ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

March 04, 2019

Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service


Disqualifying an applicant for examination or for appoint to, or continued employment in, a position in the classified service
Sokol v New York City Civ. Serv. Commn., 2019 NY Slip Op 01314, Appellate Division, First Department

The New York City Civil Service Commission determined that Plaintiff, a candidate seeking appointment as a New York City police officer, was not qualified for the position. Supreme Court dismissed Plaintiff's CPLR Article 78 action challenging the Commission's decision and Plaintiff appealed.

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's Article 78 action. Citing Matter of Smith v City of New York , 228 AD2d 381,  the court explained that "Wide discretion is afforded to civil service commissions in determining the fitness of candidates," and "[t]he exercise of that discretion is to be sustained unless it has been clearly abused."

Noting that Plaintiff had not shown that the Commission's decision disqualifying Petitioner for appointment to the position of police officer was arbitrary and capricious or made in bad faith. Rather, said the Appellate Division, the Commission's determination was rationally based on a number of factors, including, but limited to, Plaintiff's making inaccurate relevant statements in application forms.

§50.4 of the Civil Service Law provides that the State Civil Service Department and appropriate municipal civil service commissions may refuse to examine an applicant, or after examination to certify an eligible for appointment for a number of reasons, including, but not limited to, having been found to lack any of the established requirements for admission to the examination or for appointment to the position or having been found to have intentionally made a false statement of any material fact in his or her application.

No person, however, may be disqualified pursuant to §50.4 unless he or she has been given a written statement of the reasons such disqualification and allowed to submit an explanation and to submit facts in opposition to such disqualification.*

In addition, §50.4 authorizes the review of the qualifications and background of an eligible after he or she has been placed on an eligible list or has been appointed to a position from an eligible list and further provides:

 1.  An individual may be disqualified for the position to which he or she has been appointed "upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification," or "upon a finding of illegality, irregularity or fraud of a substantial nature in his [or her] application, examination or appointment," and

 2. The Civil Service Department or the responsible municipal civil service commission may "revoke such eligible's certification and appointment and direct that his [or her] employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud."

* In Mingo v Pirnie, 55 NY2d 1019, the Court of Appeals noted that no §50.4 hearing is required where the individual is advised of the reasons for the proposed action and given an opportunity to submit a written explanation and exhibits contesting his or her disqualification or termination.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_01314.htm

March 02, 2019

San Francisco using algorithm to wipe out Marijuana convictions


San Francisco using algorithm to wipe out Marijuana convictions

Mr. Coble's article is posted on the Internet at:


Emoji evidence is more than a thing


Emoji evidence is more than a thing
William Vogeler, Esq.



March 01, 2019

An ambiguity in a provision in a collective bargaining agreement may sometimes be resolved by waiving the parol evidence rule


An ambiguity in a provision in a collective bargaining agreement may sometimes be resolved by waiving the parol evidence rule
Baff v Board of Educ. of The Fonda-Fultonville Cent. Sch. Dist., 2019 NY Slip Op 01476, Appellate Division, Third Department

Certain retired teachers [Plaintiffs], previously employed by Fonda-Fultonville Central School District, were  members of Fonda-Fultonville Teachers' Association. Between 1976 and 2013 the District and the Association, here collectively the "Defendants", had entered into various collective bargaining agreements [CBAs] that set forth terms and conditions of employment including, among other things, retiree health insurance coverage and benefits. 

The relevant provisions in the several CBAs provided that Plaintiffs' health insurance benefits would be continue in retirement "on the same basis as they have in the past." In 2013, however, Defendants changed Plaintiffs' health insurance coverage and benefits, resulting in, among things, increased costs and expenses and changes in coverages. Plaintiffs commenced a combined CPLR Article 78 proceeding and declaratory judgment action seeking, among other things, a court order declaring that they were entitled to a continuation of the same health insurance benefits that they had been receiving at the time they retired.

Supreme Court dismissed a number of Plaintiffs' causes of action and only the declaratory judgment and breach of contract causes of action survived. Plaintiffs and Defendants, respectively, moved for summary judgment on these causes of action. Supreme Court denied both Plaintiffs' motion and Defendants' cross motion for summary judgment and they, respectively, appealed and cross-appealed* the court's rulings.

As framed by the Appellate Division, the dispute here centered on the phrase, "on the same basis as they have in the past." Opining that the phrase was "susceptible of different constructions and capable of being understood in more than one sense," and thus it could be viewed as ambiguous, the Appellate Division concluded that it was "a threshold question to be resolved by the court."  Accordingly, said the court, "Supreme Court correctly resorted to parol evidence**to resolve the phrase's ambiguity."

Plaintiffs had submitted affidavits attesting "it was understood" that the Defendants would continue to provide the same health insurance benefits that employees had been receiving when they retired until their deaths. Plaintiffs involved in the collective bargaining process also represented that in the course of negotiations [1] "it was understood that the health insurance benefits for retirees would not be limited in any way" and [2] such benefits would "continue for the retirees' respective lifetimes." Further, one of these Plaintiffs stated that "when there was a switch in health providers, such change applied only to current teachers and not to retirees."

On the other hand, a former school superintendent who was involved in the negotiations of the CBAs and a business administrator for the district each submitted affidavits indicating that that [1] the phrase in dispute meant that "the percentage that each plaintiff contributed during his or her last year of teaching would be the same throughout retirement" and [2] that the district was not precluded from changing health plans. The business administrator also stated that there was a prior change resulting in an increased deductible for Plaintiffs and that Plaintiffs had not then objected to that change.

In consideration of these different contentions, the Appellate Division concluded that the record discloses a triable issue of fact as to the parties' intentions regarding Plaintiffs' health insurance coverage during retirement and that Supreme Court's denial of Plaintiffs' motion for summary judgment was proper.

* The Appellate Division noted that although Defendants indicated it was withdrawing its cross motion, the necessary steps had not been taken to formally do so.

** The rule against the use of parol evidence typically prevents the introduction of evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or differ from the contractual terms of a written contract. The Appellate Division held that Supreme Court was correct in not applying the rule in this instance.

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.