Retiring upon attaining the mandatory age of retirement bars claim for line of duty sick leave benefits

General Municipal Law §92-d provides for sick leave benefits to certain employees with qualifying World Trade Center conditions as defined by §2 of the Retirement and Social Security Law. 

A former fire chief [Chief] commenced this CPLR Article 78 proceeding against his former employer [City] in an effort to have the City's determination denying his application for line-of-duty sick leave pursuant to General Municipal Law §92-d annulled. Supreme Court granted the City's motion to dismiss the Chief's petition, agreeing with the City that the Chief's Article 78 action was moot. The Chief appealed.

The Appellate Division affirmed the Supreme Court's ruling, observing that after the Chief filed his Article 78 petition in this case he attained "the mandatory retirement age pursuant to Retirement and Social Security Law §370 (b) and retired with the maximum amount of accrued sick leave."

The court explained that it is "a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal," referencing Matter of Hearst Corp. v Clyne, 50 NY2d 707, at page 713.

Opining that "[u]nder the circumstances here, Supreme Court properly dismissed the petition as moot," the Appellate Division held that this proceeding is "not of the class that should be preserved as an exception to the mootness doctrine."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05665.htm

 

 

OATH launches citywide text-messaging reminder system for all civil summonses

On September 4, 2020, the New York City Office of Administrative Trials and Hearings [OATH] announced a citywide launch of a text-messaging reminder system to remind respondents about their Hearings Division hearing dates. Respondents can register by simply texting "OATH reminder" to 474747, and then responding to the prompt with their summons number. 

"Every person who receives a summons should know that OATH's goal is to make it as convenient as possible for them to respond to that summons and direct text messages that explain our hearing process, the consequences for not responding to summonses, and remind people of important deadlines is just one way OATH is doing that," said Commissioner and Chief Administrative Judge Joni Kletter. 

For more information, read OATH's press release.

Salaries of undercover police officers not subject to disclosure pursuant to the Freedom of Information Law

§89[3][a] of the New York State (Public Officers Law)*, The Freedom of Information Law [FOIL], provides that "[n]othing in [the statute] shall be construed to require any entity to prepare any record not possessed or maintained by such entity."

In this CPLR Article 78 action the Empire Center for Public Policy [Empire] challenged the denial of its FOIL request seeking the aggregate gross salary of all individuals not included in the NYC Open Data Citywide Payroll Database for fiscal year 2017.

The Supreme Court's decision indicating that the information sought by Empire would include the salaries of "undercover police officers, whether aggregated or individualized," denied Empire's petition request for individualized salary information as to such individuals and Empire appealed.

The Appellate Division unanimously modified, on the law, part of the Supreme Court's order, vacating that part of the order requiring the disclose aggregate salary information, and otherwise affirmed the Supreme Court's ruling, indicating that:

1. Such information is exempt from disclosure under FOIL's public safety exemption;

2. The respondent, the New York City Office of Payroll Administration, met its burden of making a particularized showing that publicly releasing this information would create "a possibility of endangerment" to the public's safety; and

3. The New York City Office of Payroll Administration is not obligated to compile "aggregate data" "from the documents or records in its possession"** (See Matter of Reubens v Murray, 194 AD2d 492).

The Appellate Division opined that in the analysis of Empire's request not only the instant FOIL request for information as to fiscal year 2017 is to be considered but also future requests which could be made for equivalent information as to other years. Citing Matter of Grabell v New York City Police Dept., 139 AD3d 477, the court said that such information would allow members of the public to estimate the increases or decreases in the overall number of undercover officers, which could "undermine their deterrent effect, hamper NYPD's counterterrorism operations, and increase the likelihood of another terrorist attack." The New York City Office of Payroll Administration's past disclosure of salary and other information as to certain public employees not employed by NYPD is not dispositive.

* Public Officers Law §89[3][a], with exceptions not raised in this action.

** See Matter of Reubens v Murray, 194 AD2d 492.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05449.htm

 

With few exceptions, an officer's or an employee's resignation from a position in the classified service must be in writing.

The petitioner [Plaintiff] in this CPLR Article 78 action was employed by the defendant [Town] in a position in the Labor Class of the Classified Service when he was elected to public office in another jurisdiction.

The Petitioner and the Town subsequently disputed whether Plaintiff had orally resigned his position with Town and ultimately the Town sent a letter to Plaintiff reporting that "it had accepted [Plaintiff's resignation]"* effective the December 31. Although Plaintiff sought to retain his position with the Town, the Town refused his request under color of Plaintiff's purported oral resignation.

Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing the Town to reinstate him to his position with back pay, and benefits, contending, among other things, that the Town's action terminating from his position was arbitrary and capricious and in violation of Civil Service Law §75-b.

Supreme Court dismissed Plaintiff claim with respect to the alleged violation of Civil Service Law §75-b, but otherwise granted Plaintiff's petition and directed the Town to reinstate Petitioner to his position with the Town with back pay and benefits. The Town appealed the Supreme Court's ruling.

The Appellate Division rejected the Town's appeal explaining that it was not inconsistent for Supreme Court to dismiss Plaintiff's claim with respect to the alleged violation of Civil Service Law §75-b and then grant him relief pursuant to CPLR Article 78, noting that notwithstanding the Town's argument to the contrary, Plaintiff's to elective office in another jurisdiction did not constitute an automatic resignation of his position as laborer with the Town. Citing People ex rel. Ryan v Green, 58 NY 304, the Appellate Division opined that "[P]hysical impossibility is not the incompatibility of the common law, which existing, one office is ipso factovacated by accepting another." Based upon the record before it, the Appellate Division opined that the two positions in question were not per se incompatible.

Addressing the Town's contention that Supreme Court's granting Plaintiff's petition was erroneous in view of Plaintiff's alleged oral resignation, the court said that the Town's argument was without merit inasmuch as the Town's  employee handbook requires that an employee's resignation be in writing.**

The Appellate Division also rejected the Town's  argument that Plaintiff was not entitled to back pay and benefits. Rather, said the court, CPLR Article 78 allows for damages incidental to "the primary relief sought by the [Plaintiff], i.e., reinstatement to employment and such damages may include full back pay and benefits retroactive to the date of termination."

* Although it is sometimes reported that "a resignation has been accepted," all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74) unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a controlling collective bargaining agreement. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district and such superintendent endorses thereon his approval and files the same with the district clerk [emphasis supplied]. See, also, §2110.3 of the Education Law.

** The Town  is located in Seneca County and the County's Civil Service Rule XX, provides, in pertinent part, as follows: 1. RESIGNATION IN WRITING: Except as otherwise provided herein, every resignation shall be in writing.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05312.htm

 

Overcoming the presumption in favor of collective bargaining terms and conditions of employment underlying the Taylor Law

Civil Service Law §71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position."

Under color of Civil Service Law §6[1], the Department of Civil Service promulgated implementing regulations for Civil Service Law §71, setting out procedures for notifying an employee of the right to a one-year leave of absence, notifying an employee of an impending termination following the expiration of that one-year period, the employee's right to a hearing and the procedures to be followed in the event an employee so terminated seeks to return to duty after recovering from the disability.* 

The Long Beach Professional Firefighters Association, IAFF, Local 287 [LBPFA] advised the City of Long Beach [City] that it wished to negotiate the procedure for separating members of LBPFA placed on leave pursuant to §71. City declined to negotiate such a procedure and LBPFA filed an improper practice charge against the City with New York State Public Employment Relations Board [PERB]alleging that the City violated Civil Service Law §209-a(1)(d) by refusing to negotiate the matter with the LBPFA.

An administrative law judge [ALJ] determined that the City had violated Civil Service Law §209-a(1)(d) and PERB affirmed the ALJ's determination. The City then commenced a CPLR Article 78 proceeding challenging PERB's determination. PERB moved to dismiss the petition and the Supreme Court granted its motion. The City appealed the Supreme Court's decision.

The Appellate Division, citing Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 19 NY3d 876, observed that "It is well settled that '[t]he Taylor Law requires collective bargaining over all terms and conditions of employment'" and that the Court of Appeals has "'made clear that the presumption ... that all terms and conditions of employment are subject to mandatory bargaining cannot easily be overcome.'"

That said, the court noted that City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73 teaches that "The presumption in favor of bargaining may be overcome only in special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear, or where a specific statutory directive leaves no room for negotiation."** 

Finding that the demand to negotiate the issue raised by LBPFA fell within the ambit of Watertown, the Appellate Division opined that it need not defer to PERB's interpretation of Civil Service Law §71 because "[that] question is one of pure statutory construction dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence of PERB."

Addressing the issue de novo, the Appellate Division declared that "the presumption in favor of collective bargaining [had been] overcome." The court then reversed PERB's order and judgment holding PERB's decision null and void, granted the City petition, and dismissed the improper practice charge filed by the LBPFA against the City "with prejudice". 

* See 4 NYCRR 5.9. 

** The Appellate Division's decision also notes that [1] "a subject that would result in [the public employer's] surrender of nondelegable statutory responsibilities cannot be negotiated," citing Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; and [2] "some subjects are excluded from collective bargaining as a matter of policy, even where no statute explicitly says so," citing Matter of City of New York v Patrolmen's Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46. See, also, https://publicpersonnellaw.blogspot.com/2010/10/prohibited-subjects-of-arbitration.html

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05504.htm