Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ResearchGate has posted an item by NYPPL's science consultant Dr. Robert Michaels addressing scientifically supportable criteria for deciding whether schools should be open versus closed considering COVID-19 pandemic infection risks. The item can be viewed (and downloaded at no charge) at: https://www.researchgate.net/publication/347358002_Look_at_Risks_of_In-person_Schooling_Letter_to_the_Editor_Daily_Gazette_Newspaper_Schenectady_New_York_16_December_2020<br<
§2.c of the New York City Police Department's General Regulations Procedure 203-10, Public Contact – Prohibited Conduct, bars an individual subject to its provisions from knowingly associating with any person or organization "Reasonably believed to been engaged in, likely to engage in, or to have engaged in criminal activities."
The New York City Police Department [NYCPD] terminated a NYCPD employee [Petitioner] after a Hearing Officer found that the Petitioner was guilty of associating with an individual "who he should have reasonably believed was involved in criminal activity." Petitioner commenced a CPLR Article 78 action challenging his dismissal from the Department.
The Appellate Division sustained NYCPD's action, finding that the determination that Petitioner was guilty of association with an individual who he should have reasonably believed was involved in criminal activity and in failing to report corruption was supported by substantial evidence.
The court also rejected Petitioner's contention that the Hearing Officer incorrectly considered admissions made in the course of his Internal Affairs Bureau [IAB] interview beyond those that were included in exhibit introduced at the hearing as "unavailing," noting that the Hearing Officer specifically stated that he intended to consider all the portions of the IAB transcript "that amounted to admissions and the limited context necessary to understand" Petitioner's testimony.
The Appellate Division unanimously confirmed NYCPD's action and dismissed Petitioner's appeal, opining that "[t]he penalty of termination does not shock one's sense of fairness."
The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07483.htm
______________
A Reasonable Disciplinary Penalty Under the Circumstances - An publication focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html
The Medical Board [Board] of the New York City Employees' Retirement System [NYCERS] evaluated a New York City Department of Sanitation employee [Applicant] then serving as a Sanitation General Superintendent, Deputy Chief, who had applied for accidental disability retirement [ADR] benefits. After reviewing Applicant's medical records the Board determined that, although the Applicant was disabled due to his right knee injury, the incident that caused Applicant's injury was not an accident. The Board recommended that the Applicant be denied ADR benefits and, instead, be granted ordinary disability retirement [ODR] benefits.*
The Board of Trustees [Trustees] of the NYCERS adopted the findings and recommendation of the Board and disapproved Applicant's ADR application for the reasons advanced by the Board.
Applicant filed a CPLR Article 78 petition seeking judicial review of the Trustees' denial of his application for ADR. Supreme Court granted Applicant's petition to the extent of "annulling the determination and remitting the matter" to the NYCERS for further proceedings and NYCERS, the Trustees, the Board, and the City of New York appealed the Supreme Court's decision to the Appellate Division.
The Appellate Division sustained the Supreme Court's decision, explaining:
1. Retirement and Social Security Law §605-b[b][1] provides that a [New York City] Department of Sanitation worker who "is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident,** not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service ... shall be retired for accidental disability;"
2. Not every injury that occurs while a worker is performing his or her ordinary duties will support an award of ADR benefits; and
3. Applicant's account of the incident underlying his application was that he tripped and fell due to stepping on a loose and broken sidewalk outside the refuse-strewn lot he was photographing.
The Appellate Division concluding that Applicant's injury was not the result of a risk of his ordinary employment duties but rather the result of a sudden, fortuitous, and unexpected precipitating event, and noting "the unrefuted credible evidence regarding Applicant's ordinary employment duties," held that "the challenged determination was made without sound basis in regard to the facts, and thus, the [Trustee's] determination was arbitrary and capricious."
Accordingly, the court sustained the Supreme Court's determination granting Applicant's petition to the extent of, in effect, "annulling the determination and remitting the matter for further proceedings."
* ODR benefits are typically less generous than ADR benefits.
** Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, the Appellate Division noted that an accident is a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."
The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07197.htm.
The Town of Monroe moved to dismiss the petition, contending that:
[1] The dispute was nonarbitrable; and
[2] Teamsters failed to make a timely demand for arbitration.
Supreme Court denied the Town's motion and the Town appealed.
The Appellate Division sustained the Supreme Court's ruling, explaining a dispute between a public sector employer and an employee is arbitrable if it satisfies a two-prong test.
The first test - the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the matter survives the first test, the court must next determine whether the parties agreed to arbitrate the particular dispute "by examining [the] collective bargaining agreement" [CBA] between the parties.
Finding that there was no statutory, constitutional, or public policy prohibition against arbitrating this dispute regarding the termination of an employee in an "exempt class", the Appellate Division, sustaining the Supreme Court's determination, concluded that the parties CBA indicates that the relevant CBA "authorized the Teamster to file grievances, and ultimately demand arbitration, on behalf of bargaining unit employees, including the secretary to the Planning Board, irrespective of her [jurisdictional] class designation under the Civil Service Law."
Citing Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division opined that where, as here, the relevant arbitration provision of the CBA is broad, providing for arbitration of any grievance involving "a claimed violation, misinterpretation or inequitable application" of the CBA, a court "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA." Assuming that the court finds that the matter is arbitrable, the arbitrator will then make "a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."
Finding a reasonable relationship existed between the subject matter of the dispute and the general subject matter of the CBA, the Appellate Division declared that the issue of whether the Board's secretary was afforded tenure protections within "the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator."
Addressing the issue of whether the Teamsters' demand for arbitration was timely, the Appellate Division concluded that this was "a matter of procedural arbitrability to be resolved by the arbitrator," citing Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 NY2d 905.
Sustained the Supreme Court's determination denying the Town's motion to dismiss the petition, the Appellate Division dismissed its appeal.
* Positions in New York State's "Classified Service" [Civil Service Law §40] are placed in one of four jurisdictional classifications: the exempt class, [see Civil Service Law §41]; the noncompetitive class [see Civil Service Law §42]; the labor class [see Civil Service Law §43]; or the competitive class [see Civil Service Law §44]. Other jurisdictional classifications are the Unclassified Service [see Civil Service Law §35] and the State's Military Service [see Military Law §2].
The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06535.htm
Classification Standard issued by the New York State Department of Civil Service on December 14, 2020 in PDF format. Click on the title of the position to download the standards for that title.
Associate Attorney (Health Care Regulation)
Associate Director & Director Veterans Home Nursing 1 & 2
Child Support Specialist Series
Driver Improvement Examiner Series
Environmental Laboratory Consultant
Health Systems Specialist Series
Medical Assistance Specialist Series
Motor Vehicle Field Operations Specialist Series
Public Health Sanitarian Series