Employer not liable for damages from an injury resulting from their superiors' exercising poor judgment

Employer not liable for damages from an injury resulting from their superiors' exercising poor judgment

Buckley v City of New York, 176 A.D.2d 207

[Decided with Coulter v City of New York]

Two New York City police officers sued the City to recover money damages for injuries they suffered while confronting a criminal suspect.

Their theory for recovery was that the City was negligent because "standard operating procedures" were not followed in an earlier attempt to arrest a suspect. Buckley and Coulter contended this failure to follow "standard operating procedures" resulted in their suffering injuries when they attempted to arrest the suspect some time later.

The Appellate Division dismissed their appeal, noting that "police officers may not recover monetary damages for the exercise of poor judgment on the part of their superiors in the exercise of their duties."

Although Buckley and Coulter, in the alternative, contended that they were entitled to recover under the provisions of §205-e of the General Municipal Law, the court ruled that §205-e applied only in cases involving the "negligent failure to comply with requirements regarding the maintenance and safety of [a] premises." As there was no allegation that their injuries were the result of such a failure, the Appellate Division held that §205-e was inapplicable insofar as recovery for their injuries was concerned.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1991383176ad2d2072243

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery

Sestito v City of White Plains, 2018 NY Slip Op 03528, Appellate Division, Second Department

The Commissioner of Public Safety of the City of White Plains adopted the findings and recommendations of a hearing officer, made after a hearing, and terminated the Petitioner's benefits under General Municipal Law §207-a. The Appellate Division confirmed the Commissioner's determination and dismissed the Article 78 action "on the merits, with costs."

Petitioner in the action, a firefighter, alleged that he had been injured while performing his duties and applied for benefits pursuant to General Municipal Law §207-a. The Commissioner's medical examiner found that Petitioner was capable of returning to light duty and that there would be a "medium to moderate" chance that he would be able to resume full duty if he underwent spinal fusion surgery.

The City's Fire Chief sent Petitioner a letter ordering him to return to work to assume a light duty position, or risk losing his benefits. A second letter sent by the Fire Chief awarded the Petitioner General Municipal Law §207-a benefits for a designated period and directed Petitioner to schedule the "fusion surgery."

Petitioner did not return to work as directed and did not undergo surgery, choosing instead to proceed with a challenge of the return to work order.

A hearing was conducted and the hearing officer concluded that the Fire Chief's orders were "reasonable and rational," and that Petitioner's failure to comply with those orders was without justification. The Commissioner adopted the recommendations of the hearing officer.

In his appeal Petitioner argues that the Commissioner's determination is not supported by substantial evidence. The Appellate Division disagreed, explaining that "Substantial evidence means more than a mere scintilla of evidence and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides."

Finding that there was substantial evidence to support the Commissioner's determination that Petitioner was fit to return to light duty and that surgery was a reasonable and appropriate treatment the court ruled that as Petitioner failed to return to work for his light duty assignment, and did not undergo surgery, his GML §207-a benefits were properly terminated.

In Schenectady Police Benevolent Association v New York State Public Employment Relations Board, 85 N.Y.2d 480, the Court of Appeals ruled that General Municipal Law §207-c, which provided benefits to law enforcement personnel authorizes the appointing authority to (a) require such personnel injured in the line of duty to perform light duty when found medically qualified to do so and (b) under the appropriate circumstances, undergo surgery, where reasonable.

The key to requiring an individual to undergo surgery, said the court, is that §§207-a and 207-c both provide that its respective benefits may be withheld if the officer refuses to undergo surgery. The decision notes that the employer's physician "may attend any such injured or sick policeman, from time to time, for the purpose of providing medical, surgical or other treatment...."

The Court of Appeals observed that the §207-c further provides that anyone who refuses to accept "medical treatment or hospital care" waives the right to benefits under the section. A similar provision in §207-a applies where the injured employee is a firefighter.

The Sestito decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03528.htm

The Schenectady decision is posted on the Internet at:

https://www.leagle.com/decision/199556585ny2d4801523

Determining if a dispute between a public employer and an employee organization is arbitrable

Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03356.htm

Admitting evidence of prior disciplinary action taken against the charged party

Admitting evidence of prior disciplinary action taken against the charged party

OATH Index No. 2310/17

Although the New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls ruled that evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct, she said that prior disciplinary events may be used to rebut employee’s testimony that he was unaware of work rules.

Judge McGeachy-Kuls then admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employee’s testimony that he lacked notice of the procedure. This evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct.

In contrast, if an employee's personnel history will be considered by the hearing officer to determine the penalty to be imposed if the individual is found guilty of some, or all, of the disciplinary charges and specifications filed against the individual, he or she must be advised of such action.

In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that an employee's personnel records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2310.pdf

Reemployment of individuals receiving a retirement allowance from a public retirement system of New York State

Reemployment of individuals receiving a retirement allowance from a public retirement system of New York State

Police Benevolent Assn. of N.Y., Inc. v State of New York, 2018 NY Slip Op 03586, Appellate Division, Third Department

This decision provides an opportunity to consider the relevant provisions of law applicable with respect to the reemployment of individuals receiving a retirement allowance from a public retirement system of New York State.*

§150 of the Civil Service Law requires the suspension of the pension and annuity [retirement allowance] of a retired state or municipal employee in the event such an individuals is employed in a public service position of the State or a political subdivision of the State and making a certain salary while continuing to receive his or her pension during the public employment** except as otherwise permitted by §§100, 211, 212, 213, 214 of the Retirement and Social Security Law, §503 of the Education Law and "as now provided by any local law or charter."

§211 further requires that a retired state or municipal employee to be employed in a public service position making in excess of a certain salary while continuing to receive his or her pension obtain the approval of certain commissions or public officers, to be requested by the appointing authority, and, where required, a "waiver" in order to avoid any diminution of his or her retirement allowance.

The position of Chief of University Police at the State University of New York, College at Brockport became vacant and two individuals applied for the position and met all of the required qualifications. Edward Giblin, who was retired from public service and receiving a retirement allowance, was offered and accepted the position.

The Police Benevolent Association of New York, Inc., [Petitioners] commenced this CPLR Article 78 proceeding alleging that the State University violated Retirement and Social Security Law §211 by hiring Giblin and granting him a waiver despite the availability of qualified, nonretired applicants. Petitioners sought an order compelling State University to rescind the waiver issued to Giblin. Supreme Court granted State University's motion to dismiss the petition based on lack of standing and Petitioners appealed.

The Appellate Division dismissed the appeal as moot, explaining "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment."

According to the decision, "Giblin retired from the position in 2017, and the waiver is therefore no longer in effect." Accordingly, said the court, "Petitioners cannot receive the relief requested in the petition, rendering the matter moot."

However, noted the court, there is an exception to the mootness doctrine permitting judicial review. In the event the issues are substantial or novel, likely to recur either between the parties or between other members of the public, and involve "a phenomenon typically evading review," such judicial review is warranted. Here, however, the Appellate Division did not find that the exception applies in this instance.

* New York State's Optional Retirement Programs authorized by Article 3, Part 5, Article 8-B and Article 125-A of the Education Law are not public retirement systems as neither the State nor a political subdivision of the State are liable for payment of benefits nor a party to any contract purchased in whole or in part with employer contributions made under the optional retirement program established and administered pursuant to these articles and any benefits shall be paid to "electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts."

** This limitation does not apply to individuals receiving a retirement allowance serving on jury duty or employed by the office of inspector of election as a poll clerk or ballot clerk pursuant to the Election Law, or as a notary public or commissioner of deeds, or to a retiree who has been elected to public office nor does it apply to individuals after the calendar year in which any such retired person attains age 65.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03586.htm