Section 207-c administrative hearings
Doolittle v Broome County, 276 AD2d 863
The Doolittle case involves a relatively unique issue: a hearing officer conducting a Section 207-c hearing* deciding the duration of a workplace stress situation that the employee claimed was the cause of her work-connected disability.
Rita Doolittle, a Broome County correction officer, claimed that she had suffered a disability as a result of work-related stress. She applied for workers’ compensation benefits. One of the issues addressed by the Appellate Division, Third Department, in this round of litigation concerned the determination of the period for which Doolittle was eligible for disability benefits.
According to the decision, the Section 207-c hearing officer had determined that Doolittle was entitled to Section 207-c benefits only for a limited period of time - about eight months in all.
The hearing officer had concluded that any psychological injury suffered by [Doolittle] as a result of workplace stress was limited in time from March 1989 to November 1989 in view of the Doolittle’s expert witness’ testimony that she had subsequently suffered an adjustment disorder arising from the stress of the lawsuit and [the County’s] ... internal investigation ... for approximately six months. Doolittle appealed the hearing officer’s determination.
A comprehensive review of the history of this litigation is set out in an earlier appeal, Matter of Doolittle, 220 AD2d 864. Briefly, in 1988 Doolittle and two female co-workers filed complaints alleging gender discrimination and sexual harassment in the workplace. Broome County commenced an internal investigation of the allegations. In March 1989 Doolittle had a nervous breakdown while on the job and claimed that she was unable to return to work due to this workplace injury.
Doolittle filed an application for workers’ compensation benefits. Broome’s policy was to consider an application for workers’ compensation benefits as a claim or request for both workers’ compensation benefits and for disability benefits under Section 207-c of the General Municipal Law. It, however, controverted [opposed] both applications for benefits on the grounds that Doolittle had not suffered any injury on the job.
Doolittle was terminated due to her absence from work for a period of more than one year, presumably pursuant to Section 73 of the Civil Service Law since the County had controverted her claims.**
Following Broome County’s risk manager rejecting Doolittle’s application for Section 207-c benefits, a Section 207-c hearing was scheduled in accordance with the County’s Local Law 15.
In the course of her federal action, Doolittle claimed that she had experienced another nervous breakdown while she was testifying. A mistrial was declared after the court concluded that she was unwilling or unable to continue. Eventually the federal action was dismissed for failure to prosecute.
Doolittle also alleged that she was unable to testify at the Section 207-c hearing and asked the hearing officer to consider her deposition testimony instead. She also refused to comply with the Hearing Officer’s directive that she submit to an examination by Broome County’s forensic psychiatrist as to her ability to participate effectively in the hearing.
Ultimately the hearing officer determined that Doolittle had sustained a compensable injury on March 8, 1989 and that she was disabled as a result of that injury from that date through November 30, 1989. Accordingly, ruled the hearing officer, Doolittle was entitled to benefits from the County for that discrete time-period only.
After holding that Doolittle’s appeal from the hearing officer’s Section 209-c determination was time-barred, having been filed more than four months after the hearing officer had issued the decision, the Appellate Division elected to note that “if this matter was properly before us, we would find the determination that [Doolittle] was entitled to benefits for a discrete period of eight months to be supported by sufficient evidence in the record.” The court’s rationale:
In view of the nine years between petitioner’s last day on the job in March 1989 and the commencement of the hearing in 1998, it was reasonable for the Hearing Officer to determine the duration of any mental illness or condition that could be deemed attributable to the working conditions in the County Jail in 1989.
In addition, the court also observed that the Hearing Officer could decline to consider otherwise relevant evidence offered by Doolittle because of her refusal to undergo an examination or to provide requested documents.
Significantly, the Appellate Division said that it was not irrational for the Hearing Officer to draw a strong inference against Doolittle as the result of her failure to call her psychologist to provide psychological justification for her failure to participate in the hearing, especially in view of her refusal to cooperate with efforts to inquire into her claim that she was medically unfit to testify.
Unlike a criminal action where the accused had a constitutional right not to testify or be called as a witness, in an administrative action such as a disciplinary hearing or a Section 207-c hearing, the hearing officer may consider the fact that the individual did not testify on his or her own behalf and, moreover, may conclude that such testimony, which would be under oath, would not be helpful to his or her case.
Further, said the court, Doolittle was not prejudiced by the Hearing Officer’s reference to workers’ compensation case law because the Workers’ Compensation Law features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated under Section 207-c, citing Balcerak v County of Nassau, 94 NY2d 253.
* For information about PELP’s handbook on General Municipal Law§§ 207-a and 207-c go to: http://section207.blogspot.com/
** An employee who suffers a non-permanent work-related injury or disease is to be placed on leave without pay pursuant to Section 71 of the Civil Service Law while an individual unable to work as a result of a non-occupational injury or disease is entitled to leave without pay pursuant to Section 72 of the Civil Service Law. An employee on Section 72 leave may be terminated pursuant to Section 73 of the Civil Service Law after being absent for twelve consecutive months or longer. A person absent on Section 71 leave may be terminated after being absent for a cumulative period of one year.
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.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
December 16, 2010
Union animus
Union animus
CSEA Local 860 v PERB, 276 AD2d 967, Motion for leave to appeal denied, 96 NY2d 704
Michael Holcomb, a probationary employee, was terminated from his employment as a maintenance laborer with the Westchester County Department of Environmental Facilities [DEF]. Local 860 filed charges with PERB alleged that Holcomb’s discharge violated Civil Service Law Section 209-a(1)(a) and Section 209-a(1)(c).
PERB’s Administrative Law Judge [ALJ] determined that the Holcomb’s probationary evaluation and discharge recommendation by his supervisor were tainted by union animus and therefore an improper employer practice. The ALJ noted that in the comment section of the evaluation form, Holcomb supervisor wrote that Holcomb tries to get involved with every bodies [sic] union business even if they don’t want him involved.
Because of deficiencies in the proof, however, the ALJ was unable to conclude whether Holcomb’s employment would have been continued absent union animus. DEF was directed to reinstate Holcomb with back pay and benefits and to perform a de novo evaluation of Holcomb’s job performance after a probationary period, without consideration of his union activities.
PERB affirmed the ALJ’s finding of an improper employer practice but modified the remedy. It directed that Holcomb be reinstated to his former job title in another county agency in which he was to serve a second probationary period and be evaluated as to his performance in his new position. PERB also ruled that its ALJ’s unconditional order of back pay and benefits was inappropriate and decided that Holcomb would be entitled to reimbursement for lost pay and benefits only if the de novo evaluation resulted in a recommendation that his employment be continued.
The general rule in cases alleging improper motivation based on union animus is that the employee must demonstrate a prima facie case of such motivation. Once this is done, the burden of persuasion shifts to the employer to establish that its actions were motivated by legitimate business reasons.
The Appellate Division said that if an employer’s action was motivated by anti-union animus, it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed, citing Civil Service Employees Association, Local 1000 v New York State Public Employee Relations Board, 267 AD2d 935, 937. Where, said the court, it has been established that an improper practice led to the termination of the employee, PERB has directed “make whole relief,” including reinstatement with an unconditional award of back pay and benefits.
Finding that PERB concurred with the determination of its ALJ that Holcomb’s termination was unlawful, the Appellate Division concluded that “it is evident that PERB found that [Holcomb] had met [his] burden of establishing prima facie evidence of improper motivation.”
Accordingly, the burden then shifted to DEF to show that its actions were founded on legitimate business concerns. DEF had to present evidence that Holcomb’s poor job performance justified his discharge.
As the ALJ held that the performance evaluation that precipitated the discharge was tainted by union animus, which rendered it impossible to determine whether Holcomb’s employment would have been continued absent the evaluation, DEF clearly failed to meet its burden.
The bottom line: Since DEF did not establish that Holcomb would have been discharged for reasons unrelated to union animus, it was unreasonable for PERB to have provided a remedy that penalized the employee for the employer’s failure of proof and thus Holcomb was entitled to an unconditional award of back pay and benefits.
CSEA Local 860 v PERB, 276 AD2d 967, Motion for leave to appeal denied, 96 NY2d 704
Michael Holcomb, a probationary employee, was terminated from his employment as a maintenance laborer with the Westchester County Department of Environmental Facilities [DEF]. Local 860 filed charges with PERB alleged that Holcomb’s discharge violated Civil Service Law Section 209-a(1)(a) and Section 209-a(1)(c).
PERB’s Administrative Law Judge [ALJ] determined that the Holcomb’s probationary evaluation and discharge recommendation by his supervisor were tainted by union animus and therefore an improper employer practice. The ALJ noted that in the comment section of the evaluation form, Holcomb supervisor wrote that Holcomb tries to get involved with every bodies [sic] union business even if they don’t want him involved.
Because of deficiencies in the proof, however, the ALJ was unable to conclude whether Holcomb’s employment would have been continued absent union animus. DEF was directed to reinstate Holcomb with back pay and benefits and to perform a de novo evaluation of Holcomb’s job performance after a probationary period, without consideration of his union activities.
PERB affirmed the ALJ’s finding of an improper employer practice but modified the remedy. It directed that Holcomb be reinstated to his former job title in another county agency in which he was to serve a second probationary period and be evaluated as to his performance in his new position. PERB also ruled that its ALJ’s unconditional order of back pay and benefits was inappropriate and decided that Holcomb would be entitled to reimbursement for lost pay and benefits only if the de novo evaluation resulted in a recommendation that his employment be continued.
The general rule in cases alleging improper motivation based on union animus is that the employee must demonstrate a prima facie case of such motivation. Once this is done, the burden of persuasion shifts to the employer to establish that its actions were motivated by legitimate business reasons.
The Appellate Division said that if an employer’s action was motivated by anti-union animus, it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed, citing Civil Service Employees Association, Local 1000 v New York State Public Employee Relations Board, 267 AD2d 935, 937. Where, said the court, it has been established that an improper practice led to the termination of the employee, PERB has directed “make whole relief,” including reinstatement with an unconditional award of back pay and benefits.
Finding that PERB concurred with the determination of its ALJ that Holcomb’s termination was unlawful, the Appellate Division concluded that “it is evident that PERB found that [Holcomb] had met [his] burden of establishing prima facie evidence of improper motivation.”
Accordingly, the burden then shifted to DEF to show that its actions were founded on legitimate business concerns. DEF had to present evidence that Holcomb’s poor job performance justified his discharge.
As the ALJ held that the performance evaluation that precipitated the discharge was tainted by union animus, which rendered it impossible to determine whether Holcomb’s employment would have been continued absent the evaluation, DEF clearly failed to meet its burden.
The bottom line: Since DEF did not establish that Holcomb would have been discharged for reasons unrelated to union animus, it was unreasonable for PERB to have provided a remedy that penalized the employee for the employer’s failure of proof and thus Holcomb was entitled to an unconditional award of back pay and benefits.
December 15, 2010
Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect
Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect
Matter of Blake v Mills, 2010 NY Slip Op 09057, Decided on December 9, 2010, Appellate Division, Third Department
Shango Blake, a principal in the New York City School District, was charged with 14 counts of misconduct. An arbitration hearing was held pursuant to a collective bargaining agreement and Education Law §3020(3), following which the arbitrator found Blake guilty of misconduct and recommended that petitioner's employment be terminated.
After the Chancellor of the New York City Department of Education implemented the penalty recommended, Blake attempted to appeal the Chancellor's decision to State’s Commissioner of Education by serving copies of the appeal papers on a clerk in the Chancellor's office and on an administrator in the community school district superintendent's office.
The Commissioner rejected Blake’s appeal, noting that he had not complied with the service requirements for appeals to the Commissioner from decisions of the Chancellor.
The Appellate Division sustained the Commissioner’s dismissal of Blake’s appeal based on his finding of “improper service.” The court observed that “In disciplinary matters governed by Education Law §3020(3), appeals to the Commissioner must be instituted by "effecting personal service of a copy of the appeal . . . upon: (1) the chancellor, or a person designated to accept service on behalf of the chancellor; and (2) the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service."*
As Blake did not “effect personal service upon the Chancellor” nor upon the New York City Law Department, "the exclusive agent designated to accept service on behalf of the Chancellor," the Appellate Division held that Blake’ failed to comply with the applicable regulation, 8 NYCRR 281.6, and thus the Commissioner's dismissal of his administrative appeal for such defective service was neither arbitrary nor capricious nor was it an error of law.
* Blake did not show that the person served in the community school district superintendent's office was specifically designated to accept service on the superintendent's behalf, thus such service was defective.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09057.htm
Matter of Blake v Mills, 2010 NY Slip Op 09057, Decided on December 9, 2010, Appellate Division, Third Department
Shango Blake, a principal in the New York City School District, was charged with 14 counts of misconduct. An arbitration hearing was held pursuant to a collective bargaining agreement and Education Law §3020(3), following which the arbitrator found Blake guilty of misconduct and recommended that petitioner's employment be terminated.
After the Chancellor of the New York City Department of Education implemented the penalty recommended, Blake attempted to appeal the Chancellor's decision to State’s Commissioner of Education by serving copies of the appeal papers on a clerk in the Chancellor's office and on an administrator in the community school district superintendent's office.
The Commissioner rejected Blake’s appeal, noting that he had not complied with the service requirements for appeals to the Commissioner from decisions of the Chancellor.
The Appellate Division sustained the Commissioner’s dismissal of Blake’s appeal based on his finding of “improper service.” The court observed that “In disciplinary matters governed by Education Law §3020(3), appeals to the Commissioner must be instituted by "effecting personal service of a copy of the appeal . . . upon: (1) the chancellor, or a person designated to accept service on behalf of the chancellor; and (2) the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service."*
As Blake did not “effect personal service upon the Chancellor” nor upon the New York City Law Department, "the exclusive agent designated to accept service on behalf of the Chancellor," the Appellate Division held that Blake’ failed to comply with the applicable regulation, 8 NYCRR 281.6, and thus the Commissioner's dismissal of his administrative appeal for such defective service was neither arbitrary nor capricious nor was it an error of law.
* Blake did not show that the person served in the community school district superintendent's office was specifically designated to accept service on the superintendent's behalf, thus such service was defective.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09057.htm
Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result
Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result
Bonomonte v City of New York, 2010 NY Slip Op 09165, Decided on December 14, 2010, Appellate Division, First Department
Dominic Bonomonte, a New York City Sanitation employee was on sick leave due to surgeries to his arm. He slipped and fell outside his home on his way to a mandated doctor's appointment at the Sanitation Department's clinic, exacerbating of his injuries.
Bonomonte sued, contending that his fall was a foreseeable consequence of the Department’s negligence in ordering him to the clinic at a time when it should have been aware that he had been directed by his physician not to travel.
Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s determination.
The Appellate Division said that “Dismissal of the complaint was warranted, since there was no duty flowing from [the Department] to [Bonomonte],” citing Matter of New York City Asbestos Litig., 5 NY3d 486.
The court explained that “Contrary to Bonomonte’s] contention, a duty was not created by the fact that [Department’s] clinical supervisor had ordered [Bonomonte] to travel to the clinic or face possible termination or suspension of employment and medical benefits.”
Further, said the court, the evidence fails to establish “proximate cause,” as the directive that Bonomonte report to the clinic merely furnished the occasion for the accident.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09165.htm
Bonomonte v City of New York, 2010 NY Slip Op 09165, Decided on December 14, 2010, Appellate Division, First Department
Dominic Bonomonte, a New York City Sanitation employee was on sick leave due to surgeries to his arm. He slipped and fell outside his home on his way to a mandated doctor's appointment at the Sanitation Department's clinic, exacerbating of his injuries.
Bonomonte sued, contending that his fall was a foreseeable consequence of the Department’s negligence in ordering him to the clinic at a time when it should have been aware that he had been directed by his physician not to travel.
Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s determination.
The Appellate Division said that “Dismissal of the complaint was warranted, since there was no duty flowing from [the Department] to [Bonomonte],” citing Matter of New York City Asbestos Litig., 5 NY3d 486.
The court explained that “Contrary to Bonomonte’s] contention, a duty was not created by the fact that [Department’s] clinical supervisor had ordered [Bonomonte] to travel to the clinic or face possible termination or suspension of employment and medical benefits.”
Further, said the court, the evidence fails to establish “proximate cause,” as the directive that Bonomonte report to the clinic merely furnished the occasion for the accident.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09165.htm
Tenure by estoppel
Tenure by estoppel
Young v Cashin, 275 AD2d 747, Motion for leave to appeal denied, 96 NY2d 706
A New York City Assistant School Principal, Joseph Young, was terminated from his position.
Contending that he had attained tenure by estoppel, Young sued, seeking a court order reinstating him to his former position. If effect, Young argued that as a tenured employee he could not be summarily terminated from his position.
The City, on the other hand, claimed that it had terminated Young while he was still a probationary employee and thus he never had attained tenure as an assistant principal. Accordingly, said the city, he was not entitled to any pretermination hearing. A State Supreme Court judge agreed with the City’s argument and dismissed Young’s petition.
The Appellate Division affirmed the lower court’s ruling, pointing out that tenure by estoppel may be acquired when a school board accepts the continued services of a probationary teacher or an administrator, and fails to take the action required by law to grant or deny tenure before the expiration of the probationary term.
The fatal omission in Young’s case, it appears, was that he failed, or was unable, to show that the City had accepted his services as an assistant principal -- i.e., he was continued in the position of assistant principal -- after his probationary term expired.
Young v Cashin, 275 AD2d 747, Motion for leave to appeal denied, 96 NY2d 706
A New York City Assistant School Principal, Joseph Young, was terminated from his position.
Contending that he had attained tenure by estoppel, Young sued, seeking a court order reinstating him to his former position. If effect, Young argued that as a tenured employee he could not be summarily terminated from his position.
The City, on the other hand, claimed that it had terminated Young while he was still a probationary employee and thus he never had attained tenure as an assistant principal. Accordingly, said the city, he was not entitled to any pretermination hearing. A State Supreme Court judge agreed with the City’s argument and dismissed Young’s petition.
The Appellate Division affirmed the lower court’s ruling, pointing out that tenure by estoppel may be acquired when a school board accepts the continued services of a probationary teacher or an administrator, and fails to take the action required by law to grant or deny tenure before the expiration of the probationary term.
The fatal omission in Young’s case, it appears, was that he failed, or was unable, to show that the City had accepted his services as an assistant principal -- i.e., he was continued in the position of assistant principal -- after his probationary term expired.
Termination during a probationary period
Termination during a probationary period
Scott v Workers’ Compensation Board, 275 AD2d 877
The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation.
Michael Scott was permanently appointed as a compensation claims referee by the Workers’ Compensation Board. His appointment was subject to a probationary period ranging from 26 to 52 weeks. Prior to the completion of his probationary period, however, Scott was terminated for unsatisfactory job performance ratings in five out of seven applicable categories on his final probationary evaluation.
Scott challenged his dismissal, contending that his termination was arbitrary, capricious and motivated by bad faith. The Appellate Division sustained the dismissal of his petition, commenting that:
Absent proof that his discharge was for a constitutionally impermissible purpose, in violation of applicable law or made in bad faith, [Scott], a probationary employee, was subject to dismissal from his employment without explanation or a hearing.
Further, in the event there is a substantial question as to whether the discharge was due to reasons unrelated to work performance sufficient to justify a court considering such a petition, the individual bears the burden of proof and must present competent proof that the dismissal was motivated by an improper purpose or bad faith.
According to the ruling, Scott’s allegation of bad faith was defeated by the Board’s showing that it complied with its obligation to periodically advise Scott of his progress after observing his conduct and to ultimately provide him with a written probation evaluation at least two weeks prior to the completion of the probationary period, as well as written notice at least one week prior to the effective date of his discharge.
Further, the court ruled, more favorable progress reports that Scott received prior to the final unfavorable evaluation were not required to be furnished to him in writing and did not raise a sufficient factual issue as to the allegations of bad faith on the part of the Board.
On the merits of Scott’s allegations, the Appellate Division found that his termination was not motivated by bad faith on the basis of (1) his final probationary evaluation and (2) the affidavits submitted by the Board to the court indicating his inadequate understanding of the Workers’ Compensation Law, (3) his failure to respond to additional training to address this deficiency, (4) his improper conduct in requesting transportation from attorneys and (4) his posing inappropriate questions to a witness.
However, there may be other factors that could affect the rights of a probationary employee.
In Gordon v Town of Queensbury, 256 AD2d 784, the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.
The court rejected Michael Gordon’s claim that his termination by the Town of Queensbury before he completed his probationary period was made in bad faith because the Town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission.
The court said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining representative, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Warren County Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.
In contrast to probationary periods flowing from appointment to a position, an individual may be given a disciplinary probation in connection with the resolution of a disciplinary action initiated pursuant to a collective bargaining agreement.
While such a probationary period may be general in nature, i.e., the individual is treated as a new employee for the purposes of probation, sometimes there are specific elements of conduct set out in the disciplinary award as to the terms and conditions of the probationary period. Such terms and conditions are controlling, as is demonstrated by in the Taylor ruling by the Appellate Division.
Taylor v Cass, 505 N.Y.S.2d 929, is an example of the impact of such terms and conditions set out in a disciplinary probation award and the limitations placed on the discretion of the appointing authority to terminated an individual serving a disciplinary probation. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.
According to the ruling, under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was adversely affected by his intoxication on the job during the next six months.
Taylor, however, was subsequently terminated without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.
Taylor sued, challenging his dismissal. He won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.
Scott v Workers’ Compensation Board, 275 AD2d 877
The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation.
Michael Scott was permanently appointed as a compensation claims referee by the Workers’ Compensation Board. His appointment was subject to a probationary period ranging from 26 to 52 weeks. Prior to the completion of his probationary period, however, Scott was terminated for unsatisfactory job performance ratings in five out of seven applicable categories on his final probationary evaluation.
Scott challenged his dismissal, contending that his termination was arbitrary, capricious and motivated by bad faith. The Appellate Division sustained the dismissal of his petition, commenting that:
Absent proof that his discharge was for a constitutionally impermissible purpose, in violation of applicable law or made in bad faith, [Scott], a probationary employee, was subject to dismissal from his employment without explanation or a hearing.
Further, in the event there is a substantial question as to whether the discharge was due to reasons unrelated to work performance sufficient to justify a court considering such a petition, the individual bears the burden of proof and must present competent proof that the dismissal was motivated by an improper purpose or bad faith.
According to the ruling, Scott’s allegation of bad faith was defeated by the Board’s showing that it complied with its obligation to periodically advise Scott of his progress after observing his conduct and to ultimately provide him with a written probation evaluation at least two weeks prior to the completion of the probationary period, as well as written notice at least one week prior to the effective date of his discharge.
Further, the court ruled, more favorable progress reports that Scott received prior to the final unfavorable evaluation were not required to be furnished to him in writing and did not raise a sufficient factual issue as to the allegations of bad faith on the part of the Board.
On the merits of Scott’s allegations, the Appellate Division found that his termination was not motivated by bad faith on the basis of (1) his final probationary evaluation and (2) the affidavits submitted by the Board to the court indicating his inadequate understanding of the Workers’ Compensation Law, (3) his failure to respond to additional training to address this deficiency, (4) his improper conduct in requesting transportation from attorneys and (4) his posing inappropriate questions to a witness.
However, there may be other factors that could affect the rights of a probationary employee.
In Gordon v Town of Queensbury, 256 AD2d 784, the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.
The court rejected Michael Gordon’s claim that his termination by the Town of Queensbury before he completed his probationary period was made in bad faith because the Town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission.
The court said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining representative, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Warren County Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.
In contrast to probationary periods flowing from appointment to a position, an individual may be given a disciplinary probation in connection with the resolution of a disciplinary action initiated pursuant to a collective bargaining agreement.
While such a probationary period may be general in nature, i.e., the individual is treated as a new employee for the purposes of probation, sometimes there are specific elements of conduct set out in the disciplinary award as to the terms and conditions of the probationary period. Such terms and conditions are controlling, as is demonstrated by in the Taylor ruling by the Appellate Division.
Taylor v Cass, 505 N.Y.S.2d 929, is an example of the impact of such terms and conditions set out in a disciplinary probation award and the limitations placed on the discretion of the appointing authority to terminated an individual serving a disciplinary probation. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.
According to the ruling, under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was adversely affected by his intoxication on the job during the next six months.
Taylor, however, was subsequently terminated without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.
Taylor sued, challenging his dismissal. He won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.
Workers’ compensation leave
Workers’ compensation leave
Sanders v NYC Human Resources Administration, 275 AD2d 873
Lavern Sanders, a probationary employee, filed an application for workers’ compensation benefits. She also asked for a leave of absence, based upon a physician’s note directing her to cease working. Eventually her leave request was approved through September 1992.
On September 8, 1992, Human Resources sent Sanders a letter advising her that her leave of absence had expired on September 8, 1992 and that any absence subsequent to that date was unauthorized. Another letter advised her that the city had decided to controvert her workers’ compensation claim. In effect, the city said that it did not believe that Sanders had been injured while performing her duties.
According to the decision, Sanders never received these letters because they had been returned to the city as unclaimed “due to the failure to specify [Sanders’] complete address on the envelopes.” Finally, on December 2, 1992, Sanders found out that she had been terminated by the city.*
However, when Sanders learned that the city had controverted her claim for workers’ compensation benefits, she appealed to the Workers’ Compensation Board. Her complaint: she had been terminated as retaliation for her having filed a workers’ compensation claim. Terminating an individual because he or she had filed a workers’ compensation claim, she argued, violated Section 120 of the Workers’ Compensation Law.
As evidence of such retaliation, Sanders alleged that her employer began fabricating disciplinary charges against her immediately following her application for [workers’ compensation] benefits.
Ultimately the Workers’ Compensation Board decided that Sanders failed to sustain her burden of demonstrating a prima facie case of discrimination and dismissed her complaint. The Appellate Division affirmed the Board’s determination.
As to approving other leave for Sanders, the decision states that a union official’s testimony indicated that the city generally does not authorize leaves of absences for probationary employees and will terminate any such employee who is on unauthorized leave so that a replacement may be hired to fill the position. Presumably, the testimony concerning the city’s not authorizing leave in such cases refers to a leave without pay such as leave pursuant to Section 72 of the Civil Service Law.
While Section 71 leave must be approved for employees injured on the job in situations where the injury or disability does not permanently incapacitate the individual from performing the duties of the position, Section 72 authorizes the approval of leaves without pay in the event the individual’s disability is not work-connected.
* Presumably Sanders was not placed [or continued] on workers’ compensation leave as mandated by Section 71 of the Civil Service Law in view of the city’s controverting her claim that she had suffered a work-related injury.
Sanders v NYC Human Resources Administration, 275 AD2d 873
Lavern Sanders, a probationary employee, filed an application for workers’ compensation benefits. She also asked for a leave of absence, based upon a physician’s note directing her to cease working. Eventually her leave request was approved through September 1992.
On September 8, 1992, Human Resources sent Sanders a letter advising her that her leave of absence had expired on September 8, 1992 and that any absence subsequent to that date was unauthorized. Another letter advised her that the city had decided to controvert her workers’ compensation claim. In effect, the city said that it did not believe that Sanders had been injured while performing her duties.
According to the decision, Sanders never received these letters because they had been returned to the city as unclaimed “due to the failure to specify [Sanders’] complete address on the envelopes.” Finally, on December 2, 1992, Sanders found out that she had been terminated by the city.*
However, when Sanders learned that the city had controverted her claim for workers’ compensation benefits, she appealed to the Workers’ Compensation Board. Her complaint: she had been terminated as retaliation for her having filed a workers’ compensation claim. Terminating an individual because he or she had filed a workers’ compensation claim, she argued, violated Section 120 of the Workers’ Compensation Law.
As evidence of such retaliation, Sanders alleged that her employer began fabricating disciplinary charges against her immediately following her application for [workers’ compensation] benefits.
Ultimately the Workers’ Compensation Board decided that Sanders failed to sustain her burden of demonstrating a prima facie case of discrimination and dismissed her complaint. The Appellate Division affirmed the Board’s determination.
As to approving other leave for Sanders, the decision states that a union official’s testimony indicated that the city generally does not authorize leaves of absences for probationary employees and will terminate any such employee who is on unauthorized leave so that a replacement may be hired to fill the position. Presumably, the testimony concerning the city’s not authorizing leave in such cases refers to a leave without pay such as leave pursuant to Section 72 of the Civil Service Law.
While Section 71 leave must be approved for employees injured on the job in situations where the injury or disability does not permanently incapacitate the individual from performing the duties of the position, Section 72 authorizes the approval of leaves without pay in the event the individual’s disability is not work-connected.
* Presumably Sanders was not placed [or continued] on workers’ compensation leave as mandated by Section 71 of the Civil Service Law in view of the city’s controverting her claim that she had suffered a work-related injury.
December 14, 2010
Dismissal of charges in the course of a Section 75 disciplinary hearing
Dismissal of charges in the course of a Section 75 disciplinary hearing
Source: Reader's inquiry
From time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:
"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"
NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification.*
Although the appointing authority may elect to "withdraw" a charge or specification, we know of no such authority being vested in a Section 75 hearing officer unless the appointing authority, itself, is serving as the hearing officer or body and so acts.
The authority of a hearing officer is limited in the context of a Section 75 disciplinary action. The hearing officer may either sustain some or all of the charges and specifications served on the employee or find that there was no substantial evidence to prove all or some of the charges and specifications so served.
As to the actual act of dismissing charges, as a practical matter the hearing officer would simply make findings to the effect that the appointing authority has not sustained its burden of proof and recommend that the charges be withdraw or dismissed, with or without prejudice, at the discretion of the hearing officer or find the employee "not guilty" of the charge[s].
As the doctrine of "double jeopardy" does not apply in administrative disciplinary actions, unless the appointing authority elects to dismiss the disciplinary charges "with prejudice," it may subsequently file charges based on the same event[s] on the employee.
* In contrast, an arbitrator or arbitration panel may grant a motion to dismiss charges and specifications where the final determination is to be made by the arbitrator or an arbitration panel as is the case in a disciplinary proceeding held pursuant to Education Law Section 3020-a. Any challenge to such action would be via an appeal pursuant to CPLR Article 75 by the appointing authority to vacate the award, in whole or in part.
Source: Reader's inquiry
From time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:
"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"
NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification.*
Although the appointing authority may elect to "withdraw" a charge or specification, we know of no such authority being vested in a Section 75 hearing officer unless the appointing authority, itself, is serving as the hearing officer or body and so acts.
The authority of a hearing officer is limited in the context of a Section 75 disciplinary action. The hearing officer may either sustain some or all of the charges and specifications served on the employee or find that there was no substantial evidence to prove all or some of the charges and specifications so served.
As to the actual act of dismissing charges, as a practical matter the hearing officer would simply make findings to the effect that the appointing authority has not sustained its burden of proof and recommend that the charges be withdraw or dismissed, with or without prejudice, at the discretion of the hearing officer or find the employee "not guilty" of the charge[s].
As the doctrine of "double jeopardy" does not apply in administrative disciplinary actions, unless the appointing authority elects to dismiss the disciplinary charges "with prejudice," it may subsequently file charges based on the same event[s] on the employee.
* In contrast, an arbitrator or arbitration panel may grant a motion to dismiss charges and specifications where the final determination is to be made by the arbitrator or an arbitration panel as is the case in a disciplinary proceeding held pursuant to Education Law Section 3020-a. Any challenge to such action would be via an appeal pursuant to CPLR Article 75 by the appointing authority to vacate the award, in whole or in part.
Applying for disability retirement benefits
Applying for disability retirement benefits
Miata v McCall, 277 AD2d 590
Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995.
After conducting a hearing during which conflicting expert testimony was presented, McCall denied Miata’s application for benefits. Miata appealed, contending that the hearing officer’s decision was not supported by substantial evidence.
The Appellate Division, Third Department, dismissed the appeal. It viewed the testimony by Stuart Kandel, an orthopedic surgeon, that when he examined Miata he concluded that there were no objective abnormalities inasmuch as he noted no swelling, limping, instability nor restriction of motion in comparison to his right ankle to constitute the required substantial evidence.
While Kandel diagnosed Miata as having a sprained ankle and, in his opinion, not incapacitated from the performance of his duties, Miata’s expert testified to the contrary. Situations involving conflicting expert medical opinion present a credibility issue for McCall to resolve. The fact that the record could support a contrary conclusion did not require the court to vacate McCall’s determination.
Miata v McCall, 277 AD2d 590
Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995.
After conducting a hearing during which conflicting expert testimony was presented, McCall denied Miata’s application for benefits. Miata appealed, contending that the hearing officer’s decision was not supported by substantial evidence.
The Appellate Division, Third Department, dismissed the appeal. It viewed the testimony by Stuart Kandel, an orthopedic surgeon, that when he examined Miata he concluded that there were no objective abnormalities inasmuch as he noted no swelling, limping, instability nor restriction of motion in comparison to his right ankle to constitute the required substantial evidence.
While Kandel diagnosed Miata as having a sprained ankle and, in his opinion, not incapacitated from the performance of his duties, Miata’s expert testified to the contrary. Situations involving conflicting expert medical opinion present a credibility issue for McCall to resolve. The fact that the record could support a contrary conclusion did not require the court to vacate McCall’s determination.
Absence from an assigned post
Absence from an assigned post
Gamma v City of Newburgh, 277 AD2d 236
Absence from one’s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned.
Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command. As a result, Gamma was terminated.
In response to Gamma’s appeal, the Appellate Division decided that there was substantial evidence in the record to support the hearing officer’s findings. As to the penalty imposed, termination, the court said that [t]the penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.
The court said that a police force is a quasi-military organization demanding strict discipline and in matters involving police misconduct, great deference is to be accorded to determinations regarding the appropriate discipline of its members.
Gamma v City of Newburgh, 277 AD2d 236
Absence from one’s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned.
Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command. As a result, Gamma was terminated.
In response to Gamma’s appeal, the Appellate Division decided that there was substantial evidence in the record to support the hearing officer’s findings. As to the penalty imposed, termination, the court said that [t]the penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.
The court said that a police force is a quasi-military organization demanding strict discipline and in matters involving police misconduct, great deference is to be accorded to determinations regarding the appropriate discipline of its members.
December 13, 2010
Seeking class action relief in arbitrations
Seeking class action relief in arbitrations
Correction Officers Benevolent Association v City of New York, 276 AD2d 394
May an arbitrator grant relief to a class of employees if but a single individual filed the grievance?
This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties’ collective bargaining agreement between the Association and the City of New York providing for military leave with pay. The City filed a cross motion seeking to have the court rescind the award.
The Appellate Division confirmed the award, holding that the arbitrator did not exceed his authority in awarding class relief.
Why was this a class action? Because, said the court, the request for arbitration, jointly submitted by the parties, expressly framed the proceeding as a Class Action grievance due to the fact that numerous employees represented by the Association were subject to call for military duty and were therefore affected by the manner in which respondents applied the clause in the case of the individual who filed the grievance.
The opinion suggests that the City could have withdrawn the request for class relief, but never did so. Although the issue framed by the parties did not refer to the class aspect of the submission, the remedy sought was expressed in open-ended terms that did not limit the arbitrator’s power to grant any specific relief. As the arbitrator’s interpretation of the clause in dispute was not totally irrational, it was properly confirmed.
Correction Officers Benevolent Association v City of New York, 276 AD2d 394
May an arbitrator grant relief to a class of employees if but a single individual filed the grievance?
This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties’ collective bargaining agreement between the Association and the City of New York providing for military leave with pay. The City filed a cross motion seeking to have the court rescind the award.
The Appellate Division confirmed the award, holding that the arbitrator did not exceed his authority in awarding class relief.
Why was this a class action? Because, said the court, the request for arbitration, jointly submitted by the parties, expressly framed the proceeding as a Class Action grievance due to the fact that numerous employees represented by the Association were subject to call for military duty and were therefore affected by the manner in which respondents applied the clause in the case of the individual who filed the grievance.
The opinion suggests that the City could have withdrawn the request for class relief, but never did so. Although the issue framed by the parties did not refer to the class aspect of the submission, the remedy sought was expressed in open-ended terms that did not limit the arbitrator’s power to grant any specific relief. As the arbitrator’s interpretation of the clause in dispute was not totally irrational, it was properly confirmed.
CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served
CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served
Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department
Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”
Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,* recommended termination as the penalty to be imposed by the appointing authority.
Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.
Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”
The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.
First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.
However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.
The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”
Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.
Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***
Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.
* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if 1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and 2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”
** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”
*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm
.
Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department
Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”
Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,* recommended termination as the penalty to be imposed by the appointing authority.
Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.
Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”
The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.
First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.
However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.
The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”
Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.
Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***
Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.
* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if 1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and 2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”
** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”
*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm
.
Eligibility for unemployment insurance
Eligibility for unemployment insurance
Geracitano v Comm. of Labor, 277 AD2d 558
Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season.
Geracitano, however, also served as an elected councilperson and received a salary together with health benefits and the was eligible to participate in the New York State and Local Employees’ Retirement system.
Her application for unemployment benefits was disapproved after the Unemployment Insurance Appeals Board ruled that she was ineligible to receive such benefits because she was not totally unemployed during the time in question.
The Appellate Division sustained the Board’s decision, holding that substantial evidence supports the Board’s ruling.... The court pointed out that in the past it had ruled that a council person was not totally unemployed where the proof showed that he or she received an annual salary for his [or her] work as a council person, performed a variety of duties in that capacity and was subject to inquiries by his [or her] constituents, citing Matter of Silverstein, 236 AD2d 757.
Geracitano v Comm. of Labor, 277 AD2d 558
Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season.
Geracitano, however, also served as an elected councilperson and received a salary together with health benefits and the was eligible to participate in the New York State and Local Employees’ Retirement system.
Her application for unemployment benefits was disapproved after the Unemployment Insurance Appeals Board ruled that she was ineligible to receive such benefits because she was not totally unemployed during the time in question.
The Appellate Division sustained the Board’s decision, holding that substantial evidence supports the Board’s ruling.... The court pointed out that in the past it had ruled that a council person was not totally unemployed where the proof showed that he or she received an annual salary for his [or her] work as a council person, performed a variety of duties in that capacity and was subject to inquiries by his [or her] constituents, citing Matter of Silverstein, 236 AD2d 757.
Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged
Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged
Source: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010
An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device. Ultimately Cunningham was terminated from his position.
New York Civil Liberties Union attorneys, claiming the use of evidence obtained using a GPS device without a warrant or the knowledge of Cunningham constituted an unlawful search, have filed a lawsuit seeking Cunningham’s reinstatement to his former position with back pay and fringe benefits.
The courts have considered a number of cases involving the use of evidence obtained through the use of global positioning system equipment.
In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.
In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.
The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis.
[See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08].
However, the decision in the Weaver case, People v Weaver, 12 NY3d 433, may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.
The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.*
The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”
Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.
Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.
The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides:
The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.
The Court of Appeals ruled that:
1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.
2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.
The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.
The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “
Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”
The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.
This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.
In another disciplinary action, Joel I. Klein, then Chancellor of the New York City Department of Education, terminated John Halpin’s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and of having submitted falsified time cards claiming that he worked on those occasions.
When Halpin challenged the Chancellor’s action, the Appellate Division said that the determination was supported by substantial evidence in the record, including global positioning software records, Halpin’s time cards, and eyewitness testimony establishing that Halpin was guilty of the disciplinary charges filed against him [Halpin v Klein, 62 AD3d 403].**
Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that under the circumstances terminating Halpin did not constitute an “excessive penalty.”
Although in Halpin's case the GPS record was generated by his Department-issued cell phone, the installation of global positioning equipment in official vehicles is becoming common as well.
* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.
** The administrative disciplinary action underlying the Chancellor's decision was heard by OATH Administrative Law Judge Tynia Richard. Richards found Halpin guilty of the charges filed against him and recommended that he be terminated from his position of Supervisor of Carpenters with the New York City Department of Education. [see New York City Department of Education v Halpin, OATH Index #818/07]. Richard's found that Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The ALJ ruled that the GPS data was accurate and reliable and that its use did not violate Halpin’s privacy rights under the United States Constitution.
Source: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010
An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device. Ultimately Cunningham was terminated from his position.
New York Civil Liberties Union attorneys, claiming the use of evidence obtained using a GPS device without a warrant or the knowledge of Cunningham constituted an unlawful search, have filed a lawsuit seeking Cunningham’s reinstatement to his former position with back pay and fringe benefits.
The courts have considered a number of cases involving the use of evidence obtained through the use of global positioning system equipment.
In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.
In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.
The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis.
[See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08].
However, the decision in the Weaver case, People v Weaver, 12 NY3d 433, may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.
The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.*
The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”
Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.
Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.
The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides:
The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.
The Court of Appeals ruled that:
1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.
2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.
The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.
The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “
Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”
The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.
This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.
In another disciplinary action, Joel I. Klein, then Chancellor of the New York City Department of Education, terminated John Halpin’s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and of having submitted falsified time cards claiming that he worked on those occasions.
When Halpin challenged the Chancellor’s action, the Appellate Division said that the determination was supported by substantial evidence in the record, including global positioning software records, Halpin’s time cards, and eyewitness testimony establishing that Halpin was guilty of the disciplinary charges filed against him [Halpin v Klein, 62 AD3d 403].**
Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that under the circumstances terminating Halpin did not constitute an “excessive penalty.”
Although in Halpin's case the GPS record was generated by his Department-issued cell phone, the installation of global positioning equipment in official vehicles is becoming common as well.
* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.
** The administrative disciplinary action underlying the Chancellor's decision was heard by OATH Administrative Law Judge Tynia Richard. Richards found Halpin guilty of the charges filed against him and recommended that he be terminated from his position of Supervisor of Carpenters with the New York City Department of Education. [see New York City Department of Education v Halpin, OATH Index #818/07]. Richard's found that Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The ALJ ruled that the GPS data was accurate and reliable and that its use did not violate Halpin’s privacy rights under the United States Constitution.
Age requirements and eligibility for taking a test
Age requirements and eligibility for taking a test
Beloten v Diamons, 276 AD2d 438
The Beloten case involves a relatively novel issue: age qualification for appointment to positions in the competitive class.
The case arose after New York City issued an announcement for an examination for firefighter allowing only emergency medical technicians and paramedics [EMTs] not more than 29 years old as of the beginning of the application period to take the examination.
Scott R. Beloten and a number of other EMTs took and passed the written test. However they were disqualified and not permitted to take the physical agility portion of the examination because of age: all were more than 29 years of age at the beginning of the application period.*
Beloten objected, contending that the upper age limit for firefighters applies only to candidates for that position taking an open competitive exam, and that to apply the age limit to candidates taking a promotional exam, as [the City] did, would violate Section 54 of the Civil Service Law and anti-discrimination statutes.
The Appellate Division said that two provisions of the Civil Service Law were relevant in resolving this case: Sections 52(1) and 54.
Section 54 allows civil service authorities to adopt reasonable age requirements with respect to open-competitive, entry level positions. Section 52(1) provides for the filling of vacancies by promotion of persons holding positions in lower grades that are in direct line of promotion or, under certain circumstances, from lower grades in related or collateral lines of promotion.
Reading Sections 52(8) and 54 together, the court concluded that age requirements for purposes of taking a promotional exam are prohibited when the promotion would be from a grade that is in direct line, and permitted when the promotion would be from a grade that is in a related or collateral line.
The Appellate Division rejected the theory that this was a promotion situation for the EMTs, ruling that because the position of firefighter is an entry-level position in that there is no direct lower position to be promoted from, the only way a person could become a firefighter was to sit for an open competitive examination.**
Deciding that EMT applicants for the position of firefighter were more akin to entry-level applicants taking an open exam for that position than to a firefighter taking a closed promotion examination for a higher level title, the court ruled that:
... notwithstanding that the exam petitioners took was not open, in that participation was limited to current Fire Department employees having certain emergency medical titles, we conclude that Civil Service Law Section 54 did not apply to prohibit an age requirement, and that Civil Service Law Section 52(8) did apply to require that petitioners satisfy the eligibility requirements for taking the entry-level exam for firefighter, including the requirement in Administrative Code Section 15-103 that they not be more than 29 years old.
* Presumably none of the plaintiffs was eligible for an adjustment to his or her chronological age pursuant to the provisions of Section 243.10-a of the Military Law.
** The EMTs conceded that the examination announcement indicated that their positions were in a collateral, not direct, line of promotion to the position of firefighter.
Beloten v Diamons, 276 AD2d 438
The Beloten case involves a relatively novel issue: age qualification for appointment to positions in the competitive class.
The case arose after New York City issued an announcement for an examination for firefighter allowing only emergency medical technicians and paramedics [EMTs] not more than 29 years old as of the beginning of the application period to take the examination.
Scott R. Beloten and a number of other EMTs took and passed the written test. However they were disqualified and not permitted to take the physical agility portion of the examination because of age: all were more than 29 years of age at the beginning of the application period.*
Beloten objected, contending that the upper age limit for firefighters applies only to candidates for that position taking an open competitive exam, and that to apply the age limit to candidates taking a promotional exam, as [the City] did, would violate Section 54 of the Civil Service Law and anti-discrimination statutes.
The Appellate Division said that two provisions of the Civil Service Law were relevant in resolving this case: Sections 52(1) and 54.
Section 54 allows civil service authorities to adopt reasonable age requirements with respect to open-competitive, entry level positions. Section 52(1) provides for the filling of vacancies by promotion of persons holding positions in lower grades that are in direct line of promotion or, under certain circumstances, from lower grades in related or collateral lines of promotion.
Reading Sections 52(8) and 54 together, the court concluded that age requirements for purposes of taking a promotional exam are prohibited when the promotion would be from a grade that is in direct line, and permitted when the promotion would be from a grade that is in a related or collateral line.
The Appellate Division rejected the theory that this was a promotion situation for the EMTs, ruling that because the position of firefighter is an entry-level position in that there is no direct lower position to be promoted from, the only way a person could become a firefighter was to sit for an open competitive examination.**
Deciding that EMT applicants for the position of firefighter were more akin to entry-level applicants taking an open exam for that position than to a firefighter taking a closed promotion examination for a higher level title, the court ruled that:
... notwithstanding that the exam petitioners took was not open, in that participation was limited to current Fire Department employees having certain emergency medical titles, we conclude that Civil Service Law Section 54 did not apply to prohibit an age requirement, and that Civil Service Law Section 52(8) did apply to require that petitioners satisfy the eligibility requirements for taking the entry-level exam for firefighter, including the requirement in Administrative Code Section 15-103 that they not be more than 29 years old.
* Presumably none of the plaintiffs was eligible for an adjustment to his or her chronological age pursuant to the provisions of Section 243.10-a of the Military Law.
** The EMTs conceded that the examination announcement indicated that their positions were in a collateral, not direct, line of promotion to the position of firefighter.
December 10, 2010
DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS
DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS
Source: Office of the State Comptroller
New York State Comptroller Thomas P. DiNapoli today warned of a sweepstakes scam involving fraudulent checks that appear to have been issued by New York State.
“These days many people could use some extra cash; this particular scam is especially shameful because it’s occurring during the holiday season at a time when people can be particularly vulnerable,” DiNapoli said.
“People need to remember that what sounds too good to be true all too often is. No legitimate check from the State of New York would ever be used as part of a mystery shopper program. If you receive one of these fraudulent checks, please report it to the police.”
The fraud works this way: scammers send potential victims a letter telling them that they won hundreds of thousands of dollars in a sweepstakes prize from a “USA Mega” drawing that allegedly took place in August. A company calling itself Alpha Finance Services claims to have been assigned to inform winners of their prize and to pay them off accordingly.
The company’s supposed address is located in Nova Scotia, Canada.
The letter asks individuals to contact a claims agent during daytime hours between Monday and Saturday to “activate” a phony check that has been mailed to them. The "check" included in the letter is counterfeit but looks like a New York State check.
This check allegedly would cover the recipient’s tax liability that is attached to the prize winning.
To activate the phony check, the recipient is directed to send thousands of dollars of their own money to the agent. It even “cautions” recipients of the letter not to act on the notice until they have contacted this claims agent “to avoid cases of misappropriation and mishandling of prize monies.”
Anyone with questions or concerns about this scam should contact local law enforcement officials or the New York State Comptroller’s office toll free at 1-888-OCS-4555.
Source: Office of the State Comptroller
New York State Comptroller Thomas P. DiNapoli today warned of a sweepstakes scam involving fraudulent checks that appear to have been issued by New York State.
“These days many people could use some extra cash; this particular scam is especially shameful because it’s occurring during the holiday season at a time when people can be particularly vulnerable,” DiNapoli said.
“People need to remember that what sounds too good to be true all too often is. No legitimate check from the State of New York would ever be used as part of a mystery shopper program. If you receive one of these fraudulent checks, please report it to the police.”
The fraud works this way: scammers send potential victims a letter telling them that they won hundreds of thousands of dollars in a sweepstakes prize from a “USA Mega” drawing that allegedly took place in August. A company calling itself Alpha Finance Services claims to have been assigned to inform winners of their prize and to pay them off accordingly.
The company’s supposed address is located in Nova Scotia, Canada.
The letter asks individuals to contact a claims agent during daytime hours between Monday and Saturday to “activate” a phony check that has been mailed to them. The "check" included in the letter is counterfeit but looks like a New York State check.
This check allegedly would cover the recipient’s tax liability that is attached to the prize winning.
To activate the phony check, the recipient is directed to send thousands of dollars of their own money to the agent. It even “cautions” recipients of the letter not to act on the notice until they have contacted this claims agent “to avoid cases of misappropriation and mishandling of prize monies.”
Anyone with questions or concerns about this scam should contact local law enforcement officials or the New York State Comptroller’s office toll free at 1-888-OCS-4555.
In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested
In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested
Appeal of Wornum seeking the removal of the Superintendent of the Westbury Union Free School District, Decisions of the Commissioner of Education, Decision #16,166
Larry D. Wornum, than a member of the School Board, asked the Commissioner of Education to remove Constance R. Clark-Snead from her position of Superintendent of the Westbury Union Free School. The Commissioner denied Wornum’s application.
Wornum alleged that that Clark-Snead had engaged in a pattern of “bad acts” including misleading the School Board on a number of occasions, authorizing School District expenditures without board approval; filing an appeal with the Commissioner of Education without School Board approval; and violating the State's Freedom of Information Law and its Open Meetings Law.
As to Wornum's "application in chief," a member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.
However, in an appeal to the Commissioner, the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief is placed on the petitioner.
The Commissioner initially addressed a number of procedural issue and determined that:
[1] certain documents submitted by Wornum were not verified as required by 8 NYCRR §275.5(a);
[2] there was no “proof of service’ which precluded his considering such submissions;
[3] he lacked jurisdiction to consider FOIL matters as Public Officers Law §§89 and 107 vest exclusive jurisdiction over complaints alleging violations of FOIL and the Open Meetings Law in State Supreme Court; and
[4] that Wornum’s appeal to the Commissioner was untimely filed with respect to a number of his allegations.
As to Wornum’s surviving allegation – Clark-Snead misled him as to her efforts to secure space for district pre-kindergarten classes – the Commissioner determined that Wornum's allegations "were conclusory" and that Wornum did not provide any documentary evidence to support his charge. Thus, said the Commissioner, Wornum “failed to meet his burden of proof and his claims must be dismissed.”
The Commissioner then addressed Clark-Snead’s request for a Certificate of Good Faith* pursuant to Education Law §3811(1)(c).
Noting that “it is appropriate to issue such Certification unless it is established on the record that [Clark-Snead] had acted in bad faith,” The Commissioner said that as there had been no such finding, Clark-Sneed was entitled to a certificate of good faith.
* A Certificate of Good Faith permit certain school districts or BOCES to reimburse individuals for legal fees and expenses, and where appropriate, damages for which the individual was held liable, incurred in the course of his or her participating in, or resulting from, the individual's appearing in a judicial or quasi-judicial proceeding, including those incurred in, or resulting from, a proceeding before the Commissioner of Education, pursuant to being instructed by a resolution adopted "at a district meeting to defend any action brought against them."
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16166.htm
Other recent decisions of the Commissioner of Education:
Appeal of ARK COMMUNITY CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Troy regarding nursing services. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16169.htm
Appeal of SUSAN ROTH from action of the Board of Education of the South Country Central School District, Montauk Bus Transportation, LLC and Coastal Charter Service Corp. regarding transportation contracts. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16171.htm
Appeal of N.C., on behalf of her daughter V.C., from action of the New York City Department of Education regarding immunization. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16172.htm
Appeal of Wornum seeking the removal of the Superintendent of the Westbury Union Free School District, Decisions of the Commissioner of Education, Decision #16,166
Larry D. Wornum, than a member of the School Board, asked the Commissioner of Education to remove Constance R. Clark-Snead from her position of Superintendent of the Westbury Union Free School. The Commissioner denied Wornum’s application.
Wornum alleged that that Clark-Snead had engaged in a pattern of “bad acts” including misleading the School Board on a number of occasions, authorizing School District expenditures without board approval; filing an appeal with the Commissioner of Education without School Board approval; and violating the State's Freedom of Information Law and its Open Meetings Law.
As to Wornum's "application in chief," a member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.
However, in an appeal to the Commissioner, the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief is placed on the petitioner.
The Commissioner initially addressed a number of procedural issue and determined that:
[1] certain documents submitted by Wornum were not verified as required by 8 NYCRR §275.5(a);
[2] there was no “proof of service’ which precluded his considering such submissions;
[3] he lacked jurisdiction to consider FOIL matters as Public Officers Law §§89 and 107 vest exclusive jurisdiction over complaints alleging violations of FOIL and the Open Meetings Law in State Supreme Court; and
[4] that Wornum’s appeal to the Commissioner was untimely filed with respect to a number of his allegations.
As to Wornum’s surviving allegation – Clark-Snead misled him as to her efforts to secure space for district pre-kindergarten classes – the Commissioner determined that Wornum's allegations "were conclusory" and that Wornum did not provide any documentary evidence to support his charge. Thus, said the Commissioner, Wornum “failed to meet his burden of proof and his claims must be dismissed.”
The Commissioner then addressed Clark-Snead’s request for a Certificate of Good Faith* pursuant to Education Law §3811(1)(c).
Noting that “it is appropriate to issue such Certification unless it is established on the record that [Clark-Snead] had acted in bad faith,” The Commissioner said that as there had been no such finding, Clark-Sneed was entitled to a certificate of good faith.
* A Certificate of Good Faith permit certain school districts or BOCES to reimburse individuals for legal fees and expenses, and where appropriate, damages for which the individual was held liable, incurred in the course of his or her participating in, or resulting from, the individual's appearing in a judicial or quasi-judicial proceeding, including those incurred in, or resulting from, a proceeding before the Commissioner of Education, pursuant to being instructed by a resolution adopted "at a district meeting to defend any action brought against them."
The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16166.htm
Other recent decisions of the Commissioner of Education:
Appeal of ARK COMMUNITY CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Troy regarding nursing services. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16169.htm
Appeal of SUSAN ROTH from action of the Board of Education of the South Country Central School District, Montauk Bus Transportation, LLC and Coastal Charter Service Corp. regarding transportation contracts. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16171.htm
Appeal of N.C., on behalf of her daughter V.C., from action of the New York City Department of Education regarding immunization. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16172.htm
Exhausting of Taylor Law contract remedies
Exhausting of Taylor Law contract remedies
Kaufmann v Rochester CSD, App. Div., Fourth Dept., 275 AD2d 890
The Rochester Board of Education attempted to have Susan K. Kaufmann’s lawsuit dismissed on the theory that Kaufmann had not exhausted her administrative remedies because she did not file a contract grievance concerning her complaint.
The Appellate Division, Fourth Department, quickly disposed of the district’s argument by pointing out that Kaufmann did not allege that the district had violated her rights under the collective bargaining agreement but rather she alleged that the district had violated her rights under Section 2585(2) of the Education Law.
Accordingly, said the court, Kaufmann was not required to file a grievance under the collective bargaining agreement concerning her complaint.
Education Law Section 2585(2) addresses situations involving the abolishment of one position and the creation of another position having similar duties and provides that the individual encumbering the abolished position shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been of faithful, competent service in the office or position he has filled.
NYPPL
Kaufmann v Rochester CSD, App. Div., Fourth Dept., 275 AD2d 890
The Rochester Board of Education attempted to have Susan K. Kaufmann’s lawsuit dismissed on the theory that Kaufmann had not exhausted her administrative remedies because she did not file a contract grievance concerning her complaint.
The Appellate Division, Fourth Department, quickly disposed of the district’s argument by pointing out that Kaufmann did not allege that the district had violated her rights under the collective bargaining agreement but rather she alleged that the district had violated her rights under Section 2585(2) of the Education Law.
Accordingly, said the court, Kaufmann was not required to file a grievance under the collective bargaining agreement concerning her complaint.
Education Law Section 2585(2) addresses situations involving the abolishment of one position and the creation of another position having similar duties and provides that the individual encumbering the abolished position shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been of faithful, competent service in the office or position he has filled.
NYPPL
Responding to Freedom of Information requests
Responding to Freedom of Information requests
McKethan v NY-NJ Port Authority, Appellate Division, First Dept., 277 AD2d 15
William McKethan obtained a court order pursuant to the Freedom of Information Law directing the New York-New Jersey Port Authority [New York Branch] to provide him with certain information. In a subsequent proceeding, State Supreme Court Judge Paula Omansky determined that the Authority had adequately respond[ed] to the court’s prior order. Not satisfied with the court’s determination, McKethan appealed.
The Appellate Division sustained Judge Omansky’s decision, holding that the Authority adequately established the nonexistence of additional records requested by [McKethan].
The reasoning of the court:
Once the Authority’s records access officer certified that respondent had provided McKethan with all responsive documents in its possession, McKethan was required to articulate a demonstrable factual basis to support his contention that the [further] requested documents existed and were within the [Authority’s] control.
Citing Gould v New York City Police Department, 89 NY2d 267, in support of its position, the Appellate Division ruled that McKethan has not met that burden.
NYPPL
McKethan v NY-NJ Port Authority, Appellate Division, First Dept., 277 AD2d 15
William McKethan obtained a court order pursuant to the Freedom of Information Law directing the New York-New Jersey Port Authority [New York Branch] to provide him with certain information. In a subsequent proceeding, State Supreme Court Judge Paula Omansky determined that the Authority had adequately respond[ed] to the court’s prior order. Not satisfied with the court’s determination, McKethan appealed.
The Appellate Division sustained Judge Omansky’s decision, holding that the Authority adequately established the nonexistence of additional records requested by [McKethan].
The reasoning of the court:
Once the Authority’s records access officer certified that respondent had provided McKethan with all responsive documents in its possession, McKethan was required to articulate a demonstrable factual basis to support his contention that the [further] requested documents existed and were within the [Authority’s] control.
Citing Gould v New York City Police Department, 89 NY2d 267, in support of its position, the Appellate Division ruled that McKethan has not met that burden.
NYPPL
Loss of a required license or certification bars the incumbent from performing the duties of the position
Loss of a required license or certification bars the incumbent from performing the duties of the position
Agriculture and Markets v Public Employees Federation, App. Div., Third Dept., 277 AD2d 564
Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?
This was the issue when Sahedou Ousman, an assistant farm products inspector assigned to inspect eggs pursuant to an agreement with the US Department of Agriculture [USDA] lost his Federal egg product inspection license.
According to the decision, Ousman’s license was revoked by the USDA because of his failure to consistently follow instructions, adhere to established procedures and repeated instances of tardiness and unauthorized absences from his place of employment during his normal tour of duty.
Agriculture and Markets [A&M] terminated Ousman’s employment on the grounds that his loss of his license resulted in his being unqualified to perform the duties of an assistant farm products inspector.
A&M, pursuant to an agreement with the Public Employees Federation, Ousman’s collective bargaining representative, subsequently reinstated him. It then placed Ousman on administrative leave and initiated disciplinary action against him under the contract disciplinary procedure set out in a Taylor Law agreement.
The charge: incompetence in that he failed to maintain his Federal egg product inspection license that was required for his continued employment as an egg inspector.
Ultimately an arbitrator ruled that the Federal egg product inspection license was not a prerequisite for the position of an assistant farm products inspector and there were employment opportunities within that title to which Ousman could have been assigned that did not require Federal licensure at that time. The arbitrator’s conclusion: Ousman should not have been terminated.
The arbitrator’s ruling is consistent with the court’s ruling in the Lekkas case [Martin ex rel Lekkas, 86 AD2d 712]. Here the issue concerned Lekkas’ lack of license to practice medicine in New York State although he had been appointed to the position of Assistant Clinical Physician with a State agency. In Lekkas the Appellate Division ruled that although an employee who does not possess a valid license required to perform the duties of the position may be summarily discharged without notice and hearing, it determined that Lekkas was performing administrative duties rather than practicing medicine. Thus, said the court, Lekkas was not required by law to hold a license to practice medicine even though he held the title Assistant Clinical Physician. Accordingly, he could not be summarily removed from the position merely because he was not a licensed physician.
The arbitrator directed A&M to restore Ousman to pay status with all rights and benefits effective July 1, 1997, back pay to be adjusted to reflect any income or unemployment compensation benefits received since that time.
The decision also directed A&M to offer Ousman the next available position within title or, in the alternative, continue him on paid administrative leave and file charges against him based upon his unsatisfactory performance of his duties as a State employee prior to April 15, 1997.
The Appellate Division rejected A&M’s attempt to annul the arbitration award on the grounds that the award was wholly irrational and violated a fundamental public policy regarding civil service appointment requirements and the State’s compelling interest in ensuring a safe food supply to the public.
Noting that the notice of discipline filed by A&M limited the arbitrator’s inquiry to whether Ousman’s loss of his Federal license rendered him unqualified to perform the duties of an assistant farm products inspector warranting his dismissal, the Appellate Division ruled that the arbitrator’s determination did not require A&M to reinstate Ousman to another food inspection position since it allowed it the alternative of continuing Ousman on administrative leave and filing the appropriate disciplinary charge reflecting his general incompetence and lack of qualifications for any position within his title of employment.
The Appellate Division’s conclusion: the arbitration award simply extends to Ousman the protection of the collective bargaining agreement that A&M agrees is applicable and cannot be said to be violative of any strong public policy or the State constitutional mandate that civil service appointments be based on merit.
It is well settled that where a statute requires an individual to have a valid license or certification or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or certification or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.
For example, the courts have little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.
Although such a person may continue to be qualified to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183. The rationale in such cases: it is unlawful to continue a tenured but unlicensed teacher on the payroll as he or she is barred from performing his or her teaching duties and to retain such a person on the payroll as a teacher would constitute an unconstitutional gift of public monies.
There is nothing, however, that would prevent the appointing authority from placing such an individual in another position for which he or she is qualified and for which a license is not required as an alternative to dismissal or removal from the payroll.
Another common situations that result in a bar to continued employment in a position: the expiration, suspension or revocation of a driver’s license when the duties of the position require the incumbent of the position to drive a motor vehicle.
NYPPL
Agriculture and Markets v Public Employees Federation, App. Div., Third Dept., 277 AD2d 564
Holding a valid license is sometimes an essential element to performing the duties of the position. What happens if the employee losses his or her license?
This was the issue when Sahedou Ousman, an assistant farm products inspector assigned to inspect eggs pursuant to an agreement with the US Department of Agriculture [USDA] lost his Federal egg product inspection license.
According to the decision, Ousman’s license was revoked by the USDA because of his failure to consistently follow instructions, adhere to established procedures and repeated instances of tardiness and unauthorized absences from his place of employment during his normal tour of duty.
Agriculture and Markets [A&M] terminated Ousman’s employment on the grounds that his loss of his license resulted in his being unqualified to perform the duties of an assistant farm products inspector.
A&M, pursuant to an agreement with the Public Employees Federation, Ousman’s collective bargaining representative, subsequently reinstated him. It then placed Ousman on administrative leave and initiated disciplinary action against him under the contract disciplinary procedure set out in a Taylor Law agreement.
The charge: incompetence in that he failed to maintain his Federal egg product inspection license that was required for his continued employment as an egg inspector.
Ultimately an arbitrator ruled that the Federal egg product inspection license was not a prerequisite for the position of an assistant farm products inspector and there were employment opportunities within that title to which Ousman could have been assigned that did not require Federal licensure at that time. The arbitrator’s conclusion: Ousman should not have been terminated.
The arbitrator’s ruling is consistent with the court’s ruling in the Lekkas case [Martin ex rel Lekkas, 86 AD2d 712]. Here the issue concerned Lekkas’ lack of license to practice medicine in New York State although he had been appointed to the position of Assistant Clinical Physician with a State agency. In Lekkas the Appellate Division ruled that although an employee who does not possess a valid license required to perform the duties of the position may be summarily discharged without notice and hearing, it determined that Lekkas was performing administrative duties rather than practicing medicine. Thus, said the court, Lekkas was not required by law to hold a license to practice medicine even though he held the title Assistant Clinical Physician. Accordingly, he could not be summarily removed from the position merely because he was not a licensed physician.
The arbitrator directed A&M to restore Ousman to pay status with all rights and benefits effective July 1, 1997, back pay to be adjusted to reflect any income or unemployment compensation benefits received since that time.
The decision also directed A&M to offer Ousman the next available position within title or, in the alternative, continue him on paid administrative leave and file charges against him based upon his unsatisfactory performance of his duties as a State employee prior to April 15, 1997.
The Appellate Division rejected A&M’s attempt to annul the arbitration award on the grounds that the award was wholly irrational and violated a fundamental public policy regarding civil service appointment requirements and the State’s compelling interest in ensuring a safe food supply to the public.
Noting that the notice of discipline filed by A&M limited the arbitrator’s inquiry to whether Ousman’s loss of his Federal license rendered him unqualified to perform the duties of an assistant farm products inspector warranting his dismissal, the Appellate Division ruled that the arbitrator’s determination did not require A&M to reinstate Ousman to another food inspection position since it allowed it the alternative of continuing Ousman on administrative leave and filing the appropriate disciplinary charge reflecting his general incompetence and lack of qualifications for any position within his title of employment.
The Appellate Division’s conclusion: the arbitration award simply extends to Ousman the protection of the collective bargaining agreement that A&M agrees is applicable and cannot be said to be violative of any strong public policy or the State constitutional mandate that civil service appointments be based on merit.
It is well settled that where a statute requires an individual to have a valid license or certification or permit in order to practice his or her profession or duties, the loss, expiration, revocation or failure to obtain or maintain the required license or certification or permit in a timely fashion means that the individual is not authorized to perform the duties of the position as a matter of law.
For example, the courts have little difficulty in upholding the immediate suspension of a teacher without pay where the educator is unable to present a valid license or certification when asked to do so.
Although such a person may continue to be qualified to perform the duties of the position, he or she is typically barred from doing so unless and until a valid license or permit is obtained. In such situations the courts have upheld the employer summarily suspending the employee without pay as was the case in Meliti v Nyquist, 41 NY2d 183. The rationale in such cases: it is unlawful to continue a tenured but unlicensed teacher on the payroll as he or she is barred from performing his or her teaching duties and to retain such a person on the payroll as a teacher would constitute an unconstitutional gift of public monies.
There is nothing, however, that would prevent the appointing authority from placing such an individual in another position for which he or she is qualified and for which a license is not required as an alternative to dismissal or removal from the payroll.
Another common situations that result in a bar to continued employment in a position: the expiration, suspension or revocation of a driver’s license when the duties of the position require the incumbent of the position to drive a motor vehicle.
NYPPL
December 09, 2010
Collective bargaining after the Taylor Law Agreement expires
Collective bargaining after the Taylor Law Agreement expires
Local 2562 v PERB, App. Div., Third Dept., 276 AD2d 184, Motion for leave to appeal denied, 96 NY2d 711
In the Local 2562 case, the Appellate Division sustained a Public Employment Relations Board [PERB] ruling that held that a nonmandatory subject of collective bargaining, if continued after the expiration of a collective bargaining agreement [CBA] under the Triboro Doctrine [Civil Service Law Section 209-a(1)(e)], is converted into a mandatory subject of collective bargaining.
The Triboro Doctrine essentially requires a public employer to continue all terms of an expired collective bargaining agreement -- whether mandatory or nonmandatory subjects -- until the parties reach a new agreement.
Uniform Firefighters Local 2562 [City of Cohoes] appealed a PERB decision holding that certain otherwise nonmandatory proposals made by the City in the course of negotiating a successor to an expired CBA are mandatory subjects of collective bargaining.
Local 2562 sued, contending that PERB’s determinations departed from its prior precedent and redefined what may constitute a mandatory subject of negotiation upon the expiration of a collective bargaining agreement between police officers and firefighters and their municipal employers.
In particular, Local 2562 objected to PERB’s rulings concerning the City’s proposal to delete or alter certain terms in the expired CBA relating to staffing composition and job assignment and the City’s proposal affecting General Municipal Law Section 207-a disability benefits.
Agreeing to the Section 207-a proposal, said the union, would require its members to give up certain statutory rights and privileges. In addition, Local 2562 complained that the City’s staffing proposals concerned officer replacement procedures and the obligation of firefighters to engage in snow removal and were previously viewed as managerial prerogatives deemed nonmandatory subjects of negotiation prior to their inclusion in the parties’ previous CBA.
According to the decision, PERB’s overruling its long-standing precedent meant that once nonmandatory subjects have been incorporated into a CBA involving police officers and firefighters, such items become mandatory subjects of negotiation for the purposes of negotiating a subsequent agreement in a Triboro Doctrine situation.
PERB also ruled that proposals concerning the terms and conditions of employment that would require an employee organization or its members to waive or modify statutory rights and privileges are also mandatorily negotiable, unless bargaining as to those matters is foreclosed by clear legislative intent or public policy.
PERB’s explanation: its new interpretation corrects an imbalance resulting from the enactment of Section 209-a(1)(e) of the Taylor Law which codified the so-called Triboro Doctrine.
The Appellate Division said that PERB provided “a detailed explanation for its decision to depart from its previous analysis on the ground that it intended to create a more equal bargaining posture between the parties in order to foster productive negotiation....”
Accordingly, said the court, recognizing the deference to which PERB’s determinations are entitled in the realm of improper labor practices, it found that its action was neither arbitrary nor irrational.
As to PERB’s determining the negotiability of proposals alleged to flow from a statutory right or benefit, in the past PERB automatically categorized such proposals as nonmandatory without analysis of whether negotiations concerning particular proposals would be consistent with the applicable statute’s legislative intent, public policy, or the furtherance of the objectives of the Taylor Law. Under its new policy, PERB would consider such demands on a case-by-case basis.
The Appellate Division said that PERB’s approach -- reviewing each such proposal case-by-case -- appears to be substantially the same as the method used to determine whether proposals of employee organizations that implicate the rights of public employers are mandatorily negotiable.
The court rejected Local 2562’s argument that by requiring that proposals relating to the waiver of statutory rights be subject to negotiation, PERB is effectuating the involuntary waiver of those rights. It said that although the Taylor Law clearly provides that the obligation to negotiate concerning terms and conditions of employment it does not compel either party to agree to a proposal or require the making of a concession.
The bottom line: the court affirmed the Supreme Court’s dismissal of Local 2562’s challenge to PERB’s determinations, indicating that they were neither arbitrary, capricious, an abuse of discretion nor affected by an error of law.
NYPPL
Local 2562 v PERB, App. Div., Third Dept., 276 AD2d 184, Motion for leave to appeal denied, 96 NY2d 711
In the Local 2562 case, the Appellate Division sustained a Public Employment Relations Board [PERB] ruling that held that a nonmandatory subject of collective bargaining, if continued after the expiration of a collective bargaining agreement [CBA] under the Triboro Doctrine [Civil Service Law Section 209-a(1)(e)], is converted into a mandatory subject of collective bargaining.
The Triboro Doctrine essentially requires a public employer to continue all terms of an expired collective bargaining agreement -- whether mandatory or nonmandatory subjects -- until the parties reach a new agreement.
Uniform Firefighters Local 2562 [City of Cohoes] appealed a PERB decision holding that certain otherwise nonmandatory proposals made by the City in the course of negotiating a successor to an expired CBA are mandatory subjects of collective bargaining.
Local 2562 sued, contending that PERB’s determinations departed from its prior precedent and redefined what may constitute a mandatory subject of negotiation upon the expiration of a collective bargaining agreement between police officers and firefighters and their municipal employers.
In particular, Local 2562 objected to PERB’s rulings concerning the City’s proposal to delete or alter certain terms in the expired CBA relating to staffing composition and job assignment and the City’s proposal affecting General Municipal Law Section 207-a disability benefits.
Agreeing to the Section 207-a proposal, said the union, would require its members to give up certain statutory rights and privileges. In addition, Local 2562 complained that the City’s staffing proposals concerned officer replacement procedures and the obligation of firefighters to engage in snow removal and were previously viewed as managerial prerogatives deemed nonmandatory subjects of negotiation prior to their inclusion in the parties’ previous CBA.
According to the decision, PERB’s overruling its long-standing precedent meant that once nonmandatory subjects have been incorporated into a CBA involving police officers and firefighters, such items become mandatory subjects of negotiation for the purposes of negotiating a subsequent agreement in a Triboro Doctrine situation.
PERB also ruled that proposals concerning the terms and conditions of employment that would require an employee organization or its members to waive or modify statutory rights and privileges are also mandatorily negotiable, unless bargaining as to those matters is foreclosed by clear legislative intent or public policy.
PERB’s explanation: its new interpretation corrects an imbalance resulting from the enactment of Section 209-a(1)(e) of the Taylor Law which codified the so-called Triboro Doctrine.
The Appellate Division said that PERB provided “a detailed explanation for its decision to depart from its previous analysis on the ground that it intended to create a more equal bargaining posture between the parties in order to foster productive negotiation....”
Accordingly, said the court, recognizing the deference to which PERB’s determinations are entitled in the realm of improper labor practices, it found that its action was neither arbitrary nor irrational.
As to PERB’s determining the negotiability of proposals alleged to flow from a statutory right or benefit, in the past PERB automatically categorized such proposals as nonmandatory without analysis of whether negotiations concerning particular proposals would be consistent with the applicable statute’s legislative intent, public policy, or the furtherance of the objectives of the Taylor Law. Under its new policy, PERB would consider such demands on a case-by-case basis.
The Appellate Division said that PERB’s approach -- reviewing each such proposal case-by-case -- appears to be substantially the same as the method used to determine whether proposals of employee organizations that implicate the rights of public employers are mandatorily negotiable.
The court rejected Local 2562’s argument that by requiring that proposals relating to the waiver of statutory rights be subject to negotiation, PERB is effectuating the involuntary waiver of those rights. It said that although the Taylor Law clearly provides that the obligation to negotiate concerning terms and conditions of employment it does not compel either party to agree to a proposal or require the making of a concession.
The bottom line: the court affirmed the Supreme Court’s dismissal of Local 2562’s challenge to PERB’s determinations, indicating that they were neither arbitrary, capricious, an abuse of discretion nor affected by an error of law.
NYPPL
Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district
Timely appeal to the Commissioner of Education provides the pre-litigation Section 3813 Notice of Claim that must be filed with a school district
Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602
As a general rule, Section 3813 of the Education Law requires that in order to sue a school district the plaintiff must file a timely notice of claim if he or she plans or expects to sue the district. Such notices are usually required with respect to claims related to or involving personnel decisions.
The Mennella case, for example, concerned the termination of a probationary employee and turned on whether the court should excuse a late filing of such a claim pursuant to Section 3813(2-a) of the Education Law.
As a condition precedent to commencement of an action against a school district, Education Law §3813(1) requires that a written verified claim be delivered to the school district within three months of accrual of the claim. The Section 3813 notice must set out the nature of the claim, and the “essential facts underlying the claim.” Citing Matter of Board of Educ. v Ambach, 81 AD2d 691, the Appellate Division noted that “a petition to the Commissioner of Education can constitute the functional equivalent of a notice of claim.”
In this instance, Mennella filed a petition with the Commissioner of Education challenging the school district’s decision terminating him from employment within a week of the district’s action. The petition included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were "baseless."
Accordingly, the Appellate Division concluded that Mennella’s petition to the Commissioner of Education constituted the functional equivalent of a notice of claim for the purposes of Education Law Section 3813 insofar as his going forward with litigation regarding his allegations of racial discrimination is concerned.
NYPPL
Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602
As a general rule, Section 3813 of the Education Law requires that in order to sue a school district the plaintiff must file a timely notice of claim if he or she plans or expects to sue the district. Such notices are usually required with respect to claims related to or involving personnel decisions.
The Mennella case, for example, concerned the termination of a probationary employee and turned on whether the court should excuse a late filing of such a claim pursuant to Section 3813(2-a) of the Education Law.
As a condition precedent to commencement of an action against a school district, Education Law §3813(1) requires that a written verified claim be delivered to the school district within three months of accrual of the claim. The Section 3813 notice must set out the nature of the claim, and the “essential facts underlying the claim.” Citing Matter of Board of Educ. v Ambach, 81 AD2d 691, the Appellate Division noted that “a petition to the Commissioner of Education can constitute the functional equivalent of a notice of claim.”
In this instance, Mennella filed a petition with the Commissioner of Education challenging the school district’s decision terminating him from employment within a week of the district’s action. The petition included allegations that the acting principal made certain statements indicative of racial discrimination. In the proceedings before the Commissioner of Education, the school district asserted that the allegations of racial discrimination were "baseless."
Accordingly, the Appellate Division concluded that Mennella’s petition to the Commissioner of Education constituted the functional equivalent of a notice of claim for the purposes of Education Law Section 3813 insofar as his going forward with litigation regarding his allegations of racial discrimination is concerned.
NYPPL
Medical experts and conflicting medical opinions
Medical experts and conflicting medical opinions
Harper v McCall, App. Div., Third Dept., 277 AD2d 589
Pauline Harper challenged the rejection of her applications for ordinary and accidental disability retirement benefits by the New York State Employees’ Retirement System, contending that the Comptroller should have considered the expert medical opinion of her physician in making his determination.
Harper, a school bus driver, claimed that she was permanently disabled due to a neck condition. Her personal physician said that Harper was permanently incapacitated from performing the duties of a school bus driver as a result of a degenerative arthritic condition in her neck that was asymptomatic prior to a 1994 work-related accident that aggravated the condition.
The retirement system’s expert testified that, while Harper exhibited pain and discomfort when he examined her in 1997, he could find no objective evidence of neurological disease or injury that would cause her subjective symptoms, and he concluded that petitioner could perform the duties of a school bus driver.
The Appellate Division rejected Harper’s appeal, commenting that “[i]t is well settled that [the Comptroller] has the authority to resolve conflicts in medical opinion and to credit the testimony of one expert over that of another and may rely on an expert opinion based on a review of medical records and a physical examination is generally credible evidence.”
NYPPL
Harper v McCall, App. Div., Third Dept., 277 AD2d 589
Pauline Harper challenged the rejection of her applications for ordinary and accidental disability retirement benefits by the New York State Employees’ Retirement System, contending that the Comptroller should have considered the expert medical opinion of her physician in making his determination.
Harper, a school bus driver, claimed that she was permanently disabled due to a neck condition. Her personal physician said that Harper was permanently incapacitated from performing the duties of a school bus driver as a result of a degenerative arthritic condition in her neck that was asymptomatic prior to a 1994 work-related accident that aggravated the condition.
The retirement system’s expert testified that, while Harper exhibited pain and discomfort when he examined her in 1997, he could find no objective evidence of neurological disease or injury that would cause her subjective symptoms, and he concluded that petitioner could perform the duties of a school bus driver.
The Appellate Division rejected Harper’s appeal, commenting that “[i]t is well settled that [the Comptroller] has the authority to resolve conflicts in medical opinion and to credit the testimony of one expert over that of another and may rely on an expert opinion based on a review of medical records and a physical examination is generally credible evidence.”
NYPPL
December 08, 2010
Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"
Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"
Source: Virtual LegalTech
A one-hour webinar entitled, "Addressing and Assessing the Risks of Moving to the Cloud," will offered by Virtual LegalTech on December 14, 2010 from 1:30 – 2:30 PM ET.
The webinar will discuss the merits and pitfalls of the cloud, examining the issues surrounding chain of custody, legal hold and review capabilities in the event of an e-discovery request and how well will privacy be maintained.
Participants in the webinar are eligible for CLE in certain jurisdictions.*
Registration is complimentary. Follow this link to register.
The full schedule for these CLE accredited sessions* at Virtual LegalTech on December 14, 2010 follows:
9:00 – 10:00 am ET – Information Governance: Managing your Information to Reduce the Costs of Discovery
9:30 – 10:30 am ET – Ethical and Privilege Issues for Pharmaceutical Whistleblowers Counsel
10:00 – 11:00 am ET – Facing the Legal Dangers of Social Media1
2:15 – 1:15 pm ET – Frontiers of E-Discovery: What you Need to Know about Predictive Coding
1:30 – 2:30 pm ET – Addressing and Assessing the Risks of Moving to the Cloud
3:00 - 4:00 pm ET – Ethical Considerations in the New Era of Whistleblower Claims Under Dodd-Frank and Other Statutes
3:45 – 4:45 pm ET – Back to the Future: The Most Important 2020 E-Discovery Cases, and a Look Ahead to 2011
If you have additional CLE questions, please contact Virtual LegalTech at 212.457.7912 or via e-mail at ljackson@alm.com .
* Complimentary CLE is approved by the responsible authorizing agencies in New York, California and Illinois. Approval of CLE credit is pending in Florida.
Source: Virtual LegalTech
A one-hour webinar entitled, "Addressing and Assessing the Risks of Moving to the Cloud," will offered by Virtual LegalTech on December 14, 2010 from 1:30 – 2:30 PM ET.
The webinar will discuss the merits and pitfalls of the cloud, examining the issues surrounding chain of custody, legal hold and review capabilities in the event of an e-discovery request and how well will privacy be maintained.
Participants in the webinar are eligible for CLE in certain jurisdictions.*
Registration is complimentary. Follow this link to register.
The full schedule for these CLE accredited sessions* at Virtual LegalTech on December 14, 2010 follows:
9:00 – 10:00 am ET – Information Governance: Managing your Information to Reduce the Costs of Discovery
9:30 – 10:30 am ET – Ethical and Privilege Issues for Pharmaceutical Whistleblowers Counsel
10:00 – 11:00 am ET – Facing the Legal Dangers of Social Media1
2:15 – 1:15 pm ET – Frontiers of E-Discovery: What you Need to Know about Predictive Coding
1:30 – 2:30 pm ET – Addressing and Assessing the Risks of Moving to the Cloud
3:00 - 4:00 pm ET – Ethical Considerations in the New Era of Whistleblower Claims Under Dodd-Frank and Other Statutes
3:45 – 4:45 pm ET – Back to the Future: The Most Important 2020 E-Discovery Cases, and a Look Ahead to 2011
If you have additional CLE questions, please contact Virtual LegalTech at 212.457.7912 or via e-mail at ljackson@alm.com .
* Complimentary CLE is approved by the responsible authorizing agencies in New York, California and Illinois. Approval of CLE credit is pending in Florida.
Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense
Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense
Wolfe v Kelly, 2010 NY Slip Op 08847, decided on December 2, 2010, Appellate Division, First Department
Eric Wolfe, a New York City Police Department detective, was served with disciplinary charges alleging that He was guilty of perjury and the confiscation of drugs and money for personal gain involving Wolfe’s “stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999.”
Terminated from his position, Wolfe contended that he was denied due process of law, and that the lack of specificity in the charges prevented him from preparing any type of defense other than offering a general denial of any wrongdoing.
The Appellate Division, noting that Wolfe’s disciplinary hearing was held some six to eight years after the alleged acts of misconduct occurred, agreed.
Specification 1 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals who were traveling in cabs and confiscated, without affecting [sic] an arrest and for personal monetary gain, a quantity of heroin from one, and a quantity of prescription drugs from the other."
Specification 2 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals and confiscated, for personal monetary gain, a quantity of United States currency."
Specification 3 alleged that on or about and between April 23, 1998, and December 17, 1998, Wolfe testified falsely while under oath during an official court proceeding, in violation of Penal Law §210.15.
The Appellate Division explained that “It is well settled that the principles of due process applicable to criminal trials apply to government administrative proceedings, citing Matter of Murray v Murphy, 24 NY2d 150” and that the requirements of due process of law applied here because Wolfe has a constitutionally protected property interest in continued public employment.
Further, said the court, due process requires that the accused employee be provided with the notice of the charges that are "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense," citing Matter of Block v Ambach, 73 NY2d 323.
While the specificity of the notice of charges required varies from case to case, but it must be specific enough to give actual notice to the party being charged.
The Appellate Division agreed with Wolfe that indicating a general time frame that spanned two entire years was not reasonably specific so as to satisfy due process requirements.*
The Appellate Division characterized the Department’s rebuttal of Wolfe’s claims to the effect that Wolfe could have offered an alibi defense by testifying about "any times during those two years when . . . he was not partners with [New York City police officers Julio] Vasquez or [Thomas] Rachko"** as “an incomprehensible — and inane — argument, and one that impermissibly shifts the burden of proof” to Wolfe.
In addition, the court commented that:
Equally incomprehensible is that, in denying petitioner's motion to dismiss for violation of due process, the ADC stated that "the unique nature of events alleged, the places where the misconduct occurred and the witnesses present, provided the defense with ample opportunity to prepare." The alleged incidents could only be assumed as "unique" if [Wolfe] was, indeed, guilty as charged. Otherwise, as the record reflects, there was nothing at all unusual or "unique" about any of the circumstances surrounding the alleged misconduct.
Annulling the Commissioner’s determination as to Specifications 1 and 2, the Appellate Division then rejected Wolfe’s arguments with respect to Specification 3 “given the low threshold in a substantial evidence analysis” and affirmed the Commissioner's determination that Wolfe was guilty of Specification 3.
As the penalty imposed on Wolfe, termination from his position, the court remanded the matter to the Department for its reconsideration based the court's annulling Specifications 1 and 2.
* The Appellate Division said that Wolfe’s alleged misconduct in specifications one and two applied to three or four discrete incidents and was therefore “not an offense of an ongoing/continuing nature.”
** In November 2003, Vasquez and Rachko were arrested for the theft of $169,000 from a narcotics merchant who was under federal surveillance. Both subsequently entered into cooperation agreements with federal authorities, the terms of which required them "to testify at any proceeding in the Eastern District of New York or elsewhere as requested by the [U.S. Attorney's] Office." They were required to testify at Wolfe’s hearing. The decision notes that “In exchange for their testimony, Vasquez and Rachko were given the possibility of lighter sentences, and the Manhattan District Attorney's office agreed not to prosecute them for any crimes they may have committed in New York County. Both former officers were facing terms of life imprisonment at the time of petitioner's administrative hearing but had not been sentenced.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08847.htm
Wolfe v Kelly, 2010 NY Slip Op 08847, decided on December 2, 2010, Appellate Division, First Department
Eric Wolfe, a New York City Police Department detective, was served with disciplinary charges alleging that He was guilty of perjury and the confiscation of drugs and money for personal gain involving Wolfe’s “stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999.”
Terminated from his position, Wolfe contended that he was denied due process of law, and that the lack of specificity in the charges prevented him from preparing any type of defense other than offering a general denial of any wrongdoing.
The Appellate Division, noting that Wolfe’s disciplinary hearing was held some six to eight years after the alleged acts of misconduct occurred, agreed.
Specification 1 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals who were traveling in cabs and confiscated, without affecting [sic] an arrest and for personal monetary gain, a quantity of heroin from one, and a quantity of prescription drugs from the other."
Specification 2 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals and confiscated, for personal monetary gain, a quantity of United States currency."
Specification 3 alleged that on or about and between April 23, 1998, and December 17, 1998, Wolfe testified falsely while under oath during an official court proceeding, in violation of Penal Law §210.15.
The Appellate Division explained that “It is well settled that the principles of due process applicable to criminal trials apply to government administrative proceedings, citing Matter of Murray v Murphy, 24 NY2d 150” and that the requirements of due process of law applied here because Wolfe has a constitutionally protected property interest in continued public employment.
Further, said the court, due process requires that the accused employee be provided with the notice of the charges that are "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense," citing Matter of Block v Ambach, 73 NY2d 323.
While the specificity of the notice of charges required varies from case to case, but it must be specific enough to give actual notice to the party being charged.
The Appellate Division agreed with Wolfe that indicating a general time frame that spanned two entire years was not reasonably specific so as to satisfy due process requirements.*
The Appellate Division characterized the Department’s rebuttal of Wolfe’s claims to the effect that Wolfe could have offered an alibi defense by testifying about "any times during those two years when . . . he was not partners with [New York City police officers Julio] Vasquez or [Thomas] Rachko"** as “an incomprehensible — and inane — argument, and one that impermissibly shifts the burden of proof” to Wolfe.
In addition, the court commented that:
Equally incomprehensible is that, in denying petitioner's motion to dismiss for violation of due process, the ADC stated that "the unique nature of events alleged, the places where the misconduct occurred and the witnesses present, provided the defense with ample opportunity to prepare." The alleged incidents could only be assumed as "unique" if [Wolfe] was, indeed, guilty as charged. Otherwise, as the record reflects, there was nothing at all unusual or "unique" about any of the circumstances surrounding the alleged misconduct.
Annulling the Commissioner’s determination as to Specifications 1 and 2, the Appellate Division then rejected Wolfe’s arguments with respect to Specification 3 “given the low threshold in a substantial evidence analysis” and affirmed the Commissioner's determination that Wolfe was guilty of Specification 3.
As the penalty imposed on Wolfe, termination from his position, the court remanded the matter to the Department for its reconsideration based the court's annulling Specifications 1 and 2.
* The Appellate Division said that Wolfe’s alleged misconduct in specifications one and two applied to three or four discrete incidents and was therefore “not an offense of an ongoing/continuing nature.”
** In November 2003, Vasquez and Rachko were arrested for the theft of $169,000 from a narcotics merchant who was under federal surveillance. Both subsequently entered into cooperation agreements with federal authorities, the terms of which required them "to testify at any proceeding in the Eastern District of New York or elsewhere as requested by the [U.S. Attorney's] Office." They were required to testify at Wolfe’s hearing. The decision notes that “In exchange for their testimony, Vasquez and Rachko were given the possibility of lighter sentences, and the Manhattan District Attorney's office agreed not to prosecute them for any crimes they may have committed in New York County. Both former officers were facing terms of life imprisonment at the time of petitioner's administrative hearing but had not been sentenced.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08847.htm
Placement on a preferred list
Placement on a preferred list
Bratge v Stockbridge Valley CSD, Decision of the Commissioner of Education #14454
The Bratge case demonstrates the importance of complying with all statutory and contractual procedures relevant to personnel actions.
The Stockbridge Valley Central School District appointed Katrina Bratge as an Assistant Building Principal/Guidance Counselor [K-12]. Bratge’s appointment was subject to a three-year probationary period.
In March 1999 School Superintendent Charles Stratton met with Bratge. According to Bratge, the superintendent told her that the district intended to eliminate her position in favor of creating a new full-time guidance counselor position and converting a part-time business administrator position to a full-time position.
Stratton, on the other hand, said that he had told Bratge that he intended to terminate her probationary employment but that she would be allowed to resign rather than be terminated.
In August 1999 Bratge wrote to the school board indicating that she did not intend to resign her position and requested it place her name on the preferred eligibility list for appointment as a guidance or administrative position should one become available in accordance with Sections 2510(3) and 3013(3) of the Education Law.
In response, the district wrote to Bratge advising her that because she had voluntarily resigned from her position and had returned to a position with the Rome City School District ... she had no recall rights. Bratge wrote the district to clarify the events that had led to her asking to be placed on a preferred list and repeated her request. When the district failed to act, Bratge asked the Commissioner to order it to place her on a preferred list.
Although the Commissioner ruled that Bratge’s appeal had to be dismissed because it was untimely, he elected to comment on the merits of her appeal.
The Commissioner pointed out that the problem resulted because the district did not provide Bratge with a clear and unambiguous notice of its intentions. Although the district claims that Bratge agreed to resign and asked for her letter of resignation, it never actually received a written resignation from her.
Despite not having received Bratge’s written resignation, the Commissioner noted, the district did not take the procedural steps required to terminate her probationary employment.* This, according to the Commissioner, left Bratge unsure of her exact status and the district believing that the position was vacant as of the beginning of the 1999-2000 school year.
The Commissioner also took the opportunity to point out that personnel decisions must comply with all applicable legal and contractual requirements. In the event the district provides an employee with an option of resigning in lieu of termination, it must comply with all statutory and contractual notification requirements if it then wishes to terminate an employee who does not voluntarily submit his or her written resignation.
One issue not addressed by the Commissioner: assuming that Bratge had a right to have her name place on a preferred list, would her returning to a position with the Rome City School District have any impact on her status on such a list?
Here are some points to keep in mind regarding preferred lists:
1. Typically the most senior individual on the list may be passed over or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.
2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.
3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.
4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of preferred lists such as a special military list.)
5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example, Jones is laid off from Position A and subsequently accepts a position to a lower rank position for which the preferred list was certified. If Position A is reestablished and Jones is eligible for certification from the preferred list and is the most senior person on the list, Jones must be certified for appointed to the newly created position.
* The fact that the district did not take the procedural steps required to terminate Bratge’s probationary employment suggests that had Bratge filed a timely appeal the Commissioner might have found that she had attained tenure by estoppel.
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For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
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NYPPL
Bratge v Stockbridge Valley CSD, Decision of the Commissioner of Education #14454
The Bratge case demonstrates the importance of complying with all statutory and contractual procedures relevant to personnel actions.
The Stockbridge Valley Central School District appointed Katrina Bratge as an Assistant Building Principal/Guidance Counselor [K-12]. Bratge’s appointment was subject to a three-year probationary period.
In March 1999 School Superintendent Charles Stratton met with Bratge. According to Bratge, the superintendent told her that the district intended to eliminate her position in favor of creating a new full-time guidance counselor position and converting a part-time business administrator position to a full-time position.
Stratton, on the other hand, said that he had told Bratge that he intended to terminate her probationary employment but that she would be allowed to resign rather than be terminated.
In August 1999 Bratge wrote to the school board indicating that she did not intend to resign her position and requested it place her name on the preferred eligibility list for appointment as a guidance or administrative position should one become available in accordance with Sections 2510(3) and 3013(3) of the Education Law.
In response, the district wrote to Bratge advising her that because she had voluntarily resigned from her position and had returned to a position with the Rome City School District ... she had no recall rights. Bratge wrote the district to clarify the events that had led to her asking to be placed on a preferred list and repeated her request. When the district failed to act, Bratge asked the Commissioner to order it to place her on a preferred list.
Although the Commissioner ruled that Bratge’s appeal had to be dismissed because it was untimely, he elected to comment on the merits of her appeal.
The Commissioner pointed out that the problem resulted because the district did not provide Bratge with a clear and unambiguous notice of its intentions. Although the district claims that Bratge agreed to resign and asked for her letter of resignation, it never actually received a written resignation from her.
Despite not having received Bratge’s written resignation, the Commissioner noted, the district did not take the procedural steps required to terminate her probationary employment.* This, according to the Commissioner, left Bratge unsure of her exact status and the district believing that the position was vacant as of the beginning of the 1999-2000 school year.
The Commissioner also took the opportunity to point out that personnel decisions must comply with all applicable legal and contractual requirements. In the event the district provides an employee with an option of resigning in lieu of termination, it must comply with all statutory and contractual notification requirements if it then wishes to terminate an employee who does not voluntarily submit his or her written resignation.
One issue not addressed by the Commissioner: assuming that Bratge had a right to have her name place on a preferred list, would her returning to a position with the Rome City School District have any impact on her status on such a list?
Here are some points to keep in mind regarding preferred lists:
1. Typically the most senior individual on the list may be passed over or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.
2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.
3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.
4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of preferred lists such as a special military list.)
5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example, Jones is laid off from Position A and subsequently accepts a position to a lower rank position for which the preferred list was certified. If Position A is reestablished and Jones is eligible for certification from the preferred list and is the most senior person on the list, Jones must be certified for appointed to the newly created position.
* The fact that the district did not take the procedural steps required to terminate Bratge’s probationary employment suggests that had Bratge filed a timely appeal the Commissioner might have found that she had attained tenure by estoppel.
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For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
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NYPPL
Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”
Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”
Massaro v Mercado, 276 AD2d 445
After being rejected for appointment as a police officer, Louis Massaro filed a complaint with the Division of Human Rights. Massaro contended that the New York Police Department had unlawfully discriminated against him because of his disability. According to the decision, Massaro was rejected for appointment as a police officer of the grounds of psychological unsuitability for the position.
After initially finding probable cause, the State Division of Human Rights [DHR] dismissed Massaro’s compliant without conducting an administrative hearing. Massaro sued in an effort to compel DHR to conduct a hearing, only to have his petition dismissed by State Supreme Court Judge Lottie Watkins.
The Appellate Division affirmed Judge Watkins’ action, holding that DHR “was not required to conduct a hearing simply because it had previously made a probable cause determination in [Massaro’s] favor.”
There was no question that Massaro was rejected after a finding of psychological unsuitability. However, said the court, this is neither a disability within the meaning of the Human Rights Law nor was it perceived as a disability by the Police Department.
As the Division of Human Rights cannot disturb a hiring decision absent a showing that the decision was influenced by unlawful discrimination, the Appellate Division agreed that it should not be required to hold a hearing when it is clear that such a showing cannot be made.
NYPPL
Massaro v Mercado, 276 AD2d 445
After being rejected for appointment as a police officer, Louis Massaro filed a complaint with the Division of Human Rights. Massaro contended that the New York Police Department had unlawfully discriminated against him because of his disability. According to the decision, Massaro was rejected for appointment as a police officer of the grounds of psychological unsuitability for the position.
After initially finding probable cause, the State Division of Human Rights [DHR] dismissed Massaro’s compliant without conducting an administrative hearing. Massaro sued in an effort to compel DHR to conduct a hearing, only to have his petition dismissed by State Supreme Court Judge Lottie Watkins.
The Appellate Division affirmed Judge Watkins’ action, holding that DHR “was not required to conduct a hearing simply because it had previously made a probable cause determination in [Massaro’s] favor.”
There was no question that Massaro was rejected after a finding of psychological unsuitability. However, said the court, this is neither a disability within the meaning of the Human Rights Law nor was it perceived as a disability by the Police Department.
As the Division of Human Rights cannot disturb a hiring decision absent a showing that the decision was influenced by unlawful discrimination, the Appellate Division agreed that it should not be required to hold a hearing when it is clear that such a showing cannot be made.
NYPPL
Determining if assigned duties constitute out-of-title work
Determining if assigned duties constitute out-of-title work
CSEA v Angello, App. Div., Third Dept.,
CSEA, representing 128 employees of the Central New York Developmental Disabilities Service Organization serving as Developmental Aide - In Residence [DA-IR9] filed a grievance claiming that such employees were routinely assigned supervisory duties of a SG-12 Developmental Assistant I - In Residence [DAI-IR12] and that such tasks constituted out-of-title work under the relevant Taylor Law contract.
The SG-12 duties allegedly assigned to the SG-9 workers: submit budget reports, purchase requests, maintenance logs, time and attendance sheets, vehicle reports, formulate menus, supervise client recreational activities, provide for subordinate staff training and make decisions concerning the operation of the sleepover residences on a regular basis.
The grievance was denied at all steps of the contract grievance procedure and CSEA appealed. A state supreme court dismissed CSEA’s petition after finding that the duties complained of were not beyond the contemplation of the job description for DA-IR9 nor excessively complex or difficult, that CSEA failed to show that class members spent a significant amount of time at the objectionable tasks. Supreme Court concluded that there was a rational basis for denial of the grievance.
Pointing out that although [o]ut-of-title work, other than on an emergency basis, is prohibited by Section 61.2 of the Civil Service Law, the performance of duties by a grievant which are substantially similar to those set forth in that person’s job description does not constitute out-of-title work, nor does some overlap of the duties of a DA-IR9 employee and the higher grade DAI-IR12 employee.
The Appellate Division affirmed the lower court’s dismissal of CSEA’s petition. Its rationale: CSEA’s main argument that DA-IR9s were routinely assigned supervisory duties of DA1-IR12s is tempered by CSEA’s concession that “... DA-IR9s do not supervise other employees and the tasks of preparing and submitting budget reports, purchase requests and other documents performed by DA-IR9s in their residential settings ... were rationally determined not to be out-of-title work or [constituted a] permissive overlap of the duties of DAI-IR12s who supervise those residences.”
NYPPL
CSEA v Angello, App. Div., Third Dept.,
CSEA, representing 128 employees of the Central New York Developmental Disabilities Service Organization serving as Developmental Aide - In Residence [DA-IR9] filed a grievance claiming that such employees were routinely assigned supervisory duties of a SG-12 Developmental Assistant I - In Residence [DAI-IR12] and that such tasks constituted out-of-title work under the relevant Taylor Law contract.
The SG-12 duties allegedly assigned to the SG-9 workers: submit budget reports, purchase requests, maintenance logs, time and attendance sheets, vehicle reports, formulate menus, supervise client recreational activities, provide for subordinate staff training and make decisions concerning the operation of the sleepover residences on a regular basis.
The grievance was denied at all steps of the contract grievance procedure and CSEA appealed. A state supreme court dismissed CSEA’s petition after finding that the duties complained of were not beyond the contemplation of the job description for DA-IR9 nor excessively complex or difficult, that CSEA failed to show that class members spent a significant amount of time at the objectionable tasks. Supreme Court concluded that there was a rational basis for denial of the grievance.
Pointing out that although [o]ut-of-title work, other than on an emergency basis, is prohibited by Section 61.2 of the Civil Service Law, the performance of duties by a grievant which are substantially similar to those set forth in that person’s job description does not constitute out-of-title work, nor does some overlap of the duties of a DA-IR9 employee and the higher grade DAI-IR12 employee.
The Appellate Division affirmed the lower court’s dismissal of CSEA’s petition. Its rationale: CSEA’s main argument that DA-IR9s were routinely assigned supervisory duties of DA1-IR12s is tempered by CSEA’s concession that “... DA-IR9s do not supervise other employees and the tasks of preparing and submitting budget reports, purchase requests and other documents performed by DA-IR9s in their residential settings ... were rationally determined not to be out-of-title work or [constituted a] permissive overlap of the duties of DAI-IR12s who supervise those residences.”
NYPPL
December 07, 2010
Administrative Law Judge examination scheduled
Administrative Law Judge examination scheduled
Source: New York State Department of Civil Service
The New York State Department of Civil Service will hold an examination for Administrative Law Judge, NYS Workers Compensation Board, on February 5, 2011. This is an “SG-28 position, with a starting salary of $86,168.
Appointees working in the five boroughs of New York City or in Nassau, Suffolk, Rockland, or Westchester Counties will receive an additional $3,026 annual “downstate salary adjustment.” Appointees working in Dutchess, Orange, or Putnam Counties will receive an additional $1,513 annual “mid-Hudson salary adjustment.”
A $45 application fee is required.
N.B. The deadline for filing applications is January 3, 2011.
This examination open to all individuals meeting the minimum qualifications set out in the Examination Announcement.
There is an "ONLINE APPLICATION PROCESS" available at http://www.cs.state.ny.us/exams
For additional information, including a description of the duties of the position, and the minimum qualifications for this examination, go to: http://www.cs.state.ny.us/examannouncements/announcements/pdf/25-438.pdf
.
Source: New York State Department of Civil Service
The New York State Department of Civil Service will hold an examination for Administrative Law Judge, NYS Workers Compensation Board, on February 5, 2011. This is an “SG-28 position, with a starting salary of $86,168.
Appointees working in the five boroughs of New York City or in Nassau, Suffolk, Rockland, or Westchester Counties will receive an additional $3,026 annual “downstate salary adjustment.” Appointees working in Dutchess, Orange, or Putnam Counties will receive an additional $1,513 annual “mid-Hudson salary adjustment.”
A $45 application fee is required.
N.B. The deadline for filing applications is January 3, 2011.
This examination open to all individuals meeting the minimum qualifications set out in the Examination Announcement.
There is an "ONLINE APPLICATION PROCESS" available at http://www.cs.state.ny.us/exams
For additional information, including a description of the duties of the position, and the minimum qualifications for this examination, go to: http://www.cs.state.ny.us/examannouncements/announcements/pdf/25-438.pdf
.
Fruits of an undercover investigation used as a basis for disciplinary charges
Fruits of an undercover investigation used as a basis for disciplinary charges
DiGiovanni v Safir277 AD2d 36
May the appointing authority bring disciplinary action against an employee based on information obtained from undercover police officers. As the DiGiovanni decision indicates, such information can serve as a basis for filing disciplinary charges against an individual.
In this instance an undercover police officer and her supervisor testified that George DiGiovanni approached a police decoy and proposed oral sex for a fee.
DiGiovanni, as it turned out, was a New York City police officer. As a result of this episode, he was served with administrative disciplinary charges. The hearing officer found him guilty of soliciting sex and imposed the penalty of dismissal. DiGiovanni appealed only to have the Appellate Division unanimously affirm both the administrative determination that he was guilty of the charges filed against him and penalty imposed.
The Appellate Division decided that the evidence presented at the disciplinary hearing supported the finding that DiGiovanni was guilty of soliciting sex for money from a person believed by him to be a prostitute.
Turning to DiGiovanni’s objection to his being dismissed from his position, the court said that "[g]iven the gravity of the offense and [DiGiovanni’s] prior disciplinary history, the penalty imposed does not shock our conscience."
The court’s reference to DiGiovanni’s prior disciplinary history suggests that the department asked the hearing officer to consider DiGiovanni’s personnel history in determining the penalty to be imposed.
An employee’s personnel records may be considered by a hearing officer when the setting a disciplinary penalty provided the appointing authority has complied with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur, 63 NY2d 470. The procedures to be followed in order to satisfy the Bigelow test:
1. The employee must be advised that his or her prior disciplinary record will be considered in setting the penalty to be imposed; and
2. The employee must be given an opportunity to submit a written response to any adverse material contained in the record or offer mitigating circumstances.
NYPPL
DiGiovanni v Safir277 AD2d 36
May the appointing authority bring disciplinary action against an employee based on information obtained from undercover police officers. As the DiGiovanni decision indicates, such information can serve as a basis for filing disciplinary charges against an individual.
In this instance an undercover police officer and her supervisor testified that George DiGiovanni approached a police decoy and proposed oral sex for a fee.
DiGiovanni, as it turned out, was a New York City police officer. As a result of this episode, he was served with administrative disciplinary charges. The hearing officer found him guilty of soliciting sex and imposed the penalty of dismissal. DiGiovanni appealed only to have the Appellate Division unanimously affirm both the administrative determination that he was guilty of the charges filed against him and penalty imposed.
The Appellate Division decided that the evidence presented at the disciplinary hearing supported the finding that DiGiovanni was guilty of soliciting sex for money from a person believed by him to be a prostitute.
Turning to DiGiovanni’s objection to his being dismissed from his position, the court said that "[g]iven the gravity of the offense and [DiGiovanni’s] prior disciplinary history, the penalty imposed does not shock our conscience."
The court’s reference to DiGiovanni’s prior disciplinary history suggests that the department asked the hearing officer to consider DiGiovanni’s personnel history in determining the penalty to be imposed.
An employee’s personnel records may be considered by a hearing officer when the setting a disciplinary penalty provided the appointing authority has complied with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur, 63 NY2d 470. The procedures to be followed in order to satisfy the Bigelow test:
1. The employee must be advised that his or her prior disciplinary record will be considered in setting the penalty to be imposed; and
2. The employee must be given an opportunity to submit a written response to any adverse material contained in the record or offer mitigating circumstances.
NYPPL
Modifying employee work schedules
Modifying employee work schedules
Maineri v Syosset CSD, 276 AD2d 793
Contract grievances involving changing an individual’s work schedule generally are resolved by interpreting the language set out in the collective bargaining agreement. Of equal importance in such situations is whether the contract is silent or sets out exclusions with respect to such changes as the Maineri case demonstrates.
David Maineri sued the Syosset Central School District after the district denied his grievance challenging a change in his working hours. A State Supreme Court justice dismissed his petition and Maineri appealed.
The Appellate Division, Second Department, affirmed the lower court’s ruling. The court said that dispute, which centered on Maineri’s working hours, was covered by the terms and conditions of the parties’ collective bargaining agreement and, therefore there is no further statutory duty to bargain collectively with respect to the matter.
On the merits, the court ruled that “the district did not violate the parties’ collective bargaining agreement by altering [Maineri’s] working hours since the agreement did not establish the his right and entitlement to specific hours of work.” In the words of the court, “in the absence of such entitlement there can be no violation of the contract by the alteration of those hours.”
In addition, the court said that “the school district, as a municipal entity, may not be estopped from changing the [Maineri’s] working hours to correct errors in those hours, since the challenged alteration concerns the performance of a governmental function.”
In another change of work schedule case, In the Arbitration between Sullivan County and Teamsters Local 445, 276 AD2d 861, Appellate Division, Third Department, [Motion for leave to appeal denied, 96 NY2d 703 ], the court overturned an arbitrator’s ruling that Sullivan County had violated the collective bargaining agreement when it unilaterally changed the work schedule of certain employees.
The individuals involved worked 35 hours per week as aides for the County’s Division of Health and Family Services. Their work schedule: Monday through Friday, between the hours of 9:00 A.M. and 5:00 P.M.
In response to a decline in the demand for home health aide services, the County changed all full-time aide positions to part-time positions. The aides filed a contract grievance and the arbitrator ruled that the change from full-time to part-time constituted a violation of the collective bargaining agreement. The arbitrator ordered the County to restore the aides to full-time status [i.e., 35-hours per week] with back pay.
A State Supreme Court judge vacated the award on the grounds that the arbitrator had misread the Taylor Law agreement. The Appellate Division affirmed the lower court’s ruling.
First the Appellate Division noted that judicial review of an arbitration decision is limited and such a decision will not be disturbed unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power, citing Matter of the Town of Callicoon, 70 NY2d 907. Here, however, the court concluded that the arbitrator erroneously applied Section 408 of the agreement to the aides’ positions and, therefore, his decision was irrational.
The agreement did, in fact, set out the workday, workweek and overtime for certain workers. The decision notes that Section 401 of the agreement defined the normal work week and indicates that [e]xcept as hereinafter provided, the work week of all employees shall be five (5) days, Monday through Friday, seven (7) hours per day, thirty-five (35) hours per week [and] [t]he hours of employment shall be 9:00 A.M. to 5:00 P.M.
The agreement also sets a 40-hour work week for certain of workers, and further provides that [n]otwithstanding anything to the contrary contained in this Article, employees who work a five (5) day, forty (40) hour week, excluding time off for lunch, Monday through Friday, shall continue [Section 408 of the agreement].
The court said that the aides worked a 35-hour workweek prior to the reduction of their hours. It agreed with the Supreme Court’s conclusion that Section 408 relates only to employees who work 40 hours per week and cannot reasonably be interpreted as applicable to the aides’ positions.
Since there was not other provision in the agreement preventing the County from unilaterally reducing the hours of the aides due to business necessity, the Appellate Division concluded that the arbitrator’s award was properly vacated.
The Appellate Division also commented that:
"Indeed, Section 2502(d) [of the contract] expressly vests [the county] with the authority [t]o relieve employees from duties because of lack of work or other legitimate reason. Taking the above into consideration and applying Section 2103 of the agreement that specifically prohibits modification of its provisions by arbitration, we conclude that Supreme Court properly vacated the award."
NYPPL
Maineri v Syosset CSD, 276 AD2d 793
Contract grievances involving changing an individual’s work schedule generally are resolved by interpreting the language set out in the collective bargaining agreement. Of equal importance in such situations is whether the contract is silent or sets out exclusions with respect to such changes as the Maineri case demonstrates.
David Maineri sued the Syosset Central School District after the district denied his grievance challenging a change in his working hours. A State Supreme Court justice dismissed his petition and Maineri appealed.
The Appellate Division, Second Department, affirmed the lower court’s ruling. The court said that dispute, which centered on Maineri’s working hours, was covered by the terms and conditions of the parties’ collective bargaining agreement and, therefore there is no further statutory duty to bargain collectively with respect to the matter.
On the merits, the court ruled that “the district did not violate the parties’ collective bargaining agreement by altering [Maineri’s] working hours since the agreement did not establish the his right and entitlement to specific hours of work.” In the words of the court, “in the absence of such entitlement there can be no violation of the contract by the alteration of those hours.”
In addition, the court said that “the school district, as a municipal entity, may not be estopped from changing the [Maineri’s] working hours to correct errors in those hours, since the challenged alteration concerns the performance of a governmental function.”
In another change of work schedule case, In the Arbitration between Sullivan County and Teamsters Local 445, 276 AD2d 861, Appellate Division, Third Department, [Motion for leave to appeal denied, 96 NY2d 703 ], the court overturned an arbitrator’s ruling that Sullivan County had violated the collective bargaining agreement when it unilaterally changed the work schedule of certain employees.
The individuals involved worked 35 hours per week as aides for the County’s Division of Health and Family Services. Their work schedule: Monday through Friday, between the hours of 9:00 A.M. and 5:00 P.M.
In response to a decline in the demand for home health aide services, the County changed all full-time aide positions to part-time positions. The aides filed a contract grievance and the arbitrator ruled that the change from full-time to part-time constituted a violation of the collective bargaining agreement. The arbitrator ordered the County to restore the aides to full-time status [i.e., 35-hours per week] with back pay.
A State Supreme Court judge vacated the award on the grounds that the arbitrator had misread the Taylor Law agreement. The Appellate Division affirmed the lower court’s ruling.
First the Appellate Division noted that judicial review of an arbitration decision is limited and such a decision will not be disturbed unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power, citing Matter of the Town of Callicoon, 70 NY2d 907. Here, however, the court concluded that the arbitrator erroneously applied Section 408 of the agreement to the aides’ positions and, therefore, his decision was irrational.
The agreement did, in fact, set out the workday, workweek and overtime for certain workers. The decision notes that Section 401 of the agreement defined the normal work week and indicates that [e]xcept as hereinafter provided, the work week of all employees shall be five (5) days, Monday through Friday, seven (7) hours per day, thirty-five (35) hours per week [and] [t]he hours of employment shall be 9:00 A.M. to 5:00 P.M.
The agreement also sets a 40-hour work week for certain of workers, and further provides that [n]otwithstanding anything to the contrary contained in this Article, employees who work a five (5) day, forty (40) hour week, excluding time off for lunch, Monday through Friday, shall continue [Section 408 of the agreement].
The court said that the aides worked a 35-hour workweek prior to the reduction of their hours. It agreed with the Supreme Court’s conclusion that Section 408 relates only to employees who work 40 hours per week and cannot reasonably be interpreted as applicable to the aides’ positions.
Since there was not other provision in the agreement preventing the County from unilaterally reducing the hours of the aides due to business necessity, the Appellate Division concluded that the arbitrator’s award was properly vacated.
The Appellate Division also commented that:
"Indeed, Section 2502(d) [of the contract] expressly vests [the county] with the authority [t]o relieve employees from duties because of lack of work or other legitimate reason. Taking the above into consideration and applying Section 2103 of the agreement that specifically prohibits modification of its provisions by arbitration, we conclude that Supreme Court properly vacated the award."
NYPPL
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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.
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