The New York Department of Civil Service has posted a General Information Bulletin No. 19-05 concerning identifying certain positions in the non-competitive class with the Greek letter "phi" [Φ].

GENERAL INFORMATION BULLETIN No. 19-05

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers

FROM: Allen Jordan, Manager (Commission Operations)

SUBJECT: Phi tag Designation Criteria

DATE: May 30, 2019

Please be advised that pursuant to Civil Service Law section 42(2-a), the Civil Service Commission is the entity empowered to designate, among positions in the non-competitive class, those positions which are confidential or require the performance of functions that formulate or influence policy in an agency. Positions so designated are recorded in Appendix 2 of the Rules for the Classified Service (the non-competitive class) with the Greek letter "phi."

When seeking approval for non-competitive classification of a position, agencies must provide a detailed explanation of the position, duties and responsibilities for which Commission determination will be sought. The explanation should include a description of why a phi designation is requested.

Alternatively, the Commission may choose to apply a phi designation to a given position, even if the phi designation has not been requested by an agency.

To provide clarity, the phi designation criteria for the Commission's consideration includes the following:

Non-competitive positions where the duties include acting in a confidential capacity to an appointing authority or having a close relationship with an appointing authority may be designated as confidential positions. Merely dealing with sensitive and/or confidential information will not necessarily justify a phi designation.

Non-competitive positions where the duties include formulating or influencing policy may be phi-designated.

Incumbents of phi-designated positions cannot acquire tenure protection in such positions unless they are honorably discharged wartime veterans or exempt volunteer firefighters*, as noted in Civil Service Law section 75(1)(b).

* Exempt volunteer firefighters should not be confused with positions in the exempt jurisdictional class.

Termination of employment ruled "disproportionate to the offense" under the circumstances and remanded to the appointing authority for the imposition of a lesser penalty

In this appeal to the Appellate Division was asked to review a determination by a appointing authority, [Respondent], that resulted in the termination of a school bus driver,   [Plaintiff] after Respondent found Plaintiff guilty of Civil Service Law §75 disciplinary charges alleging that Plaintiff had slapped a special needs student, [SNS], in the course of her attempts to calm him.

The Appellate Division's decision reports that on the day of the incident, the SNS, in addition to other acts, commenced to yell and scream when he was given a book instead of the toy truck that he was accustomed to receiving upon boarding the bus. It was undisputed that SNS ultimately became very aggressive and started to swing his arms at a social worker and punched Plaintiff in her stomach. Petitioner's reaction to the punch was to slap the student on the face with her open hand.*

The Appellate Division commented that Respondent's determination finding Plaintiff guilty of three disciplinary charges was supported by substantial evidence. The court, however, citing the so-called Pell Doctrine,** then concluded that, in light of Respondent's otherwise unblemished disciplinary record during her 20 years of service as a school bus driver, including five years driving special needs students, termination, "absent any other previous progressive disciplinary steps, is so disproportionate to the offense committed as to shock one's sense of fairness."

The court explained that in this instance Plaintiff was confronted by a student who, due to his special needs, lost control of his behavior and was significantly disrupting the other students on the bus, some of whom were also struggling to behave. Further said the court, Plaintiff's "conduct was not premeditated and, under these circumstances, appears to be the result of a momentary lapse of judgment."

In addition, the decision indicates that "there is nothing in [Plaintiff's]  employment history to suggest that she will ever engage in similar conduct again" and that the record reflects the fact that "although [Plantiff] had to 'separate or corral' students on occasion, she had never previously made physical contact with a student and was never reprimanded for her actions."

In this 3 to 2 decision, the majority of the Appellate Division panel opined that "[a]lthough termination in these circumstances shocks our sense of fairness, we do not condone [Plaintiff's] behavior, and only conclude that some form of discipline short of termination would be appropriate."

The court then remanded the matter to the Respondent "for the imposition of an appropriate penalty less severe than termination."

* As a result of the incident, Plaintiff had been subjected to criminal charges, which were ultimately dismissed "in furtherance of justice."

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05439.htm

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Lawmakers increased wages and benefits for teachers, first responders and other public employees in some 20 states

Governing - Featured Story - July 22, 2019

Posted on the Internet at:

https://www.governing.com/topics/mgmt/gov-2019-legislatures-salary-benefit-increases.html?utm_term=To%20Keep%20Public%20Workers%2C%20States%20Offer%20New%20Salaries%20and%20Benefits&utm_campaign=To%20Keep%20Public%20Workers%2C%20States%20Offer%20New%20Salaries%20and%20Benefits&utm_content=email&utm_source=Act-On+Software&utm_medium=email

Appointing authority rejects hearing officer's recommendation to continue disability benefits being provided police officer pursuant to General Municipal Law §207-c

The petitioner [Police Officer] in this CPLR Article 78 action suffered a job-related injury and was granted benefits pursuant to General Municipal Law §207-c* by the appointing authority Subsequently Police Officer  returned to work on a light-duty assignment and later was examined by a physician on behalf of the appointing authority. The physician reported that Police Officer was capable of returning to work on full duty as a police officer without restrictions.

The appointing authority terminated the Police Officer's §207-c benefits and directed that "he return to full duty, without restrictions." In accordance with the relevant provisions set out in a collective bargaining agreement [CBA], the Police Office requested a hearing and ultimately the designated hearing officer recommended that Police Officer continue to be provided with GML §207-c benefits. Notwithstanding the hearing officer's recommendation, the appointing authority issued a final determination denying the Police Officer's application for §207-c benefits finding that "based on the entire record" Police Officer was capable of performing his full duties as a police officer. Upon being notified that his light-duty assignment was terminated and being directed to return to work full time, without restrictions, Police Officer commenced this CPLR Article 78 proceeding, which Supreme Court transferred to the Appellate Division for its consideration.

The Appellate Division, citing Matter of Campo v City of Mount Vernon, 156 AD3d 694, explained that "[j]udicial 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." Here, said the court, the hearing procedures were negotiated by the appointing authority and the Police Officer's union and memorialized in a CBA. The CBA provided that hearing officer was to issue findings of fact and make a recommendation on the questions certified to him. The appointing authority, however, retained full power and authority to render the final determination on the questions.

Noting that the hearing officer's findings are entitled to considerable weight, the Appellate Division explained that such findings "are not conclusive and may be overruled by the administrative authority, provided that the final determination is supported by substantial evidence."

Here, said the court, there was conflicting medical evidence and "it was for the administrative agency to choose between the conflicting opinions, and the courts are not free to reject the choice made by the administrative agency where room for choice exists." In words of the Appellate Division, [t]he testimony and opinion of the physician who examined the [Police Officer] on behalf of the [appointing authority] was rational and fact-based and, since a reasonable mind could accept that testimony and opinion, the determination of the [appointing authority] is supported by substantial evidence."  

The Appellate Division confirmed the appointing authority's determination terminating Police Officer's  light-duty assignment and directing him to return to work full time and dismissed the Police Officer's petition "on the merits, with costs."

* GML 207-c provides for the payment  of the salary, wages, medical and hospital expenses of   law enforcement personnel suffering injuries or illness incurred in the performance  of their law enforcement  duties. GML 207-a provides similar benefits to firefighting personnel suffering injuries of illness incurred in the performance of their firefighting duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05670.htm

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Workers' Compensation Board rejected a claimant's application for review of a Workers' Compensation Law Judge's decision because it was not filled out completely

The Workers' Compensation Board ruled that a Claimant failed to comply with the requirements of 12 NYCRR 300.13 (b) and denied review of a decision by the Workers' Compensation Law Judge. The Board found that the application for Board review was defective because it was not filled out completely and, as a result, denied Claimant's application.

Claimant appealed, contending that the Board abused its discretion in denying her application for Board review based upon her failure to comply with the rules governing the content of such applications that require the application to be filled out completely. The Appellate Division disagreed and sustained the Board's determination.

The court noting that "the Board 'may adopt reasonable rules consistent with and supplemental to the provisions of [the Workers' Compensation Law],' and the Chair of the Board 'may make reasonable regulations consistent with the provisions of [the Workers' Compensation Law],''' explained that where, as here, the Board's regulations provide that "an application to the Board for administrative review of a decision by a [WCLJ] shall be in the format as prescribed by the Chair [of the Board]" and "must be filled out completely."

Here Claimant was represented by counsel and filed her Form RB-89 application for Board review. Although question number 13 on that application requested that claimant provide the "[h]earing dates, [t]ranscripts, [d]ocuments, [e]xhibits, and other evidence" that she would rely upon in her administrative appeal and advised to "see [the] instructions for details," it is not disputed that Claimant's application failed to provide the requested information by leaving the box for question number 13 blank.

As the Board explains in its guidance document on this issue, the "RB-89 [form] is the application for review itself, and [it] is not merely a coversheet." By requiring an applicant to completely fill out the application for Board review, "the 'completeness doctrine' assists the responding party in identifying the exact issues, grounds and evidence used in support of the application in determining the issues and crafting a timely and effective rebuttal. Having a complete application . . . also assists the Board in providing timely and effective review of the application . . . as it eliminates confusion over which evidence is involved in the application and which issues are preserved for appeal."

Completion of an application for Board review, opined the Appellate Division, means that "each section or item of [the application or rebuttal] is completed in its entirety pursuant to the instructions for each form" and that a form is not filled out completely "when a party responds to sections or items on the form merely by referring to the attached legal brief or other documentation without further explanation." Accordingly, said the Appellate Division citing 12 NYCRR 300.13 [b] [4] [i], the Board may deny an application for review where the party seeking review, other than a claimant who is not represented by counsel, fails to fill out completely the application or otherwise fails to "comply with prescribed formatting, completion and service submission requirements" [Emphasis supplied].

The Appellate Division said that in its view, "the Board's format requirements for applications for Board review submitted by represented claimants are reasonable given the reasons identified by the Board and were promulgated pursuant to its statutory authority and "broad regulatory powers" and sustained the Board's decision that Claimant's application was defective because it was not filled out completely.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05365.htm

Workers' Compensation Law provides that a claimant who knowingly makes a false statement of a material fact will lose eligibility for benefits

Workers' Compensation Law [WCL] §114-a (1) provides that a claimant who "knowingly makes a false statement or representation as to a material fact ... shall be disqualified from receiving any compensation directly attributable to such false statement or representation."* Further, a determination by the Board as to whether a claimant violated WCL §114-a will not be disturbed if supported by substantial evidence. 

A firefighter [Claimant] sustained an established injury to his neck in the course of his employment as a firefighter, as well as a prior established injury to his back and was awarded Workers' Compensation Benefits.

After reviewing the testimony and surveillance video** of Claimant, a WCL Judge concluded that Claimant's activities did not rise to the level of a WCL §114-a violation. The Workers' Compensation Board, with one panel member dissenting,*** however, concluded otherwise, holding that Claimant had violated WCL §114-a, imposed a mandatory penalty and permanently disqualified him from receiving future wage replacement benefits. The full Board denied Claimant's application for full Board review based on Claimant's failure to comply with the governing regulation set out in 12 NYCRR 300.13. Claimant then appealed both Board decisions.

The Appellate Division said that "... feigning the extent of disability and pretending to be unable to perform most tasks and body movements for the purpose of influencing any determination regarding workers' compensation benefits constitute false representations of material facts within the meaning of Workers' Compensation Law §114-a (1)" and such misrepresentation "need to affect the dollar value of an award to be material."

As the Board found, the video depicts Claimant performing many tasks — with no sign of impairment or difficulty — that are inconsistent with or, in some cases, "in direct contrast to" his representations to medical providers and evaluators, and contradicted his purported severe functional limitations and limited performance during a functional capacity evaluation [FCE].

Concluding that the Board's finding that Claimant had made false representations regarding material facts is supported by substantial evidence, the Appellate Division declined to disturbed the Board's determination. In the words of the court, "the Board adequately explained its reason for disqualifying [Claimant] from receiving future benefits, based upon its finding as to the "nature and extent of the misrepresentation," which it found to be "egregious."

Finally, the Appellate Division, citing Matter of Losurdo v Asbestos Free, 1 NY3d at 267,  said considering Claimant's substantial, repeated misrepresentations of his functional abilities and condition, it was not persuaded by Claimant's argument that imposing the discretionary penalty of permanent disqualification for workers' compensation benefits was disproportionate to his misrepresentations.

* See Losurdo v Asbestos Free, 1 NY2d 258.

** A surveillance video of Claimant taken on three days in November 2016 reflects that "Claimant was observed getting in and out of his truck, driving and walking around stores and his property without any apparent difficulty, as well as carrying floor boards into and out of a store and repeatedly bending over at the waist to inspect merchandise or to remove items from low store shelves. Further Claimant was seen placing objects, including floor boards and boxes, on the floor, bending over and picking up a box from the floor, carrying a box with one hand, twice pulling down an overhead garage door with one hand, bending and reaching for objects and vigorously sweeping his garage."

*** The dissenting panel member agreed that Claimant had violated Workers' Compensation Law §114-a but would not have imposed the discretionary penalty of permanent disqualification. The Appellate Division noted that "[a]lthough full Board review would have been mandatory due to the dissent of one panel member, such review required a proper, timely application, including compliance with the completion requirements for RB-89.2 applications (see 12 NYCRR 300.13 [b] [4]). Moreover, direct judicial review of the Board panel's decision is also permitted (see Workers' Compensation Law §23) and, indeed, has herein provided review of all issues that could have been considered by the full Board." 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05361.htm

Increasing a retired employee's contributions for health insurance premiums

The City of White Plains [the City] adopted an ordinance in 2010 that terminated the City's paying 100 percent of the premiums for health insurance on behalf of its retired police officers, requiring the retired officer to pay the difference, if any, between 85 percent of the cost of the premium for participation in the New York State Empire Health Insurance Program and the full premium for the health insurance plan in which the retired officer was enrolled.

Retired police officers appointed prior to July 1, 1995 and who had retired prior to May 24, 2010 [Retirees], contending that the ordinance violated Contracts Clause of the United States Constitution, Article I, Section 10, and the Equal Protection Clause of the Fourteenth Amendment, brought an action in federal district court challenging the City's action.

  

The federal district court granting summary judgment in favor of the City and the other municipal defendants named in the action and the Retirees appealed. The United States Circuit Court of Appeals, Second Circuit, affirmed the district court's ruling.

Addressing the Retirees' "Contracts Clause" claim, the court said that the Retirees argue that the City’s 2010 Ordinance violates the Constitution's Contracts Clause because "their collective bargaining agreement [CBA] guaranteed that the City would pay the full cost of their health insurance premiums. However, said the Circuit Court, "this claim fails because [the Retirees] have forfeited any argument that the 2010 Ordinance constitutes an impairment, rather than a contractual breach." Further, said the court, the Retirees "also failed to contradict record evidence provided by the City that the 2010 Ordinance served a significant public purpose or that any contractual impairment of that guarantee was reasonable and necessary to effectuate that purpose."

Citing Buffalo Teachers, 464 F.3d at 369, the court noted that that it had held that “the legislative interest in addressing a fiscal emergency is a legitimate public interest”  and, at most, the Retirees "dispute that the City was in a “real fiscal emergency.”

As the District Court explained, "the City provided substantial unrebutted evidence that the 2010 Ordinance was passed to address a serious budget shortfall and impending credit downgrade caused by the global financial crisis that started in 2008 and, for the City, worsened considerably as of 2010 and the Circuit Court said it agreed "with the District Court that any alleged impairment caused by the 2010 Ordinance to address the City’s fiscal emergency was reasonable and necessary—a conclusion that the appellants in any event do not challenge on appeal.*  

Addressing the Retirees' Equal Protection Claim, the Circuit Court noted that the Retirees were all retired at the time the 2012–2018 collective bargaining agreement between the City and the representative of police officers then in service was executed and, agreeing with the district court, said that the Retirees were not similarly situated to active employees who could participate in collective bargaining, affirmed the dismissal of the Retirees’ equal protection claim.**  

* The decision notes that City "presented ample evidence that it passed the 2010 Ordinance only after pursuing a range of measures to increase revenue and cut expenses" and although New York law permitted the City to require the appellants to contribute up to 50 percent of the premium amount, the 2010 Ordinance required the Retirees to contribute substantially less.

** In McDonald PBA v City of Geneva, Ct. of Appeals, 92 N.Y.2d 326, the Court of Appeals ruled that in the absence of a Taylor Law contract providing otherwise, a municipality’s past practice does not demonstrate any right to compel the municipality to continue providing the same level of health benefits to its retirees as it has in the past.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a9a7d59f-59fc-4e77-a184-1fff3c5958dd/3/doc/18-1348_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a9a7d59f-59fc-4e77-a184-1fff3c5958dd/3/hilite/