Determining if an employee is eligible for accidental disability retirement benefits

Determining if an employee is eligible for accidental disability retirement benefits

Daquino v DiNapoli, 2018 NY Slip Op 03201, Appellate Division, Third Department

An employee [Petitioner] appealed the Hearing Officer denial of the Petitioner's application on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law, which decision was adopted by the State Comptroller.

In this action challenging the denial of Petitioner's application for accidental disability retirement benefits on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law, the Appellate Division said that Petitioner bore the burden of establishing her entitlement to accidental disability retirement benefits and Comptroller's determination will be upheld if supported by substantial evidence. Further, said the court, in order for an incident to constitute an accident within the meaning of the Retirement and Social Security Law, it must be "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

The State Comptroller had adopted the findings and conclusions of the Hearing Officer, who found that slipping on the water "was a sudden, fortuitous mischance and undoubtedly unexpected and out of the ordinary" but denied benefits based solely upon Petitioner's failure to demonstrate that the water she had slipped on was not readily observable.

Citing a recent decision by the Court of Appeals, Matter of Kelly v DiNapoli (30 NY3d 674, in which that court stated that "the requirement that a petitioner demonstrate that a condition was not readily observable in order to demonstrate an 'accident' is inconsistent with our prior case law," the Appellate Division annulled the Comptroller determination, explaining that "substantial evidence does not support the determination that the incident was not an accident."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03201.htm

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, 169 AD2d 871

 Under the terms of a Taylor Law agreement, an employee against whom disciplinary charges had been filed was entitled to a three step disciplinary proceeding. The third step was arbitration.

In the Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, the basic issue was the effect of an employee's pre-arbitration resignation on his or her right to demand arbitration.

The employee, Patrick Washington, was found guilty of four acts of misconduct. The hearing officer recommended that Washington be terminated. A few days later Washington submitted his resignation.* On the same day that Washington submitted the resignation the union filed a demand for arbitration. The City refused to submit the issue to arbitration on the grounds that Washington, having resigned from his position, was no longer an employee and thus was not covered by the collective bargaining agreement.

 The Union filed a legal action seeking a court order compelling the City to submit the matter to an arbitrator. The Union alleged that Washington had been coerced into submitting the resignation and thus it was null and void. Accordingly, it argued, Washington, not having lawfully resigned from his position, was still covered by the Taylor Law agreement.

 The Appellate Division rejected the Union's claims regarding coercion. The decision notes that a union official and a city official simultaneously spoke to Washington regarding the ramifications of his decision to resign and that "Washington persisted in this course of action and signed a formal, written notice of resignation, witnessed by both officials."

 Under the circumstances, the Appellate Division found that there was no evidence of coercion and that having resigned from his position, Washington was no longer covered by the Taylor Law agreement.

 As to the issue of a resignation being coerced from an employee or obtained under duress, the courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643].

 Rychlick, in the presence of a union representative, was told that unless he submitted his resignation formal disciplinary charges would be filed against him. Although allowed to confer with his union representative, he was told that he would not be given additional time to confer with an attorney. He was also then advised that unless he resigned, charges would be filed. Rychlick submitted his resignation.

 A few days later Rychlick asked to withdraw the resignation on the grounds that it had be "forced" from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

 Ultimately the Court of Appeals upheld the agency's refusal to allow Rychlick to withdraw the resignation, indicating that the "threat to file formal charges ... if [Rychlick] did not resign does not constitute duress."

* N.B. The Rules of the State Civil Service Commission, which apply to State officers and employees, provide that "every resignation shall be in writing" [4 NYCRR 5.3]. Most local commissions and personnel officers have adopted a similar rule or regulation.

Determining if a county is obligated to provide for the defense and indemnification a county officer named as a defendant in a lawsuit against the County

Determining if a county is obligated to provide for the defense and indemnification a county officer named as a defendant in a lawsuit against the County 

Dunn v County of Niagara, 2018 NY Slip Op 03271, Appellate Division, Fourth Department

Danny P. Dunn, Sr. and Anita L. Dunn sued the County of Niagara [County] and Russell Jackman [Jackman], then a coroner employed by the County, in "action sounding in negligent infliction of emotional distress."

In his answer, Jackman contended that the County was obligated to defend and indemnify him pursuant to Public Officers Law §18. The County objected but Supreme Court determined that the County must provide Jackman with a defense by an attorney of his choosing and must reimburse him for his legal costs incurred to the date of the order. The County appealed and the Appellate Division ruled that Supreme Court should have denied Jackman's motion.

The Appellate Division explained the County's duty to defend an employee "turns on whether [the employee was] acting within the scope of [his or her] employment," and whether the obligation to defend the employee "was formally adopted by a local governing body." In order to establish its prima facie entitlement to judgment as a matter of law under Public Officers Law §18, the individual seeking indemnification must establish that §18 is applicable in his or her situation.

In this instance the court held that Supreme Court had erred in granting summary judgment to Jackman while still finding that there are issues of fact that bear on the applicability of Public Officers Law §18 to Jackman's claims.*

In any event, the Appellate Division said it agreed with the County that Supreme Court  should have applied County Law§501 in determining whether the County was obligated to defend Jackman.

Finding that the complaint against Jackman "created an inherent conflict between [Jackman] and the County over whether [Jackman's] actions occurred in the scope of his employment," the Appellate Division ruled that the County was absolved of its responsibility to defend Jackman. Accordingly, Jackman's retention of outside counsel was "at his own expense unless the provisions of [Public Officers Law §18] are applicable" in view of the fact that §501[2] of the County Lawprovides that:

 "Whenever the interests of the board of supervisors or the county are inconsistent with the interests of any officer paid his compensation from county funds, the county attorney shall represent the interests of the board of supervisors and the county. In such case the officer may employ an attorney-at-law at his own expense unless the provisions of section eighteen of the public officers law are applicable."

The existence of any such conflict, said the court, cannot be determined in the context of a defendant's motion for summary judgment.

* The Appellate Division noted that the claim that the County had adopted Public Officers Law §18 was raised for the first time in Jackman's reply papers and ruled that issue was not properly before it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03271.htm

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v Olympic Regional Dev. Auth., 2018 NY Slip Op 04998, Appellate Division, Third Department

The Civil Service Employees Association [CSEA] challenged the Olympic Regional Development Authority [ORDA] determination that certain its employees who had been laid off were no longer members of their previous collective bargaining unit upon their reinstatement. Supreme Court granted CSEA's application, in a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment, annulling ORDA's action. Supreme Court found that CSEA was "entitled to a declaration that the layoff of seasonal employees [did] not constitute a termination or cessation of their employment resulting in a vacancy for purposes of Public Authorities Law §2629(2)(a)" and granted CSEA's petition, annulling ORDA's determination. ORDA appealed the Supreme Court's decision.

In 2012, the management of the Belleayre Mountain Ski Center was transferred from the Department of Environmental Conservation [DEC] to ORDA, a public benefit corporation.* Pursuant to Public Authorities Law §2629(2)(a), employees then working at Belleayre Mountain, who had been DEC employees and members of CSEA's Operating Services Collective Bargaining Unit [OSU], became employees of ORDA.

In March 2016, ORDA laid off three seasonal employees at Belleayre Mountain who were in OSU. Upon rehiring these employees some two months later to the same positions each had previously held, ORDA determined that each would be placed in ORDA's collective bargaining unit rather than OSU. This resulted in the three seasonal employees experiencing a "significant adverse changes to their benefits" and CSEA brought this action against ORDA contending that ORDA's action was arbitrary and capricious and in violation of §2629(2)(a).

The Appellate Division noted that, as pertinent here, Public Authorities Law §2629(2)(a):

1. Provides that employees affected by the transfer "shall retain their respective civil service classifications, status, salary, wages and negotiating unit, if any...."; and

2.  §2629(2)(a) further provided that "once the employment of any transferred employee ... is terminated or otherwise ceases, by any means, any individual hired to fill such vacancy shall not be placed in the same negotiating unit of the former incumbent but rather shall be placed in [ORDA's] negotiating unit."

ORDA contend that §2629(2)(a) the unambiguous results in the employment of a seasonal employee "terminate[s] or otherwise ceases" when he or she is laid off. Accordingly, ORDA argued, "such an employee may not return to his or her former negotiating unit in the event that he or she is subsequently rehired."

Noting that ORDA's determination was made without a hearing, the Appellate Division said that its review is limited to determining whether ORDA decision was "'arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion." Further, said the court, "We accord no deference to ORDA's statutory interpretation," as the questions raised on appeal depend only upon the "accurate apprehension of legislative intent."

This appeal, said the Appellate Division turns on the meaning of the terms "terminated" and "ceases" within the context of §2629(2)(a) and as neither word is defined in the Public Authorities Law and both are words "of ordinary import," the court said it would interpret them in a manner consistent with "their usual and commonly understood meaning." In the words of the Appellate Division, "terminate" is defined as "to bring to an end," "to discontinue the employment of" or "to form the conclusion of," citing the "Merriam-Webster Online Dictionary."

Rejecting CSEA's contention that a layoff is inconsistent with these definitions and merely constitutes a temporary interruption in a career, the Appellate Division explained that "in light of the express statutory provision that an employee whose employment 'is terminated or otherwise ceases, by any mean'" may not return to his or her prior collective bargaining unit upon subsequent rehire" and interpreting §2629(2)(a) as urged by CSEA "would render the phrase 'by any means' superfluous."

The court also rejected CSEA claim that §2629(2)(a) applies only to new employees, opining that the statute states that it is applicable to "any individual" and makes no distinction between employees who are new hires and employees who may have previously worked at Belleayre Mountain.

On one last point, CSEA's contention that the court should adopt its interpretation of §2629 on the basis that it is a remedial statute, the Appellate Division said that "[E]ven a remedial statute must be given a meaning consistent with the words chosen by the Legislature," and courts must "give effect not only to the remedy, but also to the words that delimit the remedy," commenting that CSEA's "interpretation of §2629 could result in the unintended adverse effect of discouraging the rehiring of seasonal employees after layoffs."

Finding that the plain language of §2629(2)(a) barred ORDA from permitting seasonal employees who were laid off and subsequently rehired to remain in OSU, the Appellate Division ruled that CSEA's "petition/complaint should have been dismissed."

* §45 of the Civil Service Law addresses the status of the employees of a private institution or enterprise upon its acquisition by governmental entity for the purpose of operating the private institution or enterprise as a public function.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04998.htm

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

Ortiz v. United States, Docket: 16-1423, Government & Administrative Law

In addition to "Company Punishment,"* a non-judicial proceeding, the United States “court-martial system” provides for an initial judicial determination of the guilt or innocence of military personnel charged with one or more violations of the federal Code of Military Justice. If the accused is found guilty, the court levies the punishment to be imposed.**

There are four appellate courts: the Court of Criminal Appeals (CCA) for, respectively, the Army, Navy-Marine Corps, Air Force, and the Coast Guard. CCA decisions may be subject to review by the Court of Appeals for the Armed Forces (CAAF). CAAF is a “court of record” composed of five civilian judges.

Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography. The penalty imposed, two years’ imprisonment and a dishonorable discharge. Ortiz asked the CAAF to review the matter, challenging the qualification of one of its members, Colonel Martin Mitchell, to serve on the CCA panel because he had been appointed to the Court of Military Commission Review (CMCR) by the Secretary of Defense. Further, to moot a possible constitutional problem with the assignment, the President (with the Senate’s advice and consent) also appointed the Colonel Mitchell to the CMCR pursuant to §950f(b)(3).

As Judge Mitchell participated in Ortiz’s CCA appeal, Ortiz claimed that Judge Mitchell’s CMCR appointment barred his continued CCA service under both a statute and the Constitution, contending that the appointment violated §973(b)(2)(A), which provides that unless otherwise authorized by law,” an active-duty military officer “may not hold, or exercise the functions of,” certain “civil office[s]” in the federal government. Ortiz also argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA.

The CAAF denied Ortiz's appeal.

Ultimately the Supreme Court said that it had jurisdiction to review the CAAF’s decisions, explaining that "The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex."

The Supreme Court's decision notes that Professor Aditya Bamzai had filed a brief amicus curiae with the Supreme Court contending that cases decided by the CAAF do not fall within Article III’s grant of appellate jurisdiction to the Supreme Court. The Supreme Court, citing Marbury v. Madison, 1 Cranch 137, said that then Chief Justice Marshall had explained that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”

Here, said the Supreme Court, Ortiz’s petition asks the Supreme Court to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.”

Unless, opined the court, Chief Justice Marshall’s test implicitly exempts cases instituted in a military court, the case is now appellate. But, the court concluded, "There is no reason to make that distinction. The military justice system’s essential character is judicial. Military courts decide cases in strict accordance with a body of federal law and afford virtually the same procedural protections to service members as those given in a civilian criminal proceeding. The judgments a military tribunal renders “rest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals.”

Justice Kagan delivered the opinion of the court, in which Justices Roberts,  C. J., and Justices Kennedy, Thomas, Ginsburg, Breyer and Sotomayor joined. Justice Thomas filed a concurring opinion and Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined., holding that the Court has appellate jurisdiction to review the CAAF’s decisions. "In exercising that jurisdiction, [the majority said] that Judge Mitchell’s simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A)’s office-holding ban nor the Constitution’s Appointments Clause" and affirmed the judgment below."

* 10 U.S. Code Chapter 47 - UNIFORM CODE OF MILITARY JUSTICE, §815 - Art. 15. Commanding officer’s non-judicial punishment.

** See, generally, 10 U.S. Code Chapter 47, §816 - Art. 16. Courts-martial classified. See, also, New York State Military Law, Article 7 - Code of Military Justice.

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1423_bq7c.pdf

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

NYC Office of Administrative Trials and Hearings, OATH Index No. 1865/18

Based on statements a customer service representative [Anonymous] was reported to have made to co-workers, the Appointing Authority [Authority] placed Anonymous on involuntary leave pursuant to Civil Service Law §72.5 in consideration of safety concerns about Anonymous' presence at the work place.

Anonymous filed a timely objection to being placed on §72.5  leave, typically refered to as "emergency leave." After a two-day hearing during which Authority presented the testimony of a psychiatrist, who examined Anonymous and concluded he was unfit, as well as the testimony of two of Anonymous’ co-workers and Anonymous' testimony on his own behalf and the testimony of a psychiatrist called by Anonymous a witness, OATH John B. Spooner found that Authority's failed to meet the standard justifying its placing Anonymous on emergency leave.

Judge Spooner said the Authority did not prove that [1] it had probable cause to believe that Anonymous was dangerous or [2] his presence in the workplace would “severely interfere" with its operations, or [3] Anonymous was likely to be violent. Accordingly, said the ALJ, Authority failed to demonstrate that placing Anonymous on an “extraordinary” pre-hearing suspension authorized by §72.5 was necessary.

Judge Spooner recommended that Authority's petition be dismissed and that Anonymous be awarded back pay for the period of pre-trial leave. Authority, however, rejected the ALJ’s recommendation, finding that it had proved that, due to his psychiatric disorders, Anonymous was unfit to work. Authority also found that Anonymous was not entitled to back pay for the period of prior to his hearing as it had a sufficient basis to institute emergency leave.*

The "standard Section 72 procedure" is triggered by the appointing officer's determina­tion that the individual is physically or mentally unable to perform his or her duties and should be placed on leave of absence and CSL Section 72.1 requires completing a number of procedural steps before the individual may actually be placed on Section 72 leave over his or her objections.

 
In contrast, Section 72.5 relied upon by Authority in Anonymous' situation, essentially sets out an exception to the "standard procedure" that allows it to be truncated only in the event the appointing authority determines that there is probable cause to believe that the continuation of the individual on the job poses a danger to persons, property or the agency's operation.

The "standard procedure" followed under Section 72 may be summarized as follows:

1. The appointing authority determines than an employee is unable to perform the duties of his or her position by reason of an ordinary disability.

2. The appointing authority requires such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or munici­pal commission having jurisdiction.

3. The appointing authority provides the employee and the civil service department or commission, in writing, the facts that constitute the basis for the judgment that the employee is not fit to perform the duties of his or her position prior to the medical examination.

4. If the medical officer certifies that the employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority notifies the em­ployee of any proposed Section 72 leave and the proposed date on which such leave is to commence.

5. The employee is also advised of his or her right to object to his or her placement on the proposed Section 72 leave of absence and to request a hearing.

6. If the employee requests a hearing, the appointing authority is to give the employee a hearing within 30 days of the receipt of the request. The appointing authority is also required to provide the employee and the employee's personal physician or authorized representative, with copies of all diagnoses, test results, observations and other data supporting the appointing authority's decision.

7. The employee is not to be placed on leave until a final determination is made by the appointing authority after the hearing is held.

As is typical in administrative actions of this type, the appointing authority has the burden of proof and must provide the evidence that the employee is mentally or physically unfit to perform his or her duties.

Following the receipt of the hearing officer's findings and recommendations, the ap­pointing authority may decide to (1) uphold the original proposed notice of leave of absence, (2) withdraw such notice or (3) modify the notice as may be appropriate.

If the final determination is to place the individual on Section 72 leave, the employee is to be advised of his or her right to appeal the determination to the civil service commis­sion having jurisdiction as provided by CSL Section 72.3.

* §75.2, in pertinent part, provides "5. Notwithstanding any other provisions of this section, if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately; provided, however, that the employee shall be entitled to draw all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit...."

The Anonymous decision, including Authority's justification for rejecting the OATH ALJ's recommendation, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1865.pdf

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

NYC Office of Trials and Hearings, OATH Index No. 486/18

The Appointing Authority served disciplinary charges against an employee alleged the employee, a service aide:

1) made disrespectful comments to her supervisor;

2) announced that there was going to be a fight and instigated a verbal altercation with a co-worker;

3) used profanity while snatching a meal tray from a patient; and

4) took a meal tray from a patient before he had finished eating and rudely commented to the patient that he was inadvertently exposed.

After a three-day trial, OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that Appointing Authority had proven the charged misconduct.

Taking into consideration service aide's history of misconduct, the disruption that she caused in the workplace and her inappropriate treatment of patients, Judge McGreach-Kuls recommended that the aide be termination from her position.

The Appointing Authority adopted the ALJ's findings and recommendation and terminate the service aide from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-486.pdf