Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules

Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules 

2013 NY Slip Op 08085, Appellate Division, Second Department

The school district initially appointed Employee as a cleaner and later appointed him to the position of “custodial worker.” Subsequently the school district permanently appointed Employee to a higher level position, senior custodian, from an open-competitive eligible list. This appointment was subject to Employee’s satisfactory completion of a 12-month probationary period.

Before Employee had completed the 12-month probationary period the school district had "reason to believe" that Employee had engaged in certain improper conduct and terminated him from its employ.

Employee sued the school district, contending that, among other things, his termination was unlawful and that he was entitled, pursuant to the provisions of Civil Service Law §63(1), to return to his previous position of "custodial worker."

The Supreme Court, among other things, granted that branch of Employer’s petition that restored him to his former position, custodial worker, with back pay and benefits.

The Appellate Division sustained the Supreme Court’s decision, stating that it had “properly determined that [Employee’s] appointment as "senior custodian" was a "promotion," despite its having been made from the "open competitive" list rather than from the "promotional list."*

The Appellate Division explained that although the Civil Service Law does not expressly define "promotion," Civil Service Rule 10.1 of the local commission having jurisdiction provides that "[a]ny advancement of an employee from a position in one title to a position in another title having either greater responsibilities or for which a higher maximum rate of pay is prescribed, shall be deemed a promotion, and shall be made only in accordance with the provisions of the Civil Service Law and these rules. All vacancies in the competitive class shall be filled by promotion[s] as far as is practicable"

As Employee’s advancement from the position of "custodial worker" to "senior custodian" involved both greater responsibilities and carried a higher maximum rate of pay, the Appellate Division ruled that the advancement constituted a "promotion" within the meaning of the [responsible commission’s rules].

Observing that Employee had not been removed from his probationary employment pursuant to Civil Service Law §75, the Appellate Division said that the district should have reinstated him to his prior permanent position of custodial worker.

Thus, said the court, Employee’s termination “was made in violation of lawful procedure.”

* Civil Service Law §63(1) mandates that "[w]hen probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term” [emphasis supplied by the Appellate Division].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08085.htm
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Appointing authority not required to offer a probationary employee a second extension of his or her probationary period

Appointing authority not required to offer a probationary employee a second extension of his or her probationary period

2013 NY Slip Op 07686, Appellate Division,

Supreme Court, New York County, annulled the New York City Department of Education’s decision to terminate a probationary principal, [Probationer] and directed the Department to reinstate her to her position, with back pay. The Appellate Division unanimously reversed the lower court’s decision, on the law.

The Appellate Division explained that Probationer had failed to meet her burden of establishing that she was terminated in bad faith or for an improper or impermissible reason.

The court said that the record indicated that the district superintendent had various concerns about Probationer’s performance with respect to “students' academic performance, school budgetary issues, and her leadership abilities” throughout Probationer’s probationary period.

As a result, Probationer was offered extensions of her probationary employment twice.

Although she had accepted the initial offer of extending her probationary period, Probationer did not willingly accept the Department’s offer to extend the probationary employment a second time, noting on the second probationary extension agreement that “she disagreed with numerous clauses and that she was signing the offer ‘under duress.’" The Department then terminated Probationer from the principal position.

In particular, the Appellate Division noted that “[The Department was] not required, simply because [it] had done so once, to extend [Probationer’s] probation a second time despite [its] concerns about her performance.”

Addressing other aspects of Probationer’s petition, the Appellate Division said that:

1. Probationer had failed establish a prima faciecase of unlawful discrimination or retaliation, based on her claim of an environmental disability, under the State and City Human Rights Laws; and

2. The facts in this case “undermine the allegation that [Probationer] was denied a reasonable accommodation by the Department of Education's Medical Bureau,” as she had been provided with an air purifier, and she did not complain again about her condition until after she was offered the second extension of probation, rather than tenure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07686.htm
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Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

2013 NY Slip Op 08027, Appellate Division, First Department

Supreme Court granted the New York City Department of Education’s motion to confirm an arbitration award terminating Educator’s employment as a New York City schoolteacher.

The Appellate Division affirmed the Supreme Court’s ruling, indicating that there was adequate evidence in the record to support the arbitrator’s determination that Educator was guilty of disciplinary charges and specifications alleging insubordination, neglect of duty, conduct unbecoming his position, and using language that constituted verbal abuse of his students as prohibited by the regulations of the Department of Education.

Further, said the court there was no basis to disturb the Hearing Officer's decision to credit the testimony of multiple students and the assistant principal over that of Educator.

Addressing Educator’s claim that that the arbitration award “was not in accord with due process and was arbitrary and capricious,” the Appellate Division said that Educator was given notice of the charges against him, had the opportunity to defend himself at a hearing at which he testified and presented other evidence, and was able to cross-examine witnesses.

Although thee Hearing Officer acknowledged that there were flaws in the investigation leading to the filing of disciplinary charges against Educator, he noted that it was fair and objective.

With respect to Educator’s challenge to the penalty imposed, termination, the Appellate Dividing said that such a penalty did not shock one's sense of fairness and that the record showed that the Hearing Officer considered mitigating circumstances such as Educator’s lack of and prior disciplinary history during his 14-year career with the Department of Education and the likelihood that Educator would not correct his inappropriate behavior.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08027.htm
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A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.

A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.
Board of Educ. of Valhalla Union Free Sch. Dist. v Valhalla Teachers Assn., 2013 NY Slip Op 08076, Appellate Division, Second Department

The collective bargaining agreement [CBA] between the Board of Education of the Valhalla Union Free School District and the Valhalla Teachers Association provided that, where a teacher's position has been "excessed" and another position becomes available, the Board must appoint the teacher whose position was excessed to the available position, if the teacher is certified in the teaching area in the available position.

A Spanish language teacher retired and the Board made an appointment to the resulting vacancy. Two weeks later the Board "excessed" Teacher, a teacher of English as a second language.

The Association filed a grievance on behalf of Teacher claiming that Teacher, who was certified to teach Spanish and had experience teaching the subject in another school district, should have been appointed to the Spanish language teacher position.

The Superintendent of Schools denied the grievance and ultimately the Association demanded the grievance be submitted to arbitration. The Board thereupon filed a petition to permanently stay arbitration, contending that the CBA provision at issue conflicted with public policy and the mandates of the Education Law.

The Supreme Court denied the Board’s petition, which decision the Appellate Division reversed and granted the Board’s petition to permanently stay arbitration of the grievance.

The Appellate Division explained that the intent to arbitrate of parties to a collective bargaining agreement in the field of public employment may not be presumed but "[I]t must be taken, in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum," and such reference "may not be based on implication.”

In County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, the Court of Appeals set out the following “two-part test” to determine whether a dispute between a public employer and the organization representing its employees is subject to arbitration:

1. Whether anything in a statute, constitution, or public policy prohibits the parties from referring the dispute to arbitration; and 

2. Whether the language of the CBA indicates a clear agreement between the parties to arbitrate the matter.

Noting that the Education Law §§3012[1][a]; 1709[16] vests discretion to the board of education, upon recommendation of the superintendent of schools, to appoint "qualified" teachers to nontenured teaching positions, the Appellate Division said determining if a prospective candidate is possessed of qualifications "is a responsibility of the type that may not be bargained away, as it is central to the maintenance of adequate standards in the classroom."

The court said that the CBA provision at issue mandates that the Board appoint a "certified" teacher, whose position has been "excessed," to a vacant position in the teacher's area of certification.

Noting that although certification may be a central qualification, the Appellate Division, citing Education Law § 2573[9], said that the Board has discretion under that provision to prescribe additional qualifications. In this instance, said the court, the CBA, in effect, divests the Board of its discretion by mandating automatic appointment of certified teachers without inquiry into any additional qualifications the Board may have prescribed. The Appellate Division held that such discretion may not be bargained away through collective bargaining.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08076.htm
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Employee placed on administrative leave without pay after failing to report to work

Employee placed on administrative leave without pay after failing to report to work

2013 NY Slip Op 07183, Appellate Division, Second Department

Employee challenged Employer’s placing her on “administrative leave without pay,” contending that Employer had ”wrongfully suspended her without pay for a period exceeding 30 days in violation of Civil Service Law §75(3).” Employee had been served with disciplinary charges pursuant to §75.

Supreme Court dismissed Employee’s Article 78 petition; the Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that as the issue “under review” – Employee’s suspension without allegedly in violation of Civil Service Law §75(3), had not been made as a result of a quasi-judicial evidentiary hearing it would review the determination under the standard set forth in CPLR 7803(3) and consider only “whether the determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”

Although Employee argued that suspension without pay was unlawful to the extent that it exceeded a suspension for 30-days without pay permitted pursuant to §75(3), the Appellate Division ruled that Employee had not been suspended without pay pending the hearing and determination of charges of incompetency or misconduct within the meaning of 75(3).

Rather, explained the court, Employee had “failed to report to work,” whereupon she was placed on administrative leave without pay pending her return to work

Accordingly, the Appellate Division found that Employer had not violated Civil Service Law §75(3) and thus its determination “was not made in violation of lawful procedure.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07183.htm
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Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee

Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee
2013 NY Slip Op 08128, Appellate Division, First Department

In a number of instances employees have been disciplined because of their unauthorized use of the employer’s equipment in violation of the employer’s rules.

For example, a 15-day suspension without pay was recommended as the disciplinary penalty after the worker was found guilty of using a department vehicle for an unauthorized purpose [OATH Index No. 1976/08] while an employee found guilty of the misuse of employer’s e-mail to senda "questionable e-mail" to his co-employees was terminated [Smith v Commissioner of Labor, 296 AD2d 803].

In this case Employee challenged her termination because she refused to use equipment supplied by Employer in order for Employee to perform the duties of the position. The equipment in question: an electronic ticket issuing machine [TIM], the use of which was mandatory by individuals performing the duties of a train conductor when issuing tickets to passengers.

The Appellate Division dismissed Employee’s appeal, noting that although Employer was not obligated to exempt Employee from the system-wide mandatory use of the TIM, it had ‘engaged in a good faith interactive process and offered [Employer] a choice of positions that did not require use of the TIM, which she rejected”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08128.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Click on text highlighted in color  to access the full report

State Comptroller co-sponsoring webinars for local officials

The Office of the State Comptroller devotes significant resources to assisting local officials. Whether you’re newly elected or a returning veteran, there are many exciting opportunities and interesting challenges that lie ahead. To help ease your transition, my office is co–sponsoring a webinar with the Association of Towns of the State of New York on December 12, 2013 as well as two New Town Officials Schools in the second and third week of January. For additional details and registration information, please visit: http://www.osc.state.ny.us/localgov/training/index.htmand www.nytowns.org.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of

the City of Little Falls;

the Swan Lake Fire District; and

the Town of Wawayanda.

"Let State Comptroller Audit LDCs in New York" Op–Ed by State Comptroller DiNapoli

New York State Comptroller Thomas P. DiNapoli has published an op–edin the Rochester Democrat & Chronicle, "Let State Comptroller Audit LDCs in New York," which details the problems and reasons more oversight of Local Development Corporations by his auditors is necessary.

State Comptroller DiNapoli, A.G. Schneiderman & DOI Commissioner Gill Hearn Announce Arrest of Not–For–Profit Executive in Six–Year Theft Scheme

Comptroller Thomas DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Rose Gill Hearn Thursday, December 5, 2013 announced the arrest of a nonprofit executive accused of pocketing taxpayer dollars intended for public services and capital improvements in New York City. A multi–agency joint investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $373,000 in public funds provided by New York State, the New York City Council, and federal earmark grants.

DiNapoli Leads Investor Group Urging Olympic Corporate Sponsors to Speak Out for Russian LGBT Rights

New York State Comptroller Thomas P. DiNapoli announced on Thursday, December 5, 2013 that the $160.7 billion New York State Common Retirement Fund, leading a coalition of investors with $327 billion of assets under management, has sent lettersto ten major corporate sponsors of the upcoming Winter Olympic Games in Sochi, Russia urging the sponsors to use their influence to ensure the human rights of Russian citizens, as well as athletes and visitors to the Olympics.

DiNapoli to Audit Hate Crime Reporting in New York State

The Office of the State Comptroller is auditing the Division of Criminal Justice Services’ oversight and management of hate crime reporting across the state, State Comptroller Thomas P. DiNapoli announced Friday, December 6, 2013.

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Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been terminated from the position

Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been  terminated from the position

2013 NY Slip Op 08022, Appellate Division, First Department

Judge Michael D. Stallman, Supreme Court, New York County, denied the petition filed by Individual, a former probationary employee, seeking to annul employer’s decision terminating Individual’s employment as a probationer and so noting the individual's personnel file notwithstanding Individual's having earlier resigned from the position.

The Appellate Division affirmed Judge Stallman’s decision, explaining that “As a probationary employee, [Individual] was subject to termination "at any time and for any reason, unless [Individual] establishe[d] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith." Here, said the court, Individual failed to meet her burden of proof of demonstrating such an impermissible reason for her termination.

Individual had also contended that the employer had terminated her employment occurred after the effective date of her resignation which demonstrated “bad faith” of the part of the employer. The Appellate Division disagreed, noting that despite her resignation, there was still a possibility that Individual could return to work in the future, and thus her resignation was not irrevocable, citing Folta v Sobol, 210 AD2d 857.

In Folta an employee resigned while the adjudication of disciplinary charges filed against the employee pursuant to Education Law §3020-a were pending. The Hearing Panel, nevertheless, proceeded to render its decision, finding the employee guilty and recommending that he be dismissed from his position, which finding and recommendation was adopted by the appointing authority and made part of the individual's personnel file.

The Folta court held that as the individual’s resignation was not irrevocable, it was possible that under the terms of the then applicable collective bargaining agreement and "Chancellor's Regulation §205(25)" the individual could, subject to the approval of the Chancellor, withdraw his resignation and apply for reemployment.

The existence of such a possibility, said the court, provides a valid reason for allowing an Education Law §3020-a hearing to proceed and placing the ultimate decision in the individual's personnel file,

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08022.htm

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Termination follows employee’s refusal to participate in training in a new position

Termination follows employee’s refusal to participate in training in a new position
2013 NY Slip Op 08115, Appellate Division, First Department

Employer filed disciplinary charges against Employee alleging misconduct after Employee refused to comply with orders to participate in training for a new position after being reassigned to a different department and absenting himself from work for more than 11 months. Found guilty of the charges and specifications, Employee was terminated from his position.

The Appellate Division sustained Employer’s action, holding that substantial evidence supported its determination. The court also stated that the penalty imposed, termination, was not so disproportionate to Employee’s offense as to shock its sense of fairness, explaining that the evidence established that Employer’s requirement that Employee participate in processing training was not in excess of its authority.

In addition, the court mentioned that Employee had not observed the rule of "work now, grieve later" and that Employee had failed to show that any exceptions to the rule applied in Employee’s situation, citing Ferreri v New York State Thruway Authority, 62 NY2d 855.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08115.htm
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Transgender client of New York City's HIV/AIDS Service Administration sue after agency refused to change its records to reflect her legal name and change of gender

Transgender client of New York City's HIV/AIDS Service Administration sues after agency refused to change its records to reflect her legal name and change of gender

Doe v City of New York, 2013 NY Slip Op 23403, Supreme Court, New York County 

A transgender female client of the New York City Human Resources Administration's (HRA) HIV/AIDS Services Administration (HASA) sued HASA after her request that HASA update its records to reflect her legal name change and change of gender information and provide her with a benefits card to reflect this was denied.

Supreme Court Judge Margaret A. Chan ruled that, accepting the allegations as true for the purposes of HASA’s motion to dismiss Doe’s action, HASA’s purposeful use of masculine pronouns in addressing plaintiff, who "presented as female" and the insistence that she sign a document with her birth name despite the court-issued name change order is laden with discriminatory intent. 

The court, rejecting HASA's motion to dismiss Doe's complaint, said that HASA employees knew of Doe's "convertive surgery" and yet did not treat her accordingly or appropriately and thus Doe has sufficiently stated a cause of action.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_23403.htm
 

Powers of the arbitrator set out in a collective bargaining agreement may not be enlarged without the informed agreement of the parties

Powers of the arbitrator set out in a collective bargaining agreement may not be enlarged without the informed agreement of the parties

Town of Babylon v Carson, 2013 NY Slip Op 07980, Appellate Division, Second Department

In this Article 75 action, the Appellate Division reversed a Supreme Court ruling that vacated an arbitration award that provided a lesser penalty than the penalty imposed by the appointing authority, granting the union’s motion to confirm the arbitration award.

Following a “workplace incident,” the Town of Babylon told one of its employees [Employee] that she was suspended without pay for up to 30 days, pending a disciplinary hearing on four charges of alleged misconduct. The hearing officer sustained all four charges and recommended that Employee be suspended for 30 days without pay and placed on probation for a period of six months.

Employee’s union filed a grievance and demand for arbitration. At the initial meeting of the parties the arbitrator stated that "the first item of business is to stipulate the issue." The Town's attorney and the union’s attorney agreed that the issue to be determined was:

1. Was there just cause to suspend [Employee] for 30 days and to impose a six-month probationary period for her conduct …and 30-day suspension is without pay? and

2. Was progressive discipline considered when imposing that sanction?

3. And if not, what shall the remedy be?

The parties then proceeded with the arbitration. Ultimately the arbitrator concluded that the hearing officer properly determined that although there was just cause to impose a penalty upon Employee, the Town did not apply the principles of progressive discipline.

Accordingly, the arbitrator concluded that the imposition of a less severe disciplinary penalty was warranted and directed that 10 days' pay be restored to Employee, and that the term of probation be reduced to three months.

The Town filed a petition pursuant to Article 75 of the CPLR seeking to vacate so much of the arbitration award as reduced the penalty imposed upon Employee by the Town while the union and Employee cross-petitioned to confirm the arbitration award providing for a lesser penalty..

Supreme Court decided that, "notwithstanding the restrictive language of the [collective bargaining agreement] which would seem to preclude the arbitrator from reducing a penalty absent a finding that the discipline imposed was not for just cause,'" it was "evident from the terms of the parties' submission to the arbitrator that the parties intended to confer a broader authority on him." The Supreme Court then denied the Town’s the petition and granting the cross petition.

The Appellate Division commenced its review of the Supreme Court’s ruling by noting that "Judicial review of an arbitrator's award is extremely limited" and that a court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) "only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Further, said the court, “A party can only waive its contention that an arbitrator acted in excess of his or her power ‘by participating in the arbitration with full knowledge’ of the alleged error that is being committed and ‘by failing to object until after the award’ is issued.”

Citing Article X(E)(6) of the collective bargaining agreement [CBA] between the parties, which provided that "[t]he arbitrator shall have the power to restore any fine, any penalty including loss of vacation or personal days, reinstate any discharged employee, with or without back pay or remove any written reprimand in the event he [or she] finds the discipline imposed was not for just cause", the Appellate Division decided that the Town had not consented to the arbitrator having authority to modify the penalty imposed upon Employee in the event that he made a finding that the Town had just cause to discipline her.

The Appellate Division, noting that at the beginning of the arbitration, the issue to be determined was defined as whether there was just cause to punish Employee and, "if not," what the remedy should be, explained that “As framed in this manner, the issue to be determined by the arbitrator was in accordance with his powers, as set forth in Article X(E)(6) of the CBA, which only empowered the arbitrator to provide [Employee] with a remedy upon a finding that the imposition of discipline was not founded on just cause.

As the arbitrator found that there was just cause for the discipline imposed, the Appellate Division held that the arbitrator had exceeded his authority in reducing the penalty imposed. Further, said the court, “Contrary to the contention of the Union and [Employee], the stipulation that the arbitrator would determine whether the hearing officer had considered progressive discipline in the course of imposing the initial penalty upon [Employee] did not confer upon the arbitrator an independent power to reduce the penalty imposed.”

Commenting that the record reflects that the Town did not participate in the arbitration with full knowledge that the arbitrator intended to render a determination in excess of the powers set forth in the CBA, the Appellate Division ruled that that “Supreme Court erred in denying the petition to vacate so much of the arbitration award as reduced the penalty imposed upon [Employee] and erred in granting the cross petition of [Employee] and the Union to confirm the award.”

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07980.htm

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Automatic termination of certain NYC Emergency Medical Service employees violating the Department’s zero drug tolerance policy not subject to collective bargaining

Automatic termination of certain NYC Emergency Medical Service employees violating the Department’s zero drug tolerance policy not subject to collective bargaining
Roberts v New York City Off. of Collective Collective Bargaining, 2013 NY Slip Op 07870, Appellate Division, First Department

The issue raised in this appeal was whether the New York City Fire Department’s policy of "zero tolerance" regarding the use of illegal drug that required automatic termination of certain emergency medical services [EMS] employees who fail or refuse to provide a specimen for a drug test is subject to mandatory collective bargaining.

The New York City Board of Collective Bargaining decided that this policy was not subject to collective bargaining under the Taylor Law [Civil Service Law Article 14].

The Appellate Division upheld the Board’s determination, explaining that [1] “the City Charter provides that the discipline of these EMS employees is the sole province of the New York City Fire Commissioner” and [2] “the Fire Department's determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety.”

Initially the Department’s “no illegal drug” policy did not always result in the termination of EMS workers who tested positive for drugs and in some instances “first-time offenders could avoid termination, in the discretion of FDNY on a case-by-case basis, if they sought counseling and treatment.”

However in May 2007 the Department implemented a new alcohol and drug testing policy for EMS workers which imposed a "zero tolerance" for illegal drug use, and provided that “EMS workers who test positive for illegal drugs, or who refuse to provide a specimen, shall be terminated for a first offense.” However, the policy also provided that EMS workers with a drug problem who voluntarily come forward could avail themselves of counseling services without any disciplinary consequences.

The Union representing EMTs and paramedics filed an improper practice petition alleging that the Department had violated the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-301 et seq.) by unilaterally implementing the termination provision without first bargaining in good faith with the unions. The Department contended that the termination provision was not a substantive change in policy and, in any event, was not subject to mandatory collective bargaining.

Although the Board found that the new policy deviated from the earlier policy, which allowed for some exercise of discretion in deciding whether offenders should be offered alternative dispositions, including counseling and rehabilitation, it ruled that the new automatic termination provision was within management's right to take disciplinary action against its employees, and thus was outside the scope of mandatory bargaining.

The Appellate Division said that while “[t]here is no question that New York has a strong policy of supporting collective bargaining, and a presumption exists that all terms and conditions of employment are subject to mandatory bargaining,” this presumption can be overcome where there exists clear legislative intent to remove an issue from mandatory bargaining

Citing Matter of Patrolmen's Benevolent Assn., 6 NY3d at 563, the Appellate Division noted that the Court of Appeals held that “police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials.”

Subsequently the Court of Appeals ruled that “the triggers and methodology for testing city police officers for drugs are matters within the Police Commissioner's disciplinary authority and thus excluded from collective bargaining as a matter of policy” [Matter of the City of New York v Patrolmen’s Benevolent Asso., 14 NY3d 465.

The Appellate Division held that these two decisions by the Court of Appeals “mandate a conclusion that [Department’s] implementation of a policy of terminating EMS workers after failing or refusing to take a drug test is not subject to collective bargaining” as New York City Charter §487(a) gives the Fire Commissioner the "sole and exclusive power" to "perform all duties for the government, discipline, management, maintenance and direction of the fire department."

The policy of deterring illegal drug use by EMS workers is just as crucial as the policy of preventing police officers from using prohibited drugs and the Department “has a substantial and compelling interest in ensuring that workers responsible for the well-being and transportation of injured and sick citizens are free from the effects of illegal drugs.”

The Appellate Division also noted that the Court of Appeals has ruled that a public employer “cannot be compelled to bargain over ‘inherent and fundamental policy decisions relating to the primary mission of the public employer," citing Matter of New York City Tr. Auth., 19 NY3d 876.

Because the determination of the appropriate penalty for drug use by EMS workers goes directly to the Department’s core mission and involves public safety, and because specific legislation vests disciplinary authority over such matters with the Fire Commissioner, this issue is removed altogether from the sphere of collective bargaining.

The Union has also contended that the Department’s automatic termination policy “interferes with EMS workers' procedural due process rights to have an administrative law judge or arbitrator determine the appropriate penalty”

The Appellate Division disagreed, noting that the employee’s due process rights “were not abrogated completely by the challenged policy because they still are entitled to a hearing on any charges arising from drug testing, and to appeal any finding of guilt.” Further, said the court, the Union’s primary position that penalties for specific offenses must always be collectively bargained is a position that is at odds with both the City Charter and controlling Court of Appeals precedent.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07870.htm
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Moreland Commission to Investigate Public Corruption Releases Preliminary Report

Moreland Commission to Investigate Public Corruption Releases Preliminary Report

Source: Press Office, Moreland Commission

On December 2, 2013 the Moreland Commission to Investigate Public Corruption announced its findings and recommendations. The Commission was charged by Governor Cuomo on July 2, 2013 to probe systemic public corruption and the appearance of such corruption in state government, political campaigns and elections in New York State. The report today reflects the findings of the Commission and makes recommendations to toughen and improve existing laws and procedures.

Commission's Preliminary report recommends Campaign Finance Reform, Independent Election Law Enforcement Agency, New Laws and Tougher Penalties, and New Disclosure Rules.

The Commission specifically investigated the effectiveness of New York’s campaign finance laws, the management and affairs of the State Board of Elections, the weaknesses of laws relating to lobbying, conflicts of interest, public ethics, the use of tax-exempt organizations to influence public policy and elections, and the strength and effectiveness of our criminal laws with respect to public corruption and abuses of public trust.

The preliminary report is divided into four areas that the Commission has focused on thus far in its investigation: campaign finance, enforcement at the Board of Elections, the adequacy of current laws for effectively prosecuting corruption and outside income of legislators and legislative discretionary funding.

The Commission’s preliminary report is posted on the Internet at:

http://publiccorruption.moreland.ny.gov/sites/default/files/moreland_report_final.pdf

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 30, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 30, 2013

Click on text highlighted in color  to access the full report  

Comptroller DiNapoli School Audits Municipal Audits

On November 27, 2013 New York State Comptroller Thomas P. DiNapoli announced his office completed audits of

the Middleburgh Central School District and

the Tapestry Charter School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on November 27, 2013 announced his office completed audits of

the Afton Fire District;

the Town of Babylon;

the City of Newburgh;

the Town of Salina;

the Stanley Fire District;

the Summit Fire District; and

the Westford Fire District.


"The (Untapped) Carbon Conundrum" Joint Op–Ed by Comptroller DiNapoli and CALPERS CEO Stausboll

New York State Comptroller Thomas P. DiNapoli and CALPERS CEO Anne Stausboll have published a joint op–edon The Huffington Post entitled, “The (Untapped) Carbon Conundrum” which details why a consortium of over 70 leading institutional investors asked 45 of the world’s largest fossil fuel companies to assess how their business plans fare in a low–carbon future.

DiNapoli Appoints Catherine Lynch to Pension Investment Advisory Committee

Catherine A. Lynch has been named to the Investment Advisory Committee of the $160.7 billion New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced on Wednesday, November 27, 2013..

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Republican Senate Campaign Committee agrees to cooperate and comply with the Moreland Commission’s investigation

Republican Senate Campaign Committee agrees to cooperate and comply with the Moreland Commission’s investigation

Source: Office of the Governor

On November 27, 2013, Jeremy Creelan, Special Counsel To The Governor and Senior Advisor on Ethics issued the following statement:

“The Republican Senate Campaign Committee has agreed to cooperate and comply with the Moreland Commission’s investigation. They join the Democratic Assembly Campaign Committee, which had previously agreed to comply. The Governor believes cooperation is by far the preferred course of action, vital to restoring the trust of the people of New York State, whose confidence was rightfully shaken after a slew of indictments in the Legislature last year.

”This cooperation belies the remaining holdouts’ theory justifying their non-compliance; namely separation of powers. If the Moreland Commission, empowered as Deputy Attorneys General, can investigate the Assembly and Senate as a whole for Election Law compliance, they can investigate individual members for the same compliance. Without a credible theory of non-compliance, the public will assume there is something to hide and that hurts everyone.”

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The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor

The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor
Mowry v DiNapoli, 2013 NY Slip Op 07794, Appellate Division, Third Department

John M. Mowry, Esq. served as the attorney for the Mexico Central School District [Mexico CSD] from 1974 until his retirement in 2002. In addition, Mr. Mowry served as the attorney for the Village of Mexico during roughly that same time frame, served as an attorney for other public entities and maintained a private law practice.

In 2010, eight years after his retirement, Mr. Mowry received a letter from the New York State and Local Employees’ Retirement System [ERS] informing him that, based upon a review of his relationship with both the school district and the Village, he had incorrectly been reported as an employee rather than as an independent contractor. Accordingly, said ERS, Mr. Mowry’s salary and credited service were being removed from his records and, as a result, his annual benefit amount had been reduced and he was responsible for certain overpayments and arrears. 

Following an administrative hearing, the Hearing Officer determined that Mr. Mowry failed to sustain his burden of proof that he was an employee of the school district or the Village and denied his application for salary and service credits. The Comptroller accepted the Hearing Officer's findings and conclusions and Mr. Mowry filed an Article 78 petition challenging the Comptroller's decision.

The Appellate Division decided that the Comptroller's determination that Mr. Mowry was not an employee of the Mexico CSD was not supported by substantial evidence, noting that, among other things:

1. The school board routinely engaged in discussions about whether to retain Mr. Mowry's services as an employee or an independent contractor and the board continually chose the former because it was more cost effective for the school district.

2. There was no written contract with Mr. Mowry and the Mexico CSD and the assistant superintendent directed him as to what work needed to be completed and when services were to be performed.

3. The assistant superintendent and school board reviewed Mr. Mowry's work for its sufficiency and the president monitored Mowry's performance and conducted annual performance evaluations.

4. Mr. Mowry was paid every two weeks by paycheck, from which income taxes, Social Security, Medicare and health insurance premiums were deducted, and he received a W-2 form annually.

5. Mr. Mowry’s appointment as an employee of the school district was recognized by the County Department of Civil Service as a "School Attorney" — an exempt position in the Classified Service.

6. Mr. Mowry took an oath of office annually and the school district maintained a personnel file on him.

7. Although Mr. Mowry “did not have set hours,” the assistant superintendent testified that he was available on an as-needed basis and, even if he did not perform work for the school district during a pay period, he would receive a paycheck for that pay period nonetheless.

In contrast, said the court, ERS relied on the testimony of the school district treasurer, who testified that she had no knowledge about how Mr. Mowry received work assignments, the nature of his work duties or his relationship with either the school board or the superintendent, or whether he was ever evaluated. Thus, said the Appellate Division, it could not conclude that the Comptroller's determination with respect to the school district was supported by substantial evidence.

The Appellate Division, however, reach a different result with respect to Mr. Mowry’s employment by the Village of Mexico. The court noted that Mr. Mowry admitted that he served in the capacity of Village Attorney as an independent contractor prior to 1994 and that he was thereafter placed on the payroll pursuant to his request for the sole purpose of accruing retirement benefits. Further, the Village clerk treasurer testified that there was no reason for the change in status other than Mr. Mowry's request and that, other than the fact that his pay was reported to the Retirement System, there was no substantive change in his relationship to the Village.

The court explained that the label assigned by the parties to the employment relationship between them is not determinative of whether an employer-employee relationship or independent contractor status exists. In this instance the Appellate Division said that there was substantial evidence to support the Comptroller's determination that Mr. Mowry was an independent contractor and not an employee of the Village.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07794.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 24, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 24, 2013 Click on text highlighted in color  to access the full report Comptroller DiNapoli Releases Municipal Audits New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of   the Town of Almond; the Town of Big Flats; the Town of Conesus; the Town of Ellenburg; the Town of Ellicott; the Essex County; the Town of Laurens; the Town of Lincoln; the Town of Minetto; the Town of Mount Pleasant; the Town of New Baltimore; the Rush Fire District; the Town of Stanford; the Town of Wawarsing; and  the Village of Woodridge. DiNapoli: State Agency Overtime Tops $462M; Could Hit Record $600M by Year End State agencies spent more than $462 million on overtime in the first nine months of 2013, a jump of $65 million over the same period in 2012, State Comptroller Thomas P. DiNapoli announced Tuesday. DiNapoli Shareholder Resolution Calls on AT&T to Disclose Surveillance Requests The $160.7 billion New York State Common Retirement Fund has filed a shareholder resolution at AT&T Inc. asking the company to disclose how often and what consumer information it has shared with U.S. or foreign governments, New York State Comptroller Thomas P. DiNapoli announced Wednesday. The resolution will be voted on at the company’s 2014 annual meeting scheduled for late April. New York State Common Retirement Fund’s Marjorie Tsang Named Woman of the Year Marjorie Tsang, director of strategic research and solutions for the New York State Common Retirement Fund, received the Woman of the Year Award from New York Women Executives in Real Estate (WX). The award was presented at WX’s annual gala on Thursday night following an introduction by New York State Comptroller Thomas P. DiNapoli. DiNapoli: Audit Reveals Fiscal Stress in City of Fulton The city of Fulton has spent down its rainy day funds to dangerously low levels, leaving city officials little cushion to manage unforeseen expenses, according to an audit released Friday by State Comptroller Thomas P DiNapoli. Earlier this year, DiNapoli’s fiscal stress monitoring system identified the city as one of nine communities in “moderate stress.” NYS Common Retirement Fund Announces Second Quarter Results The New York State Common Retirement Fund’s estimated rate of return for the second quarter ending September 30, 2013 was 4.61 percent, increasing the Fund’s value to an estimated $160.4 billion, according to New York State Comptroller Thomas P. DiNapoli. DiNapoli: Tax Collections Slightly Above Projections Tax collections increased $2.7 billion, or 7.6 percent, to $38.6 billion through Oct. 31 compared to the same period last year, but total receipts were $133.6 million below the Division of the Budget’s most recent projections, according to the October cash reportreleased Friday by New York State Comptroller Thomas P. DiNapoli.

New York State Department of Labor regulations concerning unemployment insurance applications amended

New York State Department of Labor regulations concerning unemployment insurance applications amended

Source: Sharon Berlin, Esq., Chair, Employment Relations Committee, NYSBA Municipal Law Section

Ms. Berlin advises that the New York State Department of Labor has amended its regulations addressing processing unemployment applications, 12 NYCRR 472.12.

Section 472.12, among other things, sets out:

1. The deadline for an employer to respond to a DOL request for employee information (which now may be shorter than 10 calendar days);

2. The methods by which the DOL can communicate requests for information (which include letter, electronic communication, fax, the State Information Data Exchange System (SIDES), mail, private delivery service, phone or any other DOL approved method);

3. New criteria regarding the adequacy of the contents of an employer’s response; and

4. Sets out potential consequences of an untimely or inadequate response, which include that the employer’s account may be charged for an overpayment even for the first untimely response unless the employer provides good cause for the failure. The DOL is given the authority to relieve an employer of charges that are the result of a DOL error or a disaster emergency as declared by the Governor.

Ms. Berlin notes that the employer’s response will be deemed received by the DOL on the date indicated by the date stamp on an incoming document.

Ms. Berlin, a partner at Lamb and Barnosky, LLP, may be reached via e-mail at: snb@lambbarnosky.com
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Educator disciplined after making statements such as "hey, baby," "how you doing baby?," and "you good baby" to underage female student

Educator disciplined after making statements such as "hey, baby," "how you doing baby?," and "you good baby" to underage female student

2013 NY Slip Op 07811, Appellate Division, First Department

A disciplinary arbitrator found a male teacher [Teacher] guilty of violating the Chancellor of the New York Department of Education’s Regulation A-421 by making statements such as "hey, baby," "how you doing baby?," and "you good baby" on multiple occasions to his underage female student. The penalty imposed by the arbitrator: a fine in the amount of $1,500 to be withdrawn in equal installments from Teacher's paychecks over a twelve month period.

Although the New York City Department of Education has sought to have Teacher terminated from his position, the arbitrator declined terminating the employee and imposed the $1,500 fine instead.

Teacher file an Article 75 petition in Supreme Court seeking a court order vacating and annulling the arbitration award. Supreme Court dismissed Teacher’s petition.

The Appellate Division, affirming the dismissal of Teacher’s petition by the Supreme Court, ruled that the penalty imposed was “not so excessive and disproportionate to the offense as to be shocking to one's sense of fairness.”

The court also noted that the arbitrator had explicitly found [1] the student’ testimony credible and [2] the Teacher’s testimony to be not credible and [3] that determinations of a hearing officer involving the credibility of a witness are "largely unreviewable.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07811.htm
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Transcript of employer’s interview with police officers introduced as evidence at an administrative disciplinary hearing.

Transcript of employer’s interview with police officers introduced as evidence at an administrative disciplinary hearing.

OATH Index No. 2316/13

The New York City Fire Department filed disciplinary charges against a firefighter after he was arrested for criminal possession of cocaine, contending that the firefighter had engaged in conduct that brought reproach or reflected discredit on the Department.

In the course of the hearing the Department introduced into evidence transcripts of the Fire Department’s interviews of the arresting officers. The firefighter objected, contending that this action constituted “an end-run around the sealing of criminal records” as they were derived from police reports and records that were sealed at the conclusion of the criminal proceeding against him, which criminal action was dismissed.

Noting that “the interviews were conducted a day before the records were sealed in the criminal proceedings,” OATH Administrative Law Judge Astrid B. Gloade denied the firefighter’s objection, explaining that OATH “has declined to preclude evidence prepared by agency investigators that contained references to or summaries of information culled from subsequently sealed police records where the investigators obtained that information prior to entry of a sealing order.”

Judge Gloade said that the interviews fell within the purview of material gathered by the Department in the course of preparing a disciplinary case and were not prepared by or for a criminal investigation or prosecution.” Accordingly, said Judge Gloade, the interview transcripts were not official records subject to seal under the Criminal Procedure Law.

Finding that the firefighter guilty of having possessed cocaine, Judge Gloade recommended termination as the penalty.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2316.pdf

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Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct

Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct

OATH Index #2272/13

A Human Resources Administration public benefits fraud investigator pled guilty to federal charges for fraudulently obtaining Section 8 housing benefits.

The employee had earlier pled guilty in federal court to a felony, admitting that she failed to disclose her HRA employment to HUD and received $62,376 in Section 8 public assistance to which she was not entitled. 

OATH Administrative Law Judge Alessandra F. Zorgniotti ruled that pursuant to the doctrine of collateral estoppel, the employee’s guilty plea conclusively establishes the underlying facts of the criminal charge of federally funded program fraud.

The decision notes that the disciplinary charges of misconduct were amended to include the employee’s guilty plea.

Noting that Mayoral Executive Order No. 105 Section 5(b) mandates dismissal of an employee who commits a crime that either involves moral turpitude or bears on the employee’s fitness to perform his job, unless compelling mitigating circumstances exist, the Judge Zorgniotti said that “[I]ntentional fraud and theft of government benefits are crimes of moral turpitude that invariably lead to termination of employment,” and that defrauding HUD is an act of moral turpitude.”

Further, the ALJ said that “Not only is respondent’s crime one of moral turpitude, it bears directly on her fitness to perform the job of a fraud investigator. Respondent engaged in conduct that she is responsible for preventing, namely public assistance fraud.”

Finding that the employee failed to present any mitigating circumstances for her actions. Judge Zorgniotti sustained the disciplinary charges filed against the employee and as the penalty to be imposed, recommended her termination from employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2272.pdf

Pension Board's ignoring a long-standing interpretation of law addressing eligibility for certain retirement benefits ruled arbitrary and capricious

Pension Board's ignoring a long-standing interpretation of law addressing eligibility for certain retirement benefits ruled arbitrary and capricious

Richter v Kelly, 2013 NY Slip Op 07803, Appellate Division, First Department

The New York City Police Pension Fund's Medical Board examined an applicant for Accidental Disability Retirement [ADR], a police surgeon, and certified that this disability was the result of an accidental injury received in the performance of police duty, pursuant to General Municipal Law §207-k, the so-called Heart Bill. 

§207-k provides that in the event of an impairment of health is caused by a diseases of the heart that results “in total or partial disability or death to a paid member of the uniformed force of a paid police department or fire department who successfully passed a physical examination on entry into the service of such respective department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

The Board of Trustees of the Police Pension Fund, however, reversing a policy established by years of practice and internal memoranda, denied the police surgeon’s application on the ground that the Heart Bill did not apply to a police surgeon.

The Appellate Division, however, annulled the Board's decision and affirmed  a Supreme Court decision granting the police surgeon’s application for ADR benefits pursuant to.§207-k.

The court noted that in 1993 the City’s Assistant Corporation Counsel had written to the Pensions Section that the Corporation Counsel’s office “has interpreted the Heart Bill to apply to police surgeons.”

Rejecting Board's arguments is support of its claim that the Heart Bill did not apply to police surgeons, the Appellate Division said that “neither the title of General Municipal Law §207-k ("Disabilities of policemen and firemen in certain cities") nor the reference in the statute to ‘police officers’ creates ambiguity as to whether the statute applies to police surgeons.” Further, said the court, the Board did not show that a literal reading of the statute would frustrate its purpose.

Accordingly, the Appellate Division ruled that the Board was bound by the Medical Board's determination of regarding the police surgeon’s disability and cannot now seek "clarification" of the Medical Board's determination, explaining that in the absence of credible medical evidence that police surgeons disabling heart condition was not related to her service as a police surgeon, the Board’s determination to deny her ADR benefits under the Heart Bill lacks a rational basis and is arbitrary and capricious.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07803.htm
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