] awarded Masullo “one bill of costs.”

* GML §207-a(5) provides “The appropriate municipal or fire district officials may transfer such a [firefighter] to a position in the same or another agency or department where they are able to do so pursuant to applicable civil service requirements and provided the [firefighter] shall consent thereto.” See, also, GML §207-a(6) which provides for the forfeiture of a firefighter’s GML §207-a(1) entitlement to such benefits under certain circumstances.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04225.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

 _______________ 

An appointing authority is not required to assign an individual to the position he or she desires or prefers

An appointing authority is not required to assign an individual to the position he or she desires or prefers
Webb v City of New York, 2016 NY Slip Op 04307, Appellate Division, First Department

Dawn Webb, a tenured teacher with a 15 year career, did not challenge the findings made in the course of a disciplinary arbitration hearing that she committed forty acts of misconduct, including insubordination, dereliction of duty, and incompetence, over a two-year time period at numerous different schools. Neither did she deny that she ignored the efforts of numerous supervisors and administrators to remedy her pedagogical deficiencies.

Notwithstanding Webb’s contention that she “became demoralized when she was assigned to the absent teacher reserve pool and did not have permanent assignment at one school,” the penalty imposed by the arbitrator was dismissal from her employment.

Webb filed a petition pursuant to CPLR Article 75 seeking a court order vacating the penalty of termination imposed by the arbitrator. Supreme Court dismissed her petition, which ruling was unanimously affirmed by the Appellate Division.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, the Appellate Division said that “a court must uphold a sanction imposed [following a disciplinary hearing] unless it is so disproportionate to the offense that it shocks the conscience and therefore, constitutes an abuse of discretion.”

In this instance the court concluded that the penalty of termination of Webb’s employment was not unduly harsh or excessive given her failure to conform her behavior to the requirements of the job and her unwillingness to accept assistance or improve her performance.

As to Webb’s claim that her malfeasance or misfeasance in performing her duties were the result of her not having permanent assignment at one school, the Appellate Division observed that the appointing authority was not required to assign her to the position she desired.

Further, said the court, the record reflects that Webb was warned many times that her conduct would result in disciplinary action. Despite these warnings Webb failed to take steps to correct the deficiencies noted by numerous supervisors and administrators.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04307.htm

______________

A Reasonable Penalty Under The Circumstances - a 618-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://booklocker.com/7401.html

______________

Complying with procedural requirements in an appeal to the Commissioner of Education critical to the Commissioner’s considering the merits of the appeal

Complying with procedural requirements in an appeal to the Commissioner of Education critical to the Commissioner’s considering the merits of the appeal

Matter of the Board of Education of the Oceanside Union Free School District

Decisions of the Commissioner of Education, Decision No. 16,907

In this appeal the Petitioners asked the Commissioner of Education to remove each of the seven board members of the Board of Education of the Oceanside Union Free School District [Board] for alleged violations of School Board policies, breaches of their fiduciary duties as members of the Board, and of having conflicts of interest.  

The Commissioner addressed a number of significant procedural defects and critical jurisdictional issues in adjudication this appeal.

Although Petitioners did not provide an affidavit of service establishing service upon the Board, the affidavits of the district clerk indicated that she had accepted service on behalf of the Board. As there was no assertion that the appeal should be dismissed as to the Board for lack of proper service, the Commissioner declined to dismiss the appeal with respect to allegations against the Board.

Such was not the case, however, with respect to the Commissioner exercising jurisdiction over the individual members of the Board. Petitioners had failed to name any board member in the caption of the notice of petition or petition. Petitioners' failure to name each such board members constituted a failure to properly join as respondents each individual board member whose removal was sought, warranting dismissal of the application as against each such Board member. The Commissioner explained that “It is the notice of petition which alerts a party that he or she is required to appear and answer the allegations contained in the petition.”

Another defect noted by the Commissioner: Petitioners failed to personally serve any individual board members with a copy of the petition and notice of petition.

Service of pleadings and supporting papers set out in 8 NYCRR §275.8(a), of the Commissioner’s regulations, are applicable to proceedings seeking the removal of a school officer  [see 8 NYCRR §277.1] They provide, in pertinent part, that “A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at respondent’s residence with some person of suitable age and discretion ... or as otherwise directed by the Commissioner.”

Although the record contained seven affidavits of service indicating that seven copies of the petition in this matter were served on the district clerk in an attempt to effectuate service on each of the seven individual board members, the affidavit of the district clerk stated that she accepted service only on behalf of the board and that she was not authorized to accept service on behalf of the individual board members. 

Although Petitioners submitted an affidavit from their process server stating that the district clerk gave “specific assurance” that she was authorized to accept service on behalf of the individual board members, in a sur-reply the School District submitted a second affidavit from the district clerk indicating that she never informed the process server that she was authorized to accept service on behalf of the individual board members. 

As in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, the Commissioner said that in the light of the conflicting affidavits, she could not conclude that there was valid service on the individual board members. Further, said the Commissioner, the record does not indicate that any request for "alternate service" was made by the Petitioners.

As to the individual board members, as they were not personally served, the applications for their removal was denied. Notwithstanding this, if service upon the individual board members is deemed defective, the Commissioner said that she could “proceed with this petition as against the Board as an entity pursuant to Education Law §[310]” and as noted above, she declined to dismiss Petitioners’ appeal with respect to allegations against the Board.

As to the School District’s claim that Petitioners’ appeal should be dismissed as untimely as it was commenced more than 30 days after the actions to which Petitioners object, and Petitioners acknowledge that their appeal is untimely, Petitioners argued that “they were not advised that they had the right to appeal [the Board’s] determination and that they filed multiple complaints with Office of Civil Rights Compliance [OCR], erroneously believing that OCR was the only remaining option to address [the Board’s] alleged misconduct.  They then argued that “as pro se litigants, they are entitled to a liberal interpretation of the Commissioner’s regulations.”* 

The Commissioner commented that “except in unusual circumstances,” ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal and that the record contains no evidence that any unusual circumstances are present here.

Thus, ruled the Commissioner, “the appeal must be dismissed as untimely.”

Additionally, Petitioners contended that the Board’s was made in retaliation for Petitioners’ earlier complaint to the Office of Special Education Quality Assurance [SEQA], which, said the Commissioner, raised the identical issues and incidents in a complaint filed with OCR. OCR determined that the “district proffered a legitimate, non-retaliatory reason” for the School District's decision and that “the proffered reason was not a pretext for retaliation because the district’s actions were consistent with its policies.” Accordingly, the Commissioner ruled that having chosen that forum in which to litigate their claims, Petitioners have made an election of remedies and may not relitigate the same issues in a proceeding instituted pursuant to §310 of the Education Law.

Finally, the Commissioner noted that, as stated above, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.  

In addition to their request for removal of the board members, discussed above, Petitioners sought only that “The Commissioner exercise authority to review and approve all manner of business proposed by the Board until such time as the Commissioner is satisfied that the board is acting rationally and prudently and fulfilling its fiduciary responsibilities to protect public assets and promote the educational needs of the District....”

However, an appeal to the Commissioner is appellate in nature and does not provide for investigations, nor does the Commissioner have the authority to act as an overseer over all board business or to appoint such an overseer with the power to substitute his or her opinion and determination for that of the board.

* On this point the Commissioner noted that Petitioners are both practicing attorneys and thus are held to a higher standard than non-attorney pro se litigants.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16907

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer

McKay v Village of Endicott, 2016 NY Slip Op 04085, Appellate Division, Third Department

The Village of Endicott had been paying Firefighter Joseph W. McKay General Municipal Law §207-a(1)* benefits while he was unable to work after he had suffered an "on the job" injury to his lower back.

In March 2010, McKay underwent  surgery. The Village told McKay that because his "neck condition" was "not related to the work injury," his General Municipal Law §207-a benefits were "terminated." McKay appealed and ultimately the hearing officer appointed by the Village determined that McKay was entitled to GML §207-a(1) benefits because there was a causal relationship linking the lower back injury to the accident and no evidence that McKay’s lower back had improved to the point that, but for the intervening cervical spine injury, he would have been able to return to work as a firefighter.

While that hearing was pending, McKay retired and commenced receiving performance of duty disability retirement benefits and the Village discontinued McKay’s GML §207-a(1) benefits. In November 2011, at the Village's request, McKay applied for supplemental benefits authorized by GML §207-a(2).**

In March 2012, McKay was examined by an orthopedist retained by the Village. The orthopedist opined that McKay’s 2008 back injury "would not have prohibited [him] from performing his duties as a firefighter and EMT." In May 2012, the Village denied McKay's "application" for GML §207-a(2) benefits. McKay then commenced a CPLR Article 78 proceeding challenging the Village’s determination. Supreme Court “partially granted [McKay’s petition] finding that the Village could not terminate his General Municipal Law §207-a benefits without a hearing. The Appellate Division sustained the Supreme Court’s ruling.***

In August 2012, the Mayor of the Village wrote to the Hearing Officer to confirm his appointment "in the [GML] §207-a(2) appeal case." At the subsequent 2013 hearing to consider McKay's November 2011 application for §207-a(2) benefits, the parties testified and in February 2014, the Hearing Officer issued a decision in which he characterizing the "issue presented" to be whether McKay was entitled to General Municipal Law §207-a(2) benefits as a result of the April 2008 lower back injury.

Noting that he was obligated to "uphold" the Village's determination to deny the benefits as long as it was supported by substantial evidence, the Hearing Officer issued "findings" that McKay was entitled to General Municipal Law §207-a(2) benefits based on the "volume of medical evidence" that supported the conclusion that McKay  [1] was "permanently incapacitated from performing his duties, [2] that his disability [was] permanent, and [3] that his disability [was] causally related to the performance of his duties."

Specifically, the Hearing Officer "determin[ed] that [McKay's] workplace injury on April 8, 2008 [was] the cause of his permanent inability to work." The Mayor, however, rejected the Hearing Officer's awarding McKay GML §207-a(2) benefits, finding that substantial evidence supported the Village's May 2012 determination denying McKay with such benefits.

McKay then commenced a CPLR Article 78 proceeding seeking a court order annulling the Mayor's determination. Supreme Court determined that the Village was not bound by Hearing Officer's decision and then transferred the proceeding to the Appellate Division.

The Appellate Division said that core issue was whether the Hearing Officer's February 2014 decision was a final and binding determination, noting that "it has long been recognized that . . . General Municipal Law §207-a . . . [was] enacted for the benefit of firefighters . . . who sustain disabling injuries in the line of duty, [and] the statutory provisions are to be liberally construed."

However, said the court, the statute does not set out any administrative procedure for determining a firefighter's entitlement to benefits and a municipality may promulgate or negotiate such a procedure provided that it comports with administrative due process. Accordingly, said the Appellate Division, the initial question presented is what procedure, if any, did the Village promulgatge.

The Appellate Division observed that [1] there was no negotiated procedure in place nor [2] was any written policy that governed the termination of existing General Municipal Law §207-a benefits was introduced at the hearing. Rather, said the court, the record indicated that the Village “simply opted to appoint a hearing officer — first, in 2010 to decide [McKay’s] entitlement to General Municipal Law §207-a(1) benefits, and then, in 2012, to decide [McKay’s] entitlement to General Municipal Law §207-a (2) benefits.”

Considering the record, the Appellate Division concluded that Supreme Court's initial finding that the Village was not bound by the Hearing Officer's determination was in error. The court explained that contrary to the Village’s argument, without any statutory or negotiated prohibition or direction, the Village was authorized to delegate its decision-making authority to the Hearing Officer.

Further, said the court, that the Mayor did, in fact, appoint the Hearing Officer to make a final determination and not a recommendation "is apparent from the record before us." Neither the 2010 nor the 2012 appointment was in any way qualified so as to limit the respective Hearing Officers to an advisory role, i.e., to make and submit findings of fact and a recommendation to the appointing authority regarding the disposition of these matters.

Referring to its earlier decision in which it determined that the Village could not terminate benefits payable to McKay pursuant to GML §207-a(2) without a hearing, the court said that “Given this procedural due process protection,” it considered such a hearing to be a de novo assessment of whether McKay sustained a permanent disability as a result of the 2008 work incident.

The court then opined that the Hearing Officer's observation that he was required to uphold the Village's decision if that decision was supported by substantial evidence misstated the standard for, as a matter of due process, in this instance it was the Hearing Officer's charge to decide the permanency issue in the first instance based on a fully developed record. The Appellate Division said that the Hearing Officer did so, after assessing the credibility of the witnesses and weighing the testimony. Further, the hearing transcript before the Hearing Officer and the post-hearing submissions further confirmed that neither the Hearing Officer nor the parties considered the Hearing Officer to be serving in an advisory capacity.

As the Mayor elected to "unilaterally and abruptly" change the Hearing Officer's decision to a recommendation, rather than comply with the protocol outlined in the appointment letter, the Appellate Division concluded that the Mayor's February 2014 determinations must be annulled. 

The court then observed that “[i]f dissatisfied with the Hearing Officer's determination, the Village's remedy was to challenge that determination in a CPLR Article 78 proceeding.

* General Municipal Law §207-a(1) provides for the payment of full wages and medical expenses until a disability has ceased.

** General Municipal Law §207-a(2), in pertinent part, provides that [1] the payment of the firefighter’s full amount of regular salary or wages pursuant to §207-a(1) shall be  discontinued upon the firefighter receiving a retirement benefit for disability incurred in performance of duty pursuant to RSSL §363-c and [2]  the employer shall supplement such the disability retirement allowance by paying the firefighter the difference between the amount of such disability retirement allowance and the amount of his or her regular salary or wages, including longevity pay and negotiated salary increases, if any, until such time as the firefighter shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service.

*** McKay v Village of Endicott, 113 AD3d 989, Motion for leave to appeal denied, 23 NY3d 1015.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04085.htm

_____________

The Disability Benefits E-book – 2016 Edition: This 810 page 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://section207.blogspot.com/

___________________

An individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

An individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 04116, Appellate Division, First Department

Supreme Court granted Gaetano Vaccaro’s Article 78 petition seeking [1] the annulment of the Board of Education of the City School District of the City of New York’s [Board of Education] determination discontinuing Vaccaro’s probationary employment and [2] a declaration that Vaccaro was a tenured teacher at the time his employment as a probationary employment was terminated. Supreme Court also denied the Board of Education’s cross motion to dismiss Vaccaro’s petition.

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and dismissed the Article 78 proceeding brought by Vaccaro.

Citing Springer v Board of Education of the City School District of the City of New York, 121 AD3d 473, affirmed 27 NY3d 102*, the Appellate Division explained that Vaccaro had not complied with the provisions set out in New York City Department of Education's Chancellor's Regulations C-205(28) and C-205(29), which provisions govern with respect to the withdrawal of a resignation by an individual and the restoration of the tenure previously enjoyed by that individual.

As noted in NYPPL’s summary of the Springer decision, while Springer’s position was in the Unclassified Service,** in the event "a permanent employee in a position in the Classified Service*** of the State as the employer resigns from his or her position and subsequently wishes to withdraw his or her resignation he or she must obtain the approval of the appointing authority to do so. Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provide that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.

“Further, 4 NYCRR 5.4, Reinstatement following resignation provides, in pertinent part, that a former permanent State employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant. This rule, then further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.

“Many local Civil Service Commissions have adopted rules similar to 4 NYCRR 5.4.”

* The Springer decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_02553.htm

** See, generally, Civil Service Law §35.

*** See, generally, Civil Service Law §§40-45

The Vaccaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04116.htm

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Woods v State Univ. of N.Y., 2016 NY Slip Op 04084, Appellate Division, Third Department

The genesis of Woods v State University of New York [SUNY], was Norman Woods being served with a notice of discipline issued in accordance with the terms of the collective bargaining agreement [CBA] negotiated by State and Woods’ collective bargaining organization, the Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA]. In October 2013 the Disciplinary Arbitrator issued an award in which he found Woods guilty of four of the five charges brought against him and imposed a penalty of a fine and, as relevant to this appeal, "a one (1) year probation period."

In June 2014 Woods’ supervisor issued a negative "final" probationary evaluation and on the same day SUNY's director of human resources wrote to Woods to advise him that his "disciplinary probationary appointment" at SUNY was terminated.

In response to NYSCOPBA filing a grievance challenging Woods’ termination from his “disciplinary probation, SUNY's director of employee relations wrote to NYSCOPBA to advise it that Woods had not been disciplined and "returned" the grievance to NYSCOPBA. NYSCOPBA initiated a proceeding seeking to compel arbitration pursuant to CPLR §7503, or, in the alternative, to vacate and annul the termination pursuant to CPLR Article 78. Supreme Court converted the proceeding to one seeking to confirm the award pursuant to CPLR §7511 and directed the parties to seek clarification of the October 2013 arbitration award.

The Appellate Division reversed the Supreme Court ruling. The court explained while public policy generally favors the resolution of labor disputes through arbitration, not  every dispute is arbitrable. When considering a petition to compel arbitration courts make "two distinct inquiries:" [1] is arbitration of the issue is authorized by the Taylor Law and permitted as a matter of public policy, and, [2] did the parties agreed in the CBA to submit the issue to arbitration.

Although SUNY had contended that Woods had waived the right to pursue arbitration should he be terminated during his disciplinary probationary period, the Appellate Division, conceding that such right may be waived, held that Woods was not a party to a "last chance agreement" reciting a clear and unequivocal waiver of negotiated arbitration procedure set out in the CBA.

Although SUNY contended that “by virtue of the October 2013 arbitration award, [1] Woods was a probationary employee, and [2] the parties did not agree to arbitrate issues regarding the termination of probationary employees,” the Appellate Division ruled that the issue before it was to determine whether there is a "reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.*

The majority of the Appellate Division held that the CBA provides that "[d]iscipline shall be imposed upon employees otherwise subject to the provisions of §§ 75 and 76 of the Civil Service Law only pursuant to [the contract disciplinary grievance procedure] in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law …." Further, said the majority, it was “mindful that one of the referenced statutes provides that certain employees in the classified civil service who have completed a probationary period of employment may not be disciplined "except for incompetency or misconduct shown after a hearing upon stated charges."

The majority said that it did not find that the cited provision of the CBA “unambiguously excludes" Woods, as an individual serving a disciplinary probationary period, from its coverage and it was for an arbitrator to interpret and apply the CBA, and the court did not have the authority to consider the merits of SUNY's argument.”

Holding that the CBA provision is ambiguous, the majority said that an arbitrator must decide whether it governs Woods' summary dismissal from service during his disciplinary probationary status and Supreme Court should have granted NYSCOPBA's petition seeking to compel arbitration.

Although this was apparently not the situation in Woods v SUNY, disciplinary settlement agreements providing for a “disciplinary probation” typically set out the reason permitting the employee to be summarily terminated from his or her position during his or her “disciplinary probation” period.

Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement that included a disciplinary probation component whereby the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.” Taylor was terminated during his disciplinary probationary period without a hearing for “failing to give a fair day’s work and sleeping during scheduled working hours.” However, there was no allegation that he had been intoxicated on the job as a reason for his dismissal as a disciplinary probation employee.

Taylor sued, challenging his dismissal and won reinstatement with back salary. The Appellate Division said that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, in Outley v Upstate Med. Univ., 60 AD3d 1398 [motion for leave to appeal denied,13 NY3d 708], the Appellate Division sustained the summary termination of Joanne Outley, an employee at SUNY’s Upstate Medical Center [UMC], after it was demonstrated that she had violated the terms of her “disciplinary probation.” UMC and Outley entered into a disciplinary settlement agreement that placed her on "disciplinary probation" for a specified period of time and prohibited her taking any unauthorized absences.

The Appellate Division dismissed Outley’s challenge to her termination explaining that that the record established that Outley had violated the settlement agreement by being on an unauthorized absence during her disciplinary probation period, thus providing UMC with a legally sufficient basis for summarily terminating her employment that was neither arbitrary nor capricious. 

Further, said the court, Outley failed to establish that she "was dismissed in bad faith or for an improper or impermissible reason."

* The decision notes that Judge Rose dissented from the majority opinion.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04084.htm

______________

A Reasonable Penalty Under The Circumstances - a 618-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://booklocker.com/7401.html

______________

 

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate
Traxler v DiNapoli, 2016 NY Slip Op 03949, Appellate Division, Third Department

Sheila Traxler, a correction officer, applied for performance of duty disability retirement benefits alleging that she was permanently incapacitated due to work-related injuries sustained when a self-closing gate struck her after an inmate accidentally let go of it while Traxler was standing in the doorway.

Traxler’s application was initially denied by the Retirement System and she requested a hearing and redetermination. Following the hearing, the Hearing Officer sustained the denial of Traxler’s application for duty disability retirement holding that Traxler "failed to establish that her injuries were the result of an act of an inmate." The Comptroller accepted the findings and conclusions of the Hearing Officer and denied Traxler’s appeal. Traxler appealed the Comptroller's decision.

Citing Retirement and Social Security Law §607-c[a],* the Appellate Division annulled the Comptroller’s decision. The court explained that Traxler bore the burden of demonstrating that the incident in which she sustained her injuries was "the natural and proximate result of any act of any inmate." All that is required, said the court, is that the applicant for duty disability retirement show that his or her injuries “were caused by direct interaction with an inmate."

While Traxler did not believe that the inmate intended to injure her, she was injured as the result of the inmate disobeying Traxler’s instruction to remain where she was standing. Under these circumstances, said the court, there is no evidentiary basis in the record to conclude that [Traxler’s] injuries did not occur contemporaneously with, and flowed directly, naturally and proximately from, the inmate's’ disobedient and affirmative actions.

Accordingly, the Appellate Division ruled that Traxler’s injury was a natural and proximate result of an act of an inmate and remitted the matter to the Retirement System “for further proceedings on the issue of the permanency of [Traxler’s] alleged disability.”

In contrast to the ruling in Traxler, in Palmateer v DiNapoli, 117 AD3d 1228 [motion for leave to appeal denied, 24 NY3d 901], the Appellate Division rejected a correction officer’s appeal of the denial of his application for duty disability retirement, holding that “[a]ny connection between his injuries and the inmate conduct here is too attenuated to form a basis for an award of performance of duty disability retirement benefits.”

Lawrence Palmateer, a correction officer, had applied for duty disability retirement benefits pursuant to Retirement and Social Security Law §507-b.** The record indicated that Palmateer was seated at a desk when he heard a commotion in the shower room that he believed to be an altercation between inmates. Getting up from his desk “his right knee gave out, causing him to fall.”

Although it was uncontroverted that Palmateer was permanently incapacitated from performing the duties of a correction officer, the Appellate Division said that it did not agree with Palmateer’s contention that the injuries he suffered “responding to a potential emergency involving inmates” were the natural and proximate result of an act of an inmate.

* §607-c[a], Performance of duty disability benefit, provides, in pertinent part, that “Any sheriff, deputy sheriff, undersheriff or correction officer as defined in subdivision a of section sixty-three-b of this chapter, and who are employed in a county which makes an election pursuant to subdivision d of such section sixty-three-b, who becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as the natural and proximate result of any act of any inmate or any person confined in an institution under the jurisdiction of such county, shall be paid a performance of duty disability retirement allowance equal to that which is provided in section sixty-three of this chapter, subject to the provisions of section sixty-four of this chapter.”

** §507-c, Performance of duty disability retirement, applies to the uniformed personnel serving in institutions under the jurisdiction of the New York City Department of Correction.

The Traxler decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03949.htm

ThePalmateer decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03322.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

______________

Inability to satisfactorily perform the duties of the position due to an alleged disability

Inability to satisfactorily perform the duties of the position due to an alleged disability

OATH Index No. 858/16

The appointing authority alleged that a Computer Associate was unfit to perform his job after employer proved that he had difficulty keeping up with technological changes and was confrontational when interacting with co-workers and supervisors. Designated “a disability proceeding” it was submitted to the Office of Administrative Trials and Hearings pursuant to §72 of the Civil Service Law [CSL].

Finding that the employer had demonstrated that employee is currently unfit for the duties of his job,* Oath Administrative Law Judge Alessandra F. Zorgniotti recommended that the employee be placed on an Involuntary Leave of Absence, explaining that in order to place an employee on an involuntary medical leave pursuant to CSL §72, the employer must prove by a preponderance of the evidence that: (i) employee suffers from a disability, (ii) he of she is unable to competently perform his or her job duties, and (iii) his or her inability to perform is caused by a disability.

ALJ Zorgniotti also observed that: “The focus of the §72 proceeding is on the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and that “[p]ast performance is relevant only to the extent that it is probative of [the employee’s] present condition and future conduct.”

Noting that “[a]n essential part of fitness to work in any job assignment is an ability to work with and be supervised by others, without being disruptive or abusive”, Judge Zorgniotti said earlier OATH decisions indicated that a “finding of unfitness is supported where an employee denies the existence of a disability. or refuses to treat it, [and there is competent medical evidence to the contrary] thereby creating a greater risk of future recurrence of the disability.” 

* Judge Alessandra F. Zorgniotti noted that employee’s behavior continued to be disruptive even after supervisors had made efforts to simplify his job, action that could be deemed to an effort to provide a reasonable accommodation of the employee's disability.

The appointing authority adopted the ALJ’s findings and recommendation.  
  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-858.pdf

______________

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

______________

Conducting disciplinary hearings in absentia

Conducting disciplinary hearings in absentia

OATH Index No. 1046/16

Although rare, an employee upon whom disciplinary charges have been served may refuses to participate in the scheduled disciplinary hearing. If the appointing authority goes forward with the disciplinary hearing notwithstanding the employee’s failure to participate, has the employee been denied due process?

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the employer is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.*

OATH Administrative Law Judge John B. Spooner conducted a Civil Service Law §75 disciplinary hearing with the employee in absentia when the appointing authority appeared at the scheduled time and place but the employee declined to do so. Judge Spooner characterized the hearing as being in the “form of an inquest” and found that the appointing authority had [1] properly served the employee with the disciplinary charges and the notice of the hearing, and [2] had then produced records and the provided testimony by the employee’s supervisors supporting the charges of the employee’s alleged misconduct at the "inquest." The ALJ found that that the appointing authority had proven the employee was guilty of the charges and recommended that the employee be terminated from service. 

This is another example demonstrating that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Holding a disciplinary action in absentia, however, is a two-way street. Case law demonstrates that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. 

In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the disciplinary arbitration because it believed that Hall was not entitled to the disciplinary arbitration. The arbitrator ruled in favor of the employee and directed Environment Conservation to reinstate the employee to his position with back pay. 

Environmental Conservation [DEC] sought a court order vacating the arbitration award, contending that its termination of Hall was not subject to being challenged pursuant to the “contract disciplinary procedure” because the State Department of Civil Service had disqualified Hall for employment. DEC argued that as Hall’s appointment had been voided by the Department of Civil Service he could not claim any rights under Section 75 of the Civil Service Law or the collective bargaining agreement.**

A Supreme Court judge granted the union’s motion to confirm that portion of the award providing for the payment of certain back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department’s action but declined to confirm that part of the award that directed DEC reinstate Hall to his former position. The Appellate Division sustained the lower court’s ruling.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

** Pursuant to Civil Service Law Section 76.4, many Taylor Law collective bargaining agreements provide that a permanent employee in the classified service may challenge a disciplinary action in accordance with the terms set out in a "contract disciplinary procedure" that is operative in lieu of disciplinary action pursuant to a statutory disciplinary procedure [see Antinore v State, 40 NY2d 6].

Judge Spooner’s decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1046.pdf

__________________________ 

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

__________________________