Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Stewart v. County of Albany, 300 A.D.2d 984, Motion to appeal denied, 100 N.Y.2d 505

General Municipal Law §207-c provides for the “Payment of salary, wages, medical and hospital expenses of policemen with injuries or illness incurred in the performance of duties.” In contrast, CSL §71, typically referred to as “Workers’ Compensation Leave,” provides for leave without pay in the event an employee is injured in the performance of his or her duties.*

In Olsen v Dormer, 13 Misc 3d 1236(A),** Supreme Court addressed a challenge by a police officer receiving General Municipal Law §207-c benefits to his termination from his position by his employer under color of Civil Service Law §71.

A NYPPL reader, referring to NYPPL’s summary of the Olsen decision, wrote: 

“This is certainly a well constructed position representing a ‘dissent’ with an Appellate Court decision - [Stewart v. County of Albany, 300 A.D.2d 984, 085 (3d Dept. 2002) (‘Upon our review of Civil Service Law § 71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer-even one receiving General Municipal Law §207-c benefits-from the County payroll’)]. While I understand the inviolability of statutory 207-c benefits, an issue arises as to benefits not addressed by the statute, most notably medical insurance. Short of termination, I am not sure by what process an employer would be able to discontinue that fringe benefit. Must the taxpayers continue to foot the bill for family medical insurance coverage ‘forever’ should the employee be unable to return to duty? In practical application my HR consulting firm has been involved in multiple terminations (under CSL §71) of employees on 207-c leave (supported by legal representation) without challenges (thus far.)"

NYPPL's response to the reader's comments concerning Stewart is set out below:

In Stewart v. County of Albany, 300 A.D.2d 984, the Appellate Division said: "Upon our review of Civil Service Law §71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer - even one receiving General Municipal Law §207-c benefits from the County payroll".

NYPPL respectfully disagree with the Appellate Division's views concerning the application of CSL §71 and GML §207-c as set out in Matter of Stewart.

In NYPPL's opinion, an individual receiving §207-c benefits as the result of a work-related disability [and, indeed, GML §207-a with respect to firefighters receiving similar benefits] remains an employee and is continued on the payroll of the appointing authority, albeit in a leave of absence at full pay status, and is not placed simultaneously, or independently, on leave pursuant to §71 of the Civil Service Law.

Further, in NYPPL's view, such an individual is to be continued in such status as an employee until he or she is found medically qualified to return to full duty or "light duty," is retired on disability or otherwise, dies or becomes superannuated for the purposes of §207-c. As the employee is not place on §71 leave, independently or in concert with §207-c, he or she is not subject to removal from his or her position pursuant to §71 of the Civil Service Law after the minimum statutory period permitted by law.

Footnote 2 in Stewart states:

Consistent with its statutory purpose, the Sheriff's resort to Civil Service Law §71 was presumably 'to secure a steady, reliable, and adequate work force' (Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 135; see Matter of Allen v Howe, 84 NY2d 665, 672),^† i.e., he wanted to hire another correction officer to replace petitioner. However, termination of employment under Civil Service Law §71 does not necessarily involve a termination of benefits awarded pursuit to General Municipal Law §207-c, as such benefits 'are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment' (Matter of Gamma v Bloom, 274 AD2d 14, 16; see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 691; Matter of Meehan v County of Tompkins, 219 AD2d 774, 775). Nor does our determination have any effect on the separate dispute between these parties concerning whether petitioner can perform light duty."

^†NB:Neither Duncan nor the two individuals in Allen [Cathy Allen and Diane Spiegel] were employees eligible for GML §207-c benefits.

While NYPPL agrees with the Appellate Division’s conclusion that the Sheriff "wanted to hire another correction officer to replace petitioner," this does not resolve the underlying issue: the employment status of the individual receiving the §207-c benefit and source of the funds necessary for the compensation to be paid to (1) the replacement and to (2) the individual receiving §207-c benefits upon the appointment of his or her replacement.

Indeed, the relevant language of GML §207-c provides a statutory imperative that the individual involved return to active duty once found medically qualified to do so. Once his or her disability abates sufficiently to permit this or, in the alternative, he or she is directed to return to perform a "light duty" assignment if found medically qualified to do so, the individual risks having his or her §207-c benefits discontinued by the appointing authority should he or she fail to do so.

Contrast this with §71, whereby should the employee be terminated and thereafter determined to be qualified to resume the duties of his or her former position and there is no suitable vacancy available at the time, the individual's name is to be placed on a preferred list, and his or her name is to be continued on such list for four years unless earlier appointed to a suitable vacancy.

In NYPPL's view, the only means available to the appointing authority to lawfully "terminate" an individual in a §207-c leave situation and not qualified for reinstatement to full or light duty is to file an employer application on behalf of the employee for accidental disability retirement or performance of duty disability retirement benefits pursuant to GML §207-c.2  should the employee declines to do so, which decision by the Employees' Retirement System would control as otherwise provided by law.

In contrast, an individual receiving GML §207-c benefits becomes ineligible for such benefits if he or she "ceased to be an inhabitant within the geographical restrictions" set by law as the court explained in O'Connor v Town of Clarkstown, 221 AD2d 444. No such "geographical restriction" is placed on an individual on §71 leave. 

As to the Sheriff's desire to "replace" the individual during the disabled employee’s absence on §207-c leave, he or she may do so by establishing an appropriate "supernumerary position," provided that there are funds available sufficient for this purpose.

Without engaging in an extended analysis of §207-c, suffice it to note that in support of NYPPL's view that the individual remains an employee and is to be continued on the payroll -- i.e., he or she is not terminated and is not paid by means other than via salary or wages, Subdivision 6 of §207-c provides, in pertinent part, as follows:

6. Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and, or, for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party [emphasis supplied].

Accordingly, absent the individual continuing in an "employee status" and continuing to receive his or her "salary or wages" it could be argued that the appointing authority could not maintain a cause of action to recover such payments.

* An employee on §71 leave may elect to remain on the payroll by using his or her accrued leave credits and other accruals and benefits at “full or half-pay” until they are exhausted.

** NYPPL’s summary of Olsen v Dormer, 13 Misc 3d 1236(A), posted on the Internet at http://publicpersonnellaw.blogspot.com/2013/08/termination-of-police-officer-while-on.html

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The Disability Benefits E-book – 2016 Edition: This 814 page electronic book [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 concerning this e-book click on: http://section207.blogspot.com/

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Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Decisions of the Commissioner of Education, Decision #16,985

Leanna Mercedes appealed the decision of the New York City Department of Education [DOE] that sustained her “D” rating on her annual professional performance review.

Mercedes, a probationary assistant principal, was given a Doubtful or “D” rating for the school year by the school’s Interim Acting Principal [Principal]. This resulted in Mercedes filing a complaint with DOE’s Office of Equal Opportunity and Diversity Management (“OEO”) alleging that Principal had unlawfully discriminated against her in giving her a “D” rating. OEO’s investigation substantiated Mercedes’ allegation that Principal had violated DOE’s non-discrimination policy as set out in DOE’s Chancellor’s Regulation A-830.  Notwithstanding OEO’s finding, DOE notified Mercedes that her appeal of her “D” rating was denied.  Mercedes appealed DOE’s decision to the Commissioner of Education.

The Commissioner said that “based on the record before me, I find that [Mercedes] has demonstrated that the Chancellor's determination sustaining her “D” rating was arbitrary and capricious and made in gross error and [her] appeal must be sustained.”

Mercedes had contended that the “D” rating [1] “violated the Department’s policies and regulations because it was completely devoid of any supporting documentary evidence;” [2] the “D” rating was baseless and discriminatory; and [3] the “D” rating was arbitrary and capricious and cannot be sustained because the evaluation violated the Department’s rules and regulations. 

In rebuttal, DOE had argued that Mercedes’ petition [1] failed to state a claim upon which relief may be granted; [2] that some or all of her claims may be barred, in whole or in part, by the doctrine of res judicata; and [3] it had followed the “proper procedures” in issuing the “D” rating.

DOE also contended that its “ratings guidelines are not legally binding on the Department and that Mercedes’ “D” rating was supported by documentation.”

After addressing a number of procedural issues that were decided in Mercedes’ favor, the Commissioner noted that the Chancellor’s designee stated in his decision letter that the “D” rating was sustained "as a consequence of insufficient time to make an accurate assessment of [Mercedes’] performance." This explanation, said the Commissioner, lacks a rational basis and was in gross error.

Further, observed the Commissioner, “[t]he record is devoid of any support for [Mercedes] ”D” rating,” noting that the sole reason given for sustaining the rating is that the Interim Acting Principal had “insufficient time to accurately assess Mercedes’ performance.” However, said the Commissioner, the record indicated that despite the Interim Acting Principal’s “short time in that position,” he was able to provide a rating of “satisfactory” to two other male assistant principals. 

In any event, the Commissioner explained that “assigning a rating based on the principal’s inability to rate the employee’s performance lacks a rational basis and is arbitrary and capricious” and directed DOE to remove the challenged Doubtful “D” rating for the from Mercedes' personnel file.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d16985

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 12, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 12, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Municipal Audits

Town of Cincinnatus – Financial Operations

http://www.osc.state.ny.us/localgov/audits/towns/2016/cincinnatus.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Clarence Fire District – Purchasing

http://www.osc.state.ny.us/localgov/audits/firedists/2016/clarence.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Town of East Hampton – Budget Review

http://www.osc.state.ny.us/localgov/audits/towns/2016/easthampton_br.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Town of Elmira – Audit Follow-Up

http://www.osc.state.ny.us/localgov/audits/towns/2016/elmirafollowup.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Town of Hancock – Transfer Station Operations

http://www.osc.state.ny.us/localgov/audits/towns/2016/hancock.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Hudson Housing Authority – Board Oversight

http://www.osc.state.ny.us/localgov/audits/publicauth/2016/hudsonhousing.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Ithaca Area Wastewater Treatment Facility – Energy Cost Savings

http://www.osc.state.ny.us/localgov/audits/jointacts/2016/ithacawastewater.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

City of Lockport -- Budget Review

http://www.osc.state.ny.us/localgov/audits/cities/2016/lockport_br.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Saratoga Youth Recreation – Financial Activities

http://www.osc.state.ny.us/localgov/audits/jointacts/2016/saratogayouth.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

City of Troy – Budget Review

http://www.osc.state.ny.us/localgov/audits/cities/2016/troy_br.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Vischer Ferry Volunteer Fire Company – Cash Disbursements

http://www.osc.state.ny.us/localgov/audits/firedists/2016/vischerferry.htm?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20161113&utm_campaign=fiscal+oversight 

School District - BOCES Audits 

Depew Union Free School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2016/depew.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Erie 1 Board of Cooperative Educational Services – Special Aid Fund

http://www.osc.state.ny.us/localgov/audits/schools/2016/erie1boces.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Norwood-Norfolk Central School District – Claims Auditing

http://www.osc.state.ny.us/localgov/audits/schools/2016/norwoodnorfolk.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Oceanside Union Free School District – Professional Services

http://www.osc.state.ny.us/localgov/audits/schools/2016/oceanside.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Orange-Ulster Board of Cooperative Educational Services – Fixed Assets

http://www.osc.state.ny.us/localgov/audits/schools/2016/orangeulsterboces.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Seaford Union Free School District – Extra-Classroom Activities

http://www.osc.state.ny.us/localgov/audits/schools/2016/seaford.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Sewanhaka Central High School District – Student Fees

http://www.osc.state.ny.us/localgov/audits/schools/2016/sewanhaka.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161113&utm_campaign=fiscal+oversight

Village of Hoosick Falls - Health Risks of PFCs

Village of Hoosick Falls - Health Risks of PFCs

Source: NYSBA New York Environmental Lawyer, 36(2):88-111, Fall 2016.

The New York State Bar Association’s New York Environmental Lawyerhas published an article by Dr. Robert A. Michaels entitled Perfluoroalkyl compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County, New York:  health risks and successive approximation toward enforceable national regulation. 

Dr. Michaels notes that “PFCs, most notably PFOA and PFOS found in drinking water in the ppt [parts per trillion] range at which they are toxic, reveal the need for routine monitoring, aggressive cleanup, and promulgation of enforceable regulation to control human exposure, prevent disease, and help to clarify accountability, thereby preventing similar incidents elsewhere.

“In short, PFOA exhibits a ‘perfect storm’ of troubling properties: essentially infinite lifetime in the environment, resistance to human metabolism, bioconcentration in the food chain, transmissibility to infants via breastfeeding, years-long excretion half-time in the human body, and causation of human cancer and non-cancer effects.”

The article is posted on the Internet at:

https://www.researchgate.net/publication/309795741_Perfluoroalkyl_Compounds_PFCs_in_the_Village_of_Hoosick_Falls_Rensselaer_County_New_York_-_Health_Risks_and_Successive_Approximation_Toward_Enforceable_National_Regulation

Terminating a teacher during his or her probationary period

Terminating a teacher during his or her probationary period

Zarinfar v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 07269, Appellate Division, First Department

As the Court of Appeals held in Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446, a probationary teacher is subject to remvcal from his or her position at any time for any reason, or for no reason, without a hearing. Further, a terminated probationary teacher challenging his or her termination has the burden of showing that the termination was in violation of law or for a discriminatory reason or purpose.

Majid Zarinfar, a probationary teacher, was terminated from his position with the New York City Board of Education. Zarinfar, alleging that had attained tenure by estoppel based on his service in the same subject area at a different school under a different license,* filed an Article 78 petition seeking a court order annulling the Board of Education’s decision to terminated his probationary employment and declaring that he had attained tenure by estoppel by reason of his service in another New York City school.

Supreme Court denied his petition, finding that Zarinfar was not entitled “tenure by estoppel” because:

1. Zarinfar’s probationary service under his technology license was found unsatisfactory and was terminated from that position; and

2. Zarinfar had commenced a new probationary period under his mathematics license after his service as a probationary teacher was terminated under his technology license.

The Appellate Division affirmed the lower court’s ruling, noting that “[as Zarinfar] never received tenure, he was subject to termination at any time for any reason without a [pretermination] hearing.”

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

With respect to positions in the Classified Service, where the probationary period is set terms of completing a minimum or a maximum period of probation, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement, As the Court of Appeals held in York v McGuire, 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" 

N.B. Education Law §3031(a) addresses procedures to be followed when  tenure will  not be  granted to a teacher at conclusion of the  probationary period. The procedure requires that a probationary teacher receive notice of the recommendation that his or her services are to be discontinued at least 30 days prior to the board meeting at which that recommendation is to be considered and further provides that the teacher may request in writing, not later than 21 days prior to the board meeting, that he or she be provided with a written statement giving the reasons for such recommendation. The teacher may file a written response to the statement of reasons with the district clerk not later than seven days prior to the date of the board meeting. In some instances a probationary teacher may be offered an "extension of employment as a probationary teacher" in lieu of termination.

* See Education Law §2573[1][a], which, in pertinent part, provides … in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to subdivision one of section three thousand twenty-a or section three thousand twenty-b of this chapter, the probationary period shall not exceed two years;

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07269.htm

 

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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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Suing an employee organization for an alleged breach of its duty of fair representation

Suing an employee organization for an alleged breach of its duty of fair representation

Morton v Mulgrew, 2016 NY Slip Op 07270, Appellate Division, First Department

Dianna Morton, et al. [Plaintiffs] alleged that the New York United Federation of Teachers, Local 2, AFT, AFL-CIO, [Federation] breached the duty of fair representation to individuals in the collective bargaining unit who resigned from their positions after October 31, 2009 and prior to June 3, 2014 as a result of its negotiating and ratifying a collective bargaining agreement that provided for wage increases retroactive to the date the previous agreement expired, October 31, 2009 which including members who had retired, but not those who resigned, after October 31, 2009 and prior to June 3, June 3, 2014.

Supreme Court granted the Federation’s motion to dismiss Plaintiffs’ petition and the Plaintiffs appealed. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that Plaintiffs had noted “the obstacle” to their cause of action in view of the Court of Appeals’ decision in Martin v Curran, 303 NY 276,* but contended the so-called Martin rule was abrogated by the enactment of the Taylor Law in 1967** or by its 1990 amendment codifying the so-called Triboro Doctrine.

In Palladino v CNY Centro, Inc., 23 NY3d 140, explained the Appellate Division, the Court of Appeals noted “this Court held in Martinthat a voluntary unincorporated association ‘is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members’ [and] determined that ‘for better or worse, wisely or otherwise, the Legislature has limited … suits against association officers, whether for breaches of … agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven.’ Although there were policy considerations that might suggest a different result, the Martin Court was ‘under the command of a plainly stated, plainly applicable statute, uniformly held by this court, for many years, to require pleading and proof of authorization or ratification by all the members of the group.’” 

The Palladinocourt also noted that New York is said to be "in the company of a small minority of states that cling to the common-law requirement that the complaint allege that all of the individual members of the union authorized or ratified the conduct at issue,” citing Mitchell H. Rubenstein, Union Immunity from Suit in New York, 2 NYU JL & Bus 641, 649 [summer 2006]. 

* Civil Service Law §200 et seq.

** Martin v Curran did not involve a union member suing his union but was a libel action in which the president of one union sued another union for libeling him in its newspaper.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07270.htm

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

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

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

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.

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

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/bellmore.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight

Jefferson-Lewis-Hamilton-Herkimer-Oneida Board of Cooperative Educational Services – Separation Payments

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/jefflewhamherkoneidaboces.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight

Olean City School District – Financial Management

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/olean.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight                      

Port Washington Union Free School District – Claims Processing and Inventories

The audit is posted on the Internet at:\http://www.osc.state.ny.us/localgov/audits/schools/2016/portwashington.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight

Rensselaer City School District – Financial Condition

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/rensselaer.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight 

Spencerport Central School District – Financial Condition

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/spencerport.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight

Other reports issued

Contractor improperly retained $1,498,719 due NYSHIP for prescription drug rebate

A company that was supposed to collect rebates from drug manufacturers on behalf of the New York State Health Insurance Plan failed to turn over nearly $1.5 million in rebates to the state over a four-year period, according to an auditreleased by State Comptroller Thomas P. DiNapoli. 

Volunteer Fire Department’s former treasurer pleads guilty to charges related to his embezzlement from the Patterson, New York Fire Department  

Preet Bharara, the United States Attorney for the Southern District of New York, Shantelle P. Kitchen, the Special Agent in Charge of the New York Field Office of the Internal Revenue Service - Criminal Investigation, William F. Sweeney Jr., the Assistant Director-in-Charge of the New York Field Division of the Federal Bureau of Investigation, Thomas P. DiNapoli, New York State Comptroller, and George Beach, Superintendent, New York State Police, announced that Albert Melin, the former treasurer of the Patterson Fire Department in Patterson, New York (PFD), pled guilty to wire fraud and false subscription to tax returns before Magistrate Judge Judith C. McCarthy in connection with his embezzlement of more than $1.1 million from the PFD.

http://www.osc.state.ny.us/press/releases/nov16/110216b.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20161106&utm_campaign=fiscal+oversight 

Metropolitan Transit Authority failed collect penalty fees from a contractor who

mishandled customer service calls

State Comptroller Thomas P. DiNapoli released an auditrevealing the Metropolitan Transportation Authority did not collect almost $400,000 in penalty fees from Global Contact Services, a contractor who mishandled customer service calls and provided inaccurate travel planning information to customers who utilize the MTA’s Access-A-Ride program.

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The Attorney General and the State Comptroller encourage anyone with information on alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.