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February 15, 2019

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"


Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"
Ficken v Suffolk Vocational Education Board, 238 A.D.2d 589

An employee of Suffolk County's Vocational Education and Extension Board [VEEB] was conducting a personal business activity while simultaneously being employed by VEEB. The problem was that the employee was alleged to have been conducting some of her personal business on VEEB property and on VEEB time.

Although warned several times not to conduct her personal business affairs while on VEEB property and that her failure to comply with directive could result in disciplinary action, the employee persisted in conducting some of her personal business while at work. This resulted in the employee being charged with, and found guilty of, misconduct characterized as theft of services. The penalty imposed: termination. 

The employee appealed the disciplinary action taken against her, claiming that there was no substantial evidence to support the appointing authority's determination. 

The Appellate Division disagreed and dismissed the appeal challenging the disciplinary action taken against her. The court explained that the employee's admission that she met with a client to conduct aspects of her business on VEEB property and on "VEEB time," coupled with the testimony of two co-workers that the employee typed documents related to her business activities while "at work," was "sufficient to provide substantial evidence to sustain the findings of misconduct."

As to the penalty imposed, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, said that under the circumstances, dismissal was not so disproportionate to the offense as to be "shocking to one's sense of fairness."

The decision is posted on the Internet at:
https://www.leagle.com/decision/1997827238ad2d5891242

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February 14, 2019

Improper performance of a judicial function by a legislative body


Improper performance of a judicial function by a legislative body
Porcari v Griffith, 2019 NY Slip Op 00918, Appellate Division, Second Department

In 2016, the individuals [Plaintiffs] initiating this action were appointed to certain local offices by the Mayor of the City of Mount Vernon. Later that same year the Mount Vernon City Council enacted an ordinance declaring that the offices occupied by the Plaintiffs were "vacant" because the Plaintiffs were not residents of the City within the meaning of §50-38* of City's Code.

The ordinance as enacted also required the City's Comptroller to "... immediately cease payment of salary and benefits to Plaintiffs."** The Comptroller ceased paying salary and benefits to Plaintiffs notwithstanding the fact that Plaintiffs continued to perform the duties of their respective offices.

The Plaintiffs thereupon brought an action seeking a declaratory judgment and injunctive relief against the actions of the members of the City Council and the Comptroller, alleging that City Council "exceeded its legislative authority in enacting the ordinance that declared that the offices held by the plaintiffs were vacant." Plaintiffs asked Supreme Court to issue an order enjoining their suspension, termination, any interference with their salary and benefits or preventing them from performing the duties and responsibilities of the positions to which they had been appointed by the Mayor. Supreme Court granted Plaintiffs' motions and Mt. Vernon appealed the court's ruling.

The Appellate Division, noting that the "party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor," explained that "the decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" and "[i]n the absence of unusual or compelling circumstances, [the] court[s] [are] reluctant to disturb said determination."

The Appellate Division then opined that Plaintiffs had demonstrated a likelihood of success on the merits on their claim that the City Council "improperly performed a judicial function" by enacting an ordinance  "declaring" that the local offices were vacant within the meaning of §50-38 of the City of Mount Vernon's Code.*** In addition, said the court, Plaintiffs also demonstrated "a danger of irreparable injury in the absence of an injunction, and that the equities balance in their favor."

Accordingly, the Appellate Division sustained the Supreme Court's determination granting Plaintiffs' motion for the preliminary injunction.

* Article III, [Residency Requirements] of Chapter 50 [Personnel Policies] set out in City of Mount Vernon's Code requires certain local officers and employees to be residents of the City of Mount Vernon [See https://ecode360.com/6600350].

** The Appellate Division's decision indicates the City Council overrode the Mayor's veto of the ordinance.

*** §36 of the Public Officer Law sets out the procedures for the removal of a town, village, improvement district or fire district officer other than a justice of the peace.  Typically, such officers may be removed from office for misconduct, maladministration, malfeasance or malversion in office by the filing of an application for such removal with the Appellate Division have jurisdiction.  

The decision is posted on the Internet at:

February 13, 2019

Proposed amendment to 2 NYCRR 315.5 will permit certain special duty assignments performed by sworn officers to qualify as public safety overtime in determining the individual's retirement allowance


Proposed amendment to 2 NYCRR 315.5 will permit certain special duty assignments performed by sworn officers to qualify as public safety overtime in determining the individual's retirement allowance
Source: New York State Register, February 13, 2019

The Department of Audit and Control has posted a notice of a proposed amendment of 2 NYCRR 315.5 to provide that certain special duty assignments qualify as public safety overtime and qualify as allowable service in determining the Retirement System member's retirement allowance.

The Retirement System explains that it has:

"[L]ong considered certain special duty assignments that consisted primarily of security work performed by public safety professionals at the request of a private entity on a voluntary basis, paid or reimbursed by the private entity, performed under the direction of the private entity, or primarily for the benefit of the private entity not to be creditable because such assignments did not constitute paid public service with a participating employer.

"Courts have upheld the Retirement System’s position that such work, often referred to as 'private entity overtime,' was not allowable service and was not within the realm of the employee’s duties for the participating employer. In recent years, however, the manner in which special duty assignments performed at the request of private entities are assigned, supervised, and compensated has changed.

"Today, special duty assignments are often mandatory and are directed and controlled by the public employer. Compensation to the employee is paid by the public employer, not the private entity.

"In recognition of the changing nature of special duty assignments, the Retirement System has determined that those special duty assignments that meet the criteria established by the Retirement System, qualify as “public safety overtime” and shall be considered allowable service."

The text of the proposed amendment is posted on the Internet at:


Reimbursement of retiree Medicare premiums found to be a form of deferred compensation may not be unilaterally discontinued by the employer


Reimbursement of  retiree Medicare premiums found to be a form of deferred compensation may not be unilaterally discontinued by the employer
Holloway v City of Albany, 2019 NY Slip Op 00940, Appellate Division, Third Department

In 2012 the Firefighters' Union [Union] filed a contract grievance and demanded arbitration when the City of Albany [Albany] said that it was ending its longstanding practice of reimbursing retired firefighters for their Medicare Part B premiums with respect to those who enrolled in the program on or after January 1, 2010.  The Union alleged that Albany's action violated §27.1 of the Collective Bargaining Agreement [CBA].* 

An arbitrator ruled that the Medicare Part B premium reimbursement was a component of "the existing health insurance plan" and that it could not be ended absent compliance with the provisions set out in §27.1 of the CBA. Subsequently the same arbitrator conducted an expedited proceedings to determine whether a health insurance plan without the reimbursement of Medicare Part B premiums provided coverage "substantially equivalent" to one with such reimbursements. The arbitrator decided that it did not and directed Albany to make whole "all individuals affected by [the reimbursement's] elimination." The arbitrator's awards were confirmed in an action taken pursuant to CPLR Article 75.

However, the Union determined that firefighters either enrolled in Medicare Part B after January 1, 2010 or will be doing so and, notwithstanding the 2012 arbitration award, had not been and would not be reimbursed by the City for their Medicare Part B premiums. Accordingly, in 2015 the Union initiated the instant action contending that Albany [1] had breached whichever CBA was in effect at each such firefighter's retirement and [2] was collaterally estopped** by the 2012 arbitration award from arguing to the contrary.

Supreme Court, however, determined that the Doctrine of Collateral Estoppel did not apply, found ambiguities in the language of §27.1 of the CBA and denied the Union's motion for summary judgment. The Union appealed. 

Acknowledging that §27.1 of the CBA, as written, is ambiguous, the Union argued that the proceedings culminating in the 2012 arbitration award resolved, with preclusive effect, that ambiguity in its favor. The Appellate Division agreed, explaining that arbitration awards are entitled to collateral estoppel effect and, citing Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, said such an award "will bar a party from relitigating a material issue or claim resolved in the arbitration proceeding after a full and fair opportunity to litigate."

Observing that it was undisputed that the arbitration proceeding afforded Albany  a "full and fair opportunity to litigate the issues therein," the Appellate Division said that the only question is whether the firefighters in this action, as the parties seeking to invoke collateral estoppel, satisfied their burden of showing the identity of the issues  "between those resolved in the arbitration awards and those in play here."

In the 2010 arbitration award, said the court, the arbitrator observed that Albany had reimbursed retired firefighters for their Medicare Part B premiums since the 1960's and did so for decades after it was no longer required, leading her to conclude that the reimbursement constituted part of the "existing health insurance plan" that could not be discontinued absent compliance with the provision set out in §27.1 of the CBA.

Albany had also contended that §27.1 had no applicability because retired firefighters were not "members of the bargaining unit" protected by that contract provision. The arbitrator also rejected this argument, holding that the reimbursement was a form of deferred compensation and was one of the health insurance benefits afforded to current employees.  In the words of the Appellate Division, although retirees are no longer part of the collective bargaining unit upon their retirement "the arbitrator determined that §27.1 applied because the reimbursement entitlement was earned by the retirees while they were working."

Noting that the 2010 and 2012 arbitration awards were never vacated and are binding and the firefighters  retired during the period that the reimbursement was provided to retirees under CBAs containing §27.1, the Appellate Division held that Albany "is obligated to reimburse retired firefighters for these payments under the CBA"

This, said the Appellate Division, Justice Mulvey dissenting, "is dispositive of the claims raised here" and thus the firefighters have met their burden of showing identity of issue, and their motion for summary judgment should have been granted by Supreme Court.

* §27.1 of the collective bargaining agreements at issue required the City to "present proposals to the [firefighters'] [u]nion for discussion and possible agreement" if it "wishe[d] to change the existing health insurance plan." In the absence of agreement, an arbitrator would be tasked with determining "whether the new . . . proposal grants substantially equivalent coverage to members of the bargaining unit" so as to be permissible.

** The Doctrine of Collateral Estoppel bars an issue that has already been litigated by the  parties from being later relitgated by those same parties..

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_00940.htm


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