Restoration to eligible list a matter of discretion

Restoration to eligible list a matter of discretion

Lee v Director of Personnel [Not selected for publication in the Official Reports]

Does a person who is discharged for failure to satisfactorily complete the required probationary period have a right to be restored to the eligible list?

In Lee v Director of Personnel a Supreme Court judge said that according to the Rules of the City of New York, restoration to the eligible list was a discretionary determination by the Director of Personnel.

The decision indicated that the discharged employee would have to show that the decision not to restore his name to the eligible list was done in bad faith or that the refusal was arbitrary or capricious.

The court also commented that a probationary employee may be dismissed prior to the end of the probationary term without notice and hearing.

Concerning the employee organization’s duty to honor a unit member’s request to challenge an arbitration award

Concerning the employee organization’s duty to honor a unit member’s request to challenge an arbitration award

Albino v. the City of New York, 80 A.D.2d 261

A situation confronting public employee unions, and ultimately the employer, with increasing frequency is how far the union must go to meet its duty of providing those it represents with “fair representation.”

In Albino the Court provides a number of guidelines concerning this question.

The case arose when Albino was reassigned to a different work location after discussions with the Union. The reassignment was part of a reorganization of the Agency.

After the arbitrator ruled against the employee, the employee wanted the Union to appeal the award to the Court. The Union refused, indicating “that it appears that the arbitrator, in rendering a decision with which we do not agree, did not exceed his powers to interpret the terms of the agreement.”

The employee then attempted to sue the employer. The Court dismissed the case indicating that there was no evidence that there was any lack of fair representation by the Union.

Removal of a reprimand in an employee’s personnel file

Removal of a reprimand in an employee’s personnel file

Opinions of the Attorney General, Informal Opinion 81-28

May a reprimand placed in an employee’s file as a result of a negotiated settlement of a disciplinary action be later removed from the employee’s personnel file?

In Informal Opinion 81-28, the Attorney General indicated that it was permissible “to clear the record of an employee who in the past misbehaved, but who since has performed well.” In this case the Village Board of Trustees wished to remove the reprimand, which the Attorney General viewed as a “legislative act.” Presumably, an appointing officer has similar authority to remove the record of discipline by “executive action”.

Petitioning a court to remove certain officers of a political subdivision of the State

Petitioning a court to remove certain officers of a political subdivision of the State
Haase v DelVecchio, 2011 NY Slip Op 09127, Appellate Division, Second Department

§36 of the Public Officers Law provides for the removal of a town, village, improvement district or fire district officer except a justice of the peace, by the Supreme Court for misconduct, maladministration, malfeasance or malversation in office.

Further, an application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located may be made to the Appellate Division in the appropriate judicial department.

Daniel Hasse filed a petition seeking to remove Christopher DelVecchio from his public office in the Mastic Fire Department, Town of Brookhaven, Suffolk County, pursuant to §36 of the Public Officers Law.

Citing a number of decisions including Futia v Weaver, 85 AD3d 1165 and Montanio v Rowley, 39 AD3d 653, the Appellate Division dismissed Hasse’s petition holding that the allegations in the petition did not rise to the level of misconduct, maladministration, malfeasance, or malversation necessary to justify the extreme remedy of removal from office pursuant to Public Officers Law §36.

The court, however, rejected DelVecchio’s request for the imposition of sanctions against the Hasse in connection with the proceeding. DelVecchio has asked that the Appellate Division impose sanctions against Hasse pursuant to 22 NYCRR 130-1.1.

22 NYCRR 130-1.1 permits a court, at its discretion, to award a party or attorney in a civil action or proceeding before the court [except where prohibited by law] the costs actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in the regulation. In addition to, or in lieu of, awarding costs, the court, as a matter its exercising its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in such frivolous conduct.

For the purposed of 22 NYCRR 130-1.1, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09127.htm

Contract grievance arbitration to go forward notwithstanding pending disciplinary action taken against the employee

Contract grievance arbitration to go forward notwithstanding pending disciplinary action taken against the employee

Cattaraugus Central Schools v. Cattaraugus Teacher’s Association, 84 A.D.2d 685

A teacher filed a grievance claiming a violation of the Taylor Law contract. After losing the grievance at Step 3, the teacher sought arbitration. The school district, however, obtained a stay of arbitration of the grievance in the light of a pending disciplinary action involving the teacher.  

On appeal the stay issued by Supreme Court was vacated.

The Appellate Division held that there was no bar to simultaneously pursuing remedies under the agreement and the Education Law, even if there might be different decisions as a result.

According to the decision, the only two questions to be considered by the court in connection with an attempt to stay arbitration are 

1. whether arbitration of the subject matter of the dispute is permissible under the Taylor Law ... and allowable as a matter of public policy (i.e., denial of tenure is not subject to arbitration; alleged procedural violations in connection with consideration for tenure is subject to arbitration is provided for in the agreement) and 

2. whether the parties agreed by the terms of their arbitration clause to submit the dispute to arbitration.

Unemployment Insurance Appeals Board must make an independent determination as to whether the employee was dismissed for misconduct within the meaning of the Labor Law.

Unemployment Insurance Appeals Board must make an independent determination as to whether the employee was dismissed for misconduct within the meaning of the Labor Law.

Ranni v. Ross, 84 A.D.2d 858

The arbitrator found the employee guilty of misconduct, gross insubordination and failure to properly perform his duties. The penalty of dismissal was imposed.

Later the former employee claim for unemployment benefits was denied on the basis of the arbitrator’s disciplinary determination.

The Appellate Division ruled that “an employer may be completely justified in discharging an employee, yet the grounds for the firing may not constitute misconduct within the meaning of Section 593.3 of the Labor Law.”

As the Unemployment Insurance Appeals Board relied exclusively on the arbitrator’s findings regarding the dismissal, the Court said that “there is no substantial evidence in the record (before the Board) to support the Board’s denial of the claim” and sent the matter back to the Board for further consideration.

N.B. Section 593.3 does not define “misconduct” but merely refers to it in connection with the calculation of periods of time in connection with disqualification for benefits.) One judge, in a dissent, argued that the employee should not be given the opportunity to relitigate the disciplinary action within the context of an unemployment insurance claim.

Governor Cuomo and Legislative Leaders appoint members to The Joint Commission on Public Ethics

Governor Cuomo and Legislative Leaders appoint members to The Joint Commission on Public Ethics

Source: Press Office, Office of the Governor

Governor Andrew M. Cuomo and legislative leaders today announced their appointments to the new Joint Commission on Public Ethics (JCOPE).

JCOPE is an independent enforcement unit with broad oversight of New York State government. The Commission has powers to investigate violations of law and financial disclosure requirements for all elected officials and their employees in both the executive and legislative branches. JCOPE also has expanded powers to oversee lobbyists due to newly expanded disclosure rules and a broader definition of lobbying.

JCOPE was created as part of Governor Cuomo's ethics reform package designed to address major inadequacies in the State's ethics system and to restore public trust in government. The Public Integrity Reform Act of 2011 [Chapter 399 of the Law of 2011] contains some of the most comprehensive ethics enhancements in modern history, including reforms that create transparency, require strict disclosure, and increase penalties for ethics violations.

In addition, Part C of the Act provides for "Pension Forfeiture" under certain circumstances. It amends the Retirement and Social Security Law by adding a new Article 3-B to establish a procedure whereby certain public officials who commit crimes related to their public offices may have their pensions reduced or forfeited under certain circumstances. This new article applies prospectively to officials who enter any of the applicable retirement systems. In addition, the Act amends the criminal procedure law to require that criminal defendants whose pensions may ultimately be reduced or forfeited shall be notified of that possibility by the court prior to any trial or plea entered in their criminal case.

The text of Chapter 399 is posted on the Internet at:

http://open.nysenate.gov/legislation/bill/S5679-2011

The bipartisan Commission consists of six members appointed by the Governor, at least three of whom must be enrolled members of the major political party that is not that of the Governor. It also consists of eight members appointed by the legislative leaders. The Senate Majority Leader and the Speaker of the Assembly each appoint three members and the minority leaders of both houses each appoint one member. The Governor appoints the chair from among the Commission members.

Governor Cuomo's appointments are:

Janet DiFiore, Chair. Elected in 2005 and reelected in 2009, District Attorney DiFiore is the chief law enforcement officer of Westchester County. She also serves as the president of the District Attorney's Association of the State of New York. Prior to her current position, she served as a Judge of the Westchester County Court and as a Justice of the New York State Supreme Court. District Attorney DiFiore was also appointed by former-Chief Judge Judith Kaye to serve as the Supervising Judge for the Criminal Courts in the 9th Judicial District and was appointed by Chief Judge Jonathan Lippman to serve as Co-Chair of the New York State Justice Task Force. District Attorney DiFiore received her J.D. from St. John's University School of Law and her B.A. from C.W. Post College, Long Island University.

Vincent A. DeIorio. Mr. DeIorio is the Chair of the New York State Energy Research and Development Authority (NYSERDA) Board of Directors. He is an attorney with private practices in Purchase and New York City. Mr. DeIorio has previously served on the New York State Court of Claims. Mr. DeIorio is a graduate of the Utica College of Syracuse University and the University at Buffalo Law School. Mr. DeIorio will resign from NYSERDA in order to serve on JCOPE.

Mitra Hormozi. Ms. Hormozi has served as the Chairperson of the New York State Commission on Public Integrity since her appointment earlier this year. Ms. Hormozi is a partner at Kirkland & Ellis LLP. She previously served as the Special Deputy Chief of Staff in the New York Attorney General's Office, where she supervised high-profile initiatives involving public integrity. Prior to that, she spent more than six years as an Assistant United States Attorney for the Eastern District of New York, where she was the Chief of the Organized Crime and Racketeering Section and received numerous top law enforcement awards. Ms. Hormozi is a graduate of the University of Michigan and the New York University School of Law. Ms. Hormozi will join JCOPE on January 5, 2012, one year after she left the Attorney General's Office.

Daniel J. Horwitz. Mr. Horwitz is currently a partner at Lanker & Carragher, LLP. He previously served as a New York County Assistant District Attorney in the Frauds Bureau. Prior to his legal career, Mr. Horwitz served as Legislative Director to Congressman Thomas J. Downey. Mr. Horwitz received his J.D. cum laude from the American University Washington College of Law and his B.A. from Columbia University.

Gary J. Lavine. Mr. Lavine is associated as counsel with Green & Seifter, Attorneys, PLLC. Mr. Lavine served in the U.S. Department of Energy as Deputy General Counsel for Environment & Nuclear Programs during the administration of President George W. Bush. He also served as senior vice president and chief legal officer of Niagara Mohawk Holding Inc. Mr. Lavine has served in a number of staff positions with the New York State Legislature, including legislative counsel to the Minority Leader of the Assembly. He received degrees in both business administration and law from Syracuse University.

Seymour Knox IV. Mr. Knox is the CEO of Knox International, LLC, a New York based private equity firm. For twenty years, Mr. Knox served as Vice President of Corporate Relations for the Buffalo Sabres. Mr. Knox is a graduate of Lake Forest College.

Senate Majority Leader Skelos' appointments are:

Mary Lou Rath. Ms. Rath represented the 61st district in Western New York from 1993 until her retirement in 2008. She was the first woman to serve in a leadership position in the Senate Majority and had numerous legislative accomplishments throughout her tenure, especially in the areas of health care and Medicaid reform. She has received many awards and honors in recognition of her distinguished public service in the Senate and as a member of the Erie County Legislature.

Judge Joseph Covello. Judge Covello has more than 30 years of experience in law and justice. Justice Covello stepped down from the New York State Appellate Division in 2011 to return to private practice. He spent 16 years on the bench, authoring many notable opinions. Before his appointment to the Appellate Division, he served as a trial judge in the Supreme Court, Nassau County. Prior to that, he served on the Appellate Term for the Ninth and Tenth Judicial Districts, and as a trial judge in District Court, Nassau County. He spent 16 years in private practice before becoming a judge. Justice Covello is a veteran of the United States Army, and is a graduate of the State University of New York at Buffalo and Hofstra University of Law.

George H. Weissman. Mr. Weissman served as the Managing General Counsel of the New York State Dormitory Authority for nearly a decade and as Assistant Counsel in the Office of the State Comptroller. His previous positions also included working as Program Associate for the state Senate, and Counsel with the New York State Legislative Commission on Critical Transportation Choices. He was formerly Of Counsel with Marsh, Wasserman and Associates, LLP. He received his J.D. from Albany Law School of Union University and a B.A. in Political Science at SUNY Cortland.

Assembly Speaker Silver's appointments are:

Pat Bulgaro. Mr. Bulgaro has more than twenty-five years of state government experience, serving at the highest levels of several state agencies, including the Department of Taxation and Finance and the Division of the Budget, where he served as director under former Governor Mario Cuomo. He also served as President and Executive Director of the Center for the Disabled and on the New York State Temporary Commission on Lobbying as an appointee of Speaker Silver. During his distinguished career in public service, Mr. Bulgaro was awarded the Governor Charles Evans Hughes Award for "outstanding career achievement."

Marvin Jacob. Mr. Jacob, a retired attorney, was a partner in the Business and Finance & Restructuring Department of Weil, Gotshal & Manges, where he handled matters before the bankruptcy courts and federal district and appellate courts. He has corporate bankruptcy litigation experience, serving such institutional clients as General Electric Capital Corporation and Credit Suisse First Boston. Mr. Jacob has also served as the Associate Regional Administrator, New York Regional Office, U.S. Securities and Exchange Commission. In 2010, the Speaker appointed Mr. Jacob to the task force that oversaw the implementation of the Public Authorities Reform Act of 2009.

Ellen Yaroshefsky. Ms. Yaroshefsky is currently a law professor at the Benjamin N. Cardozo School of Law, co-executive director of the Jacob Burns Ethics Center in the Practice of Law, and a former adjunct professor at Fordham Law School. She is an experienced attorney specializing in defense and civil rights litigation, and is a member of several attorney ethics review organizations, including the American Bar Association's Ethics, Gideon and Professionalism Committee, the New York State Bar Association's Committee on Standards of Attorney Conduct, and the National Association of Criminal Defense Lawyers Ethics Advisory Committee.

Senate Democratic Leader John L. Sampson's appointment is:

Ravi Batra. Mr. Batra is an attorney with a private practice. He has served as a professor of business law at Pace University. Mr. Batra has also served as the Chair of the Judicial Independence Committee of the New York State Trial Lawyers Association. He received his J.D. from Fordham University and his bachelor of business administration degree cum laude from Pace University.

Assembly Minority Leader Brian M. Kolb's appointment is:

David A. Renzi. Mr. Renzi is a partner in the law firm of Brown, Dierdorf and Renzi. He has been with this Watertown firm since 2002. The firm is recognized for their expertise in the areas of real estate, business formation, estate planning, and municipal practice. Previously, Mr. Renzi served as the Public Defender for Jefferson County and successfully prosecuted thousands of criminal cases. Mr. Renzi is a graduate of Syracuse University School of Law.

Action for alleged defamation follows disclosure of document pursuant to a FOIL request

Action for alleged defamation follows disclosure of document pursuant to a FOIL request

Gosden v Elmira City School District, 2011 NY Slip Op 08874, Appellate Division, Third Department

One of the lessons of the Gosden case is that although a settlement agreement that provided that the parties would keep its terms “confidential” may be subject to disclosure pursuant to a Freedom of Information [FOIL] request, its subsequent disclosure pursuant to FOIL does not excuse a party breaching other terms and conditions unrelated to such disclosure set out in the agreement.

Robert Gosden, earlier employed as an administrator by the Elmira City School District entered into an agreement with the school district to settle alleged overpayment it had made to him prior to his retirement from service with the district. The settlement agreement stipulated that [1] Gosden disputed “that any overpayment had occurred" and [2] that the settlement agreement would remain “confidential.”

A local newspaper subsequently obtained a copy of the agreement under the Freedom of Information Law (Public Officers Law Article 6) and published articles about it and a Comptroller's Audit report of the school district dated October 2008.

Gosden and his company, Manus Management Consultant Services, Inc., then contracted with the local Board of Cooperative Educational Services to supply certain services to area school districts, including providing financial responsibility training to Board members.

Two Elmira City School District board members, however, were “reported as being insulted and angry that Gosden would be paid to train them about financial responsibility and they were quoted as saying, among other things, that Gosden had admitted to wrongdoing regarding his annual leave payout.”  Soon thereafter the BOCES canceled a contract with Manus Management.

Manus and his company then sued the school district, alleging that it had breached their contract. Supreme Court agreed, awarding Manus and his company the $8,000 that Gosden had paid to settle the potential claims against him “plus an amount to be determined at an inquest based on lost business” suffered by Manus and his company.

The first issue considered by the Appellate Division concerned the alleged breach of contract cause of action.

The court said while the settlement agreement had set out a confidentiality provision, the parties also recognized in the agreement that it might be disclosed for a lawful purpose and they specifically set forth a clause that "permitted comments by the parties in the case of such disclosure." The agreement stipulated that "[a]ll other inquiries about this Settlement Agreement or the matter to which it pertains will be responded to by the [p]arties by stating that the matter has been 'settled to the satisfaction of the parties.'"

The terms of the agreement did, in fact, become public pursuant to a Freedom of Information Law request and the parties did not claim that this disclosure was improper. 

However two board members had been board members when the settlement was negotiated and remained board members at the time of their comments. According to the Appellate Division, their comments, which were reported in a local newspaper in November 2008 and reiterated at a Board meeting, went beyond the scope of the comments to which the parties had agreed. This, said the Appellate Division, constituted a breach of the terms of the agreement by school district.

The full decision, which address other and related issues, is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08874.htm

Failure to follow prescribed treatment ruled misconduct

Failure to follow prescribed treatment ruled misconduct

DeCherro v. Ross, 83 A.D.2d 709

Supervisors frequently are told be an employee that he or she cannot work because of illness. Sometimes this results in the employee being terminated from his or her position.

In DeCherro the Appellate Division upheld a finding by the Unemployment Insurance Appeals Board that the employee “while...suffering from an illness, has made no reasonable effort to pursue a course of treatment...conduct contrary to the best interests of the employer.”

Although there was no doubt that DeCherro was suffering from an illness, his claim for unemployment benefits was denied “because he lost his employment due to misconduct.”

The court explained DeCherro did not show that his illness would interfere with following simple directions or that his work assignments would render him unable to follow routine treatment recommendations.

Employee found guilty of misconduct based on hearsay evidence presented at the disciplinary hearing

Employee found guilty of misconduct based on hearsay evidence presented at the disciplinary hearing

Matter of Matter of Paul v Israel, 2011 NY Slip Op 08947, Appellate Division, Second Department

Josephine Paul challenged the Westchester Medical Center’s decision to terminate her following a Civil Service Law §75 disciplinary hearing in which she was found guilty of misconduct, contending that the hearing officer’s determination was not supported by substantial evidence and was based on hearsay testimony.

The Appellate Division confirmed the appointing officer’s decision and dismissed her petition challenging the penalty imposed “on the merits.”

Finding that there was substantial evidence in the record to support the determination of the Westchester Medical Center that Paul was guilty of misconduct, the court ruled that her argument that the administrative determination is not supported by substantial evidence because the evidence presented was hearsay was without merit.

As to the penalty imposed, termination, the Appellate Division said that dismissal “was not so disproportionate to the offense committed as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Frequently the use of hearsay evidence in a disciplinary hearing is claimed to justify the vacating of an adverse disciplinary decision. In Roldan v Bartton, 203 A.D.2d 368, Roldan argued that the hearing officer had improperly admitted "certain hearsay evidence" in the course of the hearing. The court said that Roldan's contention was "unpersuasive," holding that "it is well settled that hearsay is admissible in administrative hearings and may form the basis of an adverse determination," citing Gray v Adduci, 73 NY2d 741.

The Paul decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08947.htm

Employee must answer questions concerning work if granted “use immunity”

Employee must answer questions concerning work if granted “use immunity”

Tanico v. McGuire, 80 AD2d 297

Two police officers refused to answer questions concerning their performance of official duties following their suspension without pay for alleged official misconduct.

They were subsequently served with disciplinary charges alleged misconduct and later again refused to answer “questions specifically directed and narrowly related to official duties.”

Instead the officers filed an Article 78 petition seeking a court order prohibiting such questioning.

The Appellate Division ruled that “a public employee, if granted ‘use immunity’ may be narrowly and specifically questioned about his official duties and dismissed...if he refuses to answer questions properly put to him.”

Although “use immunity” would prevent the answers being used against the individual in a criminal prosecution, the court indicated “since disciplinary proceedings are not criminal actions, the employee’s statements may be used against him in those proceedings (and) an employee who refuses to answer may be discharged on that basis.”

New York City Police Department Rules authorize interrogation of police officers who are either the subject of or witnesses in an official investigation. It appears that an employee can be compelled to testify against himself in a disciplinary proceeding as “use immunity” would be provided under the 5th Amendment in any subsequent criminal prosecution.

Combining demands may be injurious to your bargaining position

Combining demands may be injurious to your bargaining position

Town of Niagara, Case U-5115

When an item subject to mandatory negotiations was combined with a non-mandatory item, PERB held the entire proposal constituted what it described as a “unitary demand” which became a non-mandatory subject of negotiations because one of its parts was non-mandatory.

PERB, however, rejected the Town’s argument that a demand to continue a number of existing contract provisions (consisting of both mandatory and non-mandatory subjects of negotiations) be considered non-mandatory because some parts were non-mandatory. Here PERB ruled that there was no basis to conclude the several provisions constituted a “unitary demand”.

This suggests that had the Union presented certain of the existing provisions as a “package” demand,” the “package” would not be converted into a non-mandatory subject of negotiations despite the fact that the “package” consisted of both mandatory and non-mandatory subjects of collective bargaining and the employer could not refuse to negotiate the proposal.

Presumably the same rule would apply if the employer were to “package” its demands.

Selected Appellate Division rulings

Selected Appellate Division rulings

     * Dismissal because of repeated lateness or being absent from work without an appropriate excuse is not disproportionate to the offense (Smack v. Dutchess County, 80 AD2d 874.

     * The reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, is lawful (Currier v. Tompkins-SenecaTioga BOCES, 80 AD2d 979)

     * Shortcomings as an administrator and unsatisfactory performance as a supervisor are not stigmatic so as to require a name clearing hearing for persons not subject to Section 75 of the Civil Service Law. (Carter v. Roswell Park Memorial Institute 80 AD2d 960)

     * Although the appointing authority was obliged to consider the findings of the Hearing Officer in a Section 75 disciplinary action, it was entitled to overrule them in arriving at the ultimate decision. (Wood v. Maine-Endwell CSD, 80 AD2d 970)

Abolishing positions in the public service

Abolishing positions in the public service
Matter of Matter of DiSanza v Town Bd. of Town of Cortlandt, 2011 NY Slip Op 08941, Appellate Division, Second Department

The Town Cortlandt abolished the position of Environmental Analyst, resulting in the layoff of Richard DiSanza. DiSanza sued, seeking a court order directing his reinstatement with back salary.

The Appellate Division affirmed a Supreme Court’s decision denying DiSanza’s petition.

The court explained that a public employer may, in good faith, abolish positions in the civil service for the purpose of economy or efficiency. In the event the decision is challenged, the challenger has the burden of proving that the employer did not act in good faith in abolishing the position.

As to the mechanics involved, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee otherwise entitled to the benefits set out in Sections 80 and 80-a of the Civil Service Law [Layoff], or any similar law, from his or her position (1976 Opinions of the Attorney General 7).

Further, in CSEA and Burnt Hills-Ballston Lake CSD, 25 PERB 3066, PERB, in response to CSEA's allegation that the school district had unilaterally abolished a position in violation of its duty to bargain, ruled that "notwithstanding the obvious impact a position abolition can have, and did have in this case, upon an employee's employment relationship, [it remains] convinced that a position abolition for economic reasons is primarily mission related and, therefore, a nonmandatory subject of negotiations."

The Cortland decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08941.htm

Disciplinary action should proceed regardless of layoff of the accused

Disciplinary action should proceed regardless of layoff of the accused

Rubtchinsky v. Moriah Central School District, 82 A.D.2d 960

A teacher was suspended with pay pending the outcome of a disciplinary hearing on charges of incompetency and misconduct. He was then advised that a position in his department was to be abolished and as he was the teacher with the least seniority, his services would be discontinued.

The Education Law §3020-a disciplinary hearing, however, was never held.

Rubtchinsky sued and Supreme Court held that the teacher had to be given “the economic benefits of his position before (the District) can proceed with a hearing under Section 3020-a.”

The Appellate Division reversed the lower court’s ruling, indicating that Rubtchinsky could get back salary upon reinstatement only if his claim that he was improperly excessed is upheld, and that it knew of no reason to abort the disciplinary hearing.

As Section 2510.3 of the Education Law gives the teacher reinstatement rights for six years, it seems prudent that the discipline action should go forward regardless of the layoff, even if the individual is, in fact, the teacher with the least seniority.

Responsibility, in contrast to authority, may not be delegated

Responsibility, in contrast to authority, may not be delegated

Dougherty v. Hennessy, 82 A.D.2d

In a number of disciplinary cases involving supervisors, a defense that the work was given to a subordinate who failed to perform the task(s) is often raised by the supervisor.

In Dougherty the Appellate Division gave little weight to this type of defense, noting that Dougherty, a supervisor, “consistently attempted to absolve himself from blame by contending that he had delegated the tasks to his assistant or another ....This delegation, of course, did not relieve him of the obligation or the responsibility to see that the assignment was properly performed”.

The Court then affirmed Dougherty’s dismissal from his position.

When is “final” administrative or quasi-judicial determination “final”

When is “final” administrative or quasi-judicial determination “final”

Seidner v. Town of Colonie, 79 AD2d 751

Administrative and quasi-judicial decisions such as those resulting from disciplinary action, commission decisions and similar proceedings may be reviewed by the courts once the decision is “final”. It is sometimes necessary to determine if the decision is ripe for appeal as well as the timeliness of the appeal.

In Seidner, the Appellate Division indicated that an administrative determination is considered “non-final” where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner’s application.

Seidner’s appeal was held untimely because it was filed late. 

While the matter could be reconsidered by action of the (Zoning Appeals) Board, “there was not statutory authority for a re-hearing upon the petitioner’s application (See Section 267.6, Town Law).

The discretionary power to rehear or reopen matters that is vested in nearly all administrative agencies, is not sufficient to render an otherwise final order “non-final.”

The Appellate Division then commented that the courts have consistently held that the filing, and subsequent denial, of an application to reconsider an administrative board’s determination does not extend the period of limitations within which to seek (judicial) review of the determination.

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing

Matter of Matter of Cunningham v New York State Dept. of Labor, 2011 NY Slip Op 08529, Appellate Division, Third Department

Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.

In the course of an investigation which resulted in the disciplinary charges being filed against Cunningham, the State’s Office of the Inspector General used a global positioning system (GPS) device placed on Cunningham’s vehicle and the resulting information was used in the course of Cunningham’s disciplinary hearing as evidence to prove charges that he had reported false information and submitted false vouchers related to his travel using his personal vehicle.*

Cunningham, contending that the GPS devices placed on his car without a warrant constituted an illegal search and seizure under the NY Constitution, appealed and argued that all such information should have been excluded from evidence at the administrative hearing.

One of the significant issues before the Appellate Division was Cunningham’s challenging the GPS evidence used in the disciplinary action. Essentially the Appellate Division had to determine if the admission of evidence obtained through the use of the GPS to prove certain of the disciplinary charges was unduly prejudicial to Cunningham.

The Appellate Division noted that in a case decided after OIG had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause" (People v Weaver, 12 NY3d 433 [2009]).

Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.

The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth."

As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”

The court concluded that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the Appellate Division ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”

Under the circumstances the Appellate Division said that neither OIG nor Department of Labor had acted unreasonably.

* See, also, Matter of Halpin v Klein, 62 AD3d 403. In Halpin the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The Halpin decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm


Another decision that addresses this issue is United States v Skinner, [USCA, 6th Circuit] posted on the Internet at::
http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf

The Cunningham decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htm

Civil service department determines testing format

Civil service department determines testing format

Esposito v. Civil Service Department, 55 N.Y.2d 835

When provisional employees were unable to persuade the Department of Civil Service to use an “unassembled examination” which is based on the candidates training and experience instead of the written multiple-choice type to test eventually held, the employees sued.

The provisional employees contended that “the only appropriate and effective method of evaluating merit and fitness for their position (Rehabilitation Counselor and Trainees) was the unassembled test.

The court stated that it is not whether the employee’s method of testing is preferable but whether the Civil Service Department’s method is irrational and dismissed their petition.

Decisions issued by PERB

Decisions issued by PERB

Reduction of services

A public employer that reduces services has the burden of showing that such reduction was made in good faith for a proper purpose. Such a showing will support workload and salary reductions proportionate to the reduction in service. Reductions in workload and salary without proportionate reductions in services are subject to negotiations under the Taylor Law (Schulerville Central School District, Case U-4212).

Protected rights

Permanently changing the work hours of employee who was union president and limiting his “leave for union business” to four hours during each tour held violation of employee’s protected rights; contract authorized up to 16 hours of such leave per week, subject to employer approval. Matter of City of Mount Vernon, Case U-4688.

Subcontracting unit work

Unilaterally subcontracting for school lunch program that resulted in termination of food service employees was in violation of the School District’s duty to bargain the impact of such a decision. Although the employer was ordered to offer employees reinstatement, back salary was denied because the district had made a good faith offer of alternative employment without loss of salary or benefits at the time of the subcontracting. (Matter of Hilton Central School District, Case U-4887)

Negotiate in good faith

Union violated its duty to negotiate in good faith when it refused to sign the contract reflecting all the agreements reached and ratified by the members of the Union with the County following conclusion of negotiations and was directed to execute the Agreement (Matter of Onondaga County, Case U-4807).

Disabled firefighters on §207-a leave not entitled to same leave benefits as are available to active firefighters

Disabled firefighters on §207-a leave not entitled to same leave benefits as are available to active firefighters

Chalachan v. City of Binghamton, 81 A.D.2d 973, affd. 55 N.Y.2d 989

The Appellate Division considered a claim by firefighters receiving disability benefits under Section 207-a of the General Municipal Law that in addition to those benefits, they were entitled to vacation benefits under their collective bargaining agreement.

The court dismissed the claim holding that “if every benefit provided active firefighters in the collective bargaining agreement was intended to include disabled firefighters covered by Section 207-a...the contract should contain language to so provide...(the) contention that they are members of their union...entitled to each and every fringe benefit for which active firefighters work daily is without merit. They do not work to earn vacation pay. They are already paid 52 weeks each year and their construction of the agreement to give them pay for 56 weeks (per year) is rejected”.

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law

Source: Justia December 10, 2011

Younies v. Merit Sys. Prot. Bd.

Court: U.S. Federal Circuit Court of Appeals

Docket: 11-3031

December 5, 2011

Judge: Prost

Areas of Law: Government & Administrative Law, Labor & Employment Law

Plaintiff applied for a position with the Department of Labor and responded "no" to whether he had been convicted or put on probation during the preceding 10 years. After he was hired, he signed the form, certifying the answers as true. It came out that plaintiff had been on probation for disturbing the peace He insisted that he had been arrested and placed on "informal probation," but not convicted. His attorney explained that plaintiff had pled guilty; the order stated that the plea was vacated and that "a plea of not guilty be entered, and that the accusatory filing is dismissed. ... does NOT relieve the defendant of the obligation to disclose the conviction" in application for public office. The Department terminated plaintiff during his probationary period. An ALJ dismissed his appeal, finding that the firing was based on conduct during the probationary period. The Merit System Protection Board and Federal Circuit denied appeals. To invoke 5 C.F.R. 315.806(c) for MSPB jurisdiction, plaintiff would have to identify facts in the record amounting to a non-frivolous assertion that the Department actually relied on a pre-employment condition in terminating his employment. Plaintiff failed to do so; the termination letter expressly referenced his signature on the application after he was hired.

http://j.st/NpY

Bakalekos v. Furlow

Court: Arkansas Supreme Court

Docket: 11-526

December 1, 2011

Judge: Goodson

Areas of Law: Business Law, Constitutional Law, Government & Administrative Law

Appellants were retired police officers who did not receive the benefit of all the monthly benefit increases for retired members of a municipal police pension and relief fund. The increases were authorized by the fund's Board of Trustees. Appellants mounted a multi-pronged challenge to the increase in benefits. The circuit court granted summary judgment for the Board. The Supreme Court affirmed, holding that the circuit court did not abuse its discretion in (1) ruling that the additional payments were authorized by Ark. Code Ann. 24-11-102(a); (2) finding that the statute did not constitute an unconstitutional delegation of legislative authority; (3) finding that the Board did not breach its fiduciary duties by increasing benefits to current retirees and not to future retirees, an action that was expressly authorized by statute; and (4) in ruling that the statute, as applied, did not violate the equal protection clause of the state Constitution as there was a rational basis for the Board's disparate treatment of current and future retirees.

http://j.st/NSu

Westmoreland v. Sutherland

Court: U.S. 6th Circuit Court of Appeals

Docket: 10-3766

December 6, 2011

Judge: Guy

Areas of Law: Civil Rights, Communications Law, Constitutional Law, Labor & Employment Law

The city disbanded its dive team because of budget cuts, after which two children drowned. Plaintiff, a fire department employee and member of the disbanded dive team, spoke at a city council meeting, indicating that the budget cuts caused the deaths and would cause more deaths. Plaintiff was ordered to serve unpaid suspension, equivalent to three 24 hour shifts, on grounds of insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer. After a grievance hearing the mayor affirmed the suspension, finding that plaintiff’s statements had been false. The district court granted summary judgment for the city. The Sixth Circuit remanded for determination of whether the statements were false; whether any false statements were knowingly or recklessly made; whether a reasonable official would have believed any false statements were knowingly or recklessly made; and, if necessary, whether plaintiff’s interest in speaking as a citizen on a matter of public concern outweighed the city’s interest in promoting the efficiency of the public services it performs through its employees.

http://j.st/NG9

Glenn v. Brumby

Court: U.S. 11th Circuit Court of Appeals

Docket: 10-15015, 10-14833

December 6, 2011

Judge: Barkett

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff filed a complaint seeking declaratory and injunctive relief pursuant to 42 U.S.C. 1983 for alleged violations of her rights under the Equal Protection Clause of the Fourteenth Amendment, claiming that defendant fired her from her job as an editor because of sex discrimination. Plaintiff also claimed that her constitutional rights were violated because defendant terminated her employment due to her medical condition, known as Gender Identity Disorder. The district court granted summary judgment to plaintiff on her sex discrimination claim and granted summary judgment to defendant on plaintiff's medical discrimination claim. Both parties timely appealed. The court held that a government agent violated the Equal Protection Clause's prohibition of sex-based discrimination when he or she fired a transgender or transsexual employee because of his or her gender non-conformity. The court also held that defendant had advanced no reason that could qualify as a governmental purpose, much less an "important" governmental purpose, and even less than that, a "sufficiently important government purpose" that was achieved by firing plaintiff because of her gender non-conformity. Therefore, the court affirmed the judgment of the district court granting summary judgment in favor of plaintiff on her sex-discrimination claim. In light of this decision, which provided plaintiff with all the relief she sought, there was no need to address plaintiff's cross-appeal.

http://j.st/NN3

New York State's Attorney General and the State's Comptroller report indictments in alleged "member item theft scheme"

New York State's Attorney General and the State's Comptroller report indictments in alleged "member item theft scheme"
Source: Offices of the State Comptroller and the Attorney General


N.B. The charges and allegations set out below are merely accusations and all the individuals named in the following press release are presumed innocent unless and until proven guilty in a court of law.

On December 7, 2011 Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli announced the indictments of four individuals accused of participating in a scheme to pocket taxpayer dollars intended for public services in New York City. In what was described as "A groundbreaking public integrity initiative" between the Offices of the Attorney General and State Comptroller exposed a nonprofit allegedly set up by New York State Senator Shirley L. Huntley that funneled member item funds to those associated with it, including the senator’s aide and an individual who shares a residence with the senator.

According to Attorney General Schneiderman’s indictment, the president and treasurer of the Parent Workshop, Inc., submitted fraudulent documents to New York State to obtain public money from a legislative member item. Instead of providing the promised programs, the two defendants allegedly pocketed approximately $29,950. Two additional defendants were charged with falsifying documents to cover up the theft once the investigation commenced.

Since 1999, the New York State Legislature has distributed more than $900 million through legislative member items to more than 20,000 nonprofit entities.

“This personal profit-making scheme defrauded taxpayers, all the while depriving communities of much-needed funds. Now it's time to hold those behind it accountable,” Attorney General Schneiderman said. “The charges announced today send a strong message that those who abuse their positions to rip off taxpayers will be prosecuted. My office’s partnership with the Comptroller is designed to combat such corruption, and we will continue to work tirelessly to protect every penny of taxpayer money during these challenging economic times.”

“Taking money intended for families in need is unconscionable” State Comptroller DiNapoli said.  “Abuse and fraud will not be tolerated. By combining forces, my office and the Attorney General have exposed and are prosecuting this egregious theft of state funds which were intended for the public good.”

The charges accuse Patricia D. Savage, the nonprofit’s president and Senator Huntley’s aide, as well as Lynn H. Smith, the nonprofit’s treasurer and an individual who shares a residence with the senator, of engaging in a fraudulent scheme to steal member item funds. The defendants falsely asserted that Parent Workshop, Inc. would use the member item funds secured by Senator Huntley to hold workshops for and conduct outreach to parents on the workings of the New York City public school system.

Instead, the indictment alleges that Ms. Savage and Ms. Smith never intended to hold any such events.  Furthermore, the indictment alleges that they falsely asserted in multiple submissions to the New York State Department of State that, from April 2008 through March 2009, the Parent Workshop had held workshops and conducted outreach, when no such workshops were ever held and no such outreach was ever conducted.  Based on these submissions, the Department of State provided $29,950 to the Parent Workshop – the sum the two defendants are charged with stealing.

According to the indictment, Ms. Savage and Ms. Smith submitted a fraudulent contract and five fake vouchers to illegally obtain that money.  Each is charged with 11 total counts of Grand Larceny in the Third Degree and Offering a False Instrument for Filing in the First Degree.

The indictment also alleges that after the Attorney General’s Office issued a subpoena to the Parent Workshop, defendant David R. Gantt falsified records in an effort to claim that he was paid in cash for conducting workshops as a consultant. In fact, he never conducted any workshops.  Mr. Gantt is charged with four counts of Falsifying Business Records in the First Degree. 

Defendant Roger N. Scotland, the President of the Southern Queens Park Association, a separate nonprofit corporation located in Queens, also created a false record in an attempt to hide the theft from investigators.  Mr. Scotland is charged with Falsifying Business Records in the First Degree, Tampering with Physical Evidence, and conspiracy to engage in those crimes.

The joint investigation began after contact with the New York State Department of State. 

Prosecuting the case are Senior Counsel Emily Bradford and Assistant Attorney General Jerrold Steigman, under the supervision of Public Integrity Deputy Bureau Chief Stacy Aronowitz, Chief William E. Schaeffer, and Executive Deputy Attorney General for Criminal Justice Nancy Hoppock.  The joint investigation was conducted the Comptroller’s Bureau of State Expenditures and Legal Services Division’s Investigations Unit.

The Attorney General and the State Comptroller encourage anyone with additional information on this matter or any other alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Informal Opinions of the Attorney General; 2011-9

Concluding that the Independent Livery Drivers Fund was not a public entity, the Attorney General said that benefits available to officers and employees set out in Public Officers Law §18,* providing for the representation and indemnification of public officers and employees, could not be claimed by members of the Fund’s Board of Directors.

§18, explained the Attorney General, provides that a public entity may adopt a local law, by-law, resolution, rule or regulation to indemnify and save harmless its employees from liability in the event there is a judgment against them resulting of an act or omission as a result of the individual acting within the scope of his or her public employment or duties.

However, a public entity, for the purposes of §18, means a county, city, town, village or any other political subdivision or civil division of the state, a school district, a BOCES or other entity operating a public school, a college, community college or university, a public improvement or special district, a public authority, commission, agency or a public benefit corporation. It also includes “any other separate corporate instrumentality or unit of government.” The Fund, said the Attorney General, was not such a public entity.

* §17 of the Public Officers Law provides similar protections for officers and employees of the State as the employer.

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

Ronkese v. Highland Central School District, 82 A.D.2d 1011

A school bus driver was disciplined pursuant to Section 75 of the Civil Service Law for unsafe driving.

Found guilty of seven incidents of unsafe driving, the employee was dismissed.

On appeal the Appellate Division held repetition of unsafe acts endangering the safety of school children cannot be diminished because no accident or injury occurred.

The decision noted that Ronkese had received a number of reprimands for such conduct previously and the punishment was not shocking to one’s sense of fairness.

The driver’s claim that the Section 75 determination was based on a large measure of hearsay evidence was rejected as compliance with the technical rules of evidence was not mandated by Section 75. The court then determined that the record contained sufficient evidence to support the appointing authority’s determination.

Dismissal of an employee for “disloyalty” upheld

Dismissal of an employee for “disloyalty” upheld

Thomas v. New York Temporary State Commission on Regulation of Lobbying, 83 A.D.2d 723

An employer is sometimes confronted with a situation in which an employee’s duty of loyalty to the employer is called into question or there appears to be a conflict of interest with respect to the employee’s performance.

In Thomas the employee sued when the Commission discharged him for disloyalty and conflict of interest.

At the time of his discharge, Thomas was an associate counsel to the Commission. The Commission claimed that while an employee, Thomas was also actively assisting one of the lobbying organizations that the Commission was established to regulate.

Noting that the employee was not covered by Civil Service Law Section 75, The Appellate Division rejected Thomas’ argument that his termination reflected adversely on his reputation and position as an attorney as well as his claim that his dismissal had violated his First Amendment rights.

Administrative hearings must be fundamentally fair

Administrative hearings must be fundamentally fair

Higgins v. Solomon, 82 A.D.2d 998

Although the employer said that she was unable to attend a hearing concerning her claim for unemployment insurance benefits because of her physical condition and presented a physician’s statement to that effect, the hearing officer refused to accept her affidavit as “primary evidence.”

When asked for advice by her attorney, the hearing officer replied “I can’t help you, I don’t make house calls.”

In this instance the Appellate Division ruled that the hearing officer’s action was a denial of fundamental fairness and reversed the decision, indicating that alternative means of securing admissible evidence must be investigated.

Agency heads are sometimes faced with a similar situation when an employee fails or refuses to attend a disciplinary action.

Courts have held that the employer may proceed with the disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.

Indeed, there is even case law stating that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the arbitration because it believed that Hall was not entitled to the arbitration. The court upheld the arbitrator’s award in favor of the employee.

Legislation pending before the Senate and the Assembly

Legislation pending before the Senate and the Assembly

Interested in reading the text of the budget bill submitted by the Governor for consideration by the Assembly and the Senate in their respective extraordinary sessions [Assembly 2 and Senate 2]?

The bill, among other things, amends the New York State Tax Law in relation to personal income tax rates, is posted on the Internet at:

http://assembly.state.ny.us/leg/?default_fld=&bn=A40002&term=&Summary=Y&Text=Y

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State
Source: Retired Public Employees Association press release

On December 7, 2011, the Retired Public Employees Association [RPEA] announced that it is commencing legal action against Governor Andrew M. Cuomo and the State of New York challenging the State’s attempt to make its retirees pay a larger portion of their health insurance premiums. According to RPEA, State officials are “administratively extending” the provisions of certain collective bargaining agreements between employee organizations representing employees of the State as the employer to retired employees of the State.*

RPEA Executive Director Alan Dorn said that the State is trying to balance its budget on the backs of its retirees who, unlike active employees of the State in a collective bargaining unit, have no ability to negotiate for “give backs or other benefits.” Dorn observed that the State has increased the retiree’s cost of such coverage by two percent and that “a 2% contribution for individual coverage is really a 20% increase.” 


Mr. Dorn's letter to Civil Service Commission President Patricia Hite concerning the increase of the retiree's contribution for his or her health insurance  is posted on the Internet at:

http://rpea.org/documents/commentsobjectEmergRule-10-20-11-2.pdf

The text of RPEA's complaint is posted on the Internet at:

http://www.scribd.com/doc/75054148/Retirees
 

* Civil Service Law §167.1(a) currently sets the percentage of contributions for State retirees who retired on or after January 1, 1983 and provides that such retirees are to pay: 10% of the premium for individual coverage and, where so enrolled, 25% of the premium for dependent coverage.