Payment for unused leave credits upon resignation or separation from employment
Gratto Ausable v Valley CSD. 271 AD2d 175
The Gratto case explores the obligation of the employer to pay an individual for his or her unused vacation credits upon his or her involuntary termination. The general rule set out by the Appellate Division, Third Department in dealing with claims for such payment: use it or lose it!
Ausable Valley CSD Superintendent John Gratto’s employment contract with the school district provided that Gratto was to receive 25 paid vacation days a year, subject to a maximum accumulation of 45 days of vacation credit. The contract, however, was silent with respect to making a cash payment for any unused vacation time upon the termination of Gratto’s employment.
When Gratto was involuntarily terminated from his position he claimed that he was entitled to payment for his unused vacation credits upon his separation as he had earned it. The district disagreed and refused to pay him for his unused leave credits.
The absence of a statement providing for the cash liquidation of leave credits proved to be one of a number of critical elements in the Appellate Division’s resolution of his appeal from a Supreme Court judge’s summarily dismissing his complaint.
The Appellate Division said that “[i]n the absence of a statutory or contractual basis for recovery, a public employee may not recover the monetary value of unused vacation time that has accrued as of the date of termination.”
Gratto attempted to avoid this general rule by contending that a public employee who is involuntarily terminated, is constitutionally entitled to receive the cash value of unused vacation days, citing a Fourth Department decision, Clift v City of Syracuse, 45 AD2d 596 in support of his theory.
In Clift, the Appellate Division, Fourth Department. said that if the employer discharges an employee without having either given him the opportunity to use the vacation he has earned, or in the alternative, compensating him with its monetary value, it transgresses the due process requirements of both the New York State and United States Constitutions and it should not be permitted to do so.
The Third Department, however, decided that Clift has never been interpreted as meaning that a public employee who is involuntarily discharged is automatically entitled to a cash payment for his or her unused vacation. Rather, it viewed the holding as applying only where there are circumstances requiring special considerations.*
The Appellate Division rejected Gratto’s claim that his work responsibilities prevented him from using all of his leave credits for vacations. What was missing in Gratto’s situation? Evidence that a superior or supervisor induced him to forego any vacation time during that year for any reason or that he refrained from using vacation time the entire year because of noncontractual duties.
The Appellate Division affirmed the lower court’s ruling, holding that under the circumstances, Gratto was not entitled to the cash value of his 45 days of unused vacation when he was involuntarily separated.
This is similar to the general rule with respect to State workers subject to the State Civil Service Commission’s Attendance Rules for the Classified Service, 4 NYCRR 30.1. Section 30.1 states that an employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, is not entitled to compensation for vacation credits.
What about a voluntary separation, i.e., the State employee is not involved in a disciplinary action when he or she resigns or retires? Section 30.1 provides that an appointing authority may require, as a condition for such payment that it be given at least two weeks notice prior to the last day of work.
* The special circumstances in Clift: the employee contended that he agreed to defer using his vacation credits based on promises made by his superior and was then involuntarily dismissed. Similarly in May v Ballston Spa CSD, 170 AD2D 920, the Third Department ruled in favor of the employee upon its finding that the employee was induced to forego vacation when his superiors assured him that he would be paid for his unused leave notwithstanding his involuntary separation as a result of a layoff.
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 24, 2010
Qualifying for reinstatement
Qualifying for reinstatement
Levy v Freeport UFSD, 275 A.D.2d 459, Motion for leave to appeal denied, 95 N.Y.2d 769
Carol L. Levy asked the Freeport Union Free School District to reinstate her to the position of Coordinator of English Language Arts/Reading.
Levy contended that she was qualified for reinstatement to the position because she was certified in reading. Conceding that Levy was certified in reading, the district declined to reinstate her to as the Coordinator because she was not certified in English.
Levy sued, seeking a court order compelling the district to reinstate her to the position.
The Appellate Division set out the general rule for reinstatement as follows:
Although a teacher seeking reinstatement need not be tenured in the area of the vacant position, the vacant position must be similar to the teacher’s former position and the teacher must be legally qualified to teach in the position sought.
Here, said the court, the record is clear: Levy is certified to teach reading, but not to teach English.
Under the circumstances, the court concluded, Levy did not have the appropriate certification for the position of English Language Arts/Reading Coordinator and dismissed her appeal.
Levy v Freeport UFSD, 275 A.D.2d 459, Motion for leave to appeal denied, 95 N.Y.2d 769
Carol L. Levy asked the Freeport Union Free School District to reinstate her to the position of Coordinator of English Language Arts/Reading.
Levy contended that she was qualified for reinstatement to the position because she was certified in reading. Conceding that Levy was certified in reading, the district declined to reinstate her to as the Coordinator because she was not certified in English.
Levy sued, seeking a court order compelling the district to reinstate her to the position.
The Appellate Division set out the general rule for reinstatement as follows:
Although a teacher seeking reinstatement need not be tenured in the area of the vacant position, the vacant position must be similar to the teacher’s former position and the teacher must be legally qualified to teach in the position sought.
Here, said the court, the record is clear: Levy is certified to teach reading, but not to teach English.
Under the circumstances, the court concluded, Levy did not have the appropriate certification for the position of English Language Arts/Reading Coordinator and dismissed her appeal.
Political activities by State officers and employees
NYS Ethics Commission
Periodically the New York State Ethics Commission reminds State workers of the State’s policy regarding political activities. Typically the Commission notes that:
1. State personnel may only engage in campaign activities on their own time;
2. State resources, including telephones, office supplies, photocopying and FAX machines and secretarial support may not be used for campaign purposes.
3. State personnel may not use their official position to solicit funds or coerce or influence co-workers for political purposes.
4. Campaign materials may not indicate or imply any State support or opposition to the candidate except that a candidate may refer to his or her State position in a campaign biography.
Section 107 of the Civil Service Law sets out a number of prohibitions against certain political activities by employees of the State and its political subdivision.
In addition, the political activities of State employees whose employment is Federally financed, in whole or in part, may be further restricted by the federal Hatch Act [53 Stat. 1147].
Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election, using official authority or influence to interfere with or affect the results of an election or nomination directly or indirectly coerce contributions from subordinates in support of a political party or candidate.
Although a public officer or employee may lawfully seek the nomination for such public office, he or she must resign from his or her public employment upon accepting the nomination.
NYS Ethics Commission
Periodically the New York State Ethics Commission reminds State workers of the State’s policy regarding political activities. Typically the Commission notes that:
1. State personnel may only engage in campaign activities on their own time;
2. State resources, including telephones, office supplies, photocopying and FAX machines and secretarial support may not be used for campaign purposes.
3. State personnel may not use their official position to solicit funds or coerce or influence co-workers for political purposes.
4. Campaign materials may not indicate or imply any State support or opposition to the candidate except that a candidate may refer to his or her State position in a campaign biography.
Section 107 of the Civil Service Law sets out a number of prohibitions against certain political activities by employees of the State and its political subdivision.
In addition, the political activities of State employees whose employment is Federally financed, in whole or in part, may be further restricted by the federal Hatch Act [53 Stat. 1147].
Essentially, the Hatch Act bars State and local officers and employees from being candidates for public office in a partisan election, using official authority or influence to interfere with or affect the results of an election or nomination directly or indirectly coerce contributions from subordinates in support of a political party or candidate.
Although a public officer or employee may lawfully seek the nomination for such public office, he or she must resign from his or her public employment upon accepting the nomination.
December 23, 2010
Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior
Employee conduct must be “in furtherance of the employee’s business” for it to be held liable for the employee’s negligent acts as Respondeat Superior
Perez v City of New York, 2010 NY Slip Op 09237, Decided on December 14, 2010, Appellate Division, Second Department
New York City police officer Javier Colon accidentally discharged his weapon in the course of unloading it while off-duty and engaged in "personal business," mortally wounding George Perez.
The City of New York and Colon were named as respondents in the lawsuit filed by Kristin Perez on behalf of Perez's estate seeking to recover damages for wrongful death.
Supreme Court granted the City’s motion to dismiss it from the action and denied Perez’s motion for summary judgment against the City on the issue of whether the Colon was acting within the scope of his employment at the time of the accident.
The Appellate Division affirmed the lower court’s ruling.
Pointing out that under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tortious acts when those acts "were committed in furtherance of the employer's business and within the scope of employment," here, said the court, Colon's actions were undertaken “for wholly personal reasons” that were not job related. Accordingly, Colon’s conduct that resulted in the accident “cannot be said to fall within the scope of employment"
Finding that City met its prima facie burden of demonstrating that Colon was not acting within the scope of his employment as a police officer when he unloaded his service weapon and it accidentally discharged, the Appellate Division concluded that Colon’s actions were wholly personal in nature as “he was off duty, engaged in a social activity at his friend's apartment, where he planned to consume alcohol and, concerned about his comfort and the fact that he would consume alcohol, determined that unloading his firearm would be the best method to secure the weapon.”
As Perez failed to demonstrate the existence of a triable issue of fact as to whether Colon was acting within the scope of his employment at the time of the shooting, the Appellate Division decided that Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09237.htm
Perez v City of New York, 2010 NY Slip Op 09237, Decided on December 14, 2010, Appellate Division, Second Department
New York City police officer Javier Colon accidentally discharged his weapon in the course of unloading it while off-duty and engaged in "personal business," mortally wounding George Perez.
The City of New York and Colon were named as respondents in the lawsuit filed by Kristin Perez on behalf of Perez's estate seeking to recover damages for wrongful death.
Supreme Court granted the City’s motion to dismiss it from the action and denied Perez’s motion for summary judgment against the City on the issue of whether the Colon was acting within the scope of his employment at the time of the accident.
The Appellate Division affirmed the lower court’s ruling.
Pointing out that under the doctrine of respondeat superior, an employer is vicariously liable for an employee's tortious acts when those acts "were committed in furtherance of the employer's business and within the scope of employment," here, said the court, Colon's actions were undertaken “for wholly personal reasons” that were not job related. Accordingly, Colon’s conduct that resulted in the accident “cannot be said to fall within the scope of employment"
Finding that City met its prima facie burden of demonstrating that Colon was not acting within the scope of his employment as a police officer when he unloaded his service weapon and it accidentally discharged, the Appellate Division concluded that Colon’s actions were wholly personal in nature as “he was off duty, engaged in a social activity at his friend's apartment, where he planned to consume alcohol and, concerned about his comfort and the fact that he would consume alcohol, determined that unloading his firearm would be the best method to secure the weapon.”
As Perez failed to demonstrate the existence of a triable issue of fact as to whether Colon was acting within the scope of his employment at the time of the shooting, the Appellate Division decided that Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09237.htm
Random searches at work
Random searches at work
Morris v NY-NJ Port Authority, 290 AD2d 22
Robert Morris and the Port Authority Police Benevolent Association [PBA] sued the Port Authority in an effort to obtain a judicial declaration that random searches of the Port Authority police officers’ lockers were (1) unconstitutional and (2) a breach of a Memorandum of Agreement [MOA] between the PBA and the Authority.
The lockers in question are owned by the Authority and were being used by Authority police officers. A search on October 13, 1999 found radios belong to the Authority in the lockers of two officers in violation of its directive to pass the radios on to their shift replacements. The officers were disciplined for violating the directive.
The court dismissed the complaint citing the Appellate Division’s ruling in Moore v Constantine, 191 AD2d 769. Moore challenged his termination as a result of the search of his personal locker and “the seizure of evidence ... which was admitted in evidence” at a disciplinary hearing. The court said that the seizure of evidence from Moore’s locker did not violate his rights under the 4th Amendment.
According to the decision, in order to be entitled to assert a violation of the 4th Amendment, the individual must establish that he or she possessed a reasonable expectation of privacy as to the searched premises.
The right to privacy in the workplace asserted Moore’s situation, said the court, must bend to the superior governmental-societal interest of efficiency in the State Police. All public employees, especially police officers, have a diminished expectation of privacy in the work place.
As the U.S. Supreme Court said in O’Connor v Ortega, 480 US 709, when a public employer conducts such a search, the court must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.
The court’s conclusion: “In light of the foregoing, the searches in question, whether they were consensual or not, did not violate plaintiffs’ constitutional rights, and therefore plaintiffs’ claim that they have a likelihood of success on this issue is unpersuasive.”
As to the PBA’s claim that the Authority violated provisions of the MOA, the court ruled that the question was for the arbitrator to determine, as it appears that this dispute is governed by the collective bargaining agreement.
Morris v NY-NJ Port Authority, 290 AD2d 22
Robert Morris and the Port Authority Police Benevolent Association [PBA] sued the Port Authority in an effort to obtain a judicial declaration that random searches of the Port Authority police officers’ lockers were (1) unconstitutional and (2) a breach of a Memorandum of Agreement [MOA] between the PBA and the Authority.
The lockers in question are owned by the Authority and were being used by Authority police officers. A search on October 13, 1999 found radios belong to the Authority in the lockers of two officers in violation of its directive to pass the radios on to their shift replacements. The officers were disciplined for violating the directive.
The court dismissed the complaint citing the Appellate Division’s ruling in Moore v Constantine, 191 AD2d 769. Moore challenged his termination as a result of the search of his personal locker and “the seizure of evidence ... which was admitted in evidence” at a disciplinary hearing. The court said that the seizure of evidence from Moore’s locker did not violate his rights under the 4th Amendment.
According to the decision, in order to be entitled to assert a violation of the 4th Amendment, the individual must establish that he or she possessed a reasonable expectation of privacy as to the searched premises.
The right to privacy in the workplace asserted Moore’s situation, said the court, must bend to the superior governmental-societal interest of efficiency in the State Police. All public employees, especially police officers, have a diminished expectation of privacy in the work place.
As the U.S. Supreme Court said in O’Connor v Ortega, 480 US 709, when a public employer conducts such a search, the court must balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.
The court’s conclusion: “In light of the foregoing, the searches in question, whether they were consensual or not, did not violate plaintiffs’ constitutional rights, and therefore plaintiffs’ claim that they have a likelihood of success on this issue is unpersuasive.”
As to the PBA’s claim that the Authority violated provisions of the MOA, the court ruled that the question was for the arbitrator to determine, as it appears that this dispute is governed by the collective bargaining agreement.
Requests for union leave
Requests for union leave
Matter of the Erie County Sheriff’s Police Benevolent Association, 33 PERB 4570
Provisions for union leave are included in many Taylor Law agreements.
Here the collective bargaining agreement between the Erie County Sheriff’s Police Benevolent Association [SPBA] and the Erie County Sheriff’s Department [department] included a provision allowing specified SPBA members to be absent on union leave. The contract also set out the total number of union leave days available and the procedure to be followed in requesting approval for such leave.
SPBA filed an improper practice charge with PERB in which it alleged that the department had violated Civil Service Law Sections 209-a.1(b) [prohibiting employer attempts to dominate or interfere with the ... administration of any employee organization] and 209-a.1(d) [barring employers from refusing to negotiate in good faith] when it unilaterally decided to require unit members to include an explanation for their absence when requesting union leave.
SPBA also claimed that if the department disapproved of the explanation given by the member, it withheld its approval of the request for the leave. According to SPBA, this was a contract violation in as much as the agreement also provided that requests for union leave shall not be unreasonably withheld.
PERB’s administrative law judge Monte Klein dismissed the charge. Klein said that PERB did not have any jurisdiction to consider such a complaint in view of the fact that the union leave provision was a contract benefit.
Where, said Klein, a right or benefit emanates from the collective bargaining agreement, and the agreement provides a reasonably arguable source of right with respect to the subject matter, a charge alleging improper unilateral action with respect to such a right or benefit is beyond PERB’s jurisdiction. Kline decided that there appeared to be an alternative procedure available to SPBA to resolve its complaint under the terms of the collective bargaining agreement.
In other words, SPBA’s allegations might constitute a breach of the collective bargaining agreement.
Although Klein did not suggest that any specific procedure available to the SPBA to challenge the department’s action, his language suggests that the SPBA could file a contract grievance concerning its allegations. Thus, if SPBA’s allegations constitute a grievance under the collective bargaining agreement, it might allow it to ultimately demand arbitration as to whether the department violated the agreement by:
1. Requiring explanations in connection with requests for union leave; or
2. Unreasonably withholding its approval of requests for union leave by eligible SPBA unit members.
In a similar type of situation, Matter of Suffolk Detectives Association, 33 PERB 4573, the Association initially filed an improper practice charge with PERB alleging that Suffolk County had violated Civil Service Law Sections 209-a.1(a) [the employer has interfered with, coerced or restrained public employees from exercising their rights under the Taylor Law] and 209-a.1(e) [employer to continue all of the terms of an expired collective bargaining agreement until a new agreement is negotiated].
The basis for the Association’s charge: Suffolk issued a memorandum changing the terms under which unit members would receive payment when recalled to duty. PERB administrative law judge Philip L. Maier conditionally dismissed the charge after the parties advised him that they had submitted the matter to binding arbitration.
Matter of the Erie County Sheriff’s Police Benevolent Association, 33 PERB 4570
Provisions for union leave are included in many Taylor Law agreements.
Here the collective bargaining agreement between the Erie County Sheriff’s Police Benevolent Association [SPBA] and the Erie County Sheriff’s Department [department] included a provision allowing specified SPBA members to be absent on union leave. The contract also set out the total number of union leave days available and the procedure to be followed in requesting approval for such leave.
SPBA filed an improper practice charge with PERB in which it alleged that the department had violated Civil Service Law Sections 209-a.1(b) [prohibiting employer attempts to dominate or interfere with the ... administration of any employee organization] and 209-a.1(d) [barring employers from refusing to negotiate in good faith] when it unilaterally decided to require unit members to include an explanation for their absence when requesting union leave.
SPBA also claimed that if the department disapproved of the explanation given by the member, it withheld its approval of the request for the leave. According to SPBA, this was a contract violation in as much as the agreement also provided that requests for union leave shall not be unreasonably withheld.
PERB’s administrative law judge Monte Klein dismissed the charge. Klein said that PERB did not have any jurisdiction to consider such a complaint in view of the fact that the union leave provision was a contract benefit.
Where, said Klein, a right or benefit emanates from the collective bargaining agreement, and the agreement provides a reasonably arguable source of right with respect to the subject matter, a charge alleging improper unilateral action with respect to such a right or benefit is beyond PERB’s jurisdiction. Kline decided that there appeared to be an alternative procedure available to SPBA to resolve its complaint under the terms of the collective bargaining agreement.
In other words, SPBA’s allegations might constitute a breach of the collective bargaining agreement.
Although Klein did not suggest that any specific procedure available to the SPBA to challenge the department’s action, his language suggests that the SPBA could file a contract grievance concerning its allegations. Thus, if SPBA’s allegations constitute a grievance under the collective bargaining agreement, it might allow it to ultimately demand arbitration as to whether the department violated the agreement by:
1. Requiring explanations in connection with requests for union leave; or
2. Unreasonably withholding its approval of requests for union leave by eligible SPBA unit members.
In a similar type of situation, Matter of Suffolk Detectives Association, 33 PERB 4573, the Association initially filed an improper practice charge with PERB alleging that Suffolk County had violated Civil Service Law Sections 209-a.1(a) [the employer has interfered with, coerced or restrained public employees from exercising their rights under the Taylor Law] and 209-a.1(e) [employer to continue all of the terms of an expired collective bargaining agreement until a new agreement is negotiated].
The basis for the Association’s charge: Suffolk issued a memorandum changing the terms under which unit members would receive payment when recalled to duty. PERB administrative law judge Philip L. Maier conditionally dismissed the charge after the parties advised him that they had submitted the matter to binding arbitration.
Retirement benefits and divorce
Retirement benefits and divorce
Smith v NYS Police and Firefighter Retirement System, 275 AD2d 536
A divorce settlement frequently will have an impact on the distribution of retirement benefits. Typically courts have the final word on how such benefits are to be distributed under the terms of the settlement. As the Smith case demonstrates, sometimes the Comptroller will have the authority to make that determination rather than the courts.
The Qualified Domestic Relations Order [QDRO] issued when Sophie and Nicolas Smith divorced provided that the retirement benefits accrued by Nicolas Smith as a member of the New York State and Local Retirement Systems during the marriage were marital property.
Nicholas Smith later remarried and named his new spouse as his primary beneficiary for pre-retirement death benefits. Smith died in 1997. As he had not yet retired, Sophie Smith applied for the pre-retirement death benefit. The Retirement System told her that under its interpretation of the QDRO only 33.2% of the benefit was payable to her.
The Appellate Division dismissed Sophie’s challenge to this determination, pointing out that [o]nce the Comptroller determined that the Retirement System was obligated to comply with the terms of the QDRO, the only remaining issue involved the interpretation of those terms.
Ordinarily the interpretation of the terms of a court order such as a QDRO would be for the court rather than the Comptroller to resolve. Not only that, the Smith’s QDRO expressly provided that the Supreme Court had continuing jurisdiction to implement and supervise the payment of retirement benefits upon the parties’ application.
Here, however, Appellate Division decided that the courts no longer had jurisdiction to decide the issue. Why did the courts lose jurisdiction? Because, said the Appellate Division, the parties did not seek the court’s assistance in resolving the question, but elected to submit the issue to the Comptroller as part of Sophie Smith’s application for the death benefit.
Under such circumstances, said the Appellate Division, the Comptroller has the authority to resolve disputes over the interpretation of the terms of the QDRO and his determination is binding and must be upheld if it is found rational and supported by substantial evidence.
Smith v NYS Police and Firefighter Retirement System, 275 AD2d 536
A divorce settlement frequently will have an impact on the distribution of retirement benefits. Typically courts have the final word on how such benefits are to be distributed under the terms of the settlement. As the Smith case demonstrates, sometimes the Comptroller will have the authority to make that determination rather than the courts.
The Qualified Domestic Relations Order [QDRO] issued when Sophie and Nicolas Smith divorced provided that the retirement benefits accrued by Nicolas Smith as a member of the New York State and Local Retirement Systems during the marriage were marital property.
Nicholas Smith later remarried and named his new spouse as his primary beneficiary for pre-retirement death benefits. Smith died in 1997. As he had not yet retired, Sophie Smith applied for the pre-retirement death benefit. The Retirement System told her that under its interpretation of the QDRO only 33.2% of the benefit was payable to her.
The Appellate Division dismissed Sophie’s challenge to this determination, pointing out that [o]nce the Comptroller determined that the Retirement System was obligated to comply with the terms of the QDRO, the only remaining issue involved the interpretation of those terms.
Ordinarily the interpretation of the terms of a court order such as a QDRO would be for the court rather than the Comptroller to resolve. Not only that, the Smith’s QDRO expressly provided that the Supreme Court had continuing jurisdiction to implement and supervise the payment of retirement benefits upon the parties’ application.
Here, however, Appellate Division decided that the courts no longer had jurisdiction to decide the issue. Why did the courts lose jurisdiction? Because, said the Appellate Division, the parties did not seek the court’s assistance in resolving the question, but elected to submit the issue to the Comptroller as part of Sophie Smith’s application for the death benefit.
Under such circumstances, said the Appellate Division, the Comptroller has the authority to resolve disputes over the interpretation of the terms of the QDRO and his determination is binding and must be upheld if it is found rational and supported by substantial evidence.
Extension of the probationary period
Extension of the probationary periodMaras v Schenectady CSD, 275 AD2d 551
The Schenectady City School District told probationary school psychologist Roberta J. Maras, that she was not to be granted tenure and terminated her employment effective November 15, 1998. Maras sued, seeking a court order annulling her termination on the theory that she had acquired tenure by estoppel.
Maras was serving a three-year probationary period due to end on September 1, 1998. The district, however, had unilaterally extended Maras’ probationary period through November 16, 1998 because, it said, she had been absent for 11 days in excess of her contractually allotted sick days during her three-year probationary period. On October 16, 1998 the district wrote Maras advising her that she would not be recommended for tenure and, consequently, her employment would terminate on November 15, 1998.
Did Maras attain tenure by estoppel? The Appellate Division said she had, ruling that the district improperly extended Maras’ probationary period beyond September 12, 1998. According to the court, Schenectady could lawfully have extended Maras’ probationary term for the period of time [Maras] was absent from school in excess of her contractually allotted sick days – i.e., an “11-day extension”.
Although Schenectady had the authority to exclude from the computation of Maras’ three-year probationary period any noncontractual absences, it did not have any authority to exclude Maras’ absences provided for by contract. According to the ruling, the district excluded Maras’ 20 days of sick leave, five days of personal time and five days of medical leave that fell on school-wide vacation days.
The Appellate Division, in support of its ruling, cited England v Commissioner of Education, 169 AD2d 868.
The court also observed that Section 2509.7 of the Education Law expressly prohibits extension of an employee’s probationary period by adding thereto contractually bargained for sick or personal leave days or school-wide vacation days.
Section 2509.7 provides that ... no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights.
The court’s conclusion: Maras attained tenure by estoppel because (1) the district failed to take action to grant or deny petitioner tenure prior to September 12, 1998; and (2) the record indicated that the district was aware of Maras’ continuing service in its employ beyond September 12, 1998.
Maras was an employee in the Unclassified Service [see Civil Service Law Section 35]. The general rule is different with respect to extensions of the probationary period for employees in the Classified Service [see Civil Service Law Section 40]. In the event a probationary employee in the Classified Service is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974].
For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”
Some jurisdictions allow the appointing authority to waive some of time a probationer was absent during his or her probationary period, thereby reducing the time the individual actually serves in the probationary period.
The New York State Civil Service Commission's Rules for the Classified Service, for example, provide that "any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary period ... may, in the discretion of the appointing authority, be considered as time served in the probationary term."
Such extensions of the probationary period may be applicable in other situations as well.
For example, in the event an employee injured on the job is given a "light duty assignment," the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes [Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601]. In such cases the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of their satisfactory performance of "light duty."
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The Schenectady City School District told probationary school psychologist Roberta J. Maras, that she was not to be granted tenure and terminated her employment effective November 15, 1998. Maras sued, seeking a court order annulling her termination on the theory that she had acquired tenure by estoppel.
Maras was serving a three-year probationary period due to end on September 1, 1998. The district, however, had unilaterally extended Maras’ probationary period through November 16, 1998 because, it said, she had been absent for 11 days in excess of her contractually allotted sick days during her three-year probationary period. On October 16, 1998 the district wrote Maras advising her that she would not be recommended for tenure and, consequently, her employment would terminate on November 15, 1998.
Did Maras attain tenure by estoppel? The Appellate Division said she had, ruling that the district improperly extended Maras’ probationary period beyond September 12, 1998. According to the court, Schenectady could lawfully have extended Maras’ probationary term for the period of time [Maras] was absent from school in excess of her contractually allotted sick days – i.e., an “11-day extension”.
Although Schenectady had the authority to exclude from the computation of Maras’ three-year probationary period any noncontractual absences, it did not have any authority to exclude Maras’ absences provided for by contract. According to the ruling, the district excluded Maras’ 20 days of sick leave, five days of personal time and five days of medical leave that fell on school-wide vacation days.
The Appellate Division, in support of its ruling, cited England v Commissioner of Education, 169 AD2d 868.
The court also observed that Section 2509.7 of the Education Law expressly prohibits extension of an employee’s probationary period by adding thereto contractually bargained for sick or personal leave days or school-wide vacation days.
Section 2509.7 provides that ... no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights.
The court’s conclusion: Maras attained tenure by estoppel because (1) the district failed to take action to grant or deny petitioner tenure prior to September 12, 1998; and (2) the record indicated that the district was aware of Maras’ continuing service in its employ beyond September 12, 1998.
Maras was an employee in the Unclassified Service [see Civil Service Law Section 35]. The general rule is different with respect to extensions of the probationary period for employees in the Classified Service [see Civil Service Law Section 40]. In the event a probationary employee in the Classified Service is absent during his or her probationary period, typically that employee’s probationary period is automatically extended for a period equal to the time the probationer was absent [see Matter of Mazur, 98 AD2d 974].
For example, 4 NYCRR 4.5(f), a Rule adopted by the State Civil Service Commission pursuant to the authority set out in Civil Service Law Section 63.2, provides that “the minimum and maximum periods of the probationary term of any employee shall be extended by the number of workdays of his [or her] absence which ... are not counted as time served in the probationary term.”
Some jurisdictions allow the appointing authority to waive some of time a probationer was absent during his or her probationary period, thereby reducing the time the individual actually serves in the probationary period.
The New York State Civil Service Commission's Rules for the Classified Service, for example, provide that "any periods of authorized or unauthorized absence aggregating up to 10 workdays during the probationary period ... may, in the discretion of the appointing authority, be considered as time served in the probationary term."
Such extensions of the probationary period may be applicable in other situations as well.
For example, in the event an employee injured on the job is given a "light duty assignment," the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes [Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601]. In such cases the employee may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of their satisfactory performance of "light duty."
.
December 22, 2010
Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award
Arbitrator’s refusal to hear employee’s “whistle blower” defense in the course of disciplinary hearing requires the vacating of the award
Matter of Kowaleski v New York State Dept. of Correctional Servs., 2010 NY Slip Op 09379, Decided on December 21, 2010, Court of Appeals
Barbara Kowaleski, a correction officer employed by the New York State Department of Corrections, was served with disciplinary charges alleging that she violated provisions of the employees' manual on three separate occasions when she "made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates"; argued with a fellow employee; and was "disrespectful and insubordinate" when she ignored a superior's order.
The proposed penalty: termination and the loss of any accrued leave.
Ultimately the matter was submitted to a disciplinary arbitration.
At the outset of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer's misconduct and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law §75-b, contending that §75-b prohibits public employers from retaliating against employees for reporting their coworkers' improper conduct.
The arbitrator determined that because the Collective Bargaining Agreement [CBA] limited his authority "to determinations of guilt or innocence and the appropriateness of proposed penalties," he lacked authority to consider Kowaleski's retaliation defense. The arbitrator, however, indicated that he would consider evidence of retaliation when determining witness credibility and "in the larger context of guilt or innocence."
The arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate and Kowaleski filed a petition pursuant to Article 75 of the CPLR seeking to have the award vacated.
Although Supreme Court and the Appellate Division rejected Kowaleski’s appeal, the Court of Appeals reversed the lower courts’ rulings “[b]ecause we find that the arbitrator's failure to separately consider and determine Kowaleski's affirmative defense of retaliation on the merits requires the award to be vacated”
The Court of Appeals explained that an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made (see CPLR 7511 [b] [1] [iii]). Further, said the court, an arbitrator "exceed[s] his power" under the meaning of the statute where his "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
As the lower courts found, and Correction conceded, the arbitrator “not only had authority to consider Kowaleski's retaliation defense, but was required to do so.”
Further, the opinion indicates that Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" and in the event the employee reasonably believes disciplinary action would not have been taken “but for" the whistle blowing, the employee may assert such as a defense before the designated arbitrator or hearing officer." *
Whatever the terms of the CBA, the Court of Appeals said that "[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision." Further, should the arbitrator or hearing officer find that the disciplinary action is based “solely on the employer's desire to retaliate,” the disciplinary proceeding must be dismissed.
Accordingly, the arbitrator's finding that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the court ruled that the award must be vacated.
Finally, the Court of Appeals noted the Kowaleski has requested that any rehearing be before a different arbitrator. That request, said the court, should be ruled on by Supreme Court in the exercise of its discretion.
* Addendum to original posting: A number of e-mails concerning this ruling have been received since the summary of the decision was posted on December 22, 201. Set out below are the relevant provisions of Section 75-b of the Civil Service Law addressing the basic issue before the Court of Appeals:
3. (a) Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision of the matter. If there is a finding that the dismissal or other disciplinary action is based solely on a violation by the employer of such subdivision, the arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding, as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration procedure, may take other appropriate action as is permitted in the collectively negotiated agreement [emphasis supplied].
(b) Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement [emphasis supplied].
(c) Where an employee is not subject to any of the provisions of paragraph (a) or (b) of this subdivision, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C of the labor law.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09379.htm
Matter of Kowaleski v New York State Dept. of Correctional Servs., 2010 NY Slip Op 09379, Decided on December 21, 2010, Court of Appeals
Barbara Kowaleski, a correction officer employed by the New York State Department of Corrections, was served with disciplinary charges alleging that she violated provisions of the employees' manual on three separate occasions when she "made inappropriate comments of a personal nature about another staff member in the presence of staff and inmates"; argued with a fellow employee; and was "disrespectful and insubordinate" when she ignored a superior's order.
The proposed penalty: termination and the loss of any accrued leave.
Ultimately the matter was submitted to a disciplinary arbitration.
At the outset of the hearing, Kowaleski argued that the disciplinary action was only being brought to retaliate against her for reporting a fellow officer's misconduct and that she was entitled to raise this as an affirmative defense pursuant to Civil Service Law §75-b, contending that §75-b prohibits public employers from retaliating against employees for reporting their coworkers' improper conduct.
The arbitrator determined that because the Collective Bargaining Agreement [CBA] limited his authority "to determinations of guilt or innocence and the appropriateness of proposed penalties," he lacked authority to consider Kowaleski's retaliation defense. The arbitrator, however, indicated that he would consider evidence of retaliation when determining witness credibility and "in the larger context of guilt or innocence."
The arbitrator found Kowaleski guilty of two of the three charges and determined that termination was appropriate and Kowaleski filed a petition pursuant to Article 75 of the CPLR seeking to have the award vacated.
Although Supreme Court and the Appellate Division rejected Kowaleski’s appeal, the Court of Appeals reversed the lower courts’ rulings “[b]ecause we find that the arbitrator's failure to separately consider and determine Kowaleski's affirmative defense of retaliation on the merits requires the award to be vacated”
The Court of Appeals explained that an arbitration award must be vacated if, as relevant here, a party's rights were impaired by an arbitrator who "exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made (see CPLR 7511 [b] [1] [iii]). Further, said the court, an arbitrator "exceed[s] his power" under the meaning of the statute where his "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
As the lower courts found, and Correction conceded, the arbitrator “not only had authority to consider Kowaleski's retaliation defense, but was required to do so.”
Further, the opinion indicates that Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" and in the event the employee reasonably believes disciplinary action would not have been taken “but for" the whistle blowing, the employee may assert such as a defense before the designated arbitrator or hearing officer." *
Whatever the terms of the CBA, the Court of Appeals said that "[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision." Further, should the arbitrator or hearing officer find that the disciplinary action is based “solely on the employer's desire to retaliate,” the disciplinary proceeding must be dismissed.
Accordingly, the arbitrator's finding that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the court ruled that the award must be vacated.
Finally, the Court of Appeals noted the Kowaleski has requested that any rehearing be before a different arbitrator. That request, said the court, should be ruled on by Supreme Court in the exercise of its discretion.
* Addendum to original posting: A number of e-mails concerning this ruling have been received since the summary of the decision was posted on December 22, 201. Set out below are the relevant provisions of Section 75-b of the Civil Service Law addressing the basic issue before the Court of Appeals:
3. (a) Where an employee is subject to dismissal or other disciplinary action under a final and binding arbitration provision, or other disciplinary procedure contained in a collectively negotiated agreement, or under section seventy-five of this title or any other provision of state or local law and the employee reasonably believes dismissal or other disciplinary action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a defense before the designated arbitrator or hearing officer. The merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision of the matter. If there is a finding that the dismissal or other disciplinary action is based solely on a violation by the employer of such subdivision, the arbitrator or hearing officer shall dismiss or recommend dismissal of the disciplinary proceeding, as appropriate, and, if appropriate, reinstate the employee with back pay, and, in the case of an arbitration procedure, may take other appropriate action as is permitted in the collectively negotiated agreement [emphasis supplied].
(b) Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under subdivision two of this section, he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement [emphasis supplied].
(c) Where an employee is not subject to any of the provisions of paragraph (a) or (b) of this subdivision, the employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C of the labor law.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09379.htm
Vacating a Section 3020-a arbitration award
Vacating a Section 3020-a arbitration award
Westhampton Beach UFSD v Ziparo, 275 AD2d 411
It is not unusual for a party to decide to challenge the determination of the hearing officer or panel following a Section 3020-a disciplinary action. Essentially a Section 3020-a decision is treated as an arbitration award and thus the provisions of Article 75 of the Civil Practice Act and Rules [CPLR] control any attempt to vacate such an award.
As the Westhampton Beach decision by the Appellate Division, Second Department, demonstrates, the grounds for vacating an award under Article 75 are very limited.
The district filed certain disciplinary charges against David Ziparo. The Section 3020-a hearing officer found him guilty of the charges. The penalty imposed: suspension without pay for one year. In addition, the hearing officer conditioned Ziparo’s return to teaching upon his obtaining a certification of psychiatric fitness.
Westhampton appealed a State Supreme Court’s confirmation of the hearing officer’s determination. The Appellate Division dismissed the appeal, ruling that Westhampton did not demonstrate any basis for vacating the award under CPLR 7511 and the hearing officer’s determination has a rational basis and is supported by the record.
On what basis could a court vacate a determination by a Section 3020-a hearing officer or panel? Section 7511(b)(1) of the CPLR allows a court to vacate or modify an award only if it finds:
1. Corruption, fraud or misconduct in procuring the award; or
2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession;
3. An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
4. The failure to follow the procedure set out in Article 75, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a strong public policy.
Another important consideration when deciding whether to challenge a Section 3020-a disciplinary determination: the statute of limitations. Section 3020-a(5) provides that such a challenge must be filed within ten days of the receipt of the decision -- a very short period in which to perfect the appeal.
Westhampton Beach UFSD v Ziparo, 275 AD2d 411
It is not unusual for a party to decide to challenge the determination of the hearing officer or panel following a Section 3020-a disciplinary action. Essentially a Section 3020-a decision is treated as an arbitration award and thus the provisions of Article 75 of the Civil Practice Act and Rules [CPLR] control any attempt to vacate such an award.
As the Westhampton Beach decision by the Appellate Division, Second Department, demonstrates, the grounds for vacating an award under Article 75 are very limited.
The district filed certain disciplinary charges against David Ziparo. The Section 3020-a hearing officer found him guilty of the charges. The penalty imposed: suspension without pay for one year. In addition, the hearing officer conditioned Ziparo’s return to teaching upon his obtaining a certification of psychiatric fitness.
Westhampton appealed a State Supreme Court’s confirmation of the hearing officer’s determination. The Appellate Division dismissed the appeal, ruling that Westhampton did not demonstrate any basis for vacating the award under CPLR 7511 and the hearing officer’s determination has a rational basis and is supported by the record.
On what basis could a court vacate a determination by a Section 3020-a hearing officer or panel? Section 7511(b)(1) of the CPLR allows a court to vacate or modify an award only if it finds:
1. Corruption, fraud or misconduct in procuring the award; or
2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession;
3. An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
4. The failure to follow the procedure set out in Article 75, unless the party applying to vacate the award continued with the arbitration with notice of defect and without objection.
In addition, courts have held that an arbitration award may be vacated if it is inconsistent with a strong public policy.
Another important consideration when deciding whether to challenge a Section 3020-a disciplinary determination: the statute of limitations. Section 3020-a(5) provides that such a challenge must be filed within ten days of the receipt of the decision -- a very short period in which to perfect the appeal.
Governor David A. Paterson fined $62,125 after being found guilty of charges that he received complimentary tickets to Game 1 of the 2009 World Series
Governor David A. Paterson fined $62,125 after being found guilty of charges that he received complimentary tickets to Game 1 of the 2009 World Series
Source: The New York State Commission on Public Integrity
On December 21, 2010, the New York State Commission on Public Integrity announced that it had fined Governor David A. Paterson $62,125* after finding him guilty of charges that he solicited, accepted and received five complimentary tickets to Game One of the 2009 World Series for himself, two aides, his teenage son and his son's friend.
The Commission reports that "It is the largest fine imposed on a public official" by it.
The Commission said that “The Governor's false testimony is . . . evidence that he knew his conduct was unlawful and, thus, is one factor underlying the Commission's determination that the Governor violated Public Officers Law §§73(5)(a), 73(5)(b), 74(3)(d), 74(3)(f) and 74(3)(h).”
The Decision also noted that Governor Paterson “did not perform a ceremonial function at the game, and his attendance was not related to his duties and responsibility as a public official.” Further, the Commission indicated that “Even if the Governor had performed a ceremonial function at the game, it would not have entitled him to free tickets for his son and his son's friend.”
The Commission noted that the Yankees have “myriad and continuing business and financial interests that relate to New York State government,” including real estate, stadium development and tax matters.
“The moral and ethical tone of any organization is set at the top. Unfortunately the Governor set a totally inappropriate tone by his dishonest and unethical conduct. Such conduct cannot be tolerated by any New York State employee, particularly our Governor,” commented Michael Cherkasky, the Chairman of the Commission.
* The $62,125 civil penalty consists of the value of the tickets, $2,125, plus $25,000 for violating Public Officers Law §73(5)(a), $25,000 for violating Public Officers Law §73(5)(b), and $10,000 for violating Public Officers Law §74(3)(d). The law does not authorize a civil penalty for a violation of Public Officers Law §§74(3)(f) and §74(3)(h).
Click here to read the Hearing Officer's Decision dated 12/9/2010.
Source: The New York State Commission on Public Integrity
On December 21, 2010, the New York State Commission on Public Integrity announced that it had fined Governor David A. Paterson $62,125* after finding him guilty of charges that he solicited, accepted and received five complimentary tickets to Game One of the 2009 World Series for himself, two aides, his teenage son and his son's friend.
The Commission reports that "It is the largest fine imposed on a public official" by it.
The Commission said that “The Governor's false testimony is . . . evidence that he knew his conduct was unlawful and, thus, is one factor underlying the Commission's determination that the Governor violated Public Officers Law §§73(5)(a), 73(5)(b), 74(3)(d), 74(3)(f) and 74(3)(h).”
The Decision also noted that Governor Paterson “did not perform a ceremonial function at the game, and his attendance was not related to his duties and responsibility as a public official.” Further, the Commission indicated that “Even if the Governor had performed a ceremonial function at the game, it would not have entitled him to free tickets for his son and his son's friend.”
The Commission noted that the Yankees have “myriad and continuing business and financial interests that relate to New York State government,” including real estate, stadium development and tax matters.
“The moral and ethical tone of any organization is set at the top. Unfortunately the Governor set a totally inappropriate tone by his dishonest and unethical conduct. Such conduct cannot be tolerated by any New York State employee, particularly our Governor,” commented Michael Cherkasky, the Chairman of the Commission.
* The $62,125 civil penalty consists of the value of the tickets, $2,125, plus $25,000 for violating Public Officers Law §73(5)(a), $25,000 for violating Public Officers Law §73(5)(b), and $10,000 for violating Public Officers Law §74(3)(d). The law does not authorize a civil penalty for a violation of Public Officers Law §§74(3)(f) and §74(3)(h).
Click here to read the Hearing Officer's Decision dated 12/9/2010.
Teacher placement and the ADA
Teacher placement and the ADA
Arbitration between the United Educators of San Francisco and San Francisco [California] Unified School District, Arbitrator William E. Riker
In 1997 a hearing impaired California teacher, certified to teach deaf students at the high school level and regular students from kindergarten through eighth grade, was laid off when her position was eliminated. Her name was placed on a preferred list.
Assigned to clerical work, in April 1998, the teacher asked to be assigned to teach kindergarten or first-grade. She also asked for a reasonable accommodation, including an interpreter to translate her signed conversation. The district rejected her request and continued employing her in a clerical capacity.
Ultimately, the teacher filed a grievance contending that the district violated the collective bargaining agreement by not placing her in a classroom and that the district discriminated against her because of her disability. She also filed a disability discrimination complaint under the Americans with Disabilities Act.
Arbitrator William E. Riker denied her grievance, ruling that the school district was not required to place a hearing-disabled teacher in a kindergarten or first-grade classroom unless she is able to perform the essential functions of the position.
Riker’s rationale: The ADA requires fair treatment of qualified individuals with disabilities, but it does not require the employer to change the essential functions of a job to accommodate a disabled employee who cannot perform them.
Riker ruled that kindergarten and first grade teachers must be able to carefully listen to children’s speech and help them to develop and mimic speech patterns and thought processes.
Arbitration between the United Educators of San Francisco and San Francisco [California] Unified School District, Arbitrator William E. Riker
In 1997 a hearing impaired California teacher, certified to teach deaf students at the high school level and regular students from kindergarten through eighth grade, was laid off when her position was eliminated. Her name was placed on a preferred list.
Assigned to clerical work, in April 1998, the teacher asked to be assigned to teach kindergarten or first-grade. She also asked for a reasonable accommodation, including an interpreter to translate her signed conversation. The district rejected her request and continued employing her in a clerical capacity.
Ultimately, the teacher filed a grievance contending that the district violated the collective bargaining agreement by not placing her in a classroom and that the district discriminated against her because of her disability. She also filed a disability discrimination complaint under the Americans with Disabilities Act.
Arbitrator William E. Riker denied her grievance, ruling that the school district was not required to place a hearing-disabled teacher in a kindergarten or first-grade classroom unless she is able to perform the essential functions of the position.
Riker’s rationale: The ADA requires fair treatment of qualified individuals with disabilities, but it does not require the employer to change the essential functions of a job to accommodate a disabled employee who cannot perform them.
Riker ruled that kindergarten and first grade teachers must be able to carefully listen to children’s speech and help them to develop and mimic speech patterns and thought processes.
December 21, 2010
Absence of the name of an individual on a list of members as required by law deemed evidence that the individual is not a member of the organization
Absence of the name of an individual on a list of members as required by law deemed evidence that the individual is not a member of the organization
Murphy v Town of Ramapo, 2010 NY Slip Op 09233, Decided on December 14, 2010, Appellate Division, Second Department
Dennis Murphy, Jr., then a 16-year-old member of the "youth corps" of the Ramapo Valley Ambulance Corp. Inc., sued Ramapo to recover for personal injuries he suffered as a result of his being injured when a pen thrown by a member of Ramapo struck him in the eye while he was on Ramapo's premises.
Ramapo’s motion for summary judgment dismissing Murphy’s action on the grounds that it was barred by the exclusivity provision of the Volunteer Ambulance Workers' Benefit Law §19 was denied by Supreme Court.*
The Appellate Division agreed with the Supreme Court's result, but for a different reason.
Essentially the Appellate Division ruled that Ramapo failed to show that Murphy within the statutory definition of “a volunteer ambulance worker” and thus he was not barred from suing by reason of the statutory "exclusivity provision" set out in §19. Why? Because Murphy's name was not on the list of Ramapo's members.
The court pointed out that §3[1] of the Volunteer Ambulance Workers' Benefit Law defines a "[v]olunteer ambulance worker" as ‘an active volunteer member of an ambulance company as specified on a list regularly maintained by that company for the purpose of this chapter’."
Ramapo, said the court, did not submit proof that Murphy was on such a list and thus failed to meet its burden of showing that the provisions of Volunteer Ambulance Workers' Benefit Law §19 controlled insofar as Murphy’s maintaining his action against Ramapo was concerned.
N.B. "Being listed" is critical in public employment situations as well. For example, the status of an individual appointed to a position in the classified service of the State as an employer or a political subdivision of the State is determined by records of the responsible civil service commission notwithstanding the belief or intent of the appointing officer concerned making the appointment.
* §19 of the Volunteer Ambulance Workers' Benefit Law §19 provides, in pertinent part, that "the benefits provided by this chapter shall be the exclusive remedy of a volunteer ambulance worker … otherwise entitled to recover damages, at common law or otherwise, for or on account of an injury … resulting from an injury to a volunteer ambulance worker in line of duty."
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09233.htm
Murphy v Town of Ramapo, 2010 NY Slip Op 09233, Decided on December 14, 2010, Appellate Division, Second Department
Dennis Murphy, Jr., then a 16-year-old member of the "youth corps" of the Ramapo Valley Ambulance Corp. Inc., sued Ramapo to recover for personal injuries he suffered as a result of his being injured when a pen thrown by a member of Ramapo struck him in the eye while he was on Ramapo's premises.
Ramapo’s motion for summary judgment dismissing Murphy’s action on the grounds that it was barred by the exclusivity provision of the Volunteer Ambulance Workers' Benefit Law §19 was denied by Supreme Court.*
The Appellate Division agreed with the Supreme Court's result, but for a different reason.
Essentially the Appellate Division ruled that Ramapo failed to show that Murphy within the statutory definition of “a volunteer ambulance worker” and thus he was not barred from suing by reason of the statutory "exclusivity provision" set out in §19. Why? Because Murphy's name was not on the list of Ramapo's members.
The court pointed out that §3[1] of the Volunteer Ambulance Workers' Benefit Law defines a "[v]olunteer ambulance worker" as ‘an active volunteer member of an ambulance company as specified on a list regularly maintained by that company for the purpose of this chapter’."
Ramapo, said the court, did not submit proof that Murphy was on such a list and thus failed to meet its burden of showing that the provisions of Volunteer Ambulance Workers' Benefit Law §19 controlled insofar as Murphy’s maintaining his action against Ramapo was concerned.
N.B. "Being listed" is critical in public employment situations as well. For example, the status of an individual appointed to a position in the classified service of the State as an employer or a political subdivision of the State is determined by records of the responsible civil service commission notwithstanding the belief or intent of the appointing officer concerned making the appointment.
* §19 of the Volunteer Ambulance Workers' Benefit Law §19 provides, in pertinent part, that "the benefits provided by this chapter shall be the exclusive remedy of a volunteer ambulance worker … otherwise entitled to recover damages, at common law or otherwise, for or on account of an injury … resulting from an injury to a volunteer ambulance worker in line of duty."
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09233.htm
Employee may be terminated on the grounds that he or she make a material false statement of his or her application for employment
Employee may be terminated on the grounds that he or she make a material false statement of his or her application for employment
Matter of Walsh v Kelly, 2010 NY Slip Op 09346, Decided on December 16, 2010,* Appellate Division, First Department
New York City Civil Service Commission, after a hearing, affirmed the determination of the New York City Department of Citywide Administrative Services to disqualify and terminate Gary Walsh as a New York City police officer.
The basis for the Department’s action, Walsh had omitted and falsified pertinent facts about his background in his application for employment.
The Appellate Division said that the determination to terminate Walsh’s employment was “rationally supported by testimony and documents adduced at the hearing” showing that Walsh had concealed that he had been a suspect in a criminal homicide while in the army and had associated with members of a gang that had committed a homicide.
Civil Service Law §50.4 provides, in pertinent part, the “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible:
(f) who has intentionally made a false statement of any material fact in his application; or
(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment ….”
* The hearing before the Civil Service Commission was not mandated by law and, therefore, the proceeding was improperly transferred to the Appellate Division which, nevertheless, elected to decide the matter on the merits.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09346.htm
Matter of Walsh v Kelly, 2010 NY Slip Op 09346, Decided on December 16, 2010,* Appellate Division, First Department
New York City Civil Service Commission, after a hearing, affirmed the determination of the New York City Department of Citywide Administrative Services to disqualify and terminate Gary Walsh as a New York City police officer.
The basis for the Department’s action, Walsh had omitted and falsified pertinent facts about his background in his application for employment.
The Appellate Division said that the determination to terminate Walsh’s employment was “rationally supported by testimony and documents adduced at the hearing” showing that Walsh had concealed that he had been a suspect in a criminal homicide while in the army and had associated with members of a gang that had committed a homicide.
Civil Service Law §50.4 provides, in pertinent part, the “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible:
(f) who has intentionally made a false statement of any material fact in his application; or
(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment ….”
* The hearing before the Civil Service Commission was not mandated by law and, therefore, the proceeding was improperly transferred to the Appellate Division which, nevertheless, elected to decide the matter on the merits.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09346.htm
Violating the employer’s “Use of the Internet Policies” while at work
Violating the employer’s “Use of the Internet Policies” while at work
Schnaars v Copiague Union Free School District, 275 AD2d 462
Public employers are adopting policies dealing with its employees using the agency’s computers to access the Internet for personal business and transmitting and receiving personal e-mail. Some employee organizations have included demands to negotiate computer and e-mail policies among its collective bargaining proposals.
Recognizing the growing concerns of both the employer and employee organizations in this area, the Schnaars case serves to illustrate the problem and its resolution when one employee was found guilty of violating the employer’s computer policy.
The Copiague Union Free School District distributed a written memorandum advising its custodial staff that using its computers to access inappropriate material on the Internet violated district policy after it learned of the unauthorized use of its equipment by district employees.
The memorandum also cautioned that employees who violated the policy would be subject to disciplinary proceedings, which could result in suspension and/or termination.
About three months after promulgating its policy, the district learned that Robert Schnaars, the head custodian of the night crew at Copiague High School, used the school’s computers to view pornographic web sites on the Internet with his subordinates during two night shifts.
Schnaars was served with disciplinary charges and ultimately found guilty of using the District’s computers to view inappropriate material. Rejecting the hearing officer’s recommended that Schnaars be demoted from his position of head custodian, the district imposed the penalty of dismissal.
Schnaars, however, contested his termination on the grounds that the penalty imposed by the district was disproportionate to the offense. The Appellate Division agreed and remanded the matter to the district with instructions that it impose a penalty other than dismissal in light of Schnaars’ previous unblemished 13-year record of loyal service to the District with many accolades.
The court said that in its view, the District did not give sufficient weight to these mitigating factors. But for Schnaars’ unblemished 13-year record of employment with the district, the court might well have sustained his dismissal for violating the policy.
Clearly the court was neither troubled by the fact that the district had adopted a computer use policy nor that it had initiated disciplinary action when it learned that an individual had violated the policy. Its only concern in this case was the nature of the penalty imposed in view of Schnaars employment history with the district.
It appears that the courts will not treat violations of policies addressing the personal use of computers by employees lightly.
Schnaars v Copiague Union Free School District, 275 AD2d 462
Public employers are adopting policies dealing with its employees using the agency’s computers to access the Internet for personal business and transmitting and receiving personal e-mail. Some employee organizations have included demands to negotiate computer and e-mail policies among its collective bargaining proposals.
Recognizing the growing concerns of both the employer and employee organizations in this area, the Schnaars case serves to illustrate the problem and its resolution when one employee was found guilty of violating the employer’s computer policy.
The Copiague Union Free School District distributed a written memorandum advising its custodial staff that using its computers to access inappropriate material on the Internet violated district policy after it learned of the unauthorized use of its equipment by district employees.
The memorandum also cautioned that employees who violated the policy would be subject to disciplinary proceedings, which could result in suspension and/or termination.
About three months after promulgating its policy, the district learned that Robert Schnaars, the head custodian of the night crew at Copiague High School, used the school’s computers to view pornographic web sites on the Internet with his subordinates during two night shifts.
Schnaars was served with disciplinary charges and ultimately found guilty of using the District’s computers to view inappropriate material. Rejecting the hearing officer’s recommended that Schnaars be demoted from his position of head custodian, the district imposed the penalty of dismissal.
Schnaars, however, contested his termination on the grounds that the penalty imposed by the district was disproportionate to the offense. The Appellate Division agreed and remanded the matter to the district with instructions that it impose a penalty other than dismissal in light of Schnaars’ previous unblemished 13-year record of loyal service to the District with many accolades.
The court said that in its view, the District did not give sufficient weight to these mitigating factors. But for Schnaars’ unblemished 13-year record of employment with the district, the court might well have sustained his dismissal for violating the policy.
Clearly the court was neither troubled by the fact that the district had adopted a computer use policy nor that it had initiated disciplinary action when it learned that an individual had violated the policy. Its only concern in this case was the nature of the penalty imposed in view of Schnaars employment history with the district.
It appears that the courts will not treat violations of policies addressing the personal use of computers by employees lightly.
Burden of proof in disability claims
Burden of proof in disability claims
Musa v Nassau County Police Dept., 276 AD2d 851
The Musa decision demonstrates the burden place on an applicant seeking workers’ compensation death benefits.
Musa, a Nassau County police officer, committed suicide while at home. His widow, Nancy Musa, filed an application for workers’ compensation benefits death benefits.
The basis for her claim: her husband committing suicide because of work-related stress caused by the Nassau Police Department’s use of improper practices to reprimand him and to prevent his promotion.
The Workers’ Compensation Board, reversing a Workers’ Compensation Law Judge’s ruling, concluded that Musa’s death did not arise out of and in the course of his employment and rejected Mrs. Musa’s application for workers’ compensation death benefits. The Board concluded that Musa’s suicide was precipitated by an underlying depressive condition unrelated to any stress experienced by decedent at work.
Mrs. Musa appealed, arguing that the Board’s determination was not supported by substantial evidence because it was based, in part, on a report by a medical expert who failed to appear at the hearing. While the Appellate Division agreed with Mrs. Musa that the Board incorrectly relied upon this expert’s medical report in making its determination, it nevertheless affirmed the Board’s decision to reject her claim for benefits.
The reason for this, said the court, was that workers’ compensation death benefits may be awarded in cases of suicide only where the suicide results from insanity, brain derangement or a pattern of mental deterioration caused by a work-related injury. While Musa’s husband’s depressive condition might qualify as a brain derangement permitting an award of death benefits, Mrs. Musa failed to meet her burden of establishing by competent medical proof that a causal relationship existed between her husband’s employment and his depression and the suicide.
According to the decision, the only medical evidence offered by Mrs. Musa concerning causation was the testimony of her husband’s treating psychologist. While the psychologist testified that Musa’s suicide was causally related to employment stress, the Board rejected this opinion, finding that it was based upon information provided by Mrs. Musa and her attorney following the decedent’s suicide rather than the psychologist’s independent recollection of treating Musa’s husband five years earlier.
Affirming the Board’s decision, the Appellate Division commented that because the Board found that the psychologist’s opinion lacked evidentiary support in the record, the opinion had no probative value on the issue of causal relationship and the Board correctly declined to consider it.
Musa v Nassau County Police Dept., 276 AD2d 851
The Musa decision demonstrates the burden place on an applicant seeking workers’ compensation death benefits.
Musa, a Nassau County police officer, committed suicide while at home. His widow, Nancy Musa, filed an application for workers’ compensation benefits death benefits.
The basis for her claim: her husband committing suicide because of work-related stress caused by the Nassau Police Department’s use of improper practices to reprimand him and to prevent his promotion.
The Workers’ Compensation Board, reversing a Workers’ Compensation Law Judge’s ruling, concluded that Musa’s death did not arise out of and in the course of his employment and rejected Mrs. Musa’s application for workers’ compensation death benefits. The Board concluded that Musa’s suicide was precipitated by an underlying depressive condition unrelated to any stress experienced by decedent at work.
Mrs. Musa appealed, arguing that the Board’s determination was not supported by substantial evidence because it was based, in part, on a report by a medical expert who failed to appear at the hearing. While the Appellate Division agreed with Mrs. Musa that the Board incorrectly relied upon this expert’s medical report in making its determination, it nevertheless affirmed the Board’s decision to reject her claim for benefits.
The reason for this, said the court, was that workers’ compensation death benefits may be awarded in cases of suicide only where the suicide results from insanity, brain derangement or a pattern of mental deterioration caused by a work-related injury. While Musa’s husband’s depressive condition might qualify as a brain derangement permitting an award of death benefits, Mrs. Musa failed to meet her burden of establishing by competent medical proof that a causal relationship existed between her husband’s employment and his depression and the suicide.
According to the decision, the only medical evidence offered by Mrs. Musa concerning causation was the testimony of her husband’s treating psychologist. While the psychologist testified that Musa’s suicide was causally related to employment stress, the Board rejected this opinion, finding that it was based upon information provided by Mrs. Musa and her attorney following the decedent’s suicide rather than the psychologist’s independent recollection of treating Musa’s husband five years earlier.
Affirming the Board’s decision, the Appellate Division commented that because the Board found that the psychologist’s opinion lacked evidentiary support in the record, the opinion had no probative value on the issue of causal relationship and the Board correctly declined to consider it.
Criminal investigations and the Taylor law
Criminal investigations and the Taylor law
New York City v Uniformed Fire Officers Asso., 95 NY2d 273
With increasing frequency, procedures addressing employee rights in the course of an employer-initiated investigation are being included in Taylor Law agreements. Typically disputes involving alleged violations of such negotiated procedures are to be resolved under the relevant contract arbitration procedure.
However, an investigation of employee conduct may be conducted by an outside independent agency. If the outside agency uses a procedure that the employee organization claims violates the provisions set out collective bargaining agreement can the union treat the situation as a contract violation and invoke the contract grievance procedure? Stated another way, does the investigation provisions of a collective bargaining procedure trump the procedures adopted by an outside investigatory body?
This was the major issue addressed by the Court of Appeals in the Fire Officers Association case. The case arose after New York City’s Department of Investigation [DOI] issued subpoenas to several firefighters as part of several criminal investigations it was conducting.*
Local 854, referring to provisions in a city-wide Taylor Law contract setting out procedures to be followed in the event of an investigation of an employee, complained that the procedures used by the DOI did not comply with the procedures set out in the agreement. Alleging that DOI’s procedures violated the contract’s employee rights Article, it demanded arbitration.
The City objected but the New York City Board of Collective Bargaining [BCB] issued a determination ruling that the dispute should be submitted to arbitration under the contract. The City next sued, seeking to stay the arbitration and annul the BCB ruling. The basic arguments advanced by the City:
1. The City never agreed to arbitrate the procedures used by the DOI in conducting its criminal investigations;
2. A collective bargaining agreement cannot, as a matter of public policy, supplant or impair DOI’s investigation; and
3. The grievances challenging DOI’s procedures are not arbitrable as a matter of strong public policy.
The Court of Appeals said that the public policy issue concerned DOI’s ability to conduct criminal investigations. The court initially noted that it has recognized that “[p]ublic policy whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may restrict the freedom to arbitrate,” citing Susquehanna Valley School District v Susquehanna Valley Teachers Association, 37 NY2d 614.
In this instance the court concluded that considering the statutory and decisional law concerning the DOI and its purpose and its powers, a strong public policy bars arbitrating the grievance. In the words of the court, [t]he City (and its residents) has a significant interest in ensuring that the inner workings of the machinery of public service are honest and free of corruption. We conclude that this public policy restricts the freedom to arbitrate under the circumstances presented here.
The court’s rationale: allowing an arbitrator to grant a city employee or a union the ability to restrict the DOI’s investigatory procedures by invoking the employee rights provisions of a collective bargaining agreement would amount to an impermissible delegation of the broad authority of the City to investigate its internal affairs.
The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments and thus such the denial of tenure is not subject to grievance arbitration.”
In contrast, however, the court distinguished the granting of tenure by an arbitrator to his or her enforcing bargained-for procedural steps preliminary to the board’s final action to grant or withhold tenure. While denying tenure is not arbitrable, alleged violations of procedures to be followed in determining whether to grant or deny tenure are arbitrable.
The court also noted that there are other situations in which no arbitration remedy could be granted without violating public policy. To illustrate this point the court cited Blackburne v Governor’s Office of Employee Relations, 87 NY2d 660).
In Blackburne, an employee, who had violated the Federal Hatch Act, claimed that he was terminated in violation of the procedural guarantees found in the relevant Taylor Agreement.
The Court of Appeals decided that the arbitrator could not mandate compliance with the collective bargaining agreement’s procedural guarantees concerning employee termination without subjecting the State to the loss of Federal funds because of Blackburne’s Hatch Act violation. To do so, said the court, would constitute an impermissible delegation of the State’s sovereign authority.
The general rule set out by the court: Where a court examines an arbitration agreement or an award and concludes that the granting of any relief would violate public policy, courts may intervene and bar arbitration.
In contrast to the situation in the Susquehanna Valley School District case, where the issue concerned the compliance with procedural steps leading to a tenure determination, here, said the court, granting of any relief under the procedural protections of the Taylor Law contract would not only impinge on DOI’s ability to conduct a criminal investigation, but would add another layer of process, decision-making and potential conflict. Thus, public policy considerations preclude referring the matter to arbitration in this instance.
Declining to defer to BCB’s interpretation of the City’s collective bargaining law, the Court of Appeals ruled that the demand for arbitration must be permanently stayed.
* One such investigation, for example, concerned an alleged scam attempted by a firefighter to obtain greater pension benefits by fraudulently claiming that he sustained a disabling injury in the line of duty. The scheme allegedly involved one firefighter calling in a false alarm to afford the injured firefighter the opportunity to claim that his injury occurred in responding to the alarm. Among those firefighters interviewed were members of the Uniformed Fire Officers Association, Local 854 [Local 854].
New York City v Uniformed Fire Officers Asso., 95 NY2d 273
With increasing frequency, procedures addressing employee rights in the course of an employer-initiated investigation are being included in Taylor Law agreements. Typically disputes involving alleged violations of such negotiated procedures are to be resolved under the relevant contract arbitration procedure.
However, an investigation of employee conduct may be conducted by an outside independent agency. If the outside agency uses a procedure that the employee organization claims violates the provisions set out collective bargaining agreement can the union treat the situation as a contract violation and invoke the contract grievance procedure? Stated another way, does the investigation provisions of a collective bargaining procedure trump the procedures adopted by an outside investigatory body?
This was the major issue addressed by the Court of Appeals in the Fire Officers Association case. The case arose after New York City’s Department of Investigation [DOI] issued subpoenas to several firefighters as part of several criminal investigations it was conducting.*
Local 854, referring to provisions in a city-wide Taylor Law contract setting out procedures to be followed in the event of an investigation of an employee, complained that the procedures used by the DOI did not comply with the procedures set out in the agreement. Alleging that DOI’s procedures violated the contract’s employee rights Article, it demanded arbitration.
The City objected but the New York City Board of Collective Bargaining [BCB] issued a determination ruling that the dispute should be submitted to arbitration under the contract. The City next sued, seeking to stay the arbitration and annul the BCB ruling. The basic arguments advanced by the City:
1. The City never agreed to arbitrate the procedures used by the DOI in conducting its criminal investigations;
2. A collective bargaining agreement cannot, as a matter of public policy, supplant or impair DOI’s investigation; and
3. The grievances challenging DOI’s procedures are not arbitrable as a matter of strong public policy.
The Court of Appeals said that the public policy issue concerned DOI’s ability to conduct criminal investigations. The court initially noted that it has recognized that “[p]ublic policy whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may restrict the freedom to arbitrate,” citing Susquehanna Valley School District v Susquehanna Valley Teachers Association, 37 NY2d 614.
In this instance the court concluded that considering the statutory and decisional law concerning the DOI and its purpose and its powers, a strong public policy bars arbitrating the grievance. In the words of the court, [t]he City (and its residents) has a significant interest in ensuring that the inner workings of the machinery of public service are honest and free of corruption. We conclude that this public policy restricts the freedom to arbitrate under the circumstances presented here.
The court’s rationale: allowing an arbitrator to grant a city employee or a union the ability to restrict the DOI’s investigatory procedures by invoking the employee rights provisions of a collective bargaining agreement would amount to an impermissible delegation of the broad authority of the City to investigate its internal affairs.
The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments and thus such the denial of tenure is not subject to grievance arbitration.”
In contrast, however, the court distinguished the granting of tenure by an arbitrator to his or her enforcing bargained-for procedural steps preliminary to the board’s final action to grant or withhold tenure. While denying tenure is not arbitrable, alleged violations of procedures to be followed in determining whether to grant or deny tenure are arbitrable.
The court also noted that there are other situations in which no arbitration remedy could be granted without violating public policy. To illustrate this point the court cited Blackburne v Governor’s Office of Employee Relations, 87 NY2d 660).
In Blackburne, an employee, who had violated the Federal Hatch Act, claimed that he was terminated in violation of the procedural guarantees found in the relevant Taylor Agreement.
The Court of Appeals decided that the arbitrator could not mandate compliance with the collective bargaining agreement’s procedural guarantees concerning employee termination without subjecting the State to the loss of Federal funds because of Blackburne’s Hatch Act violation. To do so, said the court, would constitute an impermissible delegation of the State’s sovereign authority.
The general rule set out by the court: Where a court examines an arbitration agreement or an award and concludes that the granting of any relief would violate public policy, courts may intervene and bar arbitration.
In contrast to the situation in the Susquehanna Valley School District case, where the issue concerned the compliance with procedural steps leading to a tenure determination, here, said the court, granting of any relief under the procedural protections of the Taylor Law contract would not only impinge on DOI’s ability to conduct a criminal investigation, but would add another layer of process, decision-making and potential conflict. Thus, public policy considerations preclude referring the matter to arbitration in this instance.
Declining to defer to BCB’s interpretation of the City’s collective bargaining law, the Court of Appeals ruled that the demand for arbitration must be permanently stayed.
* One such investigation, for example, concerned an alleged scam attempted by a firefighter to obtain greater pension benefits by fraudulently claiming that he sustained a disabling injury in the line of duty. The scheme allegedly involved one firefighter calling in a false alarm to afford the injured firefighter the opportunity to claim that his injury occurred in responding to the alarm. Among those firefighters interviewed were members of the Uniformed Fire Officers Association, Local 854 [Local 854].
December 20, 2010
Employee serving a disciplinary probationary period may be dismissed prior to the expiration of the probationary period without a hearing
Employee serving a disciplinary probationary period may be dismissed prior to the expiration of the probationary period without a hearing
Matter of Bifolco v Kelly, 2010 NY Slip Op 09335, decided on December 16, 2010, Appellate Division, First Department
New York City Police Commissioner Raymond W. Kelly terminated NYC Police Officer Michael Bifolco’s employment while Bifolco was serving a disciplinary probationary period. Bifolco sued seeking reinstatement to his former position.
The Appellate Division affirmed Supreme Court’s dismissal of Bifolco’s petition, noting that the incidents leading to Bifolco’s dismissal well within his disciplinary probationary period, during which time the Commissioner could terminate him without a hearing.
As the Appellate Division said in Witherspoon v Horn, 19 AD3d 250, “It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that his or her dismissal was [made] in bad faith, [was] for a constitutionally impermissible purpose or [was] in violation of the law.”
Further, the former employee’s carries the burden of proof that the appointing authority’s action was unlawful or made in bad faith.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09335.htm
Matter of Bifolco v Kelly, 2010 NY Slip Op 09335, decided on December 16, 2010, Appellate Division, First Department
New York City Police Commissioner Raymond W. Kelly terminated NYC Police Officer Michael Bifolco’s employment while Bifolco was serving a disciplinary probationary period. Bifolco sued seeking reinstatement to his former position.
The Appellate Division affirmed Supreme Court’s dismissal of Bifolco’s petition, noting that the incidents leading to Bifolco’s dismissal well within his disciplinary probationary period, during which time the Commissioner could terminate him without a hearing.
As the Appellate Division said in Witherspoon v Horn, 19 AD3d 250, “It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that his or her dismissal was [made] in bad faith, [was] for a constitutionally impermissible purpose or [was] in violation of the law.”
Further, the former employee’s carries the burden of proof that the appointing authority’s action was unlawful or made in bad faith.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09335.htm
Compulsory interest arbitration
Compulsory interest arbitration
Matter of White Plains and White Plains PBA, 33 PERB 4588
Section 209.4 of the Civil Service Law provides for resolving impasses in collective negotiations between a public employer and an employee organization representing police or fire personnel through arbitration. Not all matters that have gone to impasse may be resolved be referral of the Section 209.4 panel, as the White Plains determination by PERB’s Director of Public Employment Practices and Representation demonstrates.
The White Plains PBA’s collective bargaining proposals included grievance procedures that were to be followed in connection with internal investigations.
In addition to providing for the right to representation during interrogation, the individual was to be advised on the nature of the investigation prior to interrogation and allowed to make notes if he or she was the subject of a criminal investigation [Proposal 8(C)]. Proposal 8(F) provided that [i]f a Police Officer is “under arrest or if such officer is a suspect or the target of a criminal investigation, the officer shall be given MIRANDA warnings* and shall have the opportunity to decline answering any questions.”
White Plains filed an improper practice charge with PERB in which it argued that the PBA had filed a petition for compulsory interest arbitration of its grievance procedure demand and on other matters that were nonmandatory subjects of collective bargaining. In addition to its objection to negotiating the grievance item, White Plains objected to arbitrating to PBA proposals providing that:
1. No Employee shall be denied any overtime [Proposal 12].
2. ... employees on maternity leave in excess of 60 calendar days shall continue to accrue vacation time [Proposal 13].
A few weeks later the PBA filed an improper practice charge with PERB alleging that the City’s answer to its petition for compulsory interest arbitration included a proposal concerning a nonmandatory subject of negotiations.
Toomey found that Proposals 8(C) and 8(F) were nonmandatory subjects of collective bargaining as they addressed procedures to be followed when a unit member was the subject of a criminal investigation.
Although there were other elements set out in Proposal 8 that clearly were mandatory subjects of collective bargaining under the Taylor Law, they did not survive for the purposes of compulsory interest arbitration. Why not? Because, ruled Toomey, Proposal 8 was presented as a single package, it must be found to be nonmandatory in its entirety based on the nonmandatory aspect of some of its parts.
Toomey also found that Proposal 12 was not a mandatory subject of collective bargaining. Toomey explained that in contrast to constituting a demand for overtime compensation, its purpose was to allow employees to work overtime on demand.
As to Proposal 13, Toomey deemed it unlawful and thus not subject to collective bargaining as it provided a special benefit in connection with maternity not available to other employees on paid or unpaid leaves. Toomey, citing School District 6 v NYSHRB, 35 NY2d 371, said that such a personnel policy, even if the product of negotiations under [the Taylor Law] would violate the State’s Human Rights Law and is therefore a prohibited subject of negotiations.
* See Miranda v Arizona, 384 US 436
Matter of White Plains and White Plains PBA, 33 PERB 4588
Section 209.4 of the Civil Service Law provides for resolving impasses in collective negotiations between a public employer and an employee organization representing police or fire personnel through arbitration. Not all matters that have gone to impasse may be resolved be referral of the Section 209.4 panel, as the White Plains determination by PERB’s Director of Public Employment Practices and Representation demonstrates.
The White Plains PBA’s collective bargaining proposals included grievance procedures that were to be followed in connection with internal investigations.
In addition to providing for the right to representation during interrogation, the individual was to be advised on the nature of the investigation prior to interrogation and allowed to make notes if he or she was the subject of a criminal investigation [Proposal 8(C)]. Proposal 8(F) provided that [i]f a Police Officer is “under arrest or if such officer is a suspect or the target of a criminal investigation, the officer shall be given MIRANDA warnings* and shall have the opportunity to decline answering any questions.”
White Plains filed an improper practice charge with PERB in which it argued that the PBA had filed a petition for compulsory interest arbitration of its grievance procedure demand and on other matters that were nonmandatory subjects of collective bargaining. In addition to its objection to negotiating the grievance item, White Plains objected to arbitrating to PBA proposals providing that:
1. No Employee shall be denied any overtime [Proposal 12].
2. ... employees on maternity leave in excess of 60 calendar days shall continue to accrue vacation time [Proposal 13].
A few weeks later the PBA filed an improper practice charge with PERB alleging that the City’s answer to its petition for compulsory interest arbitration included a proposal concerning a nonmandatory subject of negotiations.
Toomey found that Proposals 8(C) and 8(F) were nonmandatory subjects of collective bargaining as they addressed procedures to be followed when a unit member was the subject of a criminal investigation.
Although there were other elements set out in Proposal 8 that clearly were mandatory subjects of collective bargaining under the Taylor Law, they did not survive for the purposes of compulsory interest arbitration. Why not? Because, ruled Toomey, Proposal 8 was presented as a single package, it must be found to be nonmandatory in its entirety based on the nonmandatory aspect of some of its parts.
Toomey also found that Proposal 12 was not a mandatory subject of collective bargaining. Toomey explained that in contrast to constituting a demand for overtime compensation, its purpose was to allow employees to work overtime on demand.
As to Proposal 13, Toomey deemed it unlawful and thus not subject to collective bargaining as it provided a special benefit in connection with maternity not available to other employees on paid or unpaid leaves. Toomey, citing School District 6 v NYSHRB, 35 NY2d 371, said that such a personnel policy, even if the product of negotiations under [the Taylor Law] would violate the State’s Human Rights Law and is therefore a prohibited subject of negotiations.
* See Miranda v Arizona, 384 US 436
Conflict of interest
Conflict of interest
Peterson v Corbin, 275 AD2d 35*
Gregory P. Peterson, the President of the Nassau OTB, sued Roger H. Corbin in an effort to prevent Corbin, a member of the Nassau County legislature, from voting on any appointment to the board of directors of the Nassau OTB.
The reason advanced by Peterson in support of his petition: Corbin was employed as a branch manager for the New York City Off-Track Betting Corporation (NYC-OTB) and was a member of Local 858 of the International Brotherhood of Teamsters, pointing out that Local 858 represented all of the employees of the Nassau OTB and the branch managers of NYC-OTB. This employment and union membership, alleged Peterson, constituted a conflict of interest with respect to Corbin’s performing his duties as a Nassau County Legislator.
A Supreme Court judge issued a preliminary injunction preventing Corbin from voting on OTB appointments based on a finding of the existence of an appearance of impropriety. Corbin appealed. The Appellate Division, Second Department, reversed the lower court’s determination.
Peterson, said the Appellate Division, was required to demonstrate a likelihood of success on the merits by making a prima facie showing, at least by affidavits, if not by testimony, of conflicts of interest. This, said the court, he was unable to do.
According to the Appellate Division, Corbin’s employment as a NYC-OTB branch manager and his position as a member of the Nassau County Legislature pose no conflict since there was nothing in the record indicating the existence of any dealings between NYC-OTB and the Nassau County Legislature.
As to Corbin’s membership in Local 858, the court pointed out that according to the record, he is not an officer or member of the negotiating team of that union.
The court noted that while Local 858 also represents the Nassau OTB employees, there is no connection between the contracts reached by Local 858 and the two OTBs and the record shows that there are two negotiating units within Local 858; one dealing with NYC-OTB branch managers and the other dealing with all the Nassau OTB employees.
The Appellate Division also commented that “even if we assume, without evidence, that Peterson will not be reappointed to the board of directors of the Nassau OTB as a result of Corbin’s decisive vote, this could not be considered irreparable harm [and] Peterson does not have a protected property interest in his position as a director of the Nassau OTB.”
Balancing Peterson’s failure to demonstrate any potential harm in the absence of a preliminary injunction against the right of Corbin’s constituents to be represented in the vote for OTB directors, the court concluded that the preliminary injunction had to be vacated.
* The Court of Appeals dismissed the appeal on its own motion after concluding that the Appellate Division’s order denying the preliminary injunction did not necessarily affect the final judgment of Supreme Court, as required by CPLR 5601 (d), [95 NY2d 919].
Peterson v Corbin, 275 AD2d 35*
Gregory P. Peterson, the President of the Nassau OTB, sued Roger H. Corbin in an effort to prevent Corbin, a member of the Nassau County legislature, from voting on any appointment to the board of directors of the Nassau OTB.
The reason advanced by Peterson in support of his petition: Corbin was employed as a branch manager for the New York City Off-Track Betting Corporation (NYC-OTB) and was a member of Local 858 of the International Brotherhood of Teamsters, pointing out that Local 858 represented all of the employees of the Nassau OTB and the branch managers of NYC-OTB. This employment and union membership, alleged Peterson, constituted a conflict of interest with respect to Corbin’s performing his duties as a Nassau County Legislator.
A Supreme Court judge issued a preliminary injunction preventing Corbin from voting on OTB appointments based on a finding of the existence of an appearance of impropriety. Corbin appealed. The Appellate Division, Second Department, reversed the lower court’s determination.
Peterson, said the Appellate Division, was required to demonstrate a likelihood of success on the merits by making a prima facie showing, at least by affidavits, if not by testimony, of conflicts of interest. This, said the court, he was unable to do.
According to the Appellate Division, Corbin’s employment as a NYC-OTB branch manager and his position as a member of the Nassau County Legislature pose no conflict since there was nothing in the record indicating the existence of any dealings between NYC-OTB and the Nassau County Legislature.
As to Corbin’s membership in Local 858, the court pointed out that according to the record, he is not an officer or member of the negotiating team of that union.
The court noted that while Local 858 also represents the Nassau OTB employees, there is no connection between the contracts reached by Local 858 and the two OTBs and the record shows that there are two negotiating units within Local 858; one dealing with NYC-OTB branch managers and the other dealing with all the Nassau OTB employees.
The Appellate Division also commented that “even if we assume, without evidence, that Peterson will not be reappointed to the board of directors of the Nassau OTB as a result of Corbin’s decisive vote, this could not be considered irreparable harm [and] Peterson does not have a protected property interest in his position as a director of the Nassau OTB.”
Balancing Peterson’s failure to demonstrate any potential harm in the absence of a preliminary injunction against the right of Corbin’s constituents to be represented in the vote for OTB directors, the court concluded that the preliminary injunction had to be vacated.
* The Court of Appeals dismissed the appeal on its own motion after concluding that the Appellate Division’s order denying the preliminary injunction did not necessarily affect the final judgment of Supreme Court, as required by CPLR 5601 (d), [95 NY2d 919].
Modifying a disciplinary penalty
Modifying a disciplinary penalty
Brown v Penn Yan CSD, 275 AD2d 931
Knight v BOCES, App. Div., Fourth Dept., 275 AD2d 1038
Courts are frequently requested to review disciplinary penalties imposed on employees found guilty in administrative disciplinary procedures. The Brown and Knight decisions by the Appellate Division, Fourth Department, involved just such reviews.
The Brown decision:
The Brown decision illustrates the application of the so-called Pell doctrine [Pell v Board of Education, 34 NY2D 222] which bars the imposition of a disciplinary penalty that the court determines is disproportionate to the offense or offenses for which the employee was found guilty.
Penn Yan Central School District custodian James Brown was found guilty of a number of the disciplinary charges filed against him. Specifically, Brown was found guilty of:
1. failing to clean his assigned rooms adequately;
2. sweeping orange peels from the side of the cafeteria for which he was responsible to the side for which a co-worker was responsible; and
3. leaving work 20 minutes early.
The penalty imposed by the district: termination of employment. Brown appealed, claiming that the penalty of dismissal was unlawfully harsh.
The Appellate Division agreed, commenting that while there was substantial evidence in the record to support a finding of guilt, the penalty of dismissal was so disproportionate to the offense as to shock one’s sense of fairness.
One element used by the Appellate Division in justifying its mitigating the imposition of dismissal as a penalty was that Brown was found guilty of charges involving a single occurrence on three separate dates.
Another factor, said the court, was that [e]ven considering the prior incidents of similar misconduct for which [Brown] had received warnings, terminating Brown, a 12-year employee, was an excessive penalty within the meaning of the Pell doctrine.
Although a court would usually remand such a case to the appointing authority for its determination of a lesser penalty, here the Appellate Division decided to exercise its discretion and set the penalty itself. The penalty it imposed: suspension without pay or benefits for one year -- retroactive to October 29, 1999.
The Knight decision:
The BOCES terminated Kathryn Knight, a certified occupational therapy assistant, after she was found her guilty of abusing sick and personal leave and submitting a false claim for reimbursement.
The Appellate Division sustained Knight’s dismissal, holding that [a] high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed.
As to the application of the Pell Doctrine, the court commented that it cannot be said here that the penalty of termination, when considered in light of all of the circumstances of this case, is so disproportionate to the offense as to be shocking to one’s sense of fairness.
Some other considerations: While a court may sustain the disciplinary penalty imposed, remand the case to the appointing authority to impose a new, and lesser, penalty, or impose a lesser penalty as a matter of discretion, may it provide for the imposition of a harsher penalty?
Clearly there are precedents for the appointing officer to impose a harsher penalty than the one recommended by a disciplinary hearing officer. Russo v Wantagh UFSD, App. Div., No. 98-06421, decided March 22, 1999 is an example of such an action.
Although Russo protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty, the Appellate Division ruled that under the circumstances of this case, the termination of the petitioner’s employment was not so disproportionate to the offense as to shock one’s sense of fairness, again quoting the Pell standard.
Similarly, the Commissioner of Education occasionally substituted his judgment for that of a disciplinary panel in considering appeals from disciplinary actions taken under Section 3020-a prior to its amendment in 1994.
For example, in Shurgin v Ambach, 56 NY2d 700, the Court of Appeals affirmed the authority of the Commissioner to decide that a reprimand was a disproportionately lenient penalty for a very serious offense.
The hearing panel in Shurgin had imposed a reprimand as the penalty for the teacher’s poor judgment in showing his class pornographic films. The district appealed and the Commissioner authorized the district to terminate Shurgin.
As to the authority of a court to direct the imposition of a harsher penalty, in Ford v CSEA, 94 AD2d 262, the Appellate Division decided that it could remand the case for such a purpose. Its theory: under the circumstances a lesser penalty constituted a violation of a strong public policy and thus was irrational.
The issue arose in connection with disciplinary action taken against an employee of the Department of Mental Hygiene. The charge filed against the employee: having sexual relations with a patient.
The arbitrator found the employee guilty. Although the agency had sought to have the employee dismissed, the arbitrator imposed the penalty of a two-month suspension without pay because the patient consented to the sexual act that the arbitrator characterized as minimal patient abuse.
The agency head (Ford) appealed in an effort to have the arbitrator’s award vacated and the penalty of dismissal imposed.
The Appellate Division, concluding that the arbitrator exceeded his powers and made an irrational award in violation of ‘a public policy which is beyond waiver’ (by the State), remanded the matter for adjudication by a different arbitrator.
The court noted that “mental patients are incapable of “consent” in (this) context ....” The arbitrator’s determination of physical abuse cannot be passed off lightly with an adjective such as minimal. It found such a characterization by the arbitrator making the original determination appalling and the arbitrator’s refusal to impose the penalty of termination plainly irrational.
Another basis for vacating an arbitrator’s or hearing officer’s determination is a finding that the determination is pre-empted by a court ruling. For example, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are subsequently filed based on that same incident of theft, the hearing officer or the arbitrator may not find the employee not guilty of stealing.
As the court ruled in Kelly v Levin, 440 NY2d 424, acquitting an employee in an administrative disciplinary action is a reversible error if the individual previously was found guilty of a criminal act based on the same allegations.
The Kelly case involved a school business administrator against whom Section 3020-a charges alleging larcenies of school funds and bringing discredit upon the school district. The disciplinary panel the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.
The Court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. Finding that hearing panel’s decision was based on a finding of guilt of the bringing discredit charge only, the matter was remitted to the panel for reconsideration of the appropriate penalty to be imposed in consideration of being found guilty of the larceny charges as well.
The reason: the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt; in a Section 3020-a disciplinary action the standard is preponderance of the evidence, a significantly lower threshold upon which to base a finding of guilt.
However, what happens if the criminal conviction is subsequently reversed. In Beard v Newburgh, 259 AD2d 613, the court said that since the disciplinary arbitrator gave collateral estoppel effect to Beard’s conviction in the criminal action, the disciplinary award had to be vacated. Why so? Because, the court explained, the arbitration award was based exclusively on a criminal conviction that was reversed on appeal. The Appellate Division court directed that a new disciplinary hearing be conducted by the arbitrator.
Brown v Penn Yan CSD, 275 AD2d 931
Knight v BOCES, App. Div., Fourth Dept., 275 AD2d 1038
Courts are frequently requested to review disciplinary penalties imposed on employees found guilty in administrative disciplinary procedures. The Brown and Knight decisions by the Appellate Division, Fourth Department, involved just such reviews.
The Brown decision:
The Brown decision illustrates the application of the so-called Pell doctrine [Pell v Board of Education, 34 NY2D 222] which bars the imposition of a disciplinary penalty that the court determines is disproportionate to the offense or offenses for which the employee was found guilty.
Penn Yan Central School District custodian James Brown was found guilty of a number of the disciplinary charges filed against him. Specifically, Brown was found guilty of:
1. failing to clean his assigned rooms adequately;
2. sweeping orange peels from the side of the cafeteria for which he was responsible to the side for which a co-worker was responsible; and
3. leaving work 20 minutes early.
The penalty imposed by the district: termination of employment. Brown appealed, claiming that the penalty of dismissal was unlawfully harsh.
The Appellate Division agreed, commenting that while there was substantial evidence in the record to support a finding of guilt, the penalty of dismissal was so disproportionate to the offense as to shock one’s sense of fairness.
One element used by the Appellate Division in justifying its mitigating the imposition of dismissal as a penalty was that Brown was found guilty of charges involving a single occurrence on three separate dates.
Another factor, said the court, was that [e]ven considering the prior incidents of similar misconduct for which [Brown] had received warnings, terminating Brown, a 12-year employee, was an excessive penalty within the meaning of the Pell doctrine.
Although a court would usually remand such a case to the appointing authority for its determination of a lesser penalty, here the Appellate Division decided to exercise its discretion and set the penalty itself. The penalty it imposed: suspension without pay or benefits for one year -- retroactive to October 29, 1999.
The Knight decision:
The BOCES terminated Kathryn Knight, a certified occupational therapy assistant, after she was found her guilty of abusing sick and personal leave and submitting a false claim for reimbursement.
The Appellate Division sustained Knight’s dismissal, holding that [a] high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed.
As to the application of the Pell Doctrine, the court commented that it cannot be said here that the penalty of termination, when considered in light of all of the circumstances of this case, is so disproportionate to the offense as to be shocking to one’s sense of fairness.
Some other considerations: While a court may sustain the disciplinary penalty imposed, remand the case to the appointing authority to impose a new, and lesser, penalty, or impose a lesser penalty as a matter of discretion, may it provide for the imposition of a harsher penalty?
Clearly there are precedents for the appointing officer to impose a harsher penalty than the one recommended by a disciplinary hearing officer. Russo v Wantagh UFSD, App. Div., No. 98-06421, decided March 22, 1999 is an example of such an action.
Although Russo protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty, the Appellate Division ruled that under the circumstances of this case, the termination of the petitioner’s employment was not so disproportionate to the offense as to shock one’s sense of fairness, again quoting the Pell standard.
Similarly, the Commissioner of Education occasionally substituted his judgment for that of a disciplinary panel in considering appeals from disciplinary actions taken under Section 3020-a prior to its amendment in 1994.
For example, in Shurgin v Ambach, 56 NY2d 700, the Court of Appeals affirmed the authority of the Commissioner to decide that a reprimand was a disproportionately lenient penalty for a very serious offense.
The hearing panel in Shurgin had imposed a reprimand as the penalty for the teacher’s poor judgment in showing his class pornographic films. The district appealed and the Commissioner authorized the district to terminate Shurgin.
As to the authority of a court to direct the imposition of a harsher penalty, in Ford v CSEA, 94 AD2d 262, the Appellate Division decided that it could remand the case for such a purpose. Its theory: under the circumstances a lesser penalty constituted a violation of a strong public policy and thus was irrational.
The issue arose in connection with disciplinary action taken against an employee of the Department of Mental Hygiene. The charge filed against the employee: having sexual relations with a patient.
The arbitrator found the employee guilty. Although the agency had sought to have the employee dismissed, the arbitrator imposed the penalty of a two-month suspension without pay because the patient consented to the sexual act that the arbitrator characterized as minimal patient abuse.
The agency head (Ford) appealed in an effort to have the arbitrator’s award vacated and the penalty of dismissal imposed.
The Appellate Division, concluding that the arbitrator exceeded his powers and made an irrational award in violation of ‘a public policy which is beyond waiver’ (by the State), remanded the matter for adjudication by a different arbitrator.
The court noted that “mental patients are incapable of “consent” in (this) context ....” The arbitrator’s determination of physical abuse cannot be passed off lightly with an adjective such as minimal. It found such a characterization by the arbitrator making the original determination appalling and the arbitrator’s refusal to impose the penalty of termination plainly irrational.
Another basis for vacating an arbitrator’s or hearing officer’s determination is a finding that the determination is pre-empted by a court ruling. For example, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are subsequently filed based on that same incident of theft, the hearing officer or the arbitrator may not find the employee not guilty of stealing.
As the court ruled in Kelly v Levin, 440 NY2d 424, acquitting an employee in an administrative disciplinary action is a reversible error if the individual previously was found guilty of a criminal act based on the same allegations.
The Kelly case involved a school business administrator against whom Section 3020-a charges alleging larcenies of school funds and bringing discredit upon the school district. The disciplinary panel the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.
The Court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. Finding that hearing panel’s decision was based on a finding of guilt of the bringing discredit charge only, the matter was remitted to the panel for reconsideration of the appropriate penalty to be imposed in consideration of being found guilty of the larceny charges as well.
The reason: the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt; in a Section 3020-a disciplinary action the standard is preponderance of the evidence, a significantly lower threshold upon which to base a finding of guilt.
However, what happens if the criminal conviction is subsequently reversed. In Beard v Newburgh, 259 AD2d 613, the court said that since the disciplinary arbitrator gave collateral estoppel effect to Beard’s conviction in the criminal action, the disciplinary award had to be vacated. Why so? Because, the court explained, the arbitration award was based exclusively on a criminal conviction that was reversed on appeal. The Appellate Division court directed that a new disciplinary hearing be conducted by the arbitrator.
December 18, 2010
Readers of NYPPL use a variety of operating systems to access its content
Readers of NYPPL use a variety of operating systems to access its content
Reported by Google
NYPER trivia for December 2010.
Google Statistics reports NYPPL readers used the following means to access this LawBlog.
Windows 47,266
Macintosh 4,133
Other Unix 3,706
iPhone 339
BlackBerry 295
Linux 250
iPad 177
iPod 69
Nokia 54
Palm 38
Reported by Google
NYPER trivia for December 2010.
Google Statistics reports NYPPL readers used the following means to access this LawBlog.
Windows 47,266
Macintosh 4,133
Other Unix 3,706
iPhone 339
BlackBerry 295
Linux 250
iPad 177
iPod 69
Nokia 54
Palm 38
December 17, 2010
Liquidation of employee leave credits upon separation
Liquidation of employee leave credits upon separation
Source: A question of general interest submitted by a NYPPL reader
A NYPPL reader asks: "Should an employee be separated from his or her public employment what happens to the employees leave accruals? Is the municipality allowed to keep the money? Where does the money go?”
The most common types of leave accruals or credits that may be credited to an individual at the time of his or her separation are 1. Vacation Leave accruals, 2. Sick Leave accruals, 3. Personnel Leave credits; 4. Overtime credit, and 5. Compensatory leave credit.
.
The most common types of personnel transactions in which the question may arise are in the context of a resignation, retirement or death or upon termination for cause [see, generally, 4 NYCRR 23.1].
Less common are situations where the liquidation or use of leave credits is coupled with a leave of absence [see, for example, Civil Service Law §§71 and 72], a transfer [see 4 NYCRR 23.3], absence for military leave [see 4 NYCRR 23.2], a layoff, or a jurisdictional reclassification of an individual’s position [see, for example, Education Law §355.10(c).
The New York State Civil Service Commission's Rules for the Classified Service, 4 NYCRR 30.1, provides for the payment of certain leave accruals upon separation. Many local employees are subject to similar rules or regulations promulgated by a local civil service commission or set out in a collective bargaining agreement.
In addition, there may be provisions set out in an “employment contract” between a public employer and an individual that may be controlling as could be the case with respect to a contract between a school district and its school superintendent.
The State Commission's Rules basically provide that at the time of separation from State service, the employee or the employee’s estate or beneficiary, as the case may be, shall be paid in cash for unused vacation credits not in excess of 30 days. The Commission’s Rules, however, do not provide for the payment of unused sick leave* or personal leave credits [see 4 NYCRR 21.5(b)].
However, the Rules also set out two significant exceptions to such liquidation:
1. In the case of resignation, the appointing authority may require, as a condition for receiving payment for accrued but unused annual leave credit, that employee provide written notice of his or her resignation at least two weeks prior to the last day of work; and
2. No employee [subject to the Commission's Rules] who is removed from State service as a result of disciplinary action, or who resigns after being served with charges of incompetency or misconduct shall be entitled to compensation for vacation credits.
It should be noted that both these limitations apply only to "vacation accruals."
“Overtime accruals" and “compensatory time credit” are distinguished from vacation accruals, as they are provided as a result of work performed. As such accruals and credits are provided in lieu of cash compensation, they constitute "earnings" or "salary" for actual service rather than a fringe benefit such as "vacation leave credits" and up to 30 days of each may be liquidated in cash upon separation [see 4 NYCRR 23.3].
Under certain circumstances, however, it appears that the payment of vacation accruals will be madatory. For example, in Clift v City of Syracuse, 45 AD2d 596, the Appellate Division ruled that if an employee was refused permission to use his or her leave credits and was subsequently terminated, the individual was entitled to payment for his or her unused vacation accruals.
Another decision, Degnan v Constantine, 189 AD2d 423, illustrates the strict construction courts generally give to regulations involving the forfeiture of leave credits.
Degnan, a State Trooper, was eligible to retire when charges of misconduct were filed against him. In order to avoid a disciplinary hearing he "accelerated his original date of retirement."
After he retired Degnan asked for payment for the 30 days of unused vacation leave he had to his credit at the time of his retirement. State Police rejected his request, advising him that because he had resigned from service "in order to evade the charges pending" against him at the time his leave credits were, in effect, forfeited.
The Appellate Division ruled that "the clear and unambiguous language of [Division's] regulations requires that [Degnan] be compensated for up to 30 days of accrued annual leave...." as Degnan, faced with disciplinary charges, did not resign -- he retired instead.
The Appellate Division said that "it is axiomatic that an agency is bound by the language of its own regulations and cannot construe it in such a manner that the plain language on the face of the regulation is rendered meaningless."
In the words of the Appellate Division, "obviously had [the Division of State Police] intended that accrued vacation time be withheld in the case where a member retires during the pendency of disciplinary charges, the regulations would have so provided."
Another element to consider: the impact the Taylor Law. Does the relevant collective bargaining agreement set out the terms and conditions for the liquidation of leave credits upon separation? Could the liquidation of leave credits upon separation be deemed a "past practice" within the meaning of the Taylor Law? The answer is yes to both!
PERB has ruled that the liquidation of leave credits is a mandatory subject of collective bargaining and thus a unilateral changing of a past practice concerning the liquidation of leave credits in cash constituted an unfair labor practice [Center Moriches Administrators Association and Center Moriches UFSD, 28 PERB 3031].
Recent court rulings in which the payment of accrued leave credits upon separation was an issue include:
Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm;
Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm;
Hauptman v Village of Elmira Hgts., 23 Misc 3d 439
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2004/2004_24572.htm;
Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm; and
Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm .
* Employees of the State as an employer retiring with unused sick leave credits may have the actuarial value of such credits applied towards the payment of contributions otherwise required for their NYSHIP health insurance premiums upon retirement [see Civil Service Law §167.4] and, in addition, may receive additional “years of service” credit in determining their retirement allowance [see Retirement and Social Security Law §41.3.j].
Source: A question of general interest submitted by a NYPPL reader
A NYPPL reader asks: "Should an employee be separated from his or her public employment what happens to the employees leave accruals? Is the municipality allowed to keep the money? Where does the money go?”
The most common types of leave accruals or credits that may be credited to an individual at the time of his or her separation are 1. Vacation Leave accruals, 2. Sick Leave accruals, 3. Personnel Leave credits; 4. Overtime credit, and 5. Compensatory leave credit.
.
The most common types of personnel transactions in which the question may arise are in the context of a resignation, retirement or death or upon termination for cause [see, generally, 4 NYCRR 23.1].
Less common are situations where the liquidation or use of leave credits is coupled with a leave of absence [see, for example, Civil Service Law §§71 and 72], a transfer [see 4 NYCRR 23.3], absence for military leave [see 4 NYCRR 23.2], a layoff, or a jurisdictional reclassification of an individual’s position [see, for example, Education Law §355.10(c).
The New York State Civil Service Commission's Rules for the Classified Service, 4 NYCRR 30.1, provides for the payment of certain leave accruals upon separation. Many local employees are subject to similar rules or regulations promulgated by a local civil service commission or set out in a collective bargaining agreement.
In addition, there may be provisions set out in an “employment contract” between a public employer and an individual that may be controlling as could be the case with respect to a contract between a school district and its school superintendent.
The State Commission's Rules basically provide that at the time of separation from State service, the employee or the employee’s estate or beneficiary, as the case may be, shall be paid in cash for unused vacation credits not in excess of 30 days. The Commission’s Rules, however, do not provide for the payment of unused sick leave* or personal leave credits [see 4 NYCRR 21.5(b)].
However, the Rules also set out two significant exceptions to such liquidation:
1. In the case of resignation, the appointing authority may require, as a condition for receiving payment for accrued but unused annual leave credit, that employee provide written notice of his or her resignation at least two weeks prior to the last day of work; and
2. No employee [subject to the Commission's Rules] who is removed from State service as a result of disciplinary action, or who resigns after being served with charges of incompetency or misconduct shall be entitled to compensation for vacation credits.
It should be noted that both these limitations apply only to "vacation accruals."
“Overtime accruals" and “compensatory time credit” are distinguished from vacation accruals, as they are provided as a result of work performed. As such accruals and credits are provided in lieu of cash compensation, they constitute "earnings" or "salary" for actual service rather than a fringe benefit such as "vacation leave credits" and up to 30 days of each may be liquidated in cash upon separation [see 4 NYCRR 23.3].
Under certain circumstances, however, it appears that the payment of vacation accruals will be madatory. For example, in Clift v City of Syracuse, 45 AD2d 596, the Appellate Division ruled that if an employee was refused permission to use his or her leave credits and was subsequently terminated, the individual was entitled to payment for his or her unused vacation accruals.
Another decision, Degnan v Constantine, 189 AD2d 423, illustrates the strict construction courts generally give to regulations involving the forfeiture of leave credits.
Degnan, a State Trooper, was eligible to retire when charges of misconduct were filed against him. In order to avoid a disciplinary hearing he "accelerated his original date of retirement."
After he retired Degnan asked for payment for the 30 days of unused vacation leave he had to his credit at the time of his retirement. State Police rejected his request, advising him that because he had resigned from service "in order to evade the charges pending" against him at the time his leave credits were, in effect, forfeited.
The Appellate Division ruled that "the clear and unambiguous language of [Division's] regulations requires that [Degnan] be compensated for up to 30 days of accrued annual leave...." as Degnan, faced with disciplinary charges, did not resign -- he retired instead.
The Appellate Division said that "it is axiomatic that an agency is bound by the language of its own regulations and cannot construe it in such a manner that the plain language on the face of the regulation is rendered meaningless."
In the words of the Appellate Division, "obviously had [the Division of State Police] intended that accrued vacation time be withheld in the case where a member retires during the pendency of disciplinary charges, the regulations would have so provided."
Another element to consider: the impact the Taylor Law. Does the relevant collective bargaining agreement set out the terms and conditions for the liquidation of leave credits upon separation? Could the liquidation of leave credits upon separation be deemed a "past practice" within the meaning of the Taylor Law? The answer is yes to both!
PERB has ruled that the liquidation of leave credits is a mandatory subject of collective bargaining and thus a unilateral changing of a past practice concerning the liquidation of leave credits in cash constituted an unfair labor practice [Center Moriches Administrators Association and Center Moriches UFSD, 28 PERB 3031].
Recent court rulings in which the payment of accrued leave credits upon separation was an issue include:
Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm;
Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm;
Hauptman v Village of Elmira Hgts., 23 Misc 3d 439
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2004/2004_24572.htm;
Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm; and
Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm .
* Employees of the State as an employer retiring with unused sick leave credits may have the actuarial value of such credits applied towards the payment of contributions otherwise required for their NYSHIP health insurance premiums upon retirement [see Civil Service Law §167.4] and, in addition, may receive additional “years of service” credit in determining their retirement allowance [see Retirement and Social Security Law §41.3.j].
Governor Paterson signs Executive Order on Record Keeping Procedures and Policies
Governor Paterson signs Executive Order on Record Keeping Procedures and Policies
Source: Office of the Governor
On December 14, 2010 Governor David A. Paterson issued an Executive Order addressing the development and implementation of a records management policy for the Executive Chamber, including an archives retention schedule.
The Governor signed the Executive Order, 9 NYCRR 7.42, following his veto of S.6846/A.9928.
The Executive Order requires that a retention schedule be promulgated and made public. The schedule categorizes documents prepared in the Executive Chamber and sets forth a period for their retention and ultimate disposition. All records of historic and governmental significance will be preserved, published and made publicly accessible.*
A member of the Executive Chamber Counsel's Office is designated as the Records Retention Officer and will be responsible for coordinating Executive Chamber record retention activities.
The Governor vetoed S.6846/A.9928, also known as the Archives Bill. In his veto message, the Governor acknowledged the sponsors' efforts, but noted that the bill did not provide adequate protection for valued, centuries old governmental privileges that are indispensable to ensure unfettered, candid advice. The Governor also said the bill would have imposed significant and costly burdens on the Executive Chamber and would tip the balance of power between the Legislature and Executive by allowing the former immediate access to executive records, without imposing any comparable transparency requirements upon itself.
* The Counsel to the Governor will negotiate an agreement for storage of the information, and the circumstances on which it would be made available to the public. Executive Chamber records created during the Paterson Administration will be donated to Cornell University.
Source: Office of the Governor
On December 14, 2010 Governor David A. Paterson issued an Executive Order addressing the development and implementation of a records management policy for the Executive Chamber, including an archives retention schedule.
The Governor signed the Executive Order, 9 NYCRR 7.42, following his veto of S.6846/A.9928.
The Executive Order requires that a retention schedule be promulgated and made public. The schedule categorizes documents prepared in the Executive Chamber and sets forth a period for their retention and ultimate disposition. All records of historic and governmental significance will be preserved, published and made publicly accessible.*
A member of the Executive Chamber Counsel's Office is designated as the Records Retention Officer and will be responsible for coordinating Executive Chamber record retention activities.
The Governor vetoed S.6846/A.9928, also known as the Archives Bill. In his veto message, the Governor acknowledged the sponsors' efforts, but noted that the bill did not provide adequate protection for valued, centuries old governmental privileges that are indispensable to ensure unfettered, candid advice. The Governor also said the bill would have imposed significant and costly burdens on the Executive Chamber and would tip the balance of power between the Legislature and Executive by allowing the former immediate access to executive records, without imposing any comparable transparency requirements upon itself.
* The Counsel to the Governor will negotiate an agreement for storage of the information, and the circumstances on which it would be made available to the public. Executive Chamber records created during the Paterson Administration will be donated to Cornell University.
Determining on-duty status
Determining on-duty status
Cossifos v NYSERS, 275 AD2d 879
Clearly an individual who is disabled in the course of performing his or her duties may be eligible for accidental disability retirement benefits provided by a public retirement system of this state as a result of his or her being injured while on-duty. The critical issue to be determined in considering such claims, however, is whether or not the disabled employee was at work within the meaning of the statute providing for such benefits when he or she suffered the injury.
In the Cossifos case, the question to be resolved was whether an employee who was injured while eating lunch at the worksite was engaged in performing his or her duties for the purpose of eligibility for disability retirement benefits under the Retirement and Social Security Law.
Alexander Cossifos, a senior court officer, was eating his lunch in the court’s locker room when another court officer accidentally caused one of the lockers to fall on him. He applied for accidental disability retirement benefits.
The New York State Employees’ Retirement System [ERS] rejected his application for accidental disability retirement. It said that Cossifos was not working when he was injured and therefore he was ineligible for such benefits. In the words of ERS, Cossifos was on his off-duty lunch break at the time of the accident and was therefore not in service when his injuries were sustained.
Cossifos sued, only to have his appeal dismissed by the Appellate Division. The court said that there was substantial evidence in the record to support ERS’ determination. Among the facts relied upon by ERS in making its determination:
1. Cossifos’ lunch break varied from 45 minutes to two hours, at the discretion of the court.
2. Cossifos was permitted to leave the courthouse during his designated lunch period, provided that he returned to duty at the time indicated by the court.
3. There was nothing in the record to support Cossifos’ claim that he was performing his job duties during his lunch break.
4. Cossifos was not paid for the period of time he spent eating lunch and that his presence in the courthouse during his break was not required by his employment.
The Appellate Division concluded under these circumstances there was no basis to disturb ERS’ determination that Cossifos was not in service at the time of the accident and, thus he was not entitled to accidental disability retirement benefits.
The decision also notes that “[t]he fact that [Cossifos] was within the confines of the employer’s premises at the time of the injury and could have been summoned to assist in a work-related matter while he was on his lunch break does not warrant a contrary finding.”
Smith v City of Rochester, 255 AD2d 863, however, sets out one significant exception to the general rule that eating lunch is not work. Smith, decided by the Appellate Division, Fourth Department, involved a workers’ compensation claim.
Donna Smith, a city-parking monitor, challenged the denial of her claim for workers’ compensation as a result of her slipping on a wet floor while leaving a restaurant during her unpaid lunch break. The Workers’ Compensation Board ruled that Smith’s fall did not constitute an accidental injury in the course of her employment.
The Appellate Division affirmed the board’s determination, holding that lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.
In another injury at the worksite case, Crockett v Safir, 269 AD2d 227, Appellate Division, First Department, the court rejected New York City police officer Donna Crockett’s claim that she suffered a line-of-duty injury when a mirror fell and injured her while she was brushing her teeth in the ladies’ room of a police building. The court sustained the police commissioner’s ruling that Crockett was not actually employed in discharging the orders of a superior officer at the time of the accident, as required by the statute.
Cossifos v NYSERS, 275 AD2d 879
Clearly an individual who is disabled in the course of performing his or her duties may be eligible for accidental disability retirement benefits provided by a public retirement system of this state as a result of his or her being injured while on-duty. The critical issue to be determined in considering such claims, however, is whether or not the disabled employee was at work within the meaning of the statute providing for such benefits when he or she suffered the injury.
In the Cossifos case, the question to be resolved was whether an employee who was injured while eating lunch at the worksite was engaged in performing his or her duties for the purpose of eligibility for disability retirement benefits under the Retirement and Social Security Law.
Alexander Cossifos, a senior court officer, was eating his lunch in the court’s locker room when another court officer accidentally caused one of the lockers to fall on him. He applied for accidental disability retirement benefits.
The New York State Employees’ Retirement System [ERS] rejected his application for accidental disability retirement. It said that Cossifos was not working when he was injured and therefore he was ineligible for such benefits. In the words of ERS, Cossifos was on his off-duty lunch break at the time of the accident and was therefore not in service when his injuries were sustained.
Cossifos sued, only to have his appeal dismissed by the Appellate Division. The court said that there was substantial evidence in the record to support ERS’ determination. Among the facts relied upon by ERS in making its determination:
1. Cossifos’ lunch break varied from 45 minutes to two hours, at the discretion of the court.
2. Cossifos was permitted to leave the courthouse during his designated lunch period, provided that he returned to duty at the time indicated by the court.
3. There was nothing in the record to support Cossifos’ claim that he was performing his job duties during his lunch break.
4. Cossifos was not paid for the period of time he spent eating lunch and that his presence in the courthouse during his break was not required by his employment.
The Appellate Division concluded under these circumstances there was no basis to disturb ERS’ determination that Cossifos was not in service at the time of the accident and, thus he was not entitled to accidental disability retirement benefits.
The decision also notes that “[t]he fact that [Cossifos] was within the confines of the employer’s premises at the time of the injury and could have been summoned to assist in a work-related matter while he was on his lunch break does not warrant a contrary finding.”
Smith v City of Rochester, 255 AD2d 863, however, sets out one significant exception to the general rule that eating lunch is not work. Smith, decided by the Appellate Division, Fourth Department, involved a workers’ compensation claim.
Donna Smith, a city-parking monitor, challenged the denial of her claim for workers’ compensation as a result of her slipping on a wet floor while leaving a restaurant during her unpaid lunch break. The Workers’ Compensation Board ruled that Smith’s fall did not constitute an accidental injury in the course of her employment.
The Appellate Division affirmed the board’s determination, holding that lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.
In another injury at the worksite case, Crockett v Safir, 269 AD2d 227, Appellate Division, First Department, the court rejected New York City police officer Donna Crockett’s claim that she suffered a line-of-duty injury when a mirror fell and injured her while she was brushing her teeth in the ladies’ room of a police building. The court sustained the police commissioner’s ruling that Crockett was not actually employed in discharging the orders of a superior officer at the time of the accident, as required by the statute.
Discrimination complaints and discipline
Discrimination complaints and discipline
Scroggins v Univ. of Minnesota, 8th Cir., 221 F.3d 1042
An employee files a discrimination complaint pursuant to Title VII against his or her employer. A short time later the employee is brought up on disciplinary charges, found guilty, and terminated. Is the employer guilty of retaliation against the employee in violation of Title VII? Stated another way, does the fact that an individual has filed a discrimination complaint mean that he or she may not be disciplined until the discrimination complaint is resolved?
In the Scroggins case, the U.S. Circuit Court of Appeals, Eight Circuit, decided that the fact that James Scroggins, an African-American, was terminated shortly after he filed a human rights complaint against the University of Minnesota did not mean that the University automatically violated the anti-retaliation provision in Title VII.
Scroggins was employed by the University as a custodian. He was counseled and disciplined on a number of occasions. Ultimately he was fired after being found guilty of sleeping after his break time had ended. This disciplinary action occurred just two weeks after Scroggins had filed his Title VII discrimination complaint against the University.
The Circuit Court characterized the fact that Scroggins was fired just two weeks after filing a discrimination charge as mere coincidence, rejecting his allegation that the disciplinary action against him was racially motivated and that his dismissal retaliatory. According to the court, the University had demonstrated that it had a valid, nondiscriminatory reasons for firing Scroggins.
Scroggins, on the other hand, said the court, did not offer any proof that the reasons given by the University for terminating him were pretextual.
Citing Kiel v Select Artificials, 169 F.3d 1131, the court pointed out that more than a showing that the termination occurred shortly after the individual had engaged in protected conduct, i.e., filing discrimination compliant with EEOC, is required. The individual must show that there is a factual issue of retaliation if his or her cause of action is to survive a motion for summary dismissal.
The court’s rationale: anti-discrimination statutes do not serve to insulate an employee from being disciplined for violating the employer’s work rules or disrupting the workplace.
Scroggins v Univ. of Minnesota, 8th Cir., 221 F.3d 1042
An employee files a discrimination complaint pursuant to Title VII against his or her employer. A short time later the employee is brought up on disciplinary charges, found guilty, and terminated. Is the employer guilty of retaliation against the employee in violation of Title VII? Stated another way, does the fact that an individual has filed a discrimination complaint mean that he or she may not be disciplined until the discrimination complaint is resolved?
In the Scroggins case, the U.S. Circuit Court of Appeals, Eight Circuit, decided that the fact that James Scroggins, an African-American, was terminated shortly after he filed a human rights complaint against the University of Minnesota did not mean that the University automatically violated the anti-retaliation provision in Title VII.
Scroggins was employed by the University as a custodian. He was counseled and disciplined on a number of occasions. Ultimately he was fired after being found guilty of sleeping after his break time had ended. This disciplinary action occurred just two weeks after Scroggins had filed his Title VII discrimination complaint against the University.
The Circuit Court characterized the fact that Scroggins was fired just two weeks after filing a discrimination charge as mere coincidence, rejecting his allegation that the disciplinary action against him was racially motivated and that his dismissal retaliatory. According to the court, the University had demonstrated that it had a valid, nondiscriminatory reasons for firing Scroggins.
Scroggins, on the other hand, said the court, did not offer any proof that the reasons given by the University for terminating him were pretextual.
Citing Kiel v Select Artificials, 169 F.3d 1131, the court pointed out that more than a showing that the termination occurred shortly after the individual had engaged in protected conduct, i.e., filing discrimination compliant with EEOC, is required. The individual must show that there is a factual issue of retaliation if his or her cause of action is to survive a motion for summary dismissal.
The court’s rationale: anti-discrimination statutes do not serve to insulate an employee from being disciplined for violating the employer’s work rules or disrupting the workplace.
Modifying a disciplinary procedure
Modifying a disciplinary procedure
NYC Transit Auth, v PERB, 276 AD2d 702, Motion for leave to appeal denied, 96 NY2d 713
The New York City Transit Authority case demonstrates the fact that neither an employer nor an employee organization may unilaterally modify a statutory or negotiated disciplinary procedures. Where such changes are desired, they are subject to the collective bargaining process set out in the Taylor Law.*
The case started after the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority [TA] unilaterally adopted new rules setting out revised standards and penalties with respect to convictions, moving violations, and motor vehicle accidents involving TA bus drivers.
Contending that these changes imposed rules that were more stringent than those they replaced, the Amalgamated Transit Union, Divisions 726 and 1056 and Local 100, Transport Workers Union of America [Union], representing TA employees affected by the change filed an improper practice charge with PERB.
PERB’s Administrative Law Judge [ALJ] rejected TA’s argument that the revised standards and penalties were qualifications to be satisfied before becoming a bus driver and thus not terms and conditions of employment for the purposes of the Taylor Law.
The ALJ held that the changes imposed by the TA constituted terms and conditions to be satisfied to continue employment as a bus driver rather than qualifications for employment. Accordingly, concluded the ALJ, the changes made by the TA were a mandatory subject of collective bargaining under the Taylor Law.
The bottom line: the ALJ ruled that TA’s refusal to engage in negotiations prior to before imposing the revisions violated the mandates of Section 209-a.1(d). TA appealed but PERB sustained its ALJ’s decision, noting that since the revised standards carried a disciplinary component, they were mandatory items of negotiation and thus TA should have first entered into collective negotiations with the Union concerning these changes.
PERB issued its ruling that the TA had violated Section 209-a.1(d) of the Civil Service Law Section by unilaterally implementing new disciplinary work rules and penalties. Finding that PERB’s decision was neither irrational, unreasonable, nor affected by any error of law, the Appellate Division, Second Department, sustained the ruling and dismissed the TA’s appeal.
* Section 76 of the Civil Service Law and Section 3020-a of the Education Law authorize the negotiating an alternative to the disciplinary procedures set out in those law pursuant to the Taylor Law. For information about PELP's The Discipline Book, go to: http://thedisciplinebook.blogspot.com/
NYC Transit Auth, v PERB, 276 AD2d 702, Motion for leave to appeal denied, 96 NY2d 713
The New York City Transit Authority case demonstrates the fact that neither an employer nor an employee organization may unilaterally modify a statutory or negotiated disciplinary procedures. Where such changes are desired, they are subject to the collective bargaining process set out in the Taylor Law.*
The case started after the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority [TA] unilaterally adopted new rules setting out revised standards and penalties with respect to convictions, moving violations, and motor vehicle accidents involving TA bus drivers.
Contending that these changes imposed rules that were more stringent than those they replaced, the Amalgamated Transit Union, Divisions 726 and 1056 and Local 100, Transport Workers Union of America [Union], representing TA employees affected by the change filed an improper practice charge with PERB.
PERB’s Administrative Law Judge [ALJ] rejected TA’s argument that the revised standards and penalties were qualifications to be satisfied before becoming a bus driver and thus not terms and conditions of employment for the purposes of the Taylor Law.
The ALJ held that the changes imposed by the TA constituted terms and conditions to be satisfied to continue employment as a bus driver rather than qualifications for employment. Accordingly, concluded the ALJ, the changes made by the TA were a mandatory subject of collective bargaining under the Taylor Law.
The bottom line: the ALJ ruled that TA’s refusal to engage in negotiations prior to before imposing the revisions violated the mandates of Section 209-a.1(d). TA appealed but PERB sustained its ALJ’s decision, noting that since the revised standards carried a disciplinary component, they were mandatory items of negotiation and thus TA should have first entered into collective negotiations with the Union concerning these changes.
PERB issued its ruling that the TA had violated Section 209-a.1(d) of the Civil Service Law Section by unilaterally implementing new disciplinary work rules and penalties. Finding that PERB’s decision was neither irrational, unreasonable, nor affected by any error of law, the Appellate Division, Second Department, sustained the ruling and dismissed the TA’s appeal.
* Section 76 of the Civil Service Law and Section 3020-a of the Education Law authorize the negotiating an alternative to the disciplinary procedures set out in those law pursuant to the Taylor Law. For information about PELP's The Discipline Book, go to: http://thedisciplinebook.blogspot.com/
December 16, 2010
Arbitrators generally permitted independent recourse to third-party sources when necessary to confirm technical information
Arbitrators generally permitted independent recourse to third-party sources when necessary to confirm technical information
Matter of Watt v Roberts, 2010 NY Slip Op 09171, decided on December 14, 2010, Appellate Division, First Department
An arbitration panel selected by the Transport Workers Union of America, Local 100 and the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority granted a 3% wage increase to employees of the Authorities and capped the formula for employees' contributions toward health insurance costs.
The award was subsequently confirmed by Supreme Court, which denied the Authorities’ Article 75 motion to vacate the award. The Appellate Division affirmed the lower court’s ruling.
The Authorities had objected to the arbitration panel's references to certain matters outside the hearing record, including the MTA's 2010 Preliminary Budget and July Financial Plan and matters reported in newspaper articles. The Appellate Division, however, ruled that this did not constitute "corruption, fraud, or misconduct in procuring the award" prejudicing the rights of either party and warranting vacatur.
The court noted that arbitrators "often are chosen because of their expertise in a particular area and are generally permitted independent recourse to third-party sources when necessary to confirm technical information." In this instance, said the Appellate Division, the arbitrators did not purport to rely on matters outside the record in setting the award, but acknowledged and referred to developments known to the parties and widely reported.
In effect, the court appears to have equated the arbitration panel’s consideration of “third-party sources” equivalent to it taking “judicial notice” in a legal action. West's Encyclopedia of American Law defines “judicial notice” as “A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09171.htm
Matter of Watt v Roberts, 2010 NY Slip Op 09171, decided on December 14, 2010, Appellate Division, First Department
An arbitration panel selected by the Transport Workers Union of America, Local 100 and the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority granted a 3% wage increase to employees of the Authorities and capped the formula for employees' contributions toward health insurance costs.
The award was subsequently confirmed by Supreme Court, which denied the Authorities’ Article 75 motion to vacate the award. The Appellate Division affirmed the lower court’s ruling.
The Authorities had objected to the arbitration panel's references to certain matters outside the hearing record, including the MTA's 2010 Preliminary Budget and July Financial Plan and matters reported in newspaper articles. The Appellate Division, however, ruled that this did not constitute "corruption, fraud, or misconduct in procuring the award" prejudicing the rights of either party and warranting vacatur.
The court noted that arbitrators "often are chosen because of their expertise in a particular area and are generally permitted independent recourse to third-party sources when necessary to confirm technical information." In this instance, said the Appellate Division, the arbitrators did not purport to rely on matters outside the record in setting the award, but acknowledged and referred to developments known to the parties and widely reported.
In effect, the court appears to have equated the arbitration panel’s consideration of “third-party sources” equivalent to it taking “judicial notice” in a legal action. West's Encyclopedia of American Law defines “judicial notice” as “A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09171.htm
The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies
The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies
Kahn v New York City Dept. of Educ., 2010 NY Slip Op 09168, decided on December 14, 2010, Appellate Division, First Department
Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “denying her a Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to administrative review under the relevant collective bargaining agreement.
Kahn filed an administrative appeal. An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging the determination.
Although Kahn had not filed a “notice of claim” pursuant to Education Law §3813(1), the Appellate Division said that such an omission was not a bar to her action, which was equitable in nature. The court explained that a notice of claim is only required “when money damages are sought, citing Ruocco v Doyle, 38 AD2d 132.
Overcoming this hurdle, however, did not result in the court's considering the merits of Kahn's claim as the Appellate Division then found that her action was time-barred because she filed her Article 78 petition after the statute of limitations had expired.
The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.
Assuming that Kahn had initiated a timely Article 78 action and not filed her administrative appeal, the New York City Department of Education would probably have moved to dismiss her petition on the ground that “Kahn had failed to exhaust her administrative remedy.” Presumably the court would have agreed and dismissed her petition.
To avoid such a result, where there is an administrative remedy available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition.
Kahn also claimed that the Department’s action deprived her of certain civil rights in violation of the Federal Civil Rights Act of 1871, 42 USC §1983.
The Appellate Division said that a claim based on an alleged violations of 42 USC §1983 requires that the proponent show that he or she was deprived of a property or liberty interest without due process of law. However, said the court, a probationary teacher does not have a property right in his or her position nor did the procedure set out in the collective bargaining agreement create such a property interest.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09168.htm
Kahn v New York City Dept. of Educ., 2010 NY Slip Op 09168, decided on December 14, 2010, Appellate Division, First Department
Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “denying her a Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to administrative review under the relevant collective bargaining agreement.
Kahn filed an administrative appeal. An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging the determination.
Although Kahn had not filed a “notice of claim” pursuant to Education Law §3813(1), the Appellate Division said that such an omission was not a bar to her action, which was equitable in nature. The court explained that a notice of claim is only required “when money damages are sought, citing Ruocco v Doyle, 38 AD2d 132.
Overcoming this hurdle, however, did not result in the court's considering the merits of Kahn's claim as the Appellate Division then found that her action was time-barred because she filed her Article 78 petition after the statute of limitations had expired.
The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.
Assuming that Kahn had initiated a timely Article 78 action and not filed her administrative appeal, the New York City Department of Education would probably have moved to dismiss her petition on the ground that “Kahn had failed to exhaust her administrative remedy.” Presumably the court would have agreed and dismissed her petition.
To avoid such a result, where there is an administrative remedy available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition.
Kahn also claimed that the Department’s action deprived her of certain civil rights in violation of the Federal Civil Rights Act of 1871, 42 USC §1983.
The Appellate Division said that a claim based on an alleged violations of 42 USC §1983 requires that the proponent show that he or she was deprived of a property or liberty interest without due process of law. However, said the court, a probationary teacher does not have a property right in his or her position nor did the procedure set out in the collective bargaining agreement create such a property interest.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09168.htm
Retirement incentives
Retirement incentives
Bellanca v Grand Island CSD, 275 AD2d 944
Sometimes the retirement incentives promised by the employer are not granted to the individual. This type of situation was the genesis of the Bellanca case.
Peter Bellanca and nine other teachers sued the Grand Island Central School District in an attempt to have the court rescind their having previously decided to elect early retirement. They asked the court to direct their reinstatement to their former positions with back pay and damages.
According to the teachers, the district induced them to accept early retirement by promising them special incentives.
Their complaint: the district did not provide the incentives to them as promised because their final average salary for the purpose of calculating their retirement allowance did not include their severance payment.
Section 431 of the Retirement and Social Security Law provides that after April 1, 1972, the salary base for the computation of retirement benefits paid by a public retirement system of this state shall not include: 1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked; 2. Any form of termination pay; 3. Any additional compensation paid in anticipation of retirement: or 4. That portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum.
One of the issues concerned the district’s attempt to have the teachers’ petition dismissed on the theory that they had failed to exhaust their administrative remedies.
According to the district, the teachers should have filed a grievance as provided by collective bargaining agreement. As they had not, district argued that the teachers were barred from litigating claims alleging that the district’s action were negligent or constituted a fraudulent misrepresentation of fact or the parties’ mutual mistake of fact.
The Appellate Division said that none of the teachers failed to exhaust any available administrative remedies. Why not? Because, said the court, their complaints do not allege any violation of the collective bargaining agreement and thus does not fall within the agreement’s definition of a grievance.
Bellanca v Grand Island CSD, 275 AD2d 944
Sometimes the retirement incentives promised by the employer are not granted to the individual. This type of situation was the genesis of the Bellanca case.
Peter Bellanca and nine other teachers sued the Grand Island Central School District in an attempt to have the court rescind their having previously decided to elect early retirement. They asked the court to direct their reinstatement to their former positions with back pay and damages.
According to the teachers, the district induced them to accept early retirement by promising them special incentives.
Their complaint: the district did not provide the incentives to them as promised because their final average salary for the purpose of calculating their retirement allowance did not include their severance payment.
Section 431 of the Retirement and Social Security Law provides that after April 1, 1972, the salary base for the computation of retirement benefits paid by a public retirement system of this state shall not include: 1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked; 2. Any form of termination pay; 3. Any additional compensation paid in anticipation of retirement: or 4. That portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum.
One of the issues concerned the district’s attempt to have the teachers’ petition dismissed on the theory that they had failed to exhaust their administrative remedies.
According to the district, the teachers should have filed a grievance as provided by collective bargaining agreement. As they had not, district argued that the teachers were barred from litigating claims alleging that the district’s action were negligent or constituted a fraudulent misrepresentation of fact or the parties’ mutual mistake of fact.
The Appellate Division said that none of the teachers failed to exhaust any available administrative remedies. Why not? Because, said the court, their complaints do not allege any violation of the collective bargaining agreement and thus does not fall within the agreement’s definition of a grievance.
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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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