PERB will defer to an arbitration award involving the same parties and the same issue in determining an improper practice charge only in limited circumstances

PERB will defer to an arbitration award involving the same parties and the same issue in determining an improper practice charge only in limited circumstances

Matter of Buffalo Teachers Fedn., Inc. v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 06800, Appellate Division, Fourth Department

The Buffalo City School District [District] adopted a resolution naming a single health insurance carrier for the teachers in its employ. This, however, constituted a change to the of the terms of the controlling collective bargaining agreement [CBA] between the District and the Buffalo Teachers Federation [Federation], the teachers' collective bargaining representative. The District explained that "it was forced either to make that change to the CBA or to make 'massive cuts' in other areas." The Federation filed a grievance and demanded that the District's actions be submitted to arbitration.

The District subsequently sent a letter to 88 teachers informing them that they were to be laid off because of "the failure to reach an agreement on a single health insurance carrier had forced the District to make budgetary cuts elsewhere." Ultimately the District discontinued the services of the 88 teachers and implemented its resolution naming a single health insurance carrier. The Federation filed an improper practice charge alleging violations Civil Service Law §209-a (1) (a) and (d) of the Taylor Law (Civil Service Law Article 14 with New York State Public Employment Relations Board [PERB]

While that charge was pending before PERB, the grievance proceeded to arbitration. The  arbitrator concluded that the District had discharged the teachers "wrongfully, in furtherance of its ill-conceived effort to force the Union into submissive acceptance of the unilateral modification" to the CBA. The District was directed to reinstate the teachers with back pay whereupon the District filed an Article 75 petition seeking to vacate the arbitration award.

Supreme Court confirmed the arbitration award and the District appealed that ruling. The Appellate Division ruled that "the arbitrator acted in excess of the power granted to him with respect to that part of the award concerning the teachers" and vacated that part of the award providing for the reinstatement of the teachers.*

The improper practice charge, however,  proceeded before PERB on a stipulated record before an Administrative Law Judge [ALJ]. The ALJ concluded that the discharge of the 88 teachers was "the final step in the preconceived scheme designed to pressure [the Federation] to drop the single carrier grievance" and thus violated the Taylor Law and, as the arbitrator had ruled, the ALJ ordered the District to reinstate the teachers with back pay.The District filed exceptions to the ALJ's decision with PERB. 

PERB relying on the "long-recognized distinction between a threat of retaliation because either a union or covered employee exercises protected rights and a statement that there might be layoffs if the exercise of protected rights results in cost increases for the employer," concluded that the District "announced the layoffs as a decision that had already been made and explained the underlying reason for the layoffs." Thus, ruled PERB, "the  discharge of the teachers did not violate the statute" and reversed that part of the ALJ's determination that directed that the District reinstate the 88 teachers. The Federation then initiated the instant proceeding seeking to annul PERB's determination.

The Appellate Division observed that its review was limited to whether PERB's determination was affected by an error of law, arbitrary and capricious or an abuse of discretion, or unsupported by substantial evidence. The court then explained that  ... "the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgment that requires us to accept its decisions with respect to matters within its competence."

The court rejected the Federation's contention that PERB's "determination was arbitrary and capricious inasmuch as PERB departed from its own precedent in refusing to defer to the arbitration award." The Appellate Division commented that although an administrative body acts arbitrarily and capriciously in departing from its own precedent and failing to explain the reasons for the departure, here PERB's determination was consistent with its own precedent. PERB, said the court, "will defer to an arbitration award only in limited circumstances and it usually does not do so where the charging party alleges a violation of Civil Service Law §209-a(1)(a).

As the Federation alleged the District had violated §209-a(1)(a) and (d), it was the precedent of PERB to refuse to defer to the arbitration award in this case. Further, said the court, to the extent that the arbitrator made findings with respect to the layoffs, it was reasonable for PERB not to defer to the arbitration award because the arbitrator had been earlier found to have exceeded the scope of his authority and his findings were inconsistent with PERB's interpretation of the statute.

Although it is unlawful for a public employer "to interfere with, restrain or coerce public employees in the exercise of [certain] rights," such as their right to participate in organizing activity, "for the purpose of depriving them of such rights," in this instance the District had explained "that layoffs were a cost-cutting measure made necessary by the failure to reach an agreement on health insurance." The Appellate Division concluded that, based upon its review of the record, "it was rational for PERB to determine that the layoffs were not motivated by an improper purpose." 

* See Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of City Sch. Dist. of City of Buffalo, 50 AD3d 1503, leave to appeal denied, 11 NY3d 708. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06800.htm

An educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof

An educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof

Decisions of the Commissioner of Education, Decision No. 17,192

M.H., a tenured teacher of mathematics employed by the City School District of the City of New York received an unsatisfactory annual rating following four unsatisfactory observation reports. M.H. appealed the rating to the Chancellor’s Committee Chairperson. The Chairperson conducted a review at which M.H. was represented by an advocate from the relevant collective bargaining entity.

The Chairperson recommended that M.H..'s appeal be denied and that the unsatisfactory rating be sustained. The Chancellor of the New York City Department of Education adopted the Chairperson recommendation. M.H. appealed the Chancellor's decision to the Commissioner of Education.

After addressing a procedural issue, the Commissioner considered the merits of M.H.'s appeal, noting that the standard of proof required to overturn an unsatisfactory rating is very high and in the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his or her judgment for that of the Chancellor.

M.H., said the Commissioner, "... failed to meet her burden of proving that the unsatisfactory rating was based upon malice, prejudice, bad faith or gross error," explaining that the record indicates that the assistant principal conducted three formal observations of a math lesson taught by M.H. as well as one walk-through evaluation.. In the last observation report made by the assistant principal, the assistant principal concluded that:

(1) The lesson taught did not match the lesson written on the board or prescribed in M.H. ’s lesson plan;

(2) M.H. posed questions in which the answers were embedded;

(3) M.H. failed to implement previous recommendations, made in previous observation reports to “engage the students by creating a physical setting that promotes teamwork”; and

(4) there was no “share/summary” presentation, as observed in during the last observation.

The Commissioner said that in the course of the walk-through evaluation, "the assistant principal concluded that [M.H.] continued to struggle with questioning techniques", noting that earlier she had provided M.H. with a document called “Asking Better Questions” and that M.H. had failed to incorporate any of the suggestions contained in that document. 

As to M.H.'s argument that the observation reports were not based on “facts,” “statistics”, or “appropriate supporting data,” M.H. cited no legal requirement that evaluations of personnel must be based on such criteria, and the Commissioner said she found nothing inappropriate about the procedure utilized by the district. 

Although M.H. did not participate in a pre-observation conference before each observation as required, the Commissioner said that she did not find that such noncompliance prohibited imposing an unsatisfactory rating based upon the observations of the assistant principal and further found that the observations and conclusions of the assistant principal supported the unsatisfactory rating imposed on M.H..

Concluding that M.H.'s unsatisfactory rating was supported by the evidence in the record, and that M.H. "has not met her burden of proving malice, prejudice, bad faith or gross error attributable to the respondent," the Commissioner dismissed M.H.'s appeal

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17192

Determining an educator's seniority in a tenure area for the purposes of layoff upon the abolishment of a position or positions

Determining an educator's seniority in a tenure area for the purposes of layoff upon the abolishment of a position or positions

Decisions of the Commissioner of Education, Decision No. 17,190

On June 16, 2008 16 elementary education teachers received appointments to positions in the elementary education tenure area effective September 1, 2008.  On June 16, 2015, the School Board [Board] abolished eight positions in the elementary education tenure area. effective July 1, 2015. Scott Page, Kiernan Terranova and Penny Valvo, [Respondents] were among the teachers retained while Gwendolyn Gingrich, Cindy Inglut and Kyle Mack [Petitioners] were among those excessed following the abolishment of the 8 positions.*

Petitioners initiated an Article 78 proceeding challenging the Board's decision to excess them as a result of the abolishment of the eight position, contending that they were "not the least senior persons in the elementary tenure area." Supreme Court, Erie County, granted the school district’s motion to dismiss for lack of primary jurisdiction** and the Commissioner of Education assumed jurisdiction in the matter.

Petitioners contend that the Board erroneously credited Page, Terranova and Valvo with more seniority credit than Petitioners by providing them with seniority credit for prior interrupted substitute service.  Petitioners asked the Commissioner to rule that the Board violated Education Law §§2510(2) and 3013(2) and to reinstate them "with back pay, lost seniority credit, pension credits and other emoluments of the positions."

After considering procedural issues the Commissioner noted that it was undisputed that:

1. Petitioners were continuously employed by school district from September 1, 2008 through July 1, 2015 and that Page, Terranova and Valvo were each appointed by the Board on June 16, 2008. 

2. The record shows that the Board credited Page for regular substitute service from April 1, 2008 through June 12, 2008 (the school year ended on June 20, 2008); Terranova for regular substitute service from February 26, 2008 through June 13, 2008 (the school year ended on June 20, 2008); and Valvo for regular substitute service from April 6, 2006 to June 30, 2006, August 30, 2006 through June 30, 2007 and September 10, 2007 through November 16, 2007; thereby crediting these Respondents with more seniority credit.

The issue to be resolved, as identified by the Commissioner was whether the Board properly credited Respondents for substitute service that was not immediately prior to their June 16, 2008 probationary appointments for purposes of calculating seniority credit for the purposes of layoff under Education Law §§2510(2) and 3013(2) "where it appears from the record that respondents Page and Terranova’s service ended a week prior to their probationary appointment and respondent Valvo’s service ended more than a year before her probationary appointment."

Education Law §§2510(2) and 3013(2) govern the rights of individuals relate to a teacher’s abolition rights and provide, in pertinent part, "Whenever a trustee, board of trustee, board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

The Commissioner then observed that:

a. It is well-settled that for purposes of determining the seniority rights of teachers when a position is abolished, it is the teacher having the least seniority in the tenure area of the position abolished whose services must be discontinued;

b. It is well-settled that seniority credit for full-time substitute teaching under Education Law §2510(2) need not immediately precede full-time probationary experience; and

c. The Court of Appeals accepted the Commissioner’s interpretation in Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678, that a teacher whose full-time regular substitute service was interrupted could nonetheless receive seniority credit for such service.

In Carey the Commissioner said that Education Law §2510's "salutary purpose is furthered by allowing seniority credit for full-time substitute teaching even though interrupted." In contrast, the Commissioner has ruled that [i] “Teachers lose their seniority rights when they sever service with the school district" and [ii] "A teacher whose full-time service is interrupted by part-time service in the same district does not lose the right to claim such prior full-time service for purposes of seniority.”

The Commissioner concluded that the relevant consideration in this instance is whether Page, Terranova and Valvo’s employment in the school district was severed by the teacher or the district and concluded that Petitioners failed to meet their burden of proving that Respondents voluntarily severed their employment with the district. 

In the words of the Commissioner: "All that is established on the current record is that each of these Respondents had a regular substitute position that terminated prior to their probationary appointments, which suggests that their substitute service was terminated by the district." Accordingly, the Commissioner dismissed Petitioners' appeal, holding that the Board "properly treated [Respondents'] prior regular substitute service as interrupted rather than severed service and properly credited them for their prior regular substitute service in the district."

 

* Petitioners characterize the district’s decision as "abolishing their positions." It would be more accurate to state that the district abolished eight positions and then determined that Petitioners were the least senior in the tenure area of the positions abolished. Only in the event the incumbent was the sole individual having tenure in the tenure area of the abolished position could it be said that his or her position was abolished.

** The Doctrine of Primary Jurisdiction is applied in the event a judicial tribunal determines that the petitioner[s] should have first appealed to the Commissioner of Education  as he or she "is uniquely suited to resolve the matter and . . . possesses the specialized knowledge and experience required to determine the factual issue" involved in the litigation [see, for example, Donato v. Bd. of Educ., 286 A.D.2d 388].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17190

_______________________

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html  

_______________________ 

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 30, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 30, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Audit Recommends Improved Oversight of Nurse Licensing by State Education Department

The State Education Department should improve its process to investigate serious complaints against nurses and more actively monitor professional misconduct, according to an auditby New York State Comptroller Thomas P. DiNapoli.

State Comptroller DiNapoli Announces Latest Fiscal Stress Scores

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has designated 27 municipalities across the state as fiscally stressed. The list, which includes eight counties, eight cities and 11 towns, marks the fewest number of municipalities listed in stress since DiNapoli implemented his early-warning system in 2013. 

The Erie Canal: Celebrating 200 Years of a National Landmark 

This year is the 200th anniversary of the groundbreaking of the Erie Canal. The Office of the State Comptroller played a key role in overseeing the funds for the building of the Erie Canal, which took eight years to complete initially at a cost of $7 million, an enormous undertaking at the time. Starting in 1817, the State Comptroller served on the Canal’s Board of Commissioners, which was responsible for transacting all canal business; later, the duty of auditing the Canal’s accounts was assigned to the Comptroller’s office. The Canal contributed to the rise of New York City as a global financial capital and energized the state's economy.

A court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

A court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

2017 NY Slip Op 04447, Appellate Division, Second Department

The Commissioner of the City of Mount Vernon Police Department, after a disciplinary hearing conducted pursuant to §75 of the Civil Service Law, found the employee [Petitioner] guilty of certain disciplinary charges and imposed the penalty of termination. Petitioner initiated an Article 78 action challenging the Commissioner's determination.

The Appellate Division affirmed the Commissioner's action and dismissed the proceeding "on the merits, with costs."

The court explained that "Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record."

Citing Berenhaus v Ward, 70 NY2d 436, the Appellate Division said that in the event there is conflicting evidence in the record or different inferences can be drawn from the evidence in the record, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

Here, said the court, "any credibility issues were resolved by the Commissioner and we find no basis upon which to disturb the determination, which was supported by substantial evidence."

Addressing the penalty imposed on the employee by the Commissioner, termination, the Appellate Division applied the so-called "Pell Doctrine," Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, and held that "the penalty of termination of [Petitioner's] employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04447.htm

_____________________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/7401.html

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The United State Supreme Court's 2017 October Term - selected cases

The United State Supreme Court's 2017 October Term - selected cases  

Source: Justia

Below are selected cases of the 29 scheduled to be considered by the United States Supreme Court during its October 2017 term that may be of particular interest to those involved in or with the public sector:

Justia Daily Opinion Summaries is a free service, with 68 different newsletters, covering every federal appellate court and the highest courts of all US states. Justia also provides weekly practice area newsletters in 63 different practice areas.*

Click on text highlighted in color  to access the full report

Carpenter v. United States A case in which the Court will determine whether the warrantless seizure and search of cell phone records revealing the location and movements of a cell phone user over the course of 127 days violates the Fourth Amendment.

Christie v. National Collegiate Athletic Association A case in which the Court will decide whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.

Gill v. Whitford A case in which the Court will decide whether partisan gerrymandering claims are justiciable, and whether the district court erred in striking down Wisconsin’s redistricting plan as an unconstitutional partisan gerrymander.

* All daily and weekly Justia newsletters are free. You may subscribe to one or more newsletters clicking on daily.justia.com.

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday 
Source: Wolters Kulwer

Selected reports posted by WK Workday during the week ending September, 22, 2017

Click on text highlighted in color to access the full report 

Kraft retirees had no vested right to health care benefits beyond termination of CBAs

Posted: 21 Sep 2017 12:09 PM PDT

By Ron Miller

In a number of recent court decisions, it has consistently been determined that collective bargaining agreements do not provide a source for lifetime medical benefits for retirees and their surviving spouses and beneficiaries if there is not explicit contractual language stating that such benefits survive expiration of the agreement. However, in a recent decision, Gruss v. Kraft Heinz Foods Co., Inc., Kraft retirees sought to establish that the company violated ERISA when it terminated retiree health care benefits for former hourly workers.

Changing job criteria in middle of hiring process supports pretext inference in nonselection claim

Posted: 21 Sep 2017 06:36 AM PDT

By Kathleen Kapusta, J.D.

Evidence that an employer changed the criteria for a position midway through the hiring process, relied on subjective justifications for selecting white candidates over an African-American applicant, and provided a shifting explanation for the selection decision supported an inference of pretext sufficient to deny summary judgment against the applicant’s Title VII race discrimination claim, a federal court in the District of Columbia ruled. His retaliation claim, which was based on an anonymous complaint he made four years earlier about what he viewed as a racist video, failed however (Casselle v. Chao, September 15, 2017, Boasberg, J.).

Abusive treatment of subordinates, not employee’s PTSD, was cause of firing

Posted: 20 Sep 2017 07:03 AM PDT

By Kathleen Kapusta, J.D.

An employee fired shortly after telling his supervisor he had PTSD could not establish pretext for disability discrimination by pointing to, among other things, his recent positive performance evaluations or a relatively minor misstatement in the employer’s EEOC position statement. Nor did the fact that the decisionmakers questioned the veracity of his PTSD claim show that the stated reason for discharging him—creating a hostile and intimidating work environment for his subordinates—was pretextual, the Seventh Circuit ruled, affirming summary judgment against his ADA and Rehab Act claims (Monroe v. Indiana Department of Transportation, September 18, 2017, Williams, A.).

5-minute pre-shift ‘briefing’ of 911 dispatcher compensable, not de minimis

Posted: 20 Sep 2017 06:58 AM PDT

By Joy P. Waltemath, J.D.

Reversing summary judgment to a county employer on only one of several FLSA claims for unpaid pre- and post-shift work, the Tenth Circuit found that a 911 dispatcher presented sufficient evidence for a jury to find that the county had to compensate her for the undisputedly integral and indispensable activity of being briefed by the outgoing dispatcher, which according to written policy, she was required to be at work five minutes before her shift began to receive. In an unpublished two-judge decision (now-Justice Neil Gorsuch had been on the panel for oral argument, but the remaining two panel judges were in agreement and so could act as a quorum to resolve the appeal), the court found this pre-shift activity was both ascertainable—five minutes per shift, per policy—and a “fixed or regular working time,” and a “practically ascertainable period of time [s]he is regularly required to spend on duties” so that it could not be disregarded as de minimis (Jimenez v. Board of County Commissioners of Hidalgo County, September14, 2017, per curiam).

City manager fired while she was on leave—behind her back—not because she was on leave

Posted: 19 Sep 2017 07:11 AM PDT

By Joy P. Waltemath, J.D.

Even assuming that a city manager had notified the city council that she was going on FMLA leave when she told them she was having foot surgery and would be able to work from home while recovering, her employer could fire her without unlawfully interfering with the FMLA as long as the reason for her termination was not because she was on leave. This it did, said the Sixth Circuit in affirming summary judgment for the city, because the employer demonstrated a legitimate reason for terminating her—it cited her role in “causing political strife in the community.” Moreover, it was questionable that she had provided FMLA notice since there was evidence she refused to take and complete the city’s FMLA forms, and it was suggested that she was only going to take a few days off and work from home. She also had no evidence of pretext (Mullendore v. City of Belding, released August 23, 2017, redesignated as published September 15, 2017, Batchelder, A.).

A public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority

A public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority 
Office of Administrative Trials and Hearings [OATH], Index No.1229/17

An appointing authority may bring disciplinary charges pursuant to §75 of the Civil Service Law for alleged off-duty misconduct or its statutory or contractual equivalent "where there is a sufficient nexus between the misconduct and the employing agency."* 

In this disciplinary action, OATH Administrative Law Judge Ingrid M. Addison found:

1. The employee, a peace officer, attempted to have forcible sexual intercourse, a criminal act inherently contrary to the law enforcement responsibilities of peace officers, and had pled guilty to Assault in the Third Degree, a Class A misdemeanor.

2. The appointing authority established a nexus between the employee’s off-duty misconduct and his job as "a law enforcement officer whose criminal conviction runs contra to his [or her] law enforcement duties. "

3. The disciplinary charges filed against the employee by the appointing authority were  appropriate for his proven off-duty misconduct.

Judge Addison said that "this tribunal has generally applied the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct."

Noting that the employee had not previously been served with disciplinary charges, the ALJ explained that even absent a history of prior discipline, peace officers who engage in violent off-duty misconduct with or without a resulting criminal conviction may be terminated. In addition Judge Addison observed that "for off-duty misconduct, we have imposed penalties which have been commensurate with the level of misconduct and have included termination."

Accordingly, Judge Addison recommended that the employee be terminated from his employment having been found guilty of off-duty misconduct in attempting to engage in forcible sexual intercourse with his former girlfriend and causing her physical injury while doing so.***

* See, for example, Zazycki v City of Albany, 94 A.D.2d 925, Motion for leave to appeal denied, 60 N.Y.2d 558 

** The employee was sentenced to a one-year conditional discharge, and a five-year Order of Protection was issued against him. 

*** The appointing authority adopted the recommendation of the ALJ and terminated the employee from his position and the appointing authority's determination is appended to the text of the ALJ's findings and recommendation.

The decision is posted on the Internet at: 
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1229.pdf

_____________________________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/7401.html

_____________________________

Procedures to be followed by school boards seeking to contract for expert consultant services

Procedures to be followed by school boards seeking to contract for expert consultant services

Decisions of the Commissioner of Education, Decision No. 17,188

Among the several issues certain residents and taxpayers of the district [Applicants] raised in an appeal to the Commissioner of Education were challenges to the board’s adoption of a resolution provided for contracting with a consultant, Barbara J. Smith, on the recommendation of the district’s audit committee to serve as its external auditor to assist the district in coming into compliance with applicable State requirements by implementing proper budgetary development and monitoring procedures.* 

The Applicants contended that:

[1] The audit committee violated Education Law §2116-c by recommending the hiring of a consultant;

[2] Certain members of the school board had acted in violation of Education Law §1613 in soliciting and engaging a consultant without seeking competitive bids;

[3] The vote of certain board members approving a resolution to “suspend the District policy that requires the Superintendent’s recommendation for the [school board] to hire a consultant” justifies their removal from office and

[4] The school board's hiring of the consultant encroached upon the exclusive authority of the superintendent, in violation of Education Law §1711.

Addressing the contract issue raised in this appeal concerning the board's not seeking "competitive bid" for the consulting services required, the Commissioner observed that the board sought to obtain the professional skills and knowledge of a consultant**to provide training, assistance, and mentoring to the district’s business official relating to the budget development, fiscal monitoring, and reporting. 

As the contract to retain the consultant to provided such types of professional services, the Commissioner said that it was not subject to "the sealed competitive bidding requirements of General Municipal Law §103." Consequently, the Commissioner explained, entering into a contract for professional services without competitive bidding does not violate Education Law §1619. As "professional services contracts" are outside the scope of competitive bidding, the Commissioner said that they "need not be awarded to the lowest bidder provided that the award is in the best interest of the taxpayers."

The Commissioner noted that General Municipal Law §104-b requires a board to adopt policies and procedures to govern the procurement of goods and services not subject to competitive bidding and further such procedures must contain, among other things, a requirement that proposals “be secured by use of written requests for proposals, written quotations, verbal quotations, or any other method of procurement which furthers the purposes of the section.” In this instance Board Policy 6741 set out the process for securing professional services, including the preparation of a request for proposals [REP].

Turning to the Applicants' complaint that certain board members had violated Policy 6741 as the basis for their removal from office, the Commissioner said that "it is well settled that, even if proven, violation of a board’s bylaws or policies, by itself, is not a sufficient basis for removal of a member of a board of education in a proceeding pursuant to Education Law §306."

In contrast, the Commissioner noted that "a violation of board policy may be used as evidence of willfulness of such conduct" and school district officers can only be removed under §306 when they engage in a "willful violation or neglect of duty," i.e.,"a purpose or intent to disregard a lawful duty or to violate a legal requirement" while "[m]ere negligence on the part of a school officer is not enough to warrant removal."

In this instance the Commissioner found that the acts about which Applicants complain "do not rise to the level of willful misconduct and, thus, on the record before me, [Applicants] have failed to demonstrate that [the board members named by Applicants] engaged in a willful violation or neglect of duty.” 

While noting that the board may not have processed the employment of the Consultant as may have been otherwise required by its policies, the Commissioner found that the process followed by the board in this regard "substantially furthered the purpose of General Municipal Law §104-b."

Finally, the Commissioner concluded that no evidence in the record supported a finding that the board members Applicants sought to have removed from office willfully violated the law or neglected their duty, the standard that must be met for removing a board member from office.

The Commissioner concluded her decision with the following statement: "Although I am constrained to deny this application for removal and dismiss this appeal, I admonish respondent board to fully comply with the procedures established in all applicable board policies in the future."

* Applicants had sought "interim relief ... to restrain the board from enforcing the resolution passed by the board to hire the Consultant, which request was denied by the Commissioner.

** The consultant selected by the board was a former audit manager with an accounting firm and former Chief Financial and Operating Officer for the City School District of the City of Buffalo,

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17188

Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of a work related injury or disease

 
Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of  a work related injury or disease
Fennelly v Eastchester Fire Dist., 2017 NY Slip Op 06533, Appellate Division, Second Department

General Municipal Law §207-a(1), in pertinent part, provides that a paid firefighter of an organized fire company or fire department of a city of less than one million population, or town, village or fire district, "who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment, shall be paid by the municipality or fire district by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased." In effect, the firefighter is placed on sick leave at full pay until he or she returns to full duty or "light duty" with his or her employer, retires, dies, is found ineligible to continue to receive such compensation or retires.

General Municipal Law §207-a (2) provides, in pertinent part, for discontinuing the payment of the full amount of regular salary or wages with respect to any firefighter continued on the payroll pursuant §207-a(1) who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his or her duties "in the event the firefighter is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member...."

§207-a(2), however, then mandates that the firefighter so retired "shall continue to receive from the municipality or fire district by which he [or she] is employed, until such time as he [or she] 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, the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."*

In this CPLR Article 78 action the Appellate Division was asked to review a determination by the Board of Fire Commissioners of the Eastchester Fire District [Eastchester] that reflected the findings and recommendations "of a hearing officer, made after a hearing," that the petitioner, Keith E. Fennelly, Eastchester's retired former fire chief, "was not entitled to supplemental wage increases pursuant to General Municipal Law §207-a(2) and that Eastchester was entitled to recoup 'overpayments' made to [Fennelly] since 2005."

The court held that [1] Fennelly was not entitled to the supplemental wage increases, i.e. payments reflecting "the difference between the amount received under such allowance or pension and the amount of his [or her] regular salary or wages"* but [2] Eastchester was not  entitled to recoup any "overpayments" it made to Fennelly since 2005. The court "otherwise dismissed" Fennelly's petition "on the merits."

The court explained that Eastchester's determination that Fennelly was not entitled to increases in the supplemental benefits he was paid pursuant to General Municipal Law §207-a(2) based upon the salary increases given to Eastchester's current fire chief was supported by substantial evidence. The evidence, said the court, "demonstrated that the salary paid to each fire chief is determined by the Board, and is based on the particular experience, education, and performance of the fire chief, as opposed to firefighters who receive salary increases pursuant to a collective bargaining agreement."

As to Eastchester recouping "past overpayments" from Fennelly, the Appellate Division, citing Matter of Masullo v City of Mount Vernon, 141 AD3d 95, said that "[t]here is no evidence that [Eastchester] had a process or application procedure in place at the time [Fennelly] was paid the section 207-a(2) benefits and, therefore, there can be no finding that the prior payments were improper so as to justify recoupment."

Note: NYPPL, after reviewing this decision, is of the opinion that although Fennelly may not be entitled to increases in the supplemental benefit  pursuant to General Municipal Law §207-a(2) in the amount of "the salary increases given to [Eastchester's] current fire chief," to the extent Fennelly's does not receive adjustments in the nature of a supplement to his retirement allowance or pension consistent with the reasons**and procedures described below, Eastchester is not in compliance with the mandates set out in §207-a(2) with respect to the payment of the "difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages:"

1. In Pease v Colucci, 59 A.D.2d 233, the court said that "Section 207-a of the General Municipal Law is a remedial statute enacted for the benefit of [firefighters] and should be liberally construed in their favor."

2. §207-a(1) provides that a firefighter suffering an injury or disease in the line of duty is to remain on the employer's payroll and receive "his [or her] compensation as long as he [or she] has not recovered from his [or her] injury," even if he or she remains unable to return to duty, in whole or in part, as a result of such injury or disease for the rest of his or her life. Such compensation must include any subsequent raises in salary given to those in the same grade or title held by the injured firefighter at the time of his or her injury.

3. In the event the firefighter retires, or is retired pursuant to an application filed on his or her behalf  by his or her employer as authorized by §207-a(2) and, as a result, is removed from the employer's payroll, §207-a(2) mandates that the retired firefighter's employer pay him or her the difference between the amount he or she receives as a retirement allowance or pension and the amount of his or her regular salary or wages he or she would have received had he or she remained on the employer's payroll and not retired. Such payments by the employer,  periodically adjusted to reflect any increases in salary or compensation paid to those in the same grade or title held by the injured firefighter at the time of his or her injury, are to be paid to the retired firefighter until he or she has attained the controlling mandatory age of retirement, dies or is found to be ineligible to receive his or her retirement allowance or pension.

In consideration of points [1], [2] and [3] above, and in view of Fennelly's particular situation with respect to the determination of the annual salary to be paid a fire chief upon his or her initial appointment by Eastchester following Fennelly's retirement for disability:

     [a] The amount of Fennelly's §207-a(2) mandated supplement to be paid by Eastchester initially should be determined based on the difference between his retirement allowance or pension and his annual salary immediately prior to the effective date of his retirement and any subsequent §207-a(2) payments reflecting the difference between the amounts received under such allowance or pension and the amount of his regular salary or wages should be determined so as to increase Eastchester's payments to supplement Fennelly's retirement allowance or pension that would provide

     [b] an equivalent to the percentage increase of any subsequent increase or increases in the annual salary paid to a successor incumbent fire chief following his or her initial appointment to the position based on Eastchester's representation that each such successor's annual salary at the time of his or her initial appointment "is based on the particular experience, education and performance of the appointee;" and

     [c] such supplement and adjustments to such supplements are to be paid by Eastchester to Fennelly until Fennelly attains the "mandatory age of retirement" set by the relevant provision of the Retirement and Social Security Law or his retirement allowance or pension ceases to be paid to him, whichever event first occurs.

* General Municipal Law §207-c(2), which applies to law enforcement personnel, tracks the provisions of §207-a(2) except that it does not provide for the employer's supplementing the individual's retirement allowance or pension in an amount equal to the "difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."

** There are additional reasons and case law supporting NYPPL's views in this regard that have not been included in this "Note".

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_06533.htm

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