New York Public Personnel Law

November 08, 2016

Some factors that a public employer wishing to obtain the services of a retired public employee should consider

Some factors that a public employer wishing to obtain the services of a retired public employee should consider

Meehan v County of Suffolk, 2016 NY Slip Op 07163, Appellate Division, Second Department, [Roslyn I], consolidated with

Meehan v County of Suffolk, 2016 NY Slip Op 07164, Appellate Division, Second Department, [Roslyn II]

These two decisions address questions that resulted when an individual was engaged to perform certain services by a public entity following his of her retirement from that entity.

Roslyn I

Status of the individual – employee or independent contractor?

Roslyn Birnbaum, while driving a car owned by Harvey Birnbaum, was involved in an accident with a vehicle operated by Michelle Meehan in the course of performing certain duties on behalf of Suffolk County and Suffolk’s Child Protective Services [County]. Meehansued the County and the Birnbaums to recover damages, contending that the County was vicariously liable for Roslyn's negligence under the doctrine of “respondeat superior.”*

Contending that Roslyn was an independent contractor rather than its employee,** Supreme Court dismissed Meehan’s complaint insofar as asserted against it and Meehan appealed.

In contrast to an entity being a respondeat superior, the Appellate Division said that the general rule with respect to “an independent contractor” performing services for an entity is that “an employer who hires an independent contractor is not liable for the independent contractor's negligent acts." The court then held that the County had demonstrated a prima facie entitlement to judgment as a matter of law by submitting evidence showing that Roslyn was an independent contractor.

Meehan had the burden of showing that Roslyn was an employee of the County rather than an independent contractor. The court said that Meehan failed to raise a triable issue of fact with respect to her claim that Roslyn was an employee of the County as the only evidence she offered “revealed only minimal or incidental control” over Roslyn by the County and this was insufficient to demonstrate that Roslyn was an employee of the County at the time of the accident.

Significantly, the Appellate Division said that “the fact that some of the duties Roslyn performed as an independent contractor were identical to those she had previously performed as the County employee prior to her retirement from its employ did not convert the relationship between the County and Roslyn into one of employer-employee.

Roslyn II

The Independent Contractor Agreement and insurance

After the accident had occurred, Roslyn and the County executed a "Consultant/Personal Services Contract" [Agreement] for the period January 1, 2010, through December 31, 2010 that included a provision requiring the County to provide insurance coverage for Roslyn.

After the County's motion for summary judgment dismissing the complaint insofar as asserted against it was granted, the Birnbaums commenced a third-party action against the County for a judgment declaring that the County had breached a contractual obligation to procure insurance on behalf of Roslyn. The County asserted that since the consultant agreement was executed after the accident, they were not obligated to provide liability coverage for Roslyn. Ultimately Supreme Court directed that State Farm Insurance Company [State Farm], with which the Birnbaums had automobile and umbrella insurance policies, be joined.

The Appellate Division said that the County, in support of motion, had submitted the consultant agreement. The court said that the insurance procurement provision at issue is incomplete and ambiguous and that “the consultant agreement itself is ambiguous because it contains inconsistent language throughout.”

The court then explained that:

1. “[W]here two seemingly conflicting contract provisions reasonably can be reconciled, a court is required to do so and to give both effect";

2. “[T]he failure to execute the consultant agreement until after the accident does not constitute an "absolute bar" to Roslyn's third-party claims’ and

Finding that the County’s submissions did not demonstrate, as a matter of law, that it did not breach the terms of the consultant agreement, the Appellate Division held that Supreme Court properly denied that branch of the County’s motion to dismiss the third-party complaint insofar as asserted by Roslyn.

Further, contrary to the Birnbaums' contentions, the Appellate Division ruled that Supreme Court did not err in directing the joinder of State Farm, as State Farm may be inequitably affected by a judgment on Roslyn's third-party claims against the County. In addition, the court noted that Supreme Court “providently exercised its discretion in directing the severance of Roslyn's third-party claims ‘to ensure that no mention of insurance coverage is made during the trial of the main action.’"

* The doctrine of respondeat superior provides that the employer or principal is legally responsible for the wrongful acts of an employee or agent if such acts occur within the scope of the employment or agency of the employee or agent.

** The decision is silent with respect to any consideration being given to Civil Service Law §150 and, or, Article 7 of the Retirement and Social Security Law, which address the suspension of pension and annuity of a retiree during public employment.

The decision in Roslyn I is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07163.htm

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

http://www.nycourts.gov/reporter/3dseries/2016/2016_07164.htm

November 07, 2016

Consultant’s breach of contract claim rejected as time barred and for failure to state a cause of action

Consultant’s breach of contract claim rejected as time barred and for failure to state a cause of action

Kyer v Ravena-Coeymans-Selkirk Cent. Sch. Dist., 2016 NY Slip Op 07254, Appellate Division, Third Department

The Ravena-Coeymans-Selkirk Central School District [District] Board of Education approved a contract between the District and Lisa Kyer [Plaintiff] that provided that Plaintiff would research and review the District’s financial and student records to determine whether it could seek additional special education aid for the 2012-2013 and 2013-2014 school years. By letter dated June 27, 2013, the District advised Plaintiff that it was "terminating the contract . . . effective June 30, 2013 because it determined that the information provided by Plaintiff was inaccurate and excessively overstated the true costs involved" and the District would not pay her for her services.

Plaintiff then submitted an invoice seeking payment in the amount of $29,635.04 for her services. The invoice was rejected by School Superintendent Alan McCartney, who advised Plaintiff that payment was declined “because the work had been performed by his staff and others.” By letter dated July 17, 2013, Plaintiff asserted that “for services rendered in connection with the 2012-2013 school year, the ‘total amount due’ was $65,677.05.”

On August 27, 2014, Plaintiff commenced filed her complaint in Supreme Court asserting breach of contract and account stated claims, together with two causes of action sounding in tort, stemming from the District’s nonpayment of her invoice submitted July 17, 2013. Supreme Court granted the District’s motion to dismiss, finding that Plaintiff's claims sounding in tort “failed to state a cause of action” and her breach of contract and account stated causes of action were time-barred. Plaintiff appealed the Supreme Court’s rulings, which rulings were affirmed by the Appellate Division.

With respect to Plaintiff’s claims “sounding in tort,” the Appellate Division said that Supreme Court properly dismissed these claims as "there is no cause of action for negligent performance of a contract."

Citing Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, the Appellate Division explained that "[i]t is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract."

With respect to Plaintiff’s breach of contract claim, the Appellate Division said Education Law §3813 (2-b) provides that, "no action . . . shall be commenced against [a school district] more than one year after the cause of action arose." The court then noted that a breach of contract cause of action accrues and begins to run when the Plaintiff possesses “a legal right to demand payment.”

In this instance, said the court, June 15, 2013 was the earliest date on which Plaintiff could have exercised her legal right to request full payment for her services in securing additional aid for the 2012-2013 school year and, thus, this was “the operative date” and she had until June 15, 2014 to file her complaint. However, Plaintiff’s breach of contract cause of action was filed on August 27, 2014 and thus it is time-barred.

Submitting invoices on later dates does not toll or extend the one-year statute of limitations as a cause of action for an account stated "accrues on the date of the last transaction in the account." Plaintiff posted a letter dated July 17, 2013, in which she stated that she was enclosing a revised invoice that reflected "the total amount due" for the additional aid she secured for the District's 2012-2013 school year. However, said the Appellate Division, her “revised invoice, dated July 16, 2013, sought payment from [the School District] in the amount of $65,677.05 for ‘Special Education Aid Claim,’ and this is the last transaction reflected in the invoice.”

The bottom line: As Plaintiff did not commence this action until August 27, 2014, the Appellate Division ruled that Supreme Court properly dismissed her “account stated cause of action” as time-barred.

The court then said that Plaintiff’s claim that her “cause of action began to run when she filed her notice of claim” was incorrect. In the words of the Appellate Division, “…. Education Law §3813(2-b) plainly states that ‘no action . . . shall be commenced against any [school district] more than one year after the cause of action arose,’ and there is no authority indicating that the statute of limitations begins to run when a Plaintiff files a notice of claim, especially here, where accrual of a claim for purposes of the notice of claim is ‘deemed to have occurred as of the date payment for the amount claimed was denied.’”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07254.htm

November 06, 2016

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 2011 NY Slip Op 07431, Appellate Division, Second Department

In 1999 the New York City Transit Authority (“NYCTA”), its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority (“MABSTOA”) and the Transport Workers Union of America, Local 100 (“TWU”), entered into a collective bargaining agreement that, in pertinent part, provided for “the commingling of personnel, including bus operators,” between NYCTA and MADSTO for the purposes of selecting job assignments within both entities. TWU created a consolidated “seniority list” for bus operators it represented working for NYCTA and MABSOTA.

When TWU was advised that due to a budget shortfall, staff reductions were required that would affect bus operators employed by NYCTA and MADSTO and that at-risk NYCTA bus operators, as civil service employees, would be laid off in civil service seniority order, and at-risk MABSTOA bus operators, who were not civil service employees would be laid off in order of seniority in title, as provided for in the CBA, TWU filed a contract interpretation grievance on behalf of bus operators in the units it represented alleging that the announced method for laying off bus operators violated the surface consolidation agreement and as a remedy, asked for a determination that the bus operators for each be laid off pursuant to the consolidated seniority list used for picking job assignments.

Ultimately NYCTA initiated an Article 75 proceeding to permanently stay the arbitration on the ground that the relief sought was prohibited by the statutory requirements set out in the Civil Service Law for conducting layoffs of employees in the classified service. The Supreme Court granted the petition and permanently stayed arbitration of the grievance. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that “In the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether ‘there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'" and if there is no prohibition against arbitration, then the court must determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

NYCTA contended that the subject matter of the grievance was prohibited by law or public policy. In that regard, said the Appellate Division, a dispute is not arbitrable "if a court can conclude without engaging in any extended fact-finding or legal analysis' that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided' by arbitration."

The Appellate Division concluded that “assuming that the surface consolidation agreement affects how [NYCTA is] to conduct layoffs, the particular matter to be decided is prohibited, in an absolute sense, by Civil Service Law §80(1), which provides the sole manner by which an employer may lay off civil service employees in [the] competitive class,” citing Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 521).

Accordingly, layoffs within the title of bus operator in the NYCTA can only be made in inverse order of civil service seniority consistent with the mandates of Civil Service Law §80(1) and not by any other method such as the use of the consolidated seniority list. The Appellate Division concluded that "an arbitrator could not fashion a different remedy for this particular grievance that would not violate statutory requirements or public policy.”

This element – seniority for the purpose layoff – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045.*

In the Plattsburgh case the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

These were the critical events in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. The Appellate Division ruled that Plattsburgh was entitled to an order barring submitting the Union’s grievance to arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

As the Court of Appeals said in County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees." The same it true with respect to layoffs of personnel in the unclassified service.

* Source The Anatomy of a Layoff by Harvey Randall, Esq., Municipal Lawyer, Summer 2009, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207 © 2009 New York State Bar Association. Reprinted with permission.

November 05, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 5, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 5, 2016

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

School District and BOCES Audits

Bellmore Union Free School District – Financial Condition